SUPREME COURT OF INDIA
Holiram Bordoloi
Vs
State of Assam
Criminal Appeal No. 1063 of 2004
(K.G.Balakrishnan and B.N.Srikrishna)
08/04/2005
K.G. BALAKRISHNAN, J.
1. 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.
2. 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 seventh 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 - 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 well 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. Nagarmol Bordoloi was caught
and dragged to the courtyard of Holiram, where the appellant cut him into
pieces.
3. 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 sons 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.
4. 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.
5. 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. 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.
6. 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. #
7. 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.
8. In Bachan Singh vs. State of Punjab, , 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 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 vs. 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 Ediqa Anamma vs. 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."
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..."
*
9. Further, this Court also laid down circumstances, which could be considered
as aggravating circumstances. These circumstances are as follows:
"202... (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 –
(i) which such member or public servant was on duty;
or
(ii) In consequence of anything done or attempted to by 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." *
10. 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 dominating 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." *
11. The counsel for the appellant referred to the case of Ashok Kumar Pandey
vs. State of Delhi, , in which the extreme penalty of death was committed
to rigorous imprisonment for life. This court while doing so held:
"11. Reference in this connection may be made to the Constitution Bench
decision of this court in the case of Bachan Singh vs. State of Punjab (1980) 2
SCC 684, as well as, following the same, the three-Judge Bench decision of this
Court in Machhi Singh vs. 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 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." *
12. 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.
13. The counsel also referred to Ram Pal vs. State of U.P. , 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 victim's family
were being prosecuted. On facts and circumstances of this case, we 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.." *
14. 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.
15. 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.
16. 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. #
17. 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 his contention, reference was made to Ram
Anup Singh and others vs. State of Bihar, 7
by the counsel.
18. 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.
19. In the result, the appeal is dismissed. The interim stay of execution of
the sentence is vacated.