Holding

The Supreme Court upheld the conviction and death sentence, holding that the case did not merit commutation and the appellant was guilty of the offences charged.

Summary

Holiram Bordoloi, the appellant, was part of a gang that attacked the bamboo hut of Narayan Bordoloi, pelting stones, locking the door and setting it on fire, resulting in the deaths of Narayan and his six‑year‑old son, the latter being thrown back into the flames by the appellant. The appellant later dragged Narayan's brother, Nagarmol, to his own house and cut him into pieces in broad daylight. He was convicted by the Sessions Court under IPC §§147, 148, 436, 326 and 302 read with §149 and sentenced to death; the High Court affirmed the conviction and sentence. On appeal, the Supreme Court examined whether the conviction was safe, whether the death penalty was justified under the "rarest of rare" doctrine, and whether any mitigating circumstances existed. Finding multiple aggravating factors and no mitigating circumstances, the Court upheld the conviction and the death sentence, dismissing the appeal.

Issues considered

The adequacy of the evidence to sustain the conviction under IPC §§147, 148, 436, 326 and 302 r/w 149.
Whether the case falls within the "rarest of rare" category warranting the death penalty.
Whether any mitigating circumstances existed that could justify commuting the death sentence.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 313
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 326, s. 436

Subjects

murderarsongang violencedeath penaltyrarest of rare doctrineIPC 302Section 149capital punishmentsentencing

Judgment

A HOLIRAM BORDOLOI
v.
STATE OF ASSAM

APRIL 8, 2005

B [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

Penal Code, 1860-Sections 147, 148, 436, 326 and 302 rlw Section
149-Causing death of 2 persons including a six year old child-By setting
C a house on fire wherein there were 6 people and closingthe doorfrom _outside-
Causing death of one person by cutting him into pieces-Offences done in
broad day light-Eyewitnesses including injured witnesses supporting
prosecution case-Conviction and imposition of death sentence by Courts"
below-On appeal, held: Conilictfon andsentencejustified as there are number
of aggravating circumstances apparent against the accused and no mitigating
D circumstance is found in his favour-Sentencing.
Appellant-accused alongwith seventeen other accused came near the
house of 'N' armed with various weapons. 'N' alongwith his wife-PW-1,
three minor children and younger brother PW-2 went inside his bamboo
hut. Accused started pelting stones on the hut. They tied the door from
E outside and set the hut on fire. PWs 1 and 2 and two of the children
somehow came out of the hut, but 'N' and his six year old child were
trapped in the fire. When the six year old child came out, the appellant
alongwith another accused again threw the child in the fire. 'N' and the
child were completely burnt and they died on the spot. Thereafter the
appellant went to house of 'NG' dragged him to the house of appellant
F and cut him into pieces. PWs 1, 2, 3 and 4, the wife, brother and children
of the deceased 'N' respectively and PW-5, wife of deceased 'NG' were
the witnesses to the incident. The witnesses had also sustained injuries.
Three accused including the appellant had absconded. The fourt~en
accused had been tried and convicted, Appellant was tried separately. All
G the witnesses supported the prosecution case. Trial Court convicted the
appellant u/ss. 147, 148, 436, 326 and 302 r/w. Section 149 IPC and
awarded capital punishment. High Court upheld the conviction and
punishment. Hence the present appeal.

Dismis~ing the appeal, the Court
H 4~
HOLIRAM BORDOLOI ". STA TE OF ASSAM 407
HELO : I. The evidence adduced by the prosecution proves beyond A
reasonable doubt the actual involvement of the appellant in this incident.
There is no reason to disagree with the findings entered in by the Sessions
Court as well as the High Court. The conviction of the appellant is upheld.
1410-G)

2.1. In the present case the aggravating circumstances against the B
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 C
mercilessly thrown back to the fire by the appellant; (t) the dragging of
second deceased by the appellant 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 D
the accused-appellant. 1415-B-Dl

2.2. Neither the perusal of the evidence on record nor the statement
under Section 313 Cr.P.C. 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 E
commission of the heinous act. [415-D-E)

2.3. 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) Cr.P.C., the accused stated that he F
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. 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. No mitigating circumstance is
found to refrain from imposing the death penalty. on the appellant. G
1415-G-H; 416-A-B)

Bachan Singh v. State of Punjab, 119801 2 SCC 684, followed.

