Holding

The death sentence was commuted to life imprisonment and the conviction of the co‑accused was set aside due to lack of evidentiary linkage.

Summary

An eight‑month‑pregnant woman was found dead with severe abdominal injuries and the foetus removed. The husband, Mission Suklabaidhya, and his friend, Uttam Chakraborty, were convicted of murder; the husband received the death penalty and the friend life imprisonment. Both appealed to the Supreme Court, which examined the evidentiary basis, noting that the primary incriminating evidence against the husband was the testimony of a 4‑5‑year‑old child, while the statement of a domestic help recorded under Section 164 CrPC was not substantive. The Court held that a capital sentence should not rest on a child’s testimony and commuted the husband’s death sentence to life imprisonment. It also found no evidence linking the friend to the murder and set aside his conviction, ordering his immediate release. The appeals were thus allowed, with the death sentence reduced and the co‑accused acquitted.

Issues considered

Whether a death sentence can be upheld when the primary evidence is the testimony of a child witness.
Whether a conviction can be sustained on circumstantial evidence that does not directly link the accused to the murder.
Whether a statement recorded under Section 164 of the CrPC constitutes substantive evidence for conviction.
Whether the aggravating circumstances outweigh the mitigating factors in sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 164
Indian Penal Code, 1860s. 302, s. 304

Subjects

murderchild witnesscapital punishmentdeath penaltycommutationSection 164 CrPCcircumstantial evidenceacquittal

Judgment

(2010) 13 (ADDL.) S.C.R. 1

UTTAM CHAKRABORTY A
v.
STATE OF ASSAM
(Criminal Appeal No. 869 of 2006 etc.)
APRIL 6, 2010
B
[HARJIT SINGH BEDI AND CHANDRAMAULI KR.
PRASAD, JJ.]

Penal Code, 1860:
c
s. 304 - An eight month pregnant woman died of burn
injuries - Post-mortem report revealing severe cut in
abdomen and foetus removed - Husband of deceased and
his friend convicted of murder - Husband sentenced to death
- Life imprisonment to co-accused - Sentences confirmed by o
High Court - HELD: The girl with whom the accused-husband
was stated to have had illicit relationship, though supported
the prosecution case in her statement uls 164 CrPC, but
before the court she resiled therefrom - In the light of the fact
that a statement recorded u/s 164 Cr. P. C. is not substantive E
evidence, the court has to go to the other evidence produced
in court by the prosecution - Both the trial court and the High
Court have noticed that the only other evidence against the
accused-husband was the statement of PW-6, a 4-5 year old
child of the deceased and the accused -PW-6 did support the F
prosf]cution and it is primarily his evidence that has led to the
conviction of the accused - The courts below have a/so found
corroboration for the motive in the statement of PW-5, the
mother of the deceased, and the very material circumstance
that the murder had been committed in the matrimonial house
of the couple - However, notwithstanding the fact that PW-6 G
is a witness whose credibility has not been doubted, it would
perhaps be imprudent to award a capital sentence on the
smtement of a child witness - Therefore, though the conviction

1 H
2 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A of the accused-husband (appellant in Cr/. A. No. 87112006)
needs to be maintained, and his crime was truly horrendous,
the death sentence is commuted to life imprisonment - There
is absolutely no evidence to connect the co-accused
(appellant in Cr/. A,. No. 86912006) with the murder - PW-4
. B did state that at about 10110.30 p.nf. on the night of the
occurrence, he had seen the two accused discussing
something with each other and while they were doing so, a girl
had come out shouting and told the accused that his wife had
died of bum injuries - This evidence cannot connect the co-
C accused with the murder- PW-5, the motherofthe deceased,
has not said a word about his involvement in the incident
except that he was a neighbour of PW-1 - PW-6 did identify
the co-accused in court but he apparently mistook him for
PW-4, as is clear from his statement - In this view of the
matter, conviction of the co-accused cannot be sustained and
0
he is acquitted - Evidence - Sentence/Sentencing.

Evidence:

Child witness - Testimony of- HELD: In the instant case,
E notwithstanding the fact that credibility of child witness has not
been doubted, it would be imprudent to award capital sentence
on his statement - Sentence/Sentencing.

