Not A Rarest Of Rare Case | Calcutta HC Commutes Death Penalty Of Mentally Ill Man Who Beheaded Grandmother Alleging Witchcraft
Sanchayita Lahkar
The High Court of Calcutta Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi commuted a death sentence imposed by a Trial Court to life imprisonment, stating that the case did not fall under the category of ‘rarest of rare cases.’ The Bench observed that the convict’s mental condition, socio-economic background, absence of criminal antecedents, and conduct in custody warranted reconsideration of the sentence imposed.
The court concluded that the convict was not beyond reformation and that life imprisonment would be a sufficient punishment. After analyzing medical, psychological, and socio-economic reports, the Bench held, "we are not in a position to return a definite finding that the appellant/convict is beyond reformation."
While upholding the conviction for the offence under Section 302 of the Indian Penal Code, the Bench refused to confirm the death sentence, modifying it to life imprisonment. The judgment directed the authorities to update their records accordingly and extended the benefit of set-off for the period already undergone by the convict.
The appeal and death reference arose out of the judgment dated May 2, 2023, and sentence dated May 3, 2023, passed by the Additional Sessions Judge, 1st Court, Jhargram, in Sessions Trial No. 11(6) of 2018, which originated from Sessions Case No. 01(09) of 2017. The Trial Court had convicted the appellant under Section 302 IPC and awarded the death penalty. Other accused persons, namely Mihir Bera, Kabita Bera, and Nandalal Bera, were acquitted.
The prosecution case was initiated upon a written complaint by Arati Bera, who alleged that on February 9, 2017, at approximately 6:30 PM, the appellant forcibly dragged her mother, Tarubala Bera, from her house to a Shiv temple, where he beheaded her using a sharp weapon. She further claimed that the appellant returned home dancing with the severed head and the weapon, before disappearing.
Based on the complaint, a case was registered at Sankrail Police Station under Sections 302 and 201 of the Indian Penal Code. Upon investigation, a chargesheet was filed under Sections 302, 201, 34, and 120B IPC against the appellant and others. Charges were framed on June 29, 2018, to which the accused pleaded not guilty.
The prosecution examined 18 witnesses and introduced multiple documentary and material exhibits. The de facto complainant, Arati Bera, testified as PW1. She narrated that the appellant, along with his parents, forcibly took her mother to a nearby Kali temple, made her bow before the idol, and then beheaded her with a sharp cutting weapon. PW1 claimed to have witnessed the incident and confirmed that she lodged the complaint and provided thumb impressions on police documents and seizure lists.
PW2, the victim’s husband, corroborated PW1’s account. He testified that upon hearing the commotion, he rushed to the temple and saw the appellant carrying the severed head of his wife while the headless body lay on the ground.
PW3, the de facto complainant’s husband, also testified as an eyewitness. He described how the appellant tied the victim’s hands and asked her to bow. When she complied, the appellant used a sharp weapon to decapitate her. He confirmed the inquest and seizure procedures.
Several other prosecution witnesses (PWs 4 to 18) provided supporting evidence including police procedures, seizures, and post mortem reports. PW13, the autopsy surgeon, confirmed that the death was caused due to decapitation with a sharp cutting weapon and opined that the head and torso belonged to the same person.
The defense argued that there were material contradictions in the testimonies of PW1 and PW3 and that these were interested witnesses. The absence of independent witnesses and the non-examination of certain seizure witnesses were also raised. Further, the recovery of the weapon allegedly based on the appellant's statement under Section 27 of the Indian Evidence Act was questioned due to lack of formal proof.
Two prosecution witnesses (PWs 11 and 12) retracted their earlier statements and claimed they were coerced into testifying by the police. They were not declared hostile. The defense relied on their testimonies.
Psychological, medical, and socio-economic reports were also submitted during the appellate proceedings. These indicated that the appellant was 28 years old, had no criminal antecedents, and had exhibited good conduct in custody. Reports further noted a history of mental illness following a fall from a bus, which often rendered him violent and required restraint.
