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CASE NO.: Appeal (crl.)  1063 of 2004

PETITIONER: Holiram Bordoloi

RESPONDENT: State of Assam

DATE OF JUDGMENT: 08/04/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       The appellant was one of the accused in a case registered by  Boribazar Outpost in Assam.  Originally, there were seventeen  accused.  Three accused,  including the appellant were absconding  and  apprehended later.  Fourteen accused persons were tried by  the Sessions Judge, Morigaon in Sessions Case No. 47/99  and  they were all found guilty of various offences.  The case of the  present appellant was put up and  numbered as  47A/99 and  tried  separately.  The appellant was found guilty of the  offences   punishable under Sections 147, 148, 436, 326 and 302 read with  Section 149.  For the main offence under Section 302 read with  Section 149, he was awarded the capital punishment by the  Sessions Judge.  The appellant filed an appeal before the High  Court of Assam at Gauhati, and there was also a Reference against  the death penalty imposed on the appellant.  The appeal and the  Reference were disposed of by a common judgment and  the death  penalty imposed on the appellant was confirmed by the High Court.   The appellant challenges his conviction and sentence in this appeal.

       The occurrence took place in the morning of 26.11.1996.   Deceased Narayan Bordoloi along with his wife and three children  were staying in a hut within the jurisdiction of Boribazar Outpost.   On the date of the incident, the appellant Holiram Bordoloi along  with seventeen others came near the house of Narayan Bordoloi.   Appellant Holiram and the other accused were armed with ‘lathi’,  ‘dao’, ‘jathi’, ‘jong’ and various other weapons.  On seeing  Holiram and others, Narayan Bordoloi and his brother Padam  Bordoloi  went  inside  the house and remained there.  Six year old  son Nayanmoni, eight year old Chitralekha, sixteen year old Nabid  and Budheshwari \026 wife of Narayan Bordoloi were also in the hut.   The accused persons started pelting stones on the bamboo wall of  the hut.  Then they tied the door from outside and set the hut on  fire.  PW-2 Padam Bordoloi pierced the bamboo wall of the hut  and  escaped.  Nabid also managed to escape from the hut,  though he  sustained injuries.  PW-1 Budheshwari, who had sustained serious  burn injuries but managed to come out from the house fainted.   Narayan Bordoloi and his six year old son Nayanmoni were trapped  inside.  Nayanmoni somehow came out from the hut.   But the  appellant Holiram and another accused person caught hold of him  and threw him into the fire.  Narayan Bordoloi and Nayanmoni  were completely burnt and died on the spot.  Nagarmol Bordoloi,  the elder brother of deceased Narayan Bordoloi  was staying in  another house at some distance from the house of Narayan.  

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Nagarmol Bordoloi was caught and  dragged to the courtyard of  Holiram, where  the appellant cut him into pieces.

       PW-2 Padam Bordoloi went to the police post and gave  the   first information to the police.  The police took over the  investigation and PW-9 Prabodh Saikia conducted the investigation.   The  remnants of  the body of Narayan and Nayanmoni were found  near the Gatak’s house.  The dead body of Nagarmol was  found   near the house of Holiram, the appellant.  The Investigating Officer  recovered the burnt portions of some materials and also a burnt  bicycle was found at the site.  He held  inquest over the dead  bodies and then the dead bodies were sent for post mortem  examination.  On the side of the prosecution, ten witnesses were  examined.  PW-1 Budhi Sen, PW-2 Padam Bordoloi, PW-3 Nayan  Bordoloi and PW-4 Chitralekha  were examined by the prosecution.   They deposed  that the  house of Narayan Bordoloi was burnt and  as a result  Narayan and his son died from burn injuries.  Another  important witness examined is PW-5 Beenapani Bordoloi, the wife  of deceased Nagarmol Bordoloi.  She gave the evidence regarding  the incident  wherein  her husband was assaulted and cut into  pieces by the appellant  and the  other accused.  The Sessions  Judge relied on the evidence of some of these witnesses and found  the appellant guilty.  The High Court confirmed the findings of the  Sessions Court.

