Surendra Mahto vs State Of Bihar

SURENDRA MAHTO ..... APPELLANT

VERSUS

STATE OF BIHAR ..... RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

Ranjo Devi the deceased left her husband's village to

meet her parents on the 13th of December, 2001 along with

her husband the appellant herein. As the two reached

the market place in village Sakmohan at about 2:00p.m.,

her husband stopped to rest for a while. Ranjo Devi

also met her mother in the market place and they were

soon joined by her husband. The two then decided to

return home and while they were on their way, they met

Manoj Kumar Pandit a friend of her husband in village

Karak Pethia. Manoj Kumar Pandit bought some kachari

and he along with her husband ate the same and then went

to the village nearby to have some liquor. At about

Crl.A. No. 211 of 2009 2

5:00a.m. Ranjo Devi asked her husband to move along as

home was some distance away but he replied that he would

stay at the house of his friend Manoj Kumar. Manoj

Kumar, however, left for his residence followed by Ranjo

Devi and her husband. As the two reached near the

railway crossing in the south of village Karaka the

appellant asked her to have intercourse with him and

despite her objections that they should not indulge in

any such activity in the open he forced himself upon

her. The two thereafter proceeded towards village Aka

Bishanpur i.e. the village of Manoj Kumar Pandit who

also met them just outside the village. The three,

accordingly, went on together. After sometime the

appellant expressed the necessity of attending to the

call of nature. Ranjo Devi told the appellant that she

would sit on the embankment with Manoj but the

appellant told her to come to the river bank. She was

thereafter forcibly undressed by the appellant and after

he had shut her mouth he called out to Manoj Kumar

Pandit to come running towards him. She was thereafter

sexually assaulted by the appellant followed by Manoj

Kumar Pandit. Manoj Kumar Pandit thereafter tied her

hands with a plastic rope whereas the appellant took out

a knife and gave three blows on her neck with the

intention of killing her. She was thereafter thrown

Crl.A. No. 211 of 2009 3

into the river so that she might drown. The appellant

as well as Manoj Kumar Pandit thereafter moved away

whereafter Ranjo Devi who was still alive, managed to

get out of the water to reach the toddy shop close by.

The toddy shop owner P.W. 2 and her husband P.W. 3

thereafter gave her some clothes and also took her to a

local doctor and informed the police station as well.

Ranjo Devi's statement was recorded in village Desai

Chowk at about 9:30p.m. on the 13th of December, 2001 in

which she gave the details mentioned above and further

stated that the appellant had sought to get rid of her

as he was having an affair with a girl in Delhi. Ranjo

Devi was first taken to the Primary Health Centre and

thereafter to the Samastipur District Hospital for

treatment. She then returned to the Primary Health

Centre and then moved on to her parents' home where she

died on the 18th of December, 1991. The inquest

proceedings with respect to the death were subsequently

held and the dead body was sent for its post mortem

examination. The doctor found that she had died due to

Scepticemia as a result of the injuries suffered by her.

The two accused i.e. the appellant before us and Manoj

Kumar Pandit were also arrested and ultimately were

charged for offences punishable under Section 302/34 IPC

whereas Manoj Kumar Pandit was charged for the offence

Crl.A. No. 211 of 2009 4

punishable under Section 376 IPC as well.

2. The prosecution in support of its case relied

primarily on the dying declaration of the deceased Ranjo

Devi which formed the basis of the FIR as also the

evidence of P.Ws. 2 and 3 who supported the prosecution

case insofar as the injury suffered by her at the hands

of the two accused was concerned but disowned their

statements under Section 161 of the Code of Criminal

Procedure with respect to the allegations of rape. P.Ws.

7 and 9, the parents of the deceased, also proved the

dying declaration that had been made to them by their

daughter and which was in the same terms as the FIR.

Some of the other witnesses who had been identified by

the prosecution were also declared hostile. The trial

court relying on the dying declarations, partly on the

statements of P.Ws 2 and 3 as also on the statements of

P.Ws. 7 and 9 convicted both the accused for the

offences under Section 302/34 and Manoj Kumar Panda for

the offence under Section 376 of the IPC as well. Manoj

Kumar Panda was awarded two sentences of life

imprisonment for the two offences. The trial court

however, relying on a string of cases and in particular

on Bachan Singh's case held that the balance sheet with

respect to the nature of the incident was heavily

Crl.A. No. 211 of 2009 5

weighted against the accused appellant Surender Mahto

inasmuch that he had been instrumental in killing his

wife in a particularly inhuman and gruesome manner and

had, accordingly, betrayed the trust between a husband

and wife and that he had also been instrumental in

exposing her to rape by his co-accused and that the

motive was also reprehensible as he had wanted to get

rid of her in order to marry his friend in Delhi. The

trial court finally held that the murder fell in the

rarest of rare category. A sentence of death was,

accordingly, awarded to the appellant. The matter was

referred to the High Court for the confirmation of the

death sentence and an appeal was also filed by the

appellant. The High Court has confirmed the conviction

and sentence awarded by the trial court. It appears to

be the conceded position that Manoj Kumar Panda, the co-

accused, filed no appeal in the High Court. The present

appeal has been filed by Surender Mahto alone.

3. We have gone through the evidence with the help of

the learned counsel. We see that no fault can be found

in the conviction of the appellant in the light of the

dying declarations, the evidence of P.Ws. 2, 3, 7 and 9

as supported by the medical evidence. The deceased had

made two dying declarations the first one to the police

Crl.A. No. 211 of 2009 6

which led to the registration of the First Information

Report and the second to her parents.

4. Much argument has been raised by the learned

counsel for the parties as to whether the death sentence

in such a matter should be maintained or not. It is

true that the incident is a truly reprehensible one.

The facts have been set out above and need not be

reiterated, but we notice that as the appellant was a

young man 30 years of age at the time of the incident,

there is a possibility that he may at some stage of his

life have a reformation in his character. We are also

told that the appellant has a young daughter from his

late wife and that the child is presently being looked

after by her maternal grand mother. We are cognizant of

the fact that each of these factors taken up

individually would not perhaps be sufficient to call for

a commutation of the sentence awarded but, if

cumulatively taken, some extenuation in the sentence is

called for. At the same time, keeping in view the

gravity of the offence we think that the award of a life

sentence simplicitor would not meet the ends of justice.

We, accordingly, feel that the death sentence should be

commuted to life but the sentence of imprisonment for

life would extend to the full life of the appellant

Crl.A. No. 211 of 2009 7

subject to the statutory and constitutional powers of

the State Government and the Governor insofar as

remission and commutation etc. are concerned. We make

an order in the above terms.

The appeal is disposed of.

.........................J [HARJIT SINGH BEDI]

.........................J [GYAN SUDHA MISRA]

NEW DELHI JULY 26, 2011.