Ashok Kumar Pandey v. State of Delhi, (20021 4 SCC 76; Ram Pal v ..
State of UP., (20031 7 SCC 141 and Ram Anoop Singh and Ors. v. State of. H
408 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Bihar, 120021 6 sec 686, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal Appe~l No. 1063
of 2004.

From the Judgment and Order dated 9.3.2004 of the Gauhati High
B Court at Assam in Crl.D.R. No. 2/2003, Crl.A. No. 5(J) of 2003.

Sadasiva Reddy for the Appellant.

Sidharth Luthra, V.K. Sidharthan and Ms. Rajni Gupta· for M/s.
Corporate Law Group for the Respondent.
c The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. The appellant was one of the accused in
a case registered by Boribazar Outpost in. Assam. Originally, there were
seventeen accused. Three accused, including the appellant were absconding .
D and apprehended later. Fourteen accused persons were tried by the Sessions
Judge, Morigaon in Sessions Case No. 47/99 and they were all found guilty
of various offences. The case of the present appellant was put up and numbered
as 47A/99 and tried separately. The appellant was found guilty of the offences
punishable under Sections 147, 148, 436, 326 and 302 read with Section 149.
For the main offence under Section 302 read with Section 149, he was awarded
E the capital punishment by the Sessions Judge. The appellant filed an appeal
before the High Court of Assam at Gauhati, and there was also a Reference
against the death penalty imposed on the appellant. The appeal and the
Reference were disposed of by a common judgment and the death penalty
imposed on the appellant was confinned by the High Court. The appellant
F challenges his conviction and sentence iri this appeal.

The occurrence took place in the morning of 26.11.1996. Deceased
Narayan Bordoloi along with his wife and three children were stayfog in a
hut within the jurisdiction of Boribazar Outpost. On the date of the incident,
the appellant Holiram Bordoloi along with seventeen others came near the
G house of Narayan Bordoloi. Appellant Holiram and the other accused were
armed with 'lathi', 'dao', 'jathi', 'jong' and various other weapons. On seeing
Holiram and others, Narayan Bordoloi and his brother Padam Bordoloi went
inside the house and remained there. Six year old son Nayanmoni, eight year
old Chitralekha, sixteen year old Nabid and Budheshwari - wife of Narayan
Bordoloi were also in the hut. The accused persons started pelting stones on
HOU RAM BORDOLOl 1'. STA TE OF ASSAM [BALA KRISHNAN, J.] 409

the bamboo wall of the hut. Then they tied the door from outside and set the A
hut on fire. PW-2 Padam Bordoloi pierced the bamboo wall of the hut and
escaped. Nabid also managed to escape from the hut, though he sustained
injuries. PW-I Budheshwari, who had sustained serious burn injuries but
managed to come out from the house fainted. Narayan Bordoloi and his six
year old son Nayanmoni were trapped inside. Nayanmoni somehow came out B
from the hut. But the appellant Holiram and another accused person caught
hold of him and threw him into the fire. Narayan Bordoloi and Nayanmoni
were completely burnt and died on the spot. Nagannol Bordoloi, the elder
brother of deceased Narayan Bordoloi was staying in another house at some
distance from the house of Narayan. Nagarn1ol Bordoloi was caught and
dragged to the courtyard of Holiram, where the appellant cut him into pieces. C
PW-2 Padam Bordoloi went to the police post and gave the first
information to the police. The police took over the investigation and PW-9
Prabodh Saikia conducted the investigation. The remnants of the body of
Narayan and Nayanmoni were found near the Gatak's house. The dead body
of Nagarmol was found near the house of Holiram, the appellant. The D
Investigating Officer recovered the burnt portions of some materials and also
a burnt bicycle was found at the site. He held inquest over the dead bodies
and then the dead bodies were sent for post mortem examination. On the side
of the prosecution, ten witnesses were examined. PW-I Budhi Sen, PW-2
Padam Bordoloi, PW-3 Nayan Bordoloi and PW-4 Chitralekha were examined E
by the prosecution. They deposed that the house of Narayan Bordoloi was
burnt and as a result Narayan and his son died from bum injuries. Another
important witness examined is PW-5 Beenapani Bordoloi, the wife of deceased
Nagarmol Bordoloi. She gave the evidence regarding the incident wherein
her husband was assaulted and cut into pieces by the appellant and the other
accused. The Sessions Judge relied on the evidence of some of these witnesses F
and found the appellant guilty. The High Court confirmed the findings of the
Sessions Court.

