2005 Supreme(SC) 605

2005(3) Supreme 232
Supreme Court of India
(From Gauhati High Court)
K.G. Balakrishnan & B.N. Srikrishna, JJ.
Holiram Bordoloi —Appellant
versus
State of Assam —Respondent
Criminal Appeal No. 1063 of 2004
Decided on 8-4-2005
Counsel for the Parties :
For the Appellant : Sadasiva Reddy, Advocate (A.C.).
For the Respondent : Sidharth Luthra, V.K. Sidharthan and Ms. Rajni Gupta, Advocates for M/s. Corporate Law Group, Advocates.­

Important point
Where accused committed murder of two victims by getting them trapped in hut which was put on fire and catching hold of third victim and cut him into pieces in broad day light and there was no mitigating circumstance in his favour, death sentence awarded by Courts would not call for interference.

Headnote:(i) Indian Penal Code, 1860—Section 302 r/w 149—Appellant with seventeen other accused armed with weapons lathi dao, jathi, jong etc. came to hut of deceased, tied door of hut from outside and set the hut on fire—PW1, wife of deceased and PW2 came out of hut having sustained injuries but two victims, husband and six year old son of PW1 were burnt on spot—Third deceased was caught and cut into pieces—Conviction on testimony of eye witnesses—Appeal—Contradiction like some witness stating time of occurrence to be 9.30 a.m. and other stating it to be 11 a.m. etc. would not affect credibility of witnesses—No reason to disagree with findings entered by trial Court and affirmed by High Court. (Paras 4 to 6)

       (ii) Indian Penal Code, 1860—Section 302—Death sentence—Appellant with seventeen other accused armed with weapons came to hut of deceased tied door from outside and set the hut on fire—Husband and six year old son of PW1 who were inside the hut were burnt dead on spot—Deceased child though managed to come out of hut was caught and thrown into the fire—Third victim was caught and cut into pieces—Death sentence awarded by trial Court and affirmed by High Court—Appeal—Guidelines to be borne in mind by Courts while considering question of awarding sentence—Circumstances to be considered aggravating and mitigating—No mitigating circumstances in favour of appellant—Nothing to show that there was repentance by accused at any point of time or an explanation for occurrence—No spark of any kindness or compassion and mind of appel­lant was brutal wherein entire incident would have shocked the collective conscience of community—Death penalty called for no interference.

       Held : 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. (Paras 15 and 16)

       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. (Para 18)