W.P. (Crl.) No. 17 of 2011. Case: Kusumbala Tarun Das Vs Union of India & Ors.. Guwahati High Court
| Case Number | W.P. (Crl.) No. 17 of 2011 |
| Counsel | For Appellant: Mr. A.K. Bhattacharjee, Sr. Advocate, Mr. A.C. Borbora, Mrs. R. Borbora, Ms. N. Sarma, Mr. U. Choudhury, Mr. M. Smith & Mr. D.K. Bhattacharjee, Advs. And For Respondents: Mr. R. Sharma, ASG, Mr. R.K. Bora, GA & Mr. B.D. Konwar, Advs. |
| Judges | Iqbal Ahmed Ansari & H. Baruah, JJ. |
| Issue | Prisons Act, 1894 - Section 30(2); Indian Penal Code - Sections 302, 324, 448; Code of Criminal Procedure (CrPC), 1973 - Sections 303, 304, 320(4), 330(2), 335(1), 339, 384, 385, 386; Constitution of India - Articles 14, 21, 32, 39, 72, 161, 226; Code of Civil Procedure (CPC) - Order 32 |
| Citation | 2011 (6) GLR 536, 2011 (4) GLT 481 |
| Judgement Date | September 08, 2011 |
| Court | Guwahati High Court |
Judgment:
I. A. Ansari, J.
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With the help of this writ petition, made under Article 226 of the Constitution of India, the petitioner, being mother of the convict, who stands sentenced to death and whose mercy petition also stands rejected by the President, has put to challenge the rejection of the mercy petition and she seeks issuance of appropriate writ(s) commanding the respondents to commute the sentence of death into one of imprisonment for a reasonable period of time.
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Before we come to the important issues, which have been raised in this writ petition, it is apposite to correctly take note of the background in which the issues have been raised. For this purpose, the material facts and various stages, which have led to filing of the present writ petition, need to be fully appreciated. With this end in view, the material facts and various stages, leading to this writ petition, are, in brief, set out as under:
(i) The history of the present case is traceable to Bharalumukh Police Station Case No.286/1990. The petitioner's son, Mohendra Das @ Gobinda, came to be arrested, on 25.12.1990, in connection with the said case. On completion of investigation, police laid charge-sheet against the accused under Sections 448/302 IPC. The case, on being committed to the Court of Sessions, came to be registered as Sessions Case No.80 (K)/1996 under Section 302 IPC.
(ii) During trial, when charges under Sections 448 and 302 IPC were framed, the accused pleaded not guilty thereto. The accused was, however, allowed to go on bail on 26.02.1991. The case, which was so registered against the accused, ended in conviction of the accused under Section 302 IPC and the accused was sentenced to suffer imprisonment for life with fine of Rs. 10,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a period of four years. The accused was so convicted and sentenced by judgment and order, dated 12.02.1998, passed, in Sessions Case No.80(K)/1996, by the learned Sessions Judge, Kamrup.
(iii) The accused, while undergoing the sentence of imprisonment for life, as indicated above, preferred an appeal from jail, which came to be registered as Criminal Appeal No. 2(J)/1998. What the prosecution's case, against the accused was, can be best described in the language of the Division Bench of this Court, which had decided the appeal. D. Biswas, J, who spoke for the Division Bench, described the case against the accused as under:
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The incident took place on 24.12.1990 at about 12 noon in the office of the Assam Motor Workers' Union situated at Bharalu-mukh in the city of Guwahati. At the relevant time, deceased Rajen Das, who was then Secretary of the Assam Motor Workers' Union, was taking tea along with Digambar Kalita, Salim Haque Choudhury and Islamuddin Ahmed. The appellant Gobinda Das, an expelled member of the Union, arrived there and had some conversation with Dibambar Kalita. All of a sudden, the appellant slapped a mug of water on the person of Rajen Das and simultaneously, stabbed Raien Das with a dagger. Rajen Das ran out of the office to save himself but the accused followed him to the main road and caused multiple stab injuries on his person. On an alarm being raised by the informant and other onlookers, police from nearby police station came and apprehended the accused. The injured Raien Das was immediately shifted to MMC Hospital, but he succumbed to his injuries on way to the hospital.
(Emphasis supplied)
(iv) As the finding of guilt, reached against the accused under Section 302 IPC, was upheld by the Division Bench, the appeal was dismissed by the judgment and order, dated 12.02.1998, passed in Criminal Appeal No. 2(J)/98, and the conviction of the accused as well as the sentence passed against him were maintained, (v) While accused Gobinda Das was on bail, as indicated above, he came to be arrested in connection with another case, namely, Pan Bazar Police Station Case No. 141/96 under Section 302 IPC. On being committed to the Court of Session, the second case came to be registered as Sessions Case No. 144 (K)/1996 and the same has become basis of this writ petition.