       We heard the appellant’s counsel and the counsel for the  State.  The counsel for the appellant submitted that the witnesses  had given  different versions as to the time of occurrence,  which is  stated to be 9.30 a.m. by one witness and 11.00 a.m. by another  witness.  The appellant’s counsel also pointed out certain  contradictions  in the evidence of the eye-witnesses. We do not  think that the contradictions pointed out by the appellant would, in  any way, affect the credibility of these witnesses.  PW-1  Budheshwari deposed that all the accused persons came to her  house and tied the door from outside and set the house on fire, but  these witnesses managed to come out from the house with serious  burn injuries.  She had sustained burns on her right hand and also  on her right shoulder extending to the wrist joint.  She stated that  her husband and son Nayanmoni could not come out and they were  inside the burnt house and on seeing this she fainted and  was  taken to a nearby house where she remained for three days and  thereafter she was sent to Civil Hospital.  PW-2 Padam Bordoloi  deposed that he could identify all the accused,  including the  present appellant.  He stated that when  the fire started on the roof  of the house,  he broke up a corner of the bamboo wall of the hut  and ran away to Boribazar.  He later came to know that Narayan  and his son Nayanmoni died inside the house and his elder brother  Nagarmol Bordoloi was cut into pieces in the courtyard of the  house of Holiram.  PW-3 Nabin Bordoloi deposed that he also  sustained serious burn injuries, but he came out of the house by  breaking a portion of the house and at that time, one of the  accused persons assaulted him and caused a punctured wound on  the left side of his chest.  After half an hour, he was taken to  Nayagaon Hospital.  PW-4 Chitralekha Bordoloi, the daughter of  deceased Narayan  Bordoloi had also given a graphic description of  the incident.  She further stated that when her younger brother  Nayanmoni Bordoloi managed to come out of the house, the  appellant and another accused caught hold of him and threw him  to the fire again.  This witness also sustained serious burn injuries  on her right hand and right thigh.

       The evidence of Beenapani Bordoloi, the wife of deceased  Nagarmol Bordoloi is important to prove the incident wherein  Nagarmol was attacked and killed.  She deposed that on the  previous night also, somebody  had pelted stones at her house.  

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She had  also deposed that  on the day of the occurrence the mob  led by the appellant came to her house and her husband Nagarmol  Bordoloi was dragged from the house.  He  was given a lathi blow  and  then taken to the house of the appellant Holiram, which was  at a distance of half a furlong, where he was cut into pieces by the  accused Holiram and when her deceased husband Nagarmol  requested for water, one of the accused, since dead, urinated on  the face of  Nagarmol.   

       The evidence adduced by the prosecution proves beyond  reasonable doubt the actual involvement of the appellant in this  incident.  We  find  no reason to disagree with the findings entered  in by the Sessions Court as well as the High Court.  The conviction  of the appellant is only to be upheld.

       The next question that arises for consideration is whether the  present case falls in the category of rarest of the rare cases where  the death penalty is to be imposed on the appellant.                 

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684,  this court after considering the validity of the provisions which  empower the court to award death sentence laid down the  following broad guidelines to be borne in mind by the courts while  considering the question of awarding a sentence in cases involving  murder:

"198.  We will first notice some of the aggravating  circumstances which, in the absence of any mitigating  circumstances, have been regarded as an indication for  imposition of the extreme penalty.

199. Pre-planned, calculated, cold-blooded murder has  always been regarded as one of an aggravated kind. In  Jagmohan Singh v. State of U.P., (1973) 1 SCC 20,  it was reiterated by this Court that if a murder is  "diabolically conceived and cruelly executed", it would  justify the imposition of the death penalty on the  murderer. The same principle was substantially  reiterated by V.R. Krishna Iyer, J., speaking for the  bench in Ediga Anamma v. State of A.P., (1974) 4 SCC  443 in these terms:

"The weapons used and the manner of their  use, the horrendous features of the crime and  hapless, helpless state of the victim, and the  like, steel the heart of the law for a sterner  sentence\005"

201.   ..., it is quite clear to us that for making the  choice of punishment or for ascertaining the existence  or absence of "special reasons" in that context, the  court must pay regard both to the crime and the  criminal. What is the relative weight to be given to the  aggravating and mitigating factors, depends on the  facts and circumstances of the particular case. More  often than not, these two aspects are so intertwined  that it is difficult to give a separate treatment to each of  them. This is so because "style is the man". In many  cases, the extremely cruel or beastly manner of the  commission of murder is itself a demonstrated index of  the depraved character of the perpetrator. That is why,  it is not desirable to consider the circumstances of the  crime and the circumstances of the criminal in two  separate watertight compartments\005."

