[REPORTABLE]

   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 869 OF 2006

Uttam Chakraborty                                                        …..Appellant

Vs.

State of Assam                                                            ....Respondent  

WITH

CRIMINAL APPEAL NO. 871 OF 2006

O R D E R

1. This judgment will dispose of Criminal Appeal Nos. 871 and 869 of  

2006.

2. The facts are as under:

The  appellants,  Mission  Suklabaidhya  and  Uttam  Chakraborty  

were friends.  Mission Suklabaidhya, who was a retired Army personnel,  

was married to Gita Das deceased.  The couple had a child Marjon PW-6  

who  was  about  4  or  5  years  old  when  the  incident  happened.   The  

deceased was also pregnant at that time and was carrying a foetus about  

8 months old.  As the deceased was employed as a school teacher, the  

couple had engaged one Panchami Suklabaidya PW-1, aged 16 years, as  

a domestic help, and she resided in the house of the couple.  As per the  

prosecution story, Mission Suklabaidhya and PW-1 developed an illicit  

relationship and when this was discovered by the deceased, there were  

frequent quarrels between the couple.  As per the prosecution story, on

the night intervening the 13th and 14th April  2004 at about 2.00 a.m.  

Radhu  Paul  PW-4,  a  resident  of  Lala  Town,  accompanied  by  4  or  5  

persons  went  to  the  house  of  Nioti  Das  PW-1,  the  mother  of  the  

deceased, situated at Abdullapur, and told her that her daughter had  

fallen ill and asked her to accompany them to the Police Station.  On  

reaching  the  Police  Station,  PW-1  found  Mission  Suklabaidhya  and  

Panchami Suklabaidhya present  there  and learnt  from them that  her  

daughter had died of burn injuries.  She thereupon lodged a FIR at about  

2.30 a.m. to the effect that she had learnt from her son-in-law and PW-1  

that  her  daughter  had died in a fire  caused by kerosene  oil  but  she  

further went on to say that she had been killed by her husband.  During  

the  course  of  the  investigation,  it  transpired  that  accused  Uttam  

Chakraborty  had  also  present  when  the  deceased  had  been  done  to  

death.  The statement of PW-1 was also recorded under Section 164 of  

the  Cr.P.C.  in  which  she  stated  that  both  the  accused  had  been  

responsible  for  the  murder  as  the  deceased  was  objecting  to  her  

relationship with Mission Suklabaidhya accused.   

3. On the completion of the investigation the appellants were brought  

to trial on a charge of murder.  The prosecution relied primarily on the  

evidence of  PW-6 Marjon Suklabaidhya,  who was projected as an eye  

witness  to  what  had  happened  on  the  fateful  day,  PW-1  Panchami  

Suklabaidya aforesaid, PW-2 the Executive Magistrate Manash Das, who  

held an inquest on the dead body and had noticed a huge cut injury on  

Crl. Appeal No.869 of 2006 2

the person of the deceased,  Radhu Paul PW-4 who stated that he had  

seen both the accused involved in an animated discussion in front of his  

shop and when he had gone close to them they had changed the topic  

and had started discussing some business matter and that after a short  

while a girl had come out and raised a hue and cry and told Mission  

Suklabaidhya that his wife had died of burn injuries, Nioti Rani PW-6,  

the mother of the deceased, who deposed to the illicit relationship of her  

son-in-law and PW-1, and PW-7 the doctor,  Khairuz Zaman Choudhary,  

who had carried out the post-mortem examination and had found very  

severe cut injuries on the stomach which indicated that the foetus had  

been removed.   

4. The trial court, on a consideration of the evidence, convicted both  

the accused for the offence punishable under Section 302 of the IPC and  

while  Mission  Suklabaidhya  was  awarded  the  death  penalty,  Uttam  

Chakraborty was ordered to undergo imprisonment for life.  The matter  

was thereafter  referred  to  the  High Court  for  the  confirmation  of  the  

death  sentence  in  Criminal  Death  Reference  No.  4/2005  whereas  

Criminal Appeal No.212/2005 was filed by the accused.  The High Court,  

by the impugned judgment, confirmed the death reference and dismissed  

the  Criminal  Appeal.   While  confirming  reference,  the Division Bench  

considered the aggravating and mitigating circumstances and held that  

the aggravating circumstances far outweighed the mitigating ones.  Two  

appeals have been filed in this Court, Criminal Appeal No.871/2006 by  

Crl. Appeal No.869 of 2006 3

Mission  Suklabaidhya  and  Criminal  Appeal  No.  869/2006  by  Uttam  

Chakraborty.

