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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  appellant-

accused  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  appellant-

accused, 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  accused-

appellant 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 appellant-

accused, 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  appellant-

accused.

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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