Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 1439 (GAU)

Chullay Kullu @ Rabi v. State of Assam

2022-12-22

ARUN DEV CHOUDHURY, N.KOTISWAR SINGH

body2022
JUDGMENT : N. KOTISWAR SINGH, J. 1. Heard Mr. K. Goswami, learned Senior Counsel as well as Amicus Curiae assisted by Mr. A. Sandilya, learned counsel appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel as well as Additional Public Prosecutor, Assam assisted by Mr. J. Das, learned counsel appearing for the State/respondent No. 1. 2. This is an appeal from jail. 3. The present appeal arises out of the judgment dated 03.01.2017 rendered by learned Additional Sessions Judge, Sonitpur, Tezpur in Case No. Sessions 170/2012 by which the appellant has been convicted under Sections 376/302 of Indian Penal Code (IPC), 1860 and sentenced to undergo rigorous imprisonment for life and fine of Rs. 5,000/- (Rupees five thousand) only and in default of which to undergo simple imprisonment for 3(three) months for committing offence under Section 376 of IPC and also rigorous imprisonment for life and fine of Rs. 5,000/- (Rupees five thousand) only and in default of which to undergo simple imprisonment for 3(three) months for committing offence under Section 302 of IPC. It was directed that both the sentences would run concurrently. 4. The crime of which the appellant was charged was rape and murder by strangulation of a minor aged about 7(seven) years in a tea estate. 5. As per the FIR lodged by the father of the deceased child, it was alleged that at around 6 P.M. on 02.10.2011, his daughter had gone missing from his house and at around 5 A.M. on the next day on 03.10.2011, a co-villager saw the dead body of his daughter lying at the Dibru Dalang Tea Estate and accordingly, informed the informant. 6. It was mentioned in the FIR that he suspected that the appellant had committed rape of his daughter and then killed her as the villagers had seen his daughter loitering around with the appellant on the night before. Accordingly, a police case being, Dhekiajuli P.S. Case No. 411/11 under Sections 376/302/201 of IPC was registered on 03.10.2011. 7. The police investigated the case and on completion of the investigation, the appellant was charged for committing the offence. Accordingly, a police case being, Dhekiajuli P.S. Case No. 411/11 under Sections 376/302/201 of IPC was registered on 03.10.2011. 7. The police investigated the case and on completion of the investigation, the appellant was charged for committing the offence. The appellant was charged on three counts, namely: Firstly, the appellant in between 6 P.M. at 02.10.2011 and 5 A.M. on 03.10.2011 committed rape on the person of the deceased child who was aged about 7 years at village Chandmari under Dhekiajuli P.S. and thereby, committed an offence punishable under Section 376 of IPC. Secondly, that the appellant on the same time and place committed murder by intentionally causing death of the deceased child and thereby committed offence punishable under Section 302 of IPC. Thirdly, that the appellant on the same time and place knowing that the offence of murder punishable with death or imprisonment for life has been committed and did cause certain evidence of the said offence to disappear with an intention to screen himself from legal punishment and thereby committed an offence punishable under Section 201 of IPC. 8. The appellant was put to trial before the learned Additional Sessions Judge, Sonitpur, Tezpur. 9. The prosecution examined as many as 15 (fifteen) witnesses apart from exhibiting relevant material/documentary evidences in support of its case. The appellant/accused, however, opted to remain silent and denied the allegations as fabricated and also did not lead any evidence. 10. The Trial Court after considering the evidences on record held that though there was no eye witness, there were sufficient circumstantial evidences on record and held that the prosecution has been able to prove the charges against the appellant beyond reasonable doubt and held that the appellant had committed rape of the victim child and killed her by strangulation and accordingly, convicted the appellant as mentioned above. 11. Before us, Mr. K. Goswami, learned Senior Counsel, the Amicus Curiae, appearing for the appellant has submitted that the conviction is based on circumstantial evidence primarily based on last seen theory, it will be seen that, apart from the aforesaid fact of the deceased and the appellant being seen together before the incident, there is no other evidence on record which would make the chain of circumstantial evidences complete so as to implicate the appellant. Mr. Mr. Goswami submits that some incriminating circumstances have come up in course of the trial, yet there are gaps in the chain of evidences, thus, it cannot be said that the proved circumstances in the present case are consistent only with the hypothesis of the guilt of the appellant and are also totally inconsistent with his innocence, which are necessarily to be shown in a case based on circumstantial evidences, as also held by the Hon’ble Supreme Court in Gamparai Hrudayaraju vs. State of Andhra Pradesh, (2009) 13 SCC 740 . 12. It has been submitted that while in course of the evidence, it has come out that there are other witnesses who had witnessed the appellant taking the victim on the day of occurrence, however, for reasons best known to the prosecution, these vital witnesses had not been examined. 