=
Suresh VS. State of U.P. 1981 (3) SCR 259 (1981) 2
F SCC 569; and Raja Ram Yadav & Ors. vs. State of Bihar
=
1996 (1) Suppl. SCR 174 (1996) 9 sec 287 - relied on .

. Case Law Reference:

. 1981 (3) SCR 259 relied on para 5
G
1996 (1) Suppl. SCR 174 relied on para 6

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

H
., UTTAM CHAKRABORTY v: STATE OF ASSAM 3

No. 869 of 2006.

From the Judgment & Order dated 26.04.2006 of the
Gauhati High Court in Criminal Appeal No. 212 of 2005.

:s'{ITH • ·s
1\ f'1 ._ • ''j I
Crl. Appeal No. 871 of 2006c:' .·.
.-.,

S.B. Sanyal, Azim H. Laskar, Sachiri Oas, Rana
Mukherjee, Abhijit Sengutpa for the Appellant.
c
J.R. Luwang, Navneert (for Corporate Law Group) for the
Respondent.

The following order of the Court was delivered
D
ORDER

1. This judgment will dispose of Criminal Appeal Nos. 871
and 869 of 2006.

2. The fads are as under: E

The appellants, Mission Suklabaidhya and Uttam
Chakraborty were friends. Mission Suklabaidhya, who was a
retired Army personnel, was married to Gita Das deceased.
·The couple had a child Marjon PW-6 who was about 4 or 5 F
years old when the incident happened. The deceased was also
pregnant at that time and was carrying a foetus about 8 months
old. As the deceased was employed as a school teacher, the
couple had engaged one Panchami Suklabaidya PW-1, aged
16 years, as a domestic help, and she resided in the house of G
·the couple. As per the prosecution story, Mission Suklabaidhya
and PW-1 developed an illicit relationship and when this was
discovered by the deceased, there were frequent quarrels
between the couple. As per the prosecution story, on the night
intervening the 13th and 14th April 2004 at about 2.00 a.m. H
4 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A Radhu Paul PW-4, a resident of Lala Town, accompanied by
4 or 5 persons went to the house ;of Nioti Das PW-1, the
mother of the deceased, situated at Abdullapur, and told her
that her daughter had fallen ill and asked her to accompany
them to the Police Station. On reaching the Police Station, PW-
B 1 found Mission Suklabaidhya and Panchami Suklabaidhya_
present there and learnt from them that her daughter had died
of burn injuries. She thereupon lodged a FIR at about 2.30 a.m.
to the effect that she had learnt from her son-in-law and PW-1
that her daughter had died in a fire caused by kerosene oil but
c she further went on to say that she had been killed by her·
husband. During the course of the investigation, it transpired
that accused Uttam Chakraborty had also present when the
deceased had been done to death. The statement of PW-1
was also recorded under Section 164 of the Cr.P.C. in which
D she stated that both the accused had been responsible for the
murder as the deceased was objecting to her relationship with
Mission Suklabaidhya accused.

3. On the completion of the investigation the appellants
were brought to trial on a charge of murder. The prosecution
E relied primarily on the evidence of PW-6 Marjon Suklabaidhya,
who was projected as an eye witness to what had happened
on the fateful day, PW-1 Panchami Suklabaidya aforesaid, PW-
2 the Executive Magistrate Manash Das, who held an inquest
on the dead body and had noticed a huge cut injury on the
F person of the deceased, Radhu Paul PW-4 who stated that he
had seen both the accused involved in an animated discussion
in front of his shop and when he had gone close to them they
had changed the topic and had started discussing some
business matter and that after a cshort while a girl had come
G out and raised a hue and cry and told Mission Suklabaidhya
that his wife had died of burn injuries, Nioti Rani PW-6, the
mother of the deceased, who deposed to the illicit relationship
of her son-in-law and PW-1, and PW-7 the doctor, Khairuz
Zaman Choudhary, who had carried out the post-mortem
H examination and had found very severe cut injuries on the
UTTAM CHAKRABORTY v. STATE OF ASSAM 5