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Further,  this Court also laid down circumstances, which  could be considered as aggravating circumstances. These  circumstances are as follows: "202. \005 (a)   if the murder has been committed after  previous planning and involves extreme brutality; or

(b)   if the murder involves exceptional depravity; or (c)   if the murder is of a member of any of the armed  forces of the Union or of a member of any police force  or of any public servant and was committed \026

(i)which such member or public servant was on  duty; or

(ii) in consequence of anything done or attempted  to be done by such member or public servant in  the lawful discharge of his duty as such member  or public servant whether at the time of murder  he was such member or public servant, as the  case may be, or had ceased to be such member  or public servant; or

(d) if the murder is of a person who had acted in the  lawful discharge of his duty under Section 43 of the  Code of Criminal Procedure, 1973, or who had rendered  assistance to a Magistrate or a police officer demanding  his aid or assistance under Section 37 and Section 129  of the said Code."

Similarly, it also considered the following circumstances as  mitigating circumstances:

"206 (1) That the offence was committed under the  influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or  old, he shall not be sentenced to death.

(3) The probability that the accused would not commit  criminal acts of violence as would constitute a  continuing threat to society.

(4) The probability that the accused can be reformed  and rehabilitated. The State shall by evidence prove  that the accused does not satisfy the Conditions (3) and  (4) above.

(5) That in the facts and circumstances of the case the  accused believed that he was morally justified in  committing the offence.

(6) That the accused acted under the duress or  domination of another person.

(7) That the conditions of the accused showed that he  was mentally defective and that the said defect  impaired his capacity to appreciate the criminality of his  conduct."

                The counsel for the appellant referred to the case of  Ashok  Kumar Pandey v. State of Delhi, (2002) 4 SCC 76, in which the

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extreme penalty of death was commuted to rigorous imprisonment  for life.   This court while doing so held:

       "11. \005. Reference in this connection may be made  to the Constitution Bench decision of this court in the  case of Bachan Singh v. State of Punjab (1980) 2  SCC 684, as well as, following the same, the three- Judge Bench decision of this Court in Machhi Singh v.  State of Punjab (1983) 3 SCC 470. wherein various  circumstances have been enumerated and it was laid  down that if the case squarely falls within its ambit,  only in that eventuality, death penalty can be awarded.  It was observed that in rarest of rare cases when  collective conscience of the community is so shocked  that it will expect the holders of the judicial power  centre to inflict death penalty irrespective of their  personal opinion as regards desirability or otherwise  retaining death penalty, such a penalty can be inflicted.  In the facts and circumstances of the present case, it is  not possible to come to the conclusion that the present  case would fall within the category of rarest of rare one.  Therefore, we are clearly of the opinion that in the  fitness of the things, extreme penalty of death was not  called for and the same is fit to be commuted to life  imprisonment."

       In the above case the conviction was commuted solely taking  into consideration the mitigating circumstances and the peculiar  facts of  that  case and  cannot be applied to the case on hand.

The counsel also referred to Ram Pal v. State of U.P.  (2003) 7 SCC 141, and contended that this court has commuted  the death penalty to that of life imprisonment in a case where the  accused have prematurely terminated the life of twenty-one people  including young children. In this case the court stated the factors  that have to be considered while awarding death penalty and held  that:

"8. Bearing in mind the above broad guidelines laid  down by this Court in the case of Bachan Singh if we  consider the facts of the case, we notice the fact that  the appellant was a party to an incident in which  twenty-one people including young children were  murdered by gunshot injuries or by burning them in  latched houses in itself could be considered as  aggravating circumstances to consider awarding of  death sentence. According to the judgment in Bachan  Singh case then we will have to weigh the same with  any mitigating circumstances that may be available on  the facts of this case. While doing the said exercise of  searching for mitigating circumstances in the present  case, we find that the incident in question was a sequel  to the murder of Bhagwati, a close relative of the  appellant and other principal accused, which was  suspected to have been committed by the members of  the victim’s family. Prior to that, the victims’ family was  accused of having committed the murder of two of the  close relatives of the appellant’s family for which some  of the members of the victims’ family were being  prosecuted. On facts and circumstances of this case, we