We heard the appellant's counsel and the counsel for the State. The
counsel for the appellant submitted that the witnesses had given different G
versions as to the time of occmTence, which is stated to be 9.30 a.m. by one
witness and 11.00 a.m. by another witness. The appellant's counsel also
pointed out certain contradictions in the evidence of the eye-witnesses. We
do not think that the contradictions pointed out by the appellant would, in
any way, affect the credibility of these witnesses. PW-I Budheshwari deposed
that all the accused persons came to her house and tied the door from outside H
410 SUPREME COURT REPORTS [2005) 3 S.C.R.

A and set the house on fire, but these witnesses managed to come out from the ·
house with serious burn injuries. She had sustained burns on her right hand
and also on her right shoulder extending to the wrist joint. She stated that her
husband and son Nayanmoni could not come out and they were inside the
burnt house and on seeing this she fainted and was taken to a nearby house
B where she remained for three days and thereafter she was sent to Civil Hospital. · .r; ..

PW-2 Padam Bordoloi deposed that he could identify all the accused, including
the present appellant. He stated that when the fire started on the .roof of the
house, he broke up a corner of the bamboo wall of the hut and ran away to
-
;'

Boribazar. He later came to know that Narayan and his son Nayanmoni died
inside the house and his elder brother Nagarmol Bordoloi was cut into pieces
C in the courtyard of the house of Holiram. PW-3 Nabin Bordoloi deposed·that
he also sustained serious burn injuries, but he came out of the house by
breaking a portion of the house and at that time, one of the accused persons
assaulted him 'and caused a punctured wound on the left side of his chest.
After half an hour,. he was taken to Nayagaon Hospital. PW-4 Chitralekha
D Bordoloi, the daughter of deceased Narayan Bordoloi had also given a graphic
description of the incident. She further stated that when her younger brother
Nayanmoni Bordoloi managed to come out of the house, the appellant and
another accused caught hold of him and threw him to the fire again. This
,.f
witness also sustained serious bum injuries on her right hand and right thigh.

E The evidence of Beenapani Bordoloi, the wife of deceased Nagarmol ·
Bordoloi is important to prove the incident wherein Nagarmol was attacked
and killed. She deposed that on the previous night also, somebody had pelted
stones at her house. She had also deposed that on the day of the occurrence
the mob led by the appe_llant came to her house and her husband Nagarmol
Bordoloi was dragged from the house. He was given a lathi blow and then
F taken to the house of the appellant Holiram, which was at a distance of half
a furlong, where he was cut into pieces by the accused Holiram and when her
deceased husband Nagarmol requested for water, one of the accused, since.
dead, urinated on the face of Nagarmol.

G The evidence adduced by the prosecution proves beyond reasonable
doubt the actual involvement of the appellant in this incident. We find no
reason to disagree with the findings entered in by the Sessions Court as well
as the High Court. The conviction of the appellant is only to be upheld.

