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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 194 OF 2008
Bhaikon @ Bakul Borah .... Appellant(s)
Versus
State of Assam .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal is filed against the judgment and order
dated 26.09.2006 passed by the Division Bench of the
Gauhati High Court in Criminal Death Reference No. 1 of
2006 along with Criminal Appeal No. 67 of 2006 whereby the
High Court disposed of the appeal preferred by the
appellant-herein by confirming his conviction and altering
the sentence of death to imprisonment for life passed by the
Court of Ad-hoc Additional Sessions Judge, Lakhimpur at
North Lakhimpur dated 18.03.2006 in Sessions Case No.
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40(NL) 03 for the offence punishable under Sections 302 and
307 of the Indian Penal Code, 1860 (in short ‘IPC’).
2) Brief facts:
(a) As per the prosecution case, on 29.03.2000, at around
12 noon, one Rupamoni Dutta (the deceased), aged about
22 years, r/o Mauza Talwa, Village Kakattiup, PS Lakhimpur,
Assam went to the field near an embankment to attend her
goats. When she did not return home, Ganesh Dutta (PW-2),
father of the deceased, went in search for her. After
enquiring about her daughter in the house of his elder
brother, Khira Dutta, PW-2 started searching for her along
the embankment. While returning, he heard a loud laughter
at the farm house of the appellant-accused. Thereafter, he
returned home and called for his daughter but when he
found that she did not return, he again went to the
embankment and shouted for her. On hearing this, the
appellant came out of the farm house and looked at him.
Then, PW-2 came down the embankment by a path where he
saw his daughter lying dead on the left side. There was cut
injury on her chin and blood was also oozing from her body.
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(b) On seeing this, he raised alarm and his son - Bhaba
Kanta (PW-3) came there and they tried to lift her. By that
time, other people from the village also gathered there. The
appellant-accused also came and enquired. Thereafter, they
brought home the dead body. On being informed, Anand
Ozah, Sub-Inspector of Police, Panigaon Police Outpost, came
and seized the wearing apparels of the deceased and
prepared a seizure list. After holding inquest over the dead
body, the same was sent for post-mortem examination.
(c) On the same day, PW-3, brother of the deceased,
lodged a written complaint with the police at Panigaon police
out-post. A case was registered vide G.D. Entry No. 389, at
North Lakhimpur P.S. During the course of investigation, the
police seized the underwear of the deceased stained with
semen on that very day. The appellant-accused Bhaikon @
Bakul Bora and Balin Saikia (PW-1) were also apprehended
and interrogated.
(d) On 30.03.2000, at about 9.30 a.m., the police alleged
to have seized a blue underwear of the appellant-accused
suspected to have been stained with semen. They also
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seized one bed sheet, a sporting and a ‘dao’ from the farm
house of the appellant-accused and prepared a seizure list.
The seized underwears of both the appellant and the
deceased were sent to FSL for examination. The post
mortem was conducted on the dead body by Dr. Tulen Pagu
(PW-9), who submitted a report stating that the victim died
of asphyxia as a result of throttling. He also stated that the
vaginal smear showed no spermatozoa.
(e) On 31.03.2000, the Magistrate recorded the statement
of PW-1 under Section 164 of the Code of Criminal
Procedure, 1973 (in short ‘the Code). After conclusion of the
investigation, the police submitted charge-sheet against the
appellant-accused under Sections 376 and 302 of the IPC.
The case was committed to the Court of Ad-hoc Additional
Session Judge, Lakhimpur and numbered as Sessions Case
No. 40 (NL) of 2003.
(f) The Additional Sessions Judge, Lakhimpur, by order
dated 18.03.2006, convicted the appellant under Sections
376 and 302 of IPC and sentenced him to death for the
offence punishable under Section 302 of IPC and rigorous
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imprisonment (RI) for life for the offence punishable under
Section 376 of IPC along with a fine of Rs. 10,000/-, in
default, to further undergo RI for a period of 1 (one) year.
(g) Challenging the order of conviction and sentence, the
appellant preferred Criminal Appeal No. 67 of 2006 and the
trial Court preferred Death Reference No. 1 of 2006 before
the High Court.
(h) By impugned judgment dated 26.09.2006, the High
Court disposed of the appeal preferred by the appellantaccused by confirming his conviction and altering the
sentence of death to imprisonment for life for the
commission of offence punishable under Section 302 of IPC
along with a fine of Rs.1,000/-, in default, to further undergo
imprisonment for 1 (one) month and for the offence under
Section 376 of IPC, the High Court sentenced him to
imprisonment for 7 years.
(i) Being aggrieved, the appellant preferred this appeal by
way of special leave petition before this Court and leave was
granted on 18.01.2008.
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3) Heard Mr. Parmanand Katara, learned senior counsel
appearing for the appellant-accused and Mr. Navnit Kumar,
learned counsel appearing for the respondent-State.
