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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1323 of 2011

Sujit Biswas

…Appellant

Versus

State of Assam

…Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.

This appeal has been preferred against the judgment and order

dated 23.4.2010, passed by the High Court of Guwahati in Criminal

Appeal No. 13(J) of 2010 rejecting Death Reference No. 1 of 2010

made by the Additional Sessions Judge (FTC), No. 3, Kamrup,

Guwahati on 21.12.2009 in Sessions Case No. 309(K) of 2009,

convicting the appellant under Sections 376(2)(f) and 302 of the

Indian Penal Code, 1860 (hereinafter referred to as `the IPC’),

sentencing him to death. The High Court commuted the death

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sentence of the appellant to life imprisonment, with a direction that

the appellant would breathe his last in jail, and that he would not be

given the benefit of remissions etc. under Sections 432 and 433-A of

the Code of Criminal Procedure, 1973 (hereinafter referred to as the

`Cr.P.C.’).

2.

Facts and circumstances giving rise to this appeal are that:

A.

On 17.10.2007 at about 7.00 P.M., Sultana Begum Khatoon

(PW.8), aged 12 years, was enjoying the celebrations of the festival of

Durga Pooja alongwith her sister Sima Khatoon, aged 3 years, at the

Nepali Mandir, Guwahati. The appellant was alleged to have been

standing behind them at such time. After a shortwhile, Sultana

Begum Khatoon (PW.8) noticed that her sister Sima Khatoon was

missing, and she also happened to notice that the appellant had

disappeared as well. Sultana Begum Khatoon (PW.8) thus began to

look for her sister, and when she could not find her in the nearby

areas, she went back to her house and informed her brother Gulzar Ali

(PW.3) and her parents etc. of the said incident.

B.

Apin Dulal (PW.1) and Gulzar Ali (PW.3) therefore began to

search for Sima Khatoon, and while doing so, they came across the

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appellant and asked him whether he had seen Sima Khatoon. The

appellant allegedly demanded a sum of Rs.20/- to pay for his evening

food, in lieu of showing them the place where Sima Khatoon could be

found. Apin Dulal (PW.1) agreed to pay him the said amount and

thus, the appellant pointed to a place by the side of a municipal canal.

Apin Dulal (PW.1) and Gulzar Ali (PW.3) thus began to approach the

said place, and at such time, the appellant ran away and boarded a bus.

Apin Dulal (PW.1) chased him and managed to catch hold of him,

forcing him to get off the bus. Apin Dulal (PW.1) and Gulzar Ali

(PW.3) thereafter succeeded in locating the girl, who they found

gasping, wrapped in a jute-sack (gunny bag). The mouth of the bag

had been closed. Sima Khatoon was alive, but in a critical condition.

She was then taken by her brother Gulzar Ali (PW.3) to the house.

The appellant was also taken there. Sima Khatoon was taken to a

Nursing Home, and then to the Guwahati Medical College where she

breathed her last at about 1.30 A.M. i.e., in the intervening night of

17/18.10.2007.

C.

Father of the deceased Sima Khatoon approached the Paltan

Bazar police station, where a report was endorsed only in the General

Diary. After the death of Sima Khatoon, her father also lodged an FIR

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at the said police station on 18.10.2007. The appellant was taken to

the police station by the relatives of Sima Khatoon, and he had thus

been arrested on 17.10.2007 itself.

D.

The post-mortem examination of the dead body of Sima

Khatoon was conducted by Dr. Pradeep Thakuria, who found various

injuries on her body, including an injury to her vagina. However, the

doctor has stated that the vaginal smears taken had tested negative for

spermatozoa.

E.

The blood stained jute-sack in which the Sima Khatoon had

been found, the blood stained underwear of the appellant, as wel