(vi) During trial, charge under Section 302 IPC was framed against the accused, but the accused pleaded not guilty thereto. This trial too ended in conviction of the accused under Section 302 IPC on 18.08.1997 and he was sentenced to death. The learned trial Court succinctly described the case of the prosecution against the accused in the following words:
It was an usual morning hour on the street of the metropolis Guwahati named after the great apostle of peace, Mahatma Gandhi. The day was 24th April, 1996, and the time was around 7 AM. The street has just witnessed a sordid incident of violence. Hara Kanta Das, a truck owner and some others i.e. driver, truck broker etc, were having their morning cup of tea on the corner tea stall of FD Road and Chamber Road. They were standing on the road side sipping their tea and having their usual conversation. Suddenly, accused Mahendra Das alias Gobinda Das, a young man aged about 33 years, arrived at the scene with sword like weapon and butchered Hara Kanta Das on the neck. The head was severed from the trunk. The body fell down whereupon accused dealt more blows amputating the right hand also. Thereafter, the accused picked up the severed head of Hara Kanta in one hand and with a blood dripping weapon on the other hand, exile majestically towards Fancy Bazar Police Out Post.
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At the Fancy Bazar Police Out Post, which is under Panbazar Police Station, the sweeper Ratan Rai PW1 was busy in cleaning the premises and while standing on the footpath, this witness saw the accused entering into the outpost. Sepoy Amrit Thakuria (since deceased) and Ratneswar Barman PW2 were on duty. Seeing this bizarre scene, PW1 went and informed the matter to the In-Charge of the TOP Purnanand Baruah (PW10). The accused asked PW2 as to where he should keep the head and the weapon. These were placed at the verandah and thereafter constable Amrit Thakuria arrested the accused. In the meantime, PW10 arrived. He seized the weapon vide seizure list Ext. 1 and held inquest over the head. A GD Entry No.739 was made in the General Diary Registrar maintained in the police station. Ext.1(1) is the relevant entry. There were blood marks on the sporting ganji worn by the accused. The same was seized vide seizure list Ext.3. Thereafter, on being led by the accused. PW10 came to the place of occurrence and found a headless trunk lying at the place of occurrence. The right hand of the body was also found completely severed. A sketch map was prepared and the police officer conducted separate inquest on the trunk and the severed hand. The hand was brought from the PS and after assembling the entire body another inquest was made. The dead body was sent for post mortem examination and the seized weapon and sporting ganji were sent Forensic Science Laboratory, who found human blood on material Ext 1 and 2. After collection of the reports and after completion of investigation, charge-sheet under Section 302 IPC was submitted against the accused.
[Emphasis supplied]
(vii) Aggrieved by his conviction and the sentence of death passed against him, the accused preferred an appeal from jail, which gave rise to Criminal Appeal No.254 (J)/1997. As the accused stood sentenced to death, a Death Reference too came to be registered, the reference being Death Reference No. 2/1997.
(viii) Before proceeding further, we may also take note of the manner in which the gruesome second occurrence of murder was described by a Division Bench of this Court in the appeal. The description reads as under;
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The occurrence took place around 7 or 7.30 in the morning on 24.4.1996. The place of occurrence is Chamber Road, Fancy Bazar in Guwahati. It is alleged that the accused. Mahendra Das (a). Gobinda Das came with a sword like weapon and butchered one Hara Kanta Das chopping off his neck. The head was severed from the neck. Hara Kanta was assaulted, he fell to the ground whereupon the accused still persisted in dealing more blows, amputating his right hand also. Thereafter, the accused picked up the severed head of Hara Kanta by one hand with blood dripping weapon in the other and proceeded to nearby police Outpost situated in Fancy Bazar. There is a small tea stall patronized by truck drivers, oleaners, handimen who invariably used to take tea at this stall. Even at the time of occurrence, some of them had been standing around the tea stall. The accused entered the police outpost shouting the slogan "joy Assam". He was asked by the police constable too keep aside the severed head and the weapon. On being asked the accused declared his name as Mahendra Nath Das. Constrable Amrit Thakuria (since deceased) asked Ratneswar Barman PW2 to arrest the accused, which he accordingly did. Almost simultaneously, the matter was telephonically reported to Panbazar Police Station. On receiving information, PW10 arrived at the outpost, he seized the dao, as per exhibit 1 and the blood stained cloths (underwear) of the accused as per exhibit-3. In the meanwhile, a report exhibit 4 was lodged at Panbazar Police Station. On the basis of this report, a case under Section 302 IPC was registered and taken under investigation. On completion of investigation, the accused was charged and tried for the above offence, his defence at the time of trial as can be gathered from his statement as recognized u/s 313 Cr.PC was one of plain denial, at the same time adding that the trial was vitiated on account of refusal of bail. The trial Court, however, found him guilty and sentenced him, as already noted above, hence this appeal, and the connected death reference.
[Emphasis supplied]
(ix) By judgment and order, dated 03.02.1998, this High Court dismissed the appeal, maintained the conviction of the accused and also the sentence of death passed against him. The Death Reference...
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