4) Mr. Katara, learned senior counsel for the appellantaccused, raised the following contentions:-
(i) Since the evidence of PW-1 is not reliable, the
conviction and sentence based upon his sole testimony
cannot be sustained.
(ii) Inasmuch as the High Court has modified the death
sentence into imprisonment for life, after expiry of the period
of 14 years, the authorities ought to have released the
appellant.
5) Mr. Navnit Kumar, learned counsel for the State, after
taking us through the entire material relied on by the
prosecution submitted that the evidence of PW-1, who
witnessed the occurrence is reliable and is corroborated by
PW-2, father of the deceased and the doctor (PW-9), who
conducted the post mortem. He also submitted that
inasmuch as the sentence of death was commuted to
imprisonment for life, there cannot be automatic release
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after the expiry of the period of 14 years as claimed by the
appellant-accused.
6) We have carefully considered the rival contentions and
perused all the relevant materials.
7) Let us deal with the first contention raised by learned
senior counsel for the appellant. It is not in dispute that the
appellant was charged for the offence punishable under
Sections 376 and 302 of the IPC. In other words, according
to the prosecution, the appellant along with another person
committed rape and, thereafter, murdered the deceased.
The entire prosecution case rests on the solitary evidence of
the eye-witness PW-1. According to PW-1, the accusedappellant engaged him as a labourer in his farm house and
all along he was working under compulsion. Regarding the
incident, he narrated that the incident took place about 4
years ago. He further deposed that on the date of
occurrence, he saw the appellant-accused and his friend
following the deceased and on seeing the same, he also
followed them and saw that the appellant-accused and his
companion behaving indecently with the girl, committed
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rape on her and, thereafter, the appellant-accused assaulted
the girl by throttling her neck. He further noticed that
because of the acts of the appellant-accused, the girl died on
the spot and he also noticed that the appellant-accused
along with the accomplice dragged her to the nearby place
surrounded by shrubs and bushes and left the body there.
Thereafter, the appellant-accused returned home and PW-1
went to the wheat field in order to show that he was busy in
attending the goats. He also explained that since both them
were having ‘Khukri’ in their hands, he did not raise alarm
out of fear. Though PW-1 remained silent, after 2 hours,
when PW-2, father of the victim, raised a commotion at the
place of occurrence, the appellant-accused also came there
and saw the dead body of the girl. The conduct of PW-1, in
view of the above, cannot be doubted because of refusal on
his part to open his mouth in the presence of his master.
Even the trial Court found him trustworthy that he had
nothing to falsely implicate his master and rightly held him
to be a reliable witness. Further, the evidence of PW-1
clearly shows that he was forced to work in the house of the
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appellant-accused. The fact that he was working in the
house of the appellant-accused was admitted by him in his
statement under Section 313 of the Code. There is no
reason to disbelieve the version of PW-1, who is an
independent eye-witness to the incident.
8) The next witness relied on by the prosecution is Ganesh
Dutta–father of the victim who was examined as PW-2. In
his evidence, he explained that his daughter went to the
field to attend the goats but she did not return. He further
narrated that when he went in search of her, he found her
lying dead with injury on the neck.
9) The prosecution has also relied on the evidence of two
brothers of the deceased viz., Bhaba Kanta Dutta as PW-3
and Mahendra Dutta as PW-4 who also corroborated the
statement made by PW-2. Apart from the above evidence,
the co-villagers, viz., PWs 7 and 8 were also examined who
deposed that they had seen the dead body of the deceased.
10) The other evidence relied on by the prosecution is of
the doctor (PW-9) who conducted the post mortem. He
noted the following injuries:-
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“ A dead body of an average built, female, rigor mortis
present.
1. A cut injury over lower part of the chin, size
3”x1”x1/2”.
2. Lower part of the mandibular bone was cut at the
side of injury size 2”x1/4”x1/4”.
3. Bruise mark over middle part of the front of the right
side of the back size 11/2”x1”.
4. Bruise mark in the middle of the front of the left side
of the neck size 21/2”x11/2”.
5. Trachea fractured at the level of the bruise marks.
6. Multiple bruises on left side of the neck overlying
each other.
Heart was healthy containing dark fluid blood, left side
empty.
Above injuries (in No. 1) were ante mortem in nature.
Injury Nos. 1 and 2 were caused by sharp cutting weapon.
Injury Nos. 3, 4, 5 and 6 caused by blunt weapon. Vaginal
smear show no spermatozoa. Smear was taken
immediately and the pathologist examined the
sample/smear on 01.04.2000. Uterus non-gravid. (No sign
of pregnancy).
In my opinion, the person died of asphyxia as result of
throttling.”
PW-9, in his evidence has stated that no mark of sexual
violence was found on the genital organs of the body.
11) Learned senior counsel for the appellant, by drawing
our attention to the remarks of PW-9 that there was no mark
of injury on the genital organs of the body of the deceased
contended that conviction under Section 376 of IPC is
unsustainable. In the light of overwhelming materials placed
by the prosecution, we are unable to accept the said
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contention. As rightly observed by the trial Court and the
High Court, there is no reason to disbelieve the version of
PW-1 and the corroborative evidence of PW-2, father of the
deceased. In the same way, the injuries noted by PW-9 also
support the prosecution story though he has noted that
there was no sign of injury on the genital organs of the
deceased.
