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2013 DIGILAW 467 (GAU)

Labanya Dihingia v. State of Assam

2013-07-18

B.D.AGARWAL, INDIRA SHAH

body2013
JUDGMENT B.D. Agarwal, J. 1. The appellant, herein, has been convicted for the murder of her cousin vide impugned judgment dated 05.04.2012, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 144 of 2009. After convicting the appellant under Section 302 of the Indian Penal Code, 1860, (hereinafter, in short 'IPC'), she has been sentenced to undergo Imprisonment for Life and also to pay a fine of Rs. 2,000/- (Rupees Two Thousand), with default stipulation of further SI for 3 (three) months. Being aggrieved with the conviction and sentence the convict has preferred this appeal from jail. We have heard Sri A.M. Bora, learned heard Sri A M Bora, Amicus Curiae, appearing on behalf of the appellant as well as Sri B.J. Datta, learned Additional Public Prosecutor for the State of Assam. We have also perused the impugned Judgment and the evidence tendered by the prosecution in the trial Court, more particularly, the judicial confession and statement of the accused given under Section 313 of the Criminal Procedure Code, 1973 (hereinafter, in short, 'Cr.P.C.'). 2. To establish the offence of murder, the prosecution examined altogether 12 (twelve) witnesses. All the important witnesses are the relatives and family members of the accused and the deceased. They have deposed corroboratively that at the relevant time the accused was alone in her house since her father was away from home. It is the admitted fact that the offence was committed in the bed-room of the accused. Hence, it can be presumed that the deceased had come to the house of the accused and not vice-versa. 3. PWs-1, 2, 3 and 4 have also deposed that after committing the offence the accused reported them about committing the offence of murder and also requested them to hand over her to the Police. PW-5 has also deposed that the accused requested him to take her to the Police Station. 4. The oral evidence of the aforesaid witnesses is also corroborated by the judicial confession given by the accused before the learned SDJM, Dibrugarh, on 10.09.2012. It may be mentioned here that the offence was committed in the night of 06.09.2009 and the accused was produced in the Court for recording her confession on 08.09.2009 after giving sufficient time for reflection. The oral evidence of the aforesaid witnesses is also corroborated by the judicial confession given by the accused before the learned SDJM, Dibrugarh, on 10.09.2012. It may be mentioned here that the offence was committed in the night of 06.09.2009 and the accused was produced in the Court for recording her confession on 08.09.2009 after giving sufficient time for reflection. The statement was recorded on 10.09.2009, wherein, the accused categorically admitted that she killed the deceased by inflicting dao blows, albeit, with a plea that the offence was committed as the deceased had committed rape on her. 5. In view of the evidence on record, Sri Bora, learned Amicus Curiae for the appellant did not press for total acquittal. However, the learned counsel prayed that the offence may be converted from Section 302 IPC to 304 Part-I IPC since the offence was committed under provocation. We have already noted earlier that even in the judicial confession the accused had stated before the Judicial Magistrate that the offence was committed since the accused had committed rape on her. According to the accused, at the relevant evening at about 08:00 pm she had just come out of the bathroom after taking bath and she was wearing only a petty-coat. Suddenly, she was grabbed by the deceased and he subjected her to sexual intercourse. Even thereafter, the deceased stayed back in the bedroom and slept in the ground with an intention to commit rape again. According to the accused, while the deceased was sleeping on the ground she picked up a dao and killed him. 6. The fact of sexual harassment upon the accused is also forthcoming from the evidence of other witnesses. PW-2 has also admitted in her cross-examination that while narrating the incident the accused also reported him about rape upon her. In this way, the accused did not improve the story at a later stage. Similarly, PW-3 has also deposed that earlier also the deceased had committed rape upon the younger sister of the accused. PW-4 has also deposed that there was a rumor in the village that there was illicit relation between the deceased and the accused. From this piece of evidence, it can also be presumed that the deceased was sexually harassing the accused. PW-4 has also deposed that the deceased was not a man of good character. 7. PW-4 has also deposed that there was a rumor in the village that there was illicit relation between the deceased and the accused. From this piece of evidence, it can also be presumed that the deceased was sexually harassing the accused. PW-4 has also deposed that the deceased was not a man of good character. 7. In view of this evidence, we hold that the appellant must have killed the deceased out of fear of further sexual assault. We further hold that repeated sexual assaults and harassment amounted to provocation by the deceased. 8. In view of the above, the conviction of the appellant is converted from Section 302 IPC to Section 304 Part-I IPC. Resultantly, the sentence is also reduced to 7 (seven) years' RI. However, the amount of fine and the default sentence awarded by the trial Court is maintained. 9. With the aforesaid modification in the conviction and sentence, the appeal stands dismissed. 10. Keeping in mind that the deceased had come to the house of the accused for committing rape and since he was living separately from other family members and was a bachelor, we do not propose to pass any order under Section 357-A Cr.P.C. Before parting with the record, we appreciate the valuable assistance of Sri A M Bora, learned Amicus Curiae for the appellant. Hence, he is entitled to one day's hearing fees. Appeal dismissed