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2002 DIGILAW 239 (GAU)

Nripen Konwar v. State of Assam

2002-06-03

D.BISWAS, J.N.SARMA

body2002
D. BISWAS, J- This appeal is directed against the judgment dated 10.8.98 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions Case No. 5(K)/97. The learned Sessions Judge by the judgment under appeal has convicted the accused-appellant under Section 376/302 IPC and sentenced him to 7 years R.I. and to pay a fine of Rs.1,000/-, in default, to R.I. for one month under Section 376 IPC and to imprisonment for life and to pay a fine of Rs.1,000/-, in default, R.I. for one month under Section 302 IPC. 2. Being aggrieved thereby, this appeal has been preferred on the grounds stated in the memorandum of appeal. 3. We have heard Smt Rita Das Mazumdar, learned advocate for the appellant (Amicus Curiae) and also Mr P. Bora, learned Public Prosecutor. 4. The law of investigation was set on motion on receipt of an ejahar submitted by Sri Hari Konwar, brother of the deceased Sewali Konwar on 2.5.96 before the Officer-in-Charge, Kamalpur Police Station alleging that his sister has been raped and killed by some unknown miscreants. The police took up investigation and on conclusion thereof, submitted chargesheet as aforesaid. 5. The learned Sessions Judge by order dated 12.3.97 framed charges under two heads-Section 376 and Section 302 IPC against the accused-appellant. The charges were read over and explained to the accused-appellant to which he pleaded not guilty and claimed to be tried. 6. During the course of trial the prosecution examined as many as 13 witnesses including the medical officers and investigating officers. The defence examined none. The defence case as it appears from the trend in cross-examination and the answers given during the course of examination under Section 313 Cr.P.C. is of complete denial. 7. The learned Sessions Judge convicted the appellant on circumstantial evidence. There is, admittedly, no eyewitness to the alleged offence* of rape and murder. It would, therefore, be imperative on our part to refer to the evidence on record in order to ascertain as to whether the circumstances evinced by the witnesses form a complete chain leading to the guilt of the appellant. 8. The evidence of PW-1 Smt. Draupadi Chamura show that the deceased was having an affair with the appellant from before. The appellant had sexual intercourse with the deceased as a result of which she became pregnant. 8. The evidence of PW-1 Smt. Draupadi Chamura show that the deceased was having an affair with the appellant from before. The appellant had sexual intercourse with the deceased as a result of which she became pregnant. The deceased herself disclosed this to PW-1 in one night when they had been sleeping together. During the course of cross-examination, this witness further stated that the deceased told her that the appellant had promised to marry her and for this reason she also allowed him to have sexual intercourse with her. PW-3 Smt Santi Konwar, mother of the deceased, in her deposition affirmed what has been stated by PW-1 about the relationship between the deceased and the appellant. 9. The evidence of PW-1 and PW-3 with regard to the statement made by the deceased about the above relationship remains un-assailed during the course of cross-examination. This piece of evidence further gains support from the evidence of PW-11 Dr. Arun Ch. Kalita who has stated that deceased Sewali came to his clinic for abortion. He refused to do so as she was not accompanied by her guardian. 10. The evidence of the above three PWs clearly indicate and establish beyond any shadow of doubt that the deceased was having an affair with the appellant and she was pregnant by 3/4 months at the time of her death. 11. PW-2 Miss Kanika Konwar stated that on the date of occurrence at about 6 O'clock in the evening she along with her sister Sewali were sitting at the gate way of their house. At that time the appellant Nripen came and called away her sister for going along with him to attend a marriage ceremony. This witness also followed them upto certain distance. The appellant scolded her and asked to go back. She returned home and reported her mother about this episode. At about 8 O'clock in the night her elder brother Hari was sent by her mother to search for Sewali. The elder brother returned back and reported that she was not available in the marriage house. On the following morning, at 7.30 O'Clock, they were informed that the dead body of Sewali was lying in the paddy field. 12. We have carefully examined the evidence in cross-examination of this witness. She reiterated what she had stated in her examination-in-chief about the going of the deceased with the appellant. On the following morning, at 7.30 O'Clock, they were informed that the dead body of Sewali was lying in the paddy field. 12. We have carefully examined the evidence in cross-examination of this witness. She reiterated what she had stated in her examination-in-chief about the going of the deceased with the appellant. The omission on her part in telling the police that she along with the deceased were sitting near the gateway of their house will not in itself lead to a presumption adverse to her attending a marriage ceremony. Her evidence regarding 'taking' remains unshaken and it establishes the fact that on the date of occurrence the deceased had accompanied the appellant for attending a marriage ceremony in the village. The evidence of this witness is also supported by PW-7 Pulak Konwar who is neither related to the family of the deceased nor the appellant. On that day, he had attended the marriage ceremony. On his way to the marriage house, he came across the appellant returning from the marriage ceremony\along with a girl. This witness could not recognise the girl because he did not notice her. The evidence that the appellant was seen leaving the marriage house along with a girl has a nexus with the evidence of PW-1, PW-2 and PW-3. PW-4 Jeevan Bharali also stated that while he along with PW-7 Pulak were sitting under a tree near the village temple, they saw Nripen returning back alone. It was about 7.3O p.m. 13. The evidence of the above witnesses establish the following circumstances: (i) The appellant and the deceased were having an affair and as a consequence thereof the deceased became pregnant, (ii) The deceased was taken away from near the gateway of her house by the appellant while she was engaged in conversation with her sister, PW-2 Miss Kanika Konwar, for attending a marriage, (iii) PW-7 had seen the appellant coming out from the ceremonial house with a girl at about 7 p.m. and later at 8.30 p.m. saw him sitting alone. (iv) PW-4 saw the appellant returning back and going towards the ceremonial house all alone. (v) PW-11 Dr. Arun Ch. Kalita stated that the appellant on the day following the discovery of the deadbody came to his clinic for treatment of injury in his hand. The appellant told him that he sustained the injury on being pricked by thorn. (iv) PW-4 saw the appellant returning back and going towards the ceremonial house all alone. (v) PW-11 Dr. Arun Ch. Kalita stated that the appellant on the day following the discovery of the deadbody came to his clinic for treatment of injury in his hand. The appellant told him that he sustained the injury on being pricked by thorn. But PW-11 suspected the injury to have been caused by 'bite'. 14. The above circumstances establish that the appellant was very close to the deceased, promised to marry her and had exploited her sexually. The deceased became pregnant through him and even went to a doctor to cause abortion to obviate social stigma. Under these circumstances, she was in absolute control of the appellant and had no option but to carry out the commands emanated from the appellant. That is why she had to follow him in the dark hours to a secluded place. The circumstances show that none else but the appellant could have taken her out of her house first to the marriage house and, thereafter, to the place of occurrence. The evidence of PW-9 Dr Kanak Chandra Das clearly indicate that even before death she was subjected to sexual intercourse. The seizure list exhibited clearly shows that the undergarments of the deceased were found at different place. The above circumstances unerringly lead to the conclusion that the deceased was first raped and, thereafter, killed by strangulation by the appellant with the help of a rope. The fact that they were last seen together seals all doubt as to the innocence of the appellant. Complicity of the appellant is writ large in the evidence of the witnesses referred to above. 15. We are, therefore, unable to take a different view than what has been taken by the learned Sessions Judge. Hence, the appeal is devoid of merit and dismissed.