12) Taking note of oral and documentary evidence led in by
the prosecution, particularly, the evidence of PWs 1, 2 and 9
as well as the statement of co-villagers, we agree with the
conclusion arrived at by the trial Court and affirmed by the
High Court regarding the death of Rupamoni Dutta and
reject the claim made by learned senior counsel for the
appellant-accused.
13) Coming to the second contention, it is not in dispute
that considering the heinous crime of committing rape and
murder and throwing the dead body in a place surrounded
by bushes and shrubs, the trial Court has awarded the
sentence of death, however, the High Court, taking note of
the fact that the accused is a young man of 33 years of age
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and also finding that the case does not come under the
purview of the “rarest of rare” category, declined to confirm
the sentence of death and altered the same to the
imprisonment for life while upholding the conviction under
both the counts.
14) Mr. Katara, learned senior counsel for the appellantaccused, by taking us through various sections of the Penal
Code viz., Sections 121, 121A, 122, 128, 131, 194, 224 and
238 and the sentences which the Court of Magistrates,
Sessions Judges and High Courts may pass and also some of
the sections which mention life imprisonment as maximum
punishment or imprisonment of either description for a term
which may extend to 10 years or lesser than 10 years
contended that when statute provides imprisonment for life
for an offence and in alternative imprisonment for a term
which may extend to 10 years, in that case, incarceration of
14 years should be held sufficient and the appellant is
entitled to be released on that ground. After hearing his
arguments patiently and noting the same, we are of the view
that the case on hand relates to commuting the sentence of
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death into imprisonment for life and all the contentions
raised by learned senior counsel relating to the sentence are
unacceptable or irrelevant.
15) This Court, in a series of decisions has held that life
imprisonment means imprisonment for whole of life subject
to the remission power granted under Articles 72 and 161 of
the Constitution of India. [Vide Life Convict @ Khoka
Prasanta Sen vs. B.K. Srivastava & Ors. (2013) 3 SCC
425, Mohinder Singh vs. State of Punjab, (2013) 3 SCC
294, Sangeet and Anr. vs. State of Haryana (2013) 2
SCC 452, Rameshbhai Chandubhai Rathod (2) vs. State
of Gujarat (2011) 2 SCC 764, Chhote Lal vs. State of
Madhya Pradesh (2011) 8 SCR 239, Mulla and Another
vs. State of Uttar Pradesh (2010) 3 SCC 508, Maru Ram
vs. Union of India & Ors. (1981) 1 SCC 107, State of
Madhya Pradesh vs. Ratan Singh & Others (1976) 3 SCC
470 and Gopal Vinayak Godse vs. State of Maharashtra
AIR 1961 SC 600].
16) In view of the clear decisions over decades, the
argument of learned senior counsel for the appellant-
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accused is unsustainable, at the same time, we are not
restricting the power of executive as provided in the
Constitution of India. For adequate reasons, it is for the said
authorities to exercise their power in an appropriate case.
17) It is also relevant to point out that when death sentence
is commuted to imprisonment for life by the Appellate Court,
the concerned Government is permitted to exercise its
executive power of remission cautiously, taking note of the
gravity of the offence. [Vide Swami Shraddananda (2) @
Murli Manohar Mishra vs. State of Karnataka (2008) 13
SCC 767 and Sahib Hussain @ Sahib Jan vs. State of
Rajasthan 2013 (6) Scale 219.
18) In view of the categorical and consistent decisions of
this Court on the point, we are unable to accept the
argument of learned senior counsel for the appellantaccused.
19) Learned senior counsel for the appellant also placed
reliance on a decision of this Court in Writ Petition (Crl.) No.
34 of 2009 dated 07.09.2009 wherein the order passed by
the Governor of the State of Uttar Pradesh for release on
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remission of the petitioners therein was set aside by a
Division Bench of the High Court of Allahabad and the same
was challenged before this Court by way of a writ petition.
It
was also pointed in the above said writ petition that a
number of convicts who had undergone actual sentence of
14 years were directed to be released forthwith by this Court
in SLP (Crl.) No. 553 of 2006 dated 09.05.2006.
This Court,
following the same, issued a similar order in the said writ
petition for the release of the petitioners therein.
As stated
earlier, the case on hand relates to commuting the sentence
of death into imprisonment for life and we have already
preserved the right of the executive for ordering remission
taking note of the gravity of the offence.
Hence, the said
decision is not helpful to the facts of this case and the
contention of learned senior counsel is liable to be rejected.
20) In the light of the above discussion, we do not find any
valid ground for interference, on the other hand, we are in
entire agreement with the conclusion arrived at by the High
Court, consequently, the appeal is dismissed.
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………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MAY 3, 2013.
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