The court observed that "from the evidence of the aforesaid witnesses, it is quite convincingly established that the victim was forcibly dragged out of her house and taken to Kali temple. She was made to bow down and the appellant struck on the back of her neck by a sharp cutting weapon resulting in unnatural death of the victim."
Regarding the testimonies of PWs 1, 2, and 3, the court recorded that while there may be minor contradictions, "such contradictions do not tell upon the trustworthiness of the prosecution case." It added that the defense had failed to "dislodge the evidence of aforesaid witnesses in so far as it refers to forcibly taking the victim to the temple and striking her with a sharp cutting weapon."
The medical evidence by PW13 was considered crucial. The court noted, "The nature of injuries is quite consistent with the nature of incident narrated by such witnesses. He opined that the death was caused due to decapitation of head. He also opined that such injury might be caused by a heavy sharp cutting weapon."
On the issue of recovery of the offending weapon, the court stated that "no statement leading to recovery, was proved at the trial to bring such recovery under the provisions of Section 27 of Indian Evidence Act, 1872." The court cited Raja Naykar v. State of Chhattisgarh [(2024) 3 SCC 481], and explained that unless the statement leading to the recovery is proved and refers to a fact exclusively within the accused’s knowledge, it is not admissible.
Regarding the non-hostile witnesses PW11 and PW12, who retracted their statements, the court noted that their testimonies were not sufficient to discredit the prosecution, especially when the eyewitness testimonies of PW1 and PW3 were consistent. It referred to Raja Ram v. State of Rajasthan [(2005) 5 SCC 272], stating that "the defense is entitled to rely upon the evidence of such witnesses" but the overall weight of evidence remained against the appellant.
In reviewing the appropriateness of the death sentence, the court referred to Manoj and Ors. v. State of Madhya Pradesh [(2023) 2 SCC 353], quoting: "Mitigating factors... seek to explain the surrounding circumstances of the criminal to enable the Judge to decide between the death penalty or life imprisonment."
The court cited the need for reports on factors including age, socio-economic background, mental illness, and prison conduct. In this case, it recorded, "the appellant has no criminal antecedent and his conduct in the correctional home was normal. He was found physically fit but mentally depressed."
The court also noted that "he had suffered a fall from the roof of bus resulting in his mental illness which often turns violent for which the family had to keep him detained." It concluded, "we are not in a position to return a definite finding that the appellant/convict is beyond reformation."
The court held: "In the light of discussions hereinbefore, we are of the opinion that in the facts and circumstances of the present case, imprisonment for life would be sufficient punishment instead of death penalty. We are not minded to confirm the death sentence awarded by the learned trial court. We accordingly commute the death sentence, imposed upon the appellant, into one of life imprisonment."
It further directed that: "Death Reference No. 2 of 2023 along with the appeal being C.R.A. (DB) 169 of 2023, are disposed of accordingly."
The judgment mandated: "A copy of this judgment along with the Trial Court records be remitted to the appropriate Trial Court forthwith."
It continued: "In view of the commutation of the death penalty of Radahkanta Bera, any warrant issued by the appropriate Court with regard thereto in respect of Radahkanta Bera stands modified in terms of this judgment and order."
The court instructed: "Department will inform the Correctional Home, where the appellant is lodged, as to this judgment and order. The Correctional Home will record the fact of commutation of death penalty to the sentence awarded by this judgment and order in respect of Radahkanta Bera, in their records."
Finally, it was stated: "Period of detention already undergone by the appellant shall be set off against the substantive punishment in terms of the provisions contained in Section 428 of the Code of Criminal Procedure."
Advocates Representing the Parties:
For the Appellant: Mr. Sourav Chatterjee, Senior Advocate with Mr. Soumya Nag, Advocate
For the Respondent: Mr. Debasish Roy, Learned Public Prosecutor with Mr. Rudradipta Nandy, Advocate and Ms. Amita Gaur, Advocate
Case Title: The State of West Bengal v. Radha Kanta Bera
Case Number: Death Reference No. 02 of 2023 with Criminal Appeal (DB) No. 169 of 2023
Bench: Justice Debangsu Basak and Justice Md. Shabbar Rashidi