The next question that arises for con~deration is whether the present
H case falls in the category of rarest of the rare cases where the death penalty
HOLIRAM BORDOLOI v. STATE OF ASSAM [BALAKRISHNAN, J.] 411
is to be imposed on the appellant. A
In Bachan Singh v. State of Punjab, [1980] 2 SCC 684, this court after
considering the validity of the provisions which empower the court to award
death sentence laid down the following broad guidelines to be borne in mind
by the courts while considering the question of awarding a sentence in cases
involving murder : B
"198. We will first notice some of the aggravating circumstances
which, in the absence of any mitigating circumstances, have been
regarded as an indication for imposition of the extreme penalty.

199. Pre-planned, calculated, cold-blooded murder has always been C
regarded as one of an ·aggravated kind. In Jagmohan Singh v. State
of U.P., [1973] 1 SCC 20, it was reiterated by this Court that if a
murder is "diabolically conceived and cruelly executed", it would
justify the imposition of the death penalty on the murderer. The same
principle was substantially reiterated by V.R. Krishna Iyer, J., speaking D
for the bench in Ediga Anamma v. State of A.P., [1974] 4 SCC 443
in these terms :

"The weapons used and the manner of their use, the horrendous
features of the crime and hapless, helpless state of the victim,
and the like, steel the heart of the law for a sterner sentence ..... " E
201 ... ., it is quite clear to us that for making the choice of punishment
or for ascertaining the existence or absence of "special reasons" in
that context, the court must pay regard both to the crime and the
criminal. What is the relative weight to be given to the aggravating
and mitigating factors, depends on the facts and circumstances of the F
particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each of
them. This is so because "style is the man". In many cases, the
extremely cruel or beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the perpetrator.
G
... That is why, it is not desirable to consider the circumstances of the
crime and the circumstances of the criminal in two separate watertight
compartments."

Further, this Court also laid down circumstances, which could be
considered as aggravating circumstances. These circumstances are as follows: H
412 SUPREME COURT REPORTS [2005) 3 S.C.R. ·

A "202 ..... (a) if the murder has been committed after previous planning
and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the
B Union or of a member of any police force or of any public servant
and was committed

(i) which such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his
c duty as such member or public servant whether at the time
of murder he was such member or public servant, as the
case may be, or had ceased to be such member or public ·
servant; or

(d) ifthe murder is ofa person who had acted in the lawful discharge
D
of his duty under Section 43 of the Code of Criminal Procedure,
1973, or who had rendered assistance to a Magistrate or a police
officer demanding his aid or assistance under Section 37 and Section
129 of the said Code."

E Similarly, it also considered the following circumstances as mitigating
circumstances :

"206 (1) That the offence was committed under the influence of
extreme mental or emotional disturbance~

F (2) The age of the accused. If the accused is young or old, he shall
not be sentenced to death.

(3) The probability that the accused would not commit criminal acts
of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.
G The State shall by evidence prove that the accused does not satisfy
the Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another
HOLIRAM BORDOLOI v. STATE OF ASSAM [BALAKRISHNAN, J.] 413

person. A
(7) That the conditions of the accused showed that he was mentally
defective and that the said defect impaired his capacity to appreciate
the criminality of his conduct."

The counsel for the appellant referred to the case of Ashok Kumar B
Pandey v. State of Delhi, [2002] 4 SCC 76, in which the extreme penalty of
death was .commuted to rigorous imprisonment for life. This court while
doing so held :

"i l. ..... Reference in this connection may be made to the
Constitution Bench decision of this court in the case of Bachan Singh C
v. State of Punjab, [1980] 2 SCC 684, as well as, following the same,
the three-Judge Bench decision of this Court in Machhi Singh v. State
of Punjab, [1983] 3 SCC 470. wherein various circumstances have
been enumerated and it was laid down that if the case squarely falls ·
within its ambit, only in that eventuality, death penalty can be awarded.
It was observed that in rarest of rare cases when collective conscience D
of the community is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise retaining death
penalty, such a penalt)' can be inflicted. In the facts and circumstances
of the present case, it is not possible to come to the conclusion that E
the present case would fall within the category of rarest of rare one.
Therefore, we are clearly of the opinion that in the fitness of the
things, extreme penalty of death was not called for and the same is
fit to be commuted to life imprisonment."

