STATE OF ASSAM Vs. SUJIT BISWAS

JUDGEMENT

(1.) WHEREAS the death reference arises out of the judgment and order dated 21.12.2009 passed by the learned Additional Sessions Judge, FTC No. 3, Guwahati, in Sessions Case 309(K)/2009 convicting the accused therein under Sections 376(2)(f)/302 IPC (for short hereafter referred to as the Code) sentencing him to death, the appeal has been preferred therefrom by him from jail.

(2.) WE have heard Mr. J. M. Choudhury, Sr. Advocate appearing as the Amicus Curiae for the accused/appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam, for the State.

(3.) MR. Choudhury has assiduously argued that there being neither any eyewitness to the complicity of the accused nor a string of circumstantial evidence unerringly pointing thereto, his conviction and sentence is per se unsustainable in law and is liable to be interfered with. The learned Amicus Curiae pleaded that the presence of the accused near the place of occurrence, his conduct of disclosing the situs of the victim and his reflex to flee from the scene even if accepted do not ipso facto unmistakeably prove his involvement in the offence alleged. Without prejudice to the above, MR. Choudhury has urged that there being no seizure in accordance with law of the undergarments of the accused and as his blood sample as well had not been collected for necessary forensic examination; there exists no worthwhile proof to establish his involvement in the alleged crime and that, therefore, the impugned judgment and order being obviously flawed ought to be interfered with in the interest of justice. Underlining the fact that the evidence of the prosecution witnesses taken as a whole does not testify a pre-planned and calculated cold blooded murder of the victim girl by the accused, the learned Sr. Counsel has urged that having regard to the fact that he at the relevant time was in his early twenties without any criminal antecedent, death sentence is clearly unwarranted and if sustained would amount to travesty of justice. There being no special reason whatsoever to justify his conviction, it is a fit case, the learned Amicus Curiae pleaded that the accused ought to be acquitted of the charge. In the alternative, he has argued that in any view of the matter, death sentence ought not to be confirmed by this court in the facts and circumstances of the case. To buttress his arguments, MR. Choudhury has placed reliance on the decisions of the Apex Court in Machhi Singh and Ors. Vs. State of Punjab, (1983) 3 SCC 470, Bachan Singh etc. Vs. Union of India, (1980) 2 SCC 684, Surendra Pal Shivbalakpal Vs. State of Gujarat, (2005) 3 SCC 127 and Dilip Premnarayan Tiwari Yadav Vs. State of Maharashtra, AIR 2010 SC 361.