5. We  have  heard  the  learned  counsel  for  the  parties  and  gone  

through the record very carefully. It is true that the primary evidence  

would have been that of PW-1 Panchami Suklabaidya, a girl 15 or 16  

years of age, and admittedly a domestic help of Mission Suklabaidhya  

and the deceased.  In her statement recorded under Section 164 of the  

Cr.P.C. she supported the prosecution story but while giving evidence as  

PW-1 she resiled therefrom and gave a complete go by to what she had  

said earlier.   In the light of the fact that a statement recorded under  

Section 164 of the Cr.P.C. is not substantive evidence we have to go to  

the other evidence produced in Court by the prosecution.  Both the trial  

court  and  the  High  Court  have  noticed  that  the  only  other  evidence  

against the appellants was the statement of PW-6, a child 4 or 5 years of  

age.  PW-6 did support the prosecution and it is primarily his evidence  

that has led to the conviction of the appellants.  The courts below have  

also found corroboration for the motive in the statement of PW-5 Nioti  

Rani  Das,  the  mother  of  the  deceased,  and  the  very  material  

circumstance that the murder had been committed in the matrimonial  

house  of  the  couple.   We  are,  however,  of  the  opinion  that  

notwithstanding the fact that PW-6 is a witness whose credibility has not  

been  doubted,  it  would  perhaps  be  imprudent  to  award  a  capital  

sentence on the statement of a child witness as observed in Suresh vs.  

Crl. Appeal No.869 of 2006 4

State of U.P. (1981) 2 SCC 569.  While rendering its decision, this is  

what the Court had to say:  

“Children,  in  the first  place,  mix up what  they see with what they like to imagine to have seen and  besides,  a  little  tutoring  is  inevitable  in  their  case  in  order  to  lend  coherence  and  consistency  to  their  disjointed thoughts which tend to stray.  The extreme  sentence cannot seek its main support from evidence of  this kind which, even if true, is not safe enough to act  upon for putting out a life.”

6. This judgment was followed later in Raja Ram Yadav & Ors.  vs.  

State of Bihar (1996) 9 SCC 287  wherein similar observations have  

been made.  We are, therefore, of the opinion that though the conviction  

of Mission Suklabaidhya needs to be maintained, and his crime was truly  

horrendous,  the  death  sentence  awarded  should be  commuted to  life  

imprisonment.  We make an order in the above terms.  Criminal Appeal  

No. 871 of 2006 is disposed of accordingly.   

7. We now take up the case of the appellant Uttam Chakraborty.  We  

find  absolutely  no  evidence  to  connect  him  with  the  murder.   PW-4  

Radhu Paul did state that at about 10/10.30 p.m. on the night of the  

occurrence,  he  had  seen  the  two  accused  discussing  something  with  

each other and while they were doing so, a girl ( that is PW-1) had come  

out shouting and had told Mission Suklabaidhya that his wife had died  

of burn injuries.  We are unable to see how this evidence can connect the  

appellant with the murder.  PW-5, the mother of the deceased, has not  

said a word about his involvement in the incident except that he was a  

Crl. Appeal No.869 of 2006 5

neighbour of  PW-1.   PW-6 did identify  the appellant  in Court  but  he  

apparently  mistook  him  for  Radhu  Paul  PW-4,  as  is  clear  from  his  

statement.   In this  view of  the matter,  we find that  the conviction of  

Uttam  Chakraborty,  appellant  cannot  be  sustained.   We  accordingly  

allow  Criminal  Appeal  No.  869  of  2006,  set  aside  his  conviction and  

sentence and direct that he be set free forthwith, if not wanted in any  

other case.

     ………………………….J. (HARJIT SINGH BEDI)

  ………………………………….. J.

(CHANDRAMAULI KR. PRASAD)                               

APRIL  6, 2010 NEW DELHI.

Crl. Appeal No.869 of 2006 6