The confirmation of the death sentence in cases of heinous crimes and the consideration of aggravating and mitigating circumstances in sentencing.

P.G. Agarwal, J.

1. Criminal Death Reference No. 2/2003 and Criminal Appeal No. 5(J)/2003 have arisen out of the judgment and order, dated 5-5-2003, passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 47(A)/1999 whereby the accused Holiram Bordoloi was convicted under Sections302/148/436/326 read with Section 149, IPC and sentenced to death.

2. The reference has been made under Section 366, Cr.P.C. and the accused-appellant has filed the appeal from jail. Both the matters are heard analogously and disposed of by this common judgment and order.

3. Learned public prosecutor was absent, when the matters were called for hearing.

4. We have heard Mr. Probin Mahanta, learned amicus curiae, appearing for the accused-appellant.

5. The incident took place on 26-11-1996. GR Case No. 731/1996 was registered and the police submitted charge-sheet against as in any as 18 accused persons. The present accused-appellant could not be apprehended during investigation and the charge-sheet was laid by the police showing him as absconder and, later on, the Court also declared him as absconder and evidence against him was recorded under Section 299, Cr.P.C. During trial, another accused was also found absconding. The trial in Sessions Case No. 47/1999 was concluded and the accused persons were convicted and sentenced accordingly vide order, dated 29-8-2002. We have been informed at the Bar that no. appear has been preferred against the said order.

6. Subsequently, the present accused-appellant, Holiram Bordoloi, was apprehended and; thereafter, charges under Sections 147/148/436/302/326/448, IPC read with Section 149, IPC were framed against him. During trial, the prosecution examined as many as 10 witnesses and, on conclusion of the trial, the accused-appellant was convicted and sentenced as aforesaid.

7. The prosecution's allegation, in short, is that on the previous night of the incident, there was pelting of stones on the house of Narayan Bordoloi and the wall of the house, which was made of bamboo and plastered with mud, was damaged. On the fateful day, in the morning hours, the accused persons armed with deadly weapons and led by accused-appellant, Holiram Bordoloi, came to the scene of occurrence, when PW-1 (Budheswari Bordoloi), her husband, Narayan, brother-in-law, Padum, son, Nayanmani, aged about 6 years, daughter Chitralekha, aged about 8 years, and another son Nabin, aged about 16 years, were inside the house. The house was bolted from outside and, thereafter, set on fire. The young boy, Nayanmani, managed to, somehow, come out of the burning house, but the accused persons caught hold of him and threw him back into the burning house, PW-1 Budheswari, PW-3 Nabin and PW-4 Chitralekha, however, succeeded in making good their escape, but PW-3 Nabin was assaulted by one of the members of the group and PW-1 and PW-4 sustained burn injuries. In the said fire, Narayan and his son, Nayanmani, died as a result of burn injuries. The miscreants, thereafter, picked up Nagarmal, brother of deceased Narayan, and hacked him to death in front of the house of the accused-appellant, Holiram.

8. In the present case, there is oral as well as medical evidence on record regarding the death of Narayan, Nayanmanl and Nagarmal. Inquest was conducted by the Investigating Officer, namely, PW-9 (Prabodh Saikia). Exhibits 5, 11 and 12 are the inquest reports and Exhibits 1, 2 and 3 a post-mortem reports, which were brought on record through PW-5 (Dr. Madhab Chandra Dutta). It may be mentioned that post-mortem examination was conducted by Dr. Ranjit Kumar Barkataky, but due to demise of said Dr. Barkataky, PW-5 Dr. Madhab Chandra Dutta, who was acquainted with the hand-writing and signature of Dr. Barkataky, has deposed before the Court and proved the post-mortem reports. We also find that the medical evidence of PW-5 has not been challenged by way of cross-examination.

9. The post-mortem reports reveal as follows :

(1) NAYANMANI BORDOLOI

A completely b