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think this circumstance can be treated as a  circumstance which amounts to a provocation from the  victims’ side. We also notice that the role played by the  appellant is somewhat similar to the role played by the  other accused persons who have been given lesser  sentence while the appellant has been awarded death  sentence, that too with the aid of Section 149 IPC;  therefore, a question arises why this appellant should  not be considered on a par with those accused for the  purpose of awarding the sentence. We also notice from  the argument of the learned counsel which is supported  by the material on record, that the specific overt act  attributed to the appellant that he climbed the house of  the informant and threatened to shoot the victims if  they came out of their houses, while the other accused  latched and set the houses on fire seem to be an  afterthought not having been told to the investigating  officer by the witnesses when their statements were  recorded by him. We also notice that the appellant was  not treated by the prosecution itself as the leader of the  gang but was considered to be one amongst other  accused who took part in the incident. The fact that the  accused has spent nearly 17 years in custody after the  incident in question can also be treated as a mitigating  circumstance while considering the question of  sentence.

9. The abovementioned circumstances which we  consider as mitigating circumstances, in our opinion,  outweigh the aggravating circumstances as found by  the courts below\005."

In the above stated case,  the commutation  of sentence was  ordered in the factual circumstances  of that case and it is not  applicable to the present case.  The accused therein was convicted  under Section 302 with the aid of Section 149 IPC and there were  series of mitigating factors.  

In the present case the aggravating circumstances against  the accused are :  (a) this is a case of cold-blooded murder; (b)  the accused was leading the gang; (c) The victims did not provoke  or contribute to the incident; (d) two victims were burnt to death  by locking the house from outside; (e) one of the victims was a  young boy, aged about 6 years, who, somehow, managed to come  out of the burning house, but he was mercilessly thrown back to  the fire by the appellant; (f) the dragging of Nagarmol Bordoloi by  the appellant Holiram to his house and then cutting him into pieces  in broad daylight in the presence of bystanders; (g) the entire  incident took place in the broad daylight and the crime was  committed in the most barbaric manner to deter others from  challenging the supremacy of the appellant in the village; (h) the  entire incident was pre-planned by the accused-appellant Holiram.  

On the other hand, neither the perusal of the evidence on  record nor the statement under Section 313 Criminal Procedure  Code,  provided for any mitigating circumstance in  favour of the  appellant.    It is nowhere claimed that the deceased  had provoked  the accused persons or there was any strong motive for the  commission of the  heinous act. The counsel for the appellant finally contended that the  appellant is not a menace to the society; he can be reformed and a  harsher punishment of death shall not be awarded.  In support of

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his contention, reference was made to Ram Anup Singh and  Others v. State of Bihar, (2002) 6 SCC 686 by the counsel.  

This case was also decided in view of its peculiar facts.   There was a family dispute between the deceased on one hand and  his brother and nephews on the other and also the records show  that there was a chance for reformation and rehabilitation.   But in  the case on hand,  there is nothing to show that there was  repentance by the accused at any point of time or an explanation  for the occurrence.  Even when questioned under Section 235 (2)  of Criminal Procedure Code, the accused stated that he had  nothing to say on the point of sentence.   The fact that the  appellant remained silent  would  show that he has no repentance  for the ghastly act he committed.    The appellant was in service  and he should have been a model to the society as very few people  from his community get opportunity to work in government  service.  But the appellant, instead of setting an example to others,  organized a gang and instigated them to join his heinous activities.    There was no spark of any kindness or compassion and his mind  was brutal and  the entire incident would have certainly shocked  the collective conscience of the community.  We are unable to find   any mitigating circumstance to  refrain from imposing the death  penalty on the appellant.

In the result, the appeal is dismissed.  The interim stay of  execution of the  sentence is vacated.