stomach which indicated that the foetus had been removed. A

4. The trial court, on a consideration of the evidence,
convicted both the accused for the offence punishable under
Section 302 of the IPC and while Mission Suklabaidhya was
awarded the death penalty, Uttam Chakraborty was ordered to B
undergo imprisonment for life. The matter was thereafter
referred to the High Court for the confirmation of the death
sentence in Criminal Death Reference No. 4/2005 whereas
Criminal Appeal No.212/2005 was filed by the accused. The
High Court, by the impugned judgment, confirmed the death
reference and dismissed the Criminal Appeal. While confirming C
reference, the Division Bench considered the aggravating and
mitigating circumstances and held that the aggravating
circumstances far outweighed the mitigating ones. Two appeals
have been filed in this Court, Criminal Appeal No.871/2006 by
Mission Suklabaidhya and Criminal Appeal No. 869/2006 by D
Uttam Chakraborty.

5. We have heard the learned counsel for the parties and
gone through the record very carefully. It is true that the primary
evidence would have been that of PW-1 Panchami E
Suklabaidya, a girl 15 or 16 years of age, and admittedly a
domestic help of Mission Suklabaidhya and the deceased. In
her statement recorded under Section 164 of the Cr.P.C. she
supported the prosecution story but while giving evidence as .
PW-1 she resiled therefrom and gave a complete go by to what . F
she had said earlier. In the light of the fact that a statement
recorded under Section 164 of the Cr.P.C. is not substantive
evidence we have to go to the other evidence produced in Court
by the prosecution. Both the trial court and ttie High Court have
noticed that the only other evidence against the appellants was G
the statement of PW-6, a child 4 or 5 years of age. PW-6 did
support the prosecution and it is primarily his evidence that has
led to the conviction of the appellants. The courts below have
also found corroboration for the motive in the statement of PW-
5 Nioti Rani Das, the mother of the deceased, and the very H
6 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.

A material circumstance that the murder had been committed in
the matrimonial house of the couple. We are, however, of the
opinion that notwithstanding the fact that PW-6 is a witness
whose credibility has not been doubted, it would perhaps be
imprudent to award a capital sentence on the statement of a
B child witness as observed in Suresh vs. State of UP. (1981)
0

"' 2 SCC 569. While rendering its decision, this is what the Court
had to say:

"Children, in the first place, mix up what they see
with what they like to imagine to have seen and besides,
c a little tutoring is inevitable in their case in order to lend
coherence and consistency to their disjointed thoughts
which tend to stray. The extreme sentence cannot seek
its main support from evidence of this kind which, even if
true, is not safe enough to act upon for putting out a life."
0
6. This judgment was followed later in Raja Ram Yadav
& Ors. vs. State of Bihar (1996) 9 SCC 287 wherein similar
observations have been made. We are, therefore, of the
opinion that though the conviction of Mission Suklabaidhya
E needs to be maintained, and his crime was truly horrendous,·
the death sentence awarded should be commuted to life
imprisonment. We make an order in the above terms. Criminal
Appeal No. 871 of 2006 is disposed of accordingly.

F 7. We now take up the case of the appellant Uttam
Chakraborty. We find absolutely no evidence to connect him
with the murder. PW-4 Radhu Paul did state that at about 10/
10.30 p.m. on the night of the occurrence, he had seen the two
accused discussing something with each other and while they
G were doing so, a girl (that is PW-1) had come out shouting and
had told Mission Suklabaidhya that his wife had died of burn
injuries. We are unable to see how this evidence can connect
the appellant with the murder. PW-5, the mother of the
deceased, has not said a word about his involvement in the
H incident except that he was a neighbour of PW-1. PW-6 did
UTTAM CHAKRABORTY v. STATE OF ASSAM 7

identify the appellant in Court but he apparently mistook him for A
Radhu Paul PW-4, as is clear from his statement. In this view
of the matter, we find that the conviction of Uttam Chakraborty,
appellant cannot be sustained. W,e accordingly allow Criminal
Appeal No. 869 of 2006, set aside his conviction and sentence
and direct that he be set free f~·rthwith, )f not wanted in any other s
case.

R.P. ,Appeal allowed.

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