13. It has been also submitted that one of the neighbours (PW-5) had stated that the appellant was consuming wine with one Jiten and another person before the incident and that after the victim left her (PW-5) house after playing with the daughter of PW-5 who happened to be a friend of the victim, the appellant and two others including Jiten also left her house. The mother (PW-6) of the deceased child also mentioned about the presence of the appellant and two others in the house of PW-5 where she (PW-6) also saw the appellant and two others consuming wine in the same house where the victim was playing. It has been submitted that since the aforesaid two persons were with the appellant at the relevant time and before the incident had occurred, their evidences would have shed more light on the incident on the basis of which the Court could have given the benefit of doubt to the appellant. 14. It has been also submitted that from the records, it is evident that the investigating officer had recovered blood and semen stained inner clothing of the victim but unfortunately, the said recovery of blood and semen were not sent for forensic examination as would normally have been required as provided under Section 53A of Cr.P.C. which could have clinched the matter in favour of the prosecution. Had there been a finding that it was not the semen of the appellant which was found on the body of the deceased girl, it would have given a clean chit to the appellant. 15. It has been submitted that in view of the provisions under Section 53A of the Cr.P.C. the investigating authority ought to have sent such an important piece of evidence for DNA testing, which unfortunately was not done, thus depriving the appellant of an opportunity of being proved innocent inasmuch as the conviction was based on circumstantial evidences only. 16. In this regard, Mr. Goswami, learned Senior Counsel as well as Amicus Curiae has referred to the decision of the Hon’ble Supreme Court in Krishnan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130 . In the aforesaid case of Krishnan Kumar Malik (supra), the Hon’ble Supreme Court had given the benefit of doubt which was based on circumstantial evidence by holding that such a lapse was a serious lacuna which proves fatal. In Para No. 40 of the judgment in Krishnan Kumar Malik (supra), Hon’ble Supreme Court observed as follows: “40. The appellant was also examined by the doctor, who had found him capable of performing sexual intercourse. In the undergarments of the prosecutrix, male semen were found but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the appellant. This lacuna on the part of the prosecution proves to be fatal and goes in favour of the appellant.” The Hon’ble Supreme Court accordingly held that failure to hold the forensic test would be considered to be a serious lacuna and it would not be safe to convict a person. 17. In another case, in Sunil vs. State of Madhya Pradesh, (2017) 4 SCC 393 , the Hon’ble Supreme Court while observing that non-holding of DNA test as provided under Section 53A of the Cr.P.C. may not necessarily lead to acquittal inasmuch as a conviction can still be possible based on remaining evidences brought on record by the prosecution. It has been submitted by the learned Senior Counsel for the appellant that in the present case apart from the last seen theory and alleged non-explanation by the appellant, there is no other cogent evidence available to convict the appellant. 18. On the other hand, Ms. It has been submitted by the learned Senior Counsel for the appellant that in the present case apart from the last seen theory and alleged non-explanation by the appellant, there is no other cogent evidence available to convict the appellant. 18. On the other hand, Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor submits that the chain of circumstantial evidences have been clearly established as can be evident from the following facts: (i) Last seen theory which can be applied with full force inasmuch as the same is fully supported by cogent evidence on record. (ii) There was no explanation proffered by the appellant to the incriminating circumstances which have been brought to his notice in course of the trial especially while examining him under Section 313 Cr.P.C. On the contrary, he gave wrong statement which is contrary to the proven facts of the case. (iii) It has been also stated that the time gap was very short to rule out involvement of any third party. Further non-examination of blood and semen found in the clothing of the victim will not necessarily vitiate the trial inasmuch as there are other incriminating materials on record. 19. In order to appreciate the rival submissions advanced, we will first refer to the evidences on record. 