BHAIKON @ BAKUL BORAHversusSTATE OF ASSAM

                     [2013) 5 S.C.R. 497


               BHAIKON @ BAKUL BORAH                                 A
                             v.
                     STATE OF ASSAM
             (Criminal Appeal No. 194 of 2008)
                         MAY 3, 2013
                                                                     B
 [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

     Penal Code, 1860 - ss.302 and 376- Rape and murder
- ·Trial court convicted the accused and imposed death
sentence and life imprisonment for offences punishable u/ C
ss.302 and 376 respectively - High Court confirmed the
conviction, but reduced the death sentence to life
imprisonment and the sentence of life imprisonment to 7
years imprisonmerJt - Held: Version of the eye-witness is
reliable and the same is corroborated by evidence of another D
witness and also by medical evidence - Hence, conviction
and sentence awarded by High Court upheld.
     Sentence/sentencing - Remission of sentence of life
imprisonment - Held: Life imprisonment means                         E
imprisonment for whole of the life subject to the remission
power granted under Articles 72 and 161 of the Constitution
- When death sentence is commuted to life imprisonment,
executive power of remission to be exercised cautiously,
taking note of the gravity of the offence - Constitution of India,
1950 - Articles 72 and 161.
                                                                     F

     The appellant-accused was prosecuted for
committing rape and murder of the victim. PW-1 was the
eye-witness to the incident. Trial court convicted the
appellant-accused u/ss. 376 and 302 IPC and sentenced                G
him to death for the offence punishable u/s. 302 IPC and
to life imprisonment (RI) for the offen~e punishable uls.
376 IPC. The accused preferred appeal and the trial court
preferred Death Reference. High Court disposed of the
                               497                                   H
    498      SUPREME COURT REPORTS            [2013] 5 S.C.R.


A appeal and the Death Reference by confirming the
  conviction and altering the death sentence to life
  imprisonment and the sentence of life imprisonment to
  imprisonment for 7 years.

       In appeal to this Court, the appellant-accused
8
  contended that conviction could not have been based
  upon sole testimony of PW-1 as the same is not reliable;
  that in view of the remarks of the doctor (PW9 who
  conducted post-mortem of the deceased) to the effect
C that no-mark of sexual violence was found on the genital
  organs of the deceased, the conviction u/s.376 was
  unsustainable; and that inasmuch as the High Court
  modified the death sentence into imprisonment for life,
  the authorities ought to have released him after expiry of
  a period of 14 years.
D
          Dismissing the appeal, the Court

       HELD: 1. The trial court and the High Court rightly
  held that there was no reason to disbelieve the version
E of PW-1 (the eye-witness) 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. Therefore,
  in view of oral and documentary evidence led in by the
F prosecution, particularly, the evidence of PWs 1, 2 and 9
  as well as the statement of co-villagers, the conclusion
  arrived at by the trial court and affirmed by the High Court
  is acceptable. (Paras 11 and 12] (506-E-G]
G      2.1. Life imprisonment means imprisonment for
  whole of life subject to the remission power granted under
  Articles 72 and 161 of the Constitution of India. However,
  for adequate reasons, it is for the executive authorities
  to exerci'Se their power provided under the Constitution,
H in an appropriate case. [Paras 15 and 16] [507-F-G; 508-
 BHAIKON @ BAKUL BORAH v. STATE OF ASSAM 499


8-C]                                                        A.

    Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava
and 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 B
Rathod (2) vs. State of Gujarat (2011) 2 SCC 764: 2011 (1)
SCR 829; Chhote Lal vs. State of Madhya Pradesh (2011) 8
SCR 239; Mui/a and Anr. vs. State of Uttar Pradesh (2010) 3
SCC 508: 2010 (2) SCR 633; Maru Ram vs. Union of India
and Ors. (1981) 1 SCC 107; State of Madhya Pradesh vs.
Ratan Singh and Ors. (1976) 3 SCC 470: 1976 (0) Suppl. C
SCR 552; Gopal Vinayak Godse vs. State of Maharashtra AIR
1961 SC 600: 1961 SCR 440 - relied on.

     2.2. When death sentence is commuted to
imprisonment for life by the appellate court, the concerned D
Government is permitted to exercise its executive power
of remission cautiously, taking note of the gravity of the
offence. [Para 17] [508-C-D]

     Swami Shraddananda (2) @ Murli Manohar Mishra vs.      E
State ofK.amataka (2008) 13 SCC 767: 2008 (11) SCR 93;
Sahib Hussain @ Sahib Jan vs. State of Rajasthan 2013 (6)
Scale 219 - relied on.

                     Case Law Reference:
                                                            F
       (2013) 3 sec 425      relied on         Para 15
    (2013) 3 sec 294         relied on         Para 15
    (2013) 2 sec 452         relied on         Para 15
    2011 (1) SCR 829         relied on         Para 15      G
    (2011) 8 SCR 239         relied on         Para 1S
    2010 (2) SCR 633         relied on         Para 15
    (1981) 1 sec 101         relied on         Para 15      H
    500       SUPREME COURT REPORTS              [2013) 5 S.C.R.