In the above case the conviction was commuted solely taking into p
consideration the mitigating circumstances and the peculiar facts of that case
and cannot be applied to the case on hand.

The counsel also referred to Ram Pal v. State of U.P., [2003] 7 SCC
141, and contended that this court has commuted the death penalty to that of
life imprisonment in a case where the accused have prematurely terminated G
the life of twenty-one people including young children. In this case the court
stated the factors that have to be considered while awarding death penalty
and held that:

"8. Bearing in mind the above broad guidelines laid down by this
Court in the case of Bachan Singh if we consider the facts of the case, H
414 'SUPREME COURT REPORTS [2005] 3 S.C.R.

A we notice the fact that the appellant was a party to an incident in
which twenty-one people including young children were murdered
by gunshot injuries or by burning them in latched houses in itself
could be considered as aggravating circumstances to consider awarding
of death sentence. According to the judgment in Bachan Singh case
then we will have to weigh the same with any mitigating circumstances
B that may be available on the facts of this case. While doing the said
exercise of searching for mitigating circumstances in the present case,
we find that the incident in question was a sequel to the murder of
Bhagwati, a close relative of the appellant and other principal accused,

c
which was suspected to have been committed by the members of the
victim's family. Prior to that, the victims' family was accused of
having committed the murder of two of the close relatives of the
--
appellant's family for which some of the members of the victims'
family were being prosecuted. On facts and circumstances of this
case, we think this circumstance can be treated as a circumstance
which amounts to a provocation from the victims'· side. We also
D notice that the role played by the appellant is somewhat similar to the
role played by the other accused persons who have been given lesser
sentence while the appellant has been awar.ded death sentence, that
too with the aid of Section 149 IPC; therefore, a question arises why
this appellant should not be considered on a par with those accused ·-
E for the purpose of awarding the sentence. We also notice from the
argument of the learned counsel which is supported·by the material
,on record, that the specific overt act attributed to the appellant that
he climbed the house of the informant and threatened to shoot the
victims if they came out of their houses, while the other accused
latched and set the houses on fire seem to be an afterthought not
F having been told to the investigating officer by the witnesses when
their statements were recorded by him. We_ also notice that the
appellant was not treated by the prosecution itself as the leader of the
gang but was considered to be one amongst other accused who took
part in the incident. The fact that the accused has spent nearly 17
years in custody after the incident in question can also be treated as
G
a mitigating circumstance while considering the question of sentence .

. 9. The abovementioned circumstances which we consider as mitigating
circumstances, in our opinion, outweigh the aggravating circumstances
as found by the courts below."
H
HOLIRAM BORDOLOI v. STA TE OF ASSAM [BALAKRISHNAN, J.] 415
In the above stated case, the commutation of sentence was ordered in A
the factual circumstances of that case and it is not applicable to the present
case. The accused therein was convicted under Section 302 with the aid of
Section 149 IPC and there were series of mitigating factors.

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 B
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; (t) the dragging of Nagarmol Bordoloi by the appellant C
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.
D
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.
E
The counsel for. the appellant finally contended that the appellant is not
a menace to· the society; he can be reformed and a harsher punishment of
death shall not be awarded. In support of his contention, reference was made
to Ram Anup Singh and Ors. v. State of Bihar, [2002] 6 SCC 686 by the
\ counsel.
•' F
This case was also decided in view of its peculiar facts. There was a
family dispute between the deceased on one hand and his brother and nephews
on the other and also the records show that there was a chance for reformation
and rehabilitation. But 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 G
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 H
416 SUPREME COURT REPORTS [2005) 3 S.C.R.

A 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
B .the death penalty on the appellant.

In the result, the appeal is dismissed. The interim stay of execution of
the sentence is vacated. •.
f
K.K.T. Appeal dismissed.