Bordoloi Vs. State of Assam  Insc 232 (8 April 2005)
Balakrishnan & B.N. Srikrishna K.G. Balakrishnan, J.
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.
appellant challenges his conviction and sentence in this appeal.
occurrence took place in the morning of 26.11.1996.
Narayan Bordoloi along with his wife and three children were staying in a hut
within the jurisdiction of Boribazar Outpost.
date of the incident, the appellant Holiram Bordoloi along with seventeen
others came near the house of Narayan Bordoloi.
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.
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.
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.
Bordoloi was caught and dragged to the courtyard of Holiram, where the
appellant cut him into pieces.
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
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
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.
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.
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
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.
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.
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.
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:
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.
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:
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." Further, this Court also laid
down circumstances, which could be considered as aggravating circumstances.
These circumstances are as follows:
(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 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:
(1) That the offence was committed under the influence of extreme mental or
The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
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.
That in the facts and circumstances of the case the accused believed that he
was morally justified in committing the offence.
That the accused acted under the duress or domination of another person.
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 extreme penalty
of death was commuted to rigorous imprisonment for life. This court while doing
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
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
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
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.
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:
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 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;
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.
abovementioned circumstances which we consider as mitigating circumstances, in
our opinion, outweigh the aggravating circumstances as found by the courts
below." 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.
present case the aggravating circumstances against the accused are :
is a case of cold-blooded murder;
accused was leading the gang;
The victims did not provoke or contribute to the incident;
victims were burnt to death by locking the house from outside;
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;
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;
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;
entire incident was pre-planned by the accused-appellant Holiram.
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.
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 v. State of Bihar, (2002) 6 SCC 686 by the counsel.
case was also decided in view of its peculiar facts.
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.
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.
result, the appeal is dismissed. The interim stay of execution of the sentence