A         1976 (0) Suppl. SCR 552 relied on            Para 15
          1961 SCR 440             relied on           Para 15
          2008 (11) SCR 93         relied on           Para 17
          2013 (6) Scale 219       relied on           Para 17
B
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 194 of 2008.

        From the Judgment & Order dated 26.09.2006 of the
c   Gauhati High Court (the High Court of Assam, Nagaland,
    Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh)
    at Gauhati in Criminal Appeal No. 67 of 2006.

        Pandit Parmanand Katara, Abhishek Sharma, C.K.
    Sucharita, Kusum Lata Sharma for the Appellant.
D
        Navnit Kumar, Avijit Roy, Corporate Law Group for the
    Respondent.

          The Judgment of the Court was delivered by
E      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
F 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.
  40(NL) 03 for the offence punishable under Sections 302 and
G 376 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
H
 BHAIKON @ BAKUL BORAH v. STATE OF ASSAM                     501
            [P. SATHASIVAM, J.]
years, r/o Mauza Talwa, Village Kakattiup, PS Lakhimpur,             A
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           B
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.          c
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.

     (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,    D
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           E
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        F
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             G
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 seized
one bed sheet, a sporting and a 'dao' from the farm house of         H
   502      SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A 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
B 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,
C 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.
D
       (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
E 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
F 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-
G 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
H High Court sentenced him to imprisonment for 7 years.
 BHAIKON @ BAKUL BORAH v. STATE OF ASSAM                   503
            [P. SATHASIVAM, J.]
    (i) Being aggrieved, the appellant preferred this appeal by   A
way of special leave petition before this Court and leave was
granted on 18.01.2008.

     3. Heard Mr. Parmanand Katara, learned senior counsel
appearing for the appellant-accused· and Mr. Navnit Kumar,
                                                                  B
learned counsel appearing for the respondent-State.

    4. Mr. Katara, learned senior counsel for the fippellant-
accused, raised the following contentions:-

    (i) Since the evidence of PW-1 is not reliable, the           c
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           D
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              E
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 after the expiry of the   F
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   G
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        H
    504      SUPREME COURT REPORTS                   [2013] 5 S.C.R.


A   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
8   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 rape on her and, thereafter; the appellant-
C   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
D   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,
E   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
F   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 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
G   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
H evidence, he explained that his daughter went to the field to
                                                                          \ .
 BHAIKON @ BAKUL BORAH v. STATE OF ASSAM                      505
            [P. SATHASIVAM, J.]
attend the goats but she did not return. He further narrated that     A
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          B
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        C
the doctor (PW-9) who conducted the post mortem. He noted
the following injuries:-

     • A dead body of an average built, female, rigor mortis
     present.                                                         D

      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".                         E

      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".                             F

      5.    Trachea fractured at the level of the bruise marks.

      6.    Multiple bruises on left side of the neck overlying
            each other.
                                                                      G
     Heart was healthy containing dark fluid blood, left side
     empty.

     Above injuries (in No·. 1) were ante mortem in nature.
                                                                      H
    506      SUPREME COURT REPORTS                [2013] 5 S.C.R.


A
          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/
B         smear on 01.04.2000. Uterus non-gravid. (No sign of
          pregnancy).

          In my opinion, the person died of asphyxia as result of
          throttling."

C         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
o 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 contention.
  As rightly observed by the trial Court and the High Court, there
E 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 thatthere was no sign
  of injury on the genital organs of the decea~ed.            ·

F      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
G 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
H murder and throwing the dead body in a place surrounded by
 BHAIKON @ BAKUL BORAH v. STATE OF ASSAM                       507
            [P. SATHASIVAM, J.]
bushes and shrubs, the trial Court has awarded the sentence           A
of death, however, the High Court, taking note of the fact that
the accused is a young man of 33 years of age 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         B
the conviction under both the <::aunts.

         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           C
 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       D
 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       E
 relates to commuting the sentence of death into imprisonment
 fpr. life and all the contentions raised by learned senior counsel
.~ting to the sentence are unacceptable or irrelevant.

     15. This Court, in a series of decisions has held that life      F
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              G
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, Mui/a and Another vs. State of Uttar Pradesh (2010) 3
SCC 508, Maru Ram vs. Union of India & Ors. (1981) 1 SCC
                                                                      H
    508      SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A   107, State of Madhya Pradesh vs. Ratan Singh & Others
    (1976) 3 SCC 470 and Gopa/ 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-accused
8
    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 thei'r'
    power in an appropriate case.

C      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
D Manohar Mishra vs. State of Kamataka (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
E 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
F Governor of the State of Uttar Pradesh for release on 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
G 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
H to commuting the sentence of death into imprisonment for life
   BHAIKON @ BAKUL BORAH v. STATE OF ASSAM 509
              [P. S1THASIVAM, J.)         .
  and we have alre;ufY preserved the right of the executive for      A
-"Dtder"rn~ 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.
                                                                     B
     20. In the light of the above discussion, we do not find any
 vand 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.

 KK.T.                                       Appeal dismissed.       C




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