20. PW-1, Smt. Rina Gowala, is a neighbor of the deceased child who stated that she knew both the appellant and the deceased girl. She stated that on the day of incident, she was returning home from the shop in the evening. It was dusk and at that time she saw the appellant taking the victim girl by holding her hand. She had a brief conversation with the appellant at that time. In the cross-examination, PW-1 stated that when she went to the shop, there was no other customer except her and the place where she met the appellant and the deceased together was about 150 metres from the shop. She stated that when she met the appellant and the girl there was no one else on the road and the road continued after the shop towards the tea estate and line residences. It was the garden road. She met the appellant and the victim in between the houses of Pitambar and Pitul. She stated that when she met the appellant and the girl there was no one else on the road and the road continued after the shop towards the tea estate and line residences. It was the garden road. She met the appellant and the victim in between the houses of Pitambar and Pitul. She also mentioned that the place where she met the appellant and the deceased were far from the house of the appellant. She also stated that the appellant and the deceased were coming towards the housed of the victim child. In the cross-examination, PW-1 also stated that she did not see if the deceased had entered her house. She stated that though it was a time of Durga Puja she did not know which day of the Puja it was. PW-1 denied that there were many people on the road on that day and she also denied the suggestion that it was dark and as such, she could not recognize fully the people. She also categorically denied that the deceased was not with the accused. 21. PW-2, Smt. Bijuli Boraik, is the witness who discovered the dead body of the deceased child which was found in a place near the garden while she had gone in the morning to answer the call of nature near the river. She accordingly, informed the parents of the child. She also stated that on the previous night, the parents of the child had come to her house in search of the child. She, of course, stated that she did not know how the child died. 22. PW-3, Smt. Anita Karmakar, is another witness who saw the child along with the appellant in the previous evening. She stated that she knew both the appellant as well as the deceased. She stated that while she was going to the house of her parental aunt in the late evening, she saw the appellant and the deceased and the appellant was holding the hand of the deceased and going towards his house. In the cross-examination, PW-3 stated that at that time when she saw the appellant and the deceased, she did not find any other person. 23. In the cross-examination, PW-3 stated that at that time when she saw the appellant and the deceased, she did not find any other person. 23. PW-4 is the father of the victim child who stated that in the evening of the day of the incident as he could not find his daughter he searched for her till about 12 A.M. On the next morning, the appellant came and called him at about 3 A.M. but PW-4 did not go with the appellant. Thereafter, at 5 A.M., PW-4 went to the house of the appellant and searched for his daughter everywhere. When he was returning home, his niece told him to go to the house of the appellant to bring his daughter. After PW-4 came home, he found his daughter lying dead on his compound being already brought by his nephew. In the cross-examination, PW-4 stated that Anita Karmakar (PW-3) told him that she had seen the appellant taking his daughter the previous night. He also stated that on the next morning, the appellant and one Jiten also started searching for his daughter but he did not go searching for her in the tea garden in the night. PW-4 also mentioned that in the night when he searched the house of the appellant, the appellant was not present at that time but at the second time, the appellant was present in his house. Later on, at 3:30 A.M. the appellant came to his house. 24. PW-5 is a neighbor in whose house the deceased was playing with her daughter Marami. PW-5 stated that when she came home at 3 P.M. from market, she found the deceased and her daughter playing together. At that time, the appellant, Jiten and another person came and started taking wine in her house and thereafter the deceased child told her that she would go home and take rice whereupon PW-5 asked the deceased child to go. PW-5 also stated that at around 6/7 P.M. the mother of the deceased child came to her house and enquired about her daughter. PW-5 told that she had already left her house earlier. She also stated that when the deceased child had left her house, the appellant, Jiten and another person had already gone out of her house. PW-5 also stated that at around 6/7 P.M. the mother of the deceased child came to her house and enquired about her daughter. PW-5 told that she had already left her house earlier. She also stated that when the deceased child had left her house, the appellant, Jiten and another person had already gone out of her house. In the cross-examination, PW-5 stated that after she told the deceased child to go home, she went out running and that the house of the deceased was next to her house. PW-5 also mentioned that immediately after the deceased child went away, the appellant and two others also left her house. 25. PW-6 is the mother of the deceased who stated that on the day of the incident, she was at home and her deceased daughter had gone to play at her friend Marami’s house at 3/4 P.M. She also stated that she had gone and seen her daughter playing there and the appellant and two others were also having wine in the house of Pramila Karmakar (PW-5) in whose house the deceased child was playing with her friend. PW-6 also stated that her daughter did not come home till 5 P.M. and as her daughter did not come home till dusk, she went in search of her in the house of PW-5. When she asked PW-5, she told her that her daughter had already left her house. PW-6 stated that thereafter they searched for her daughter till 1 A.M. and at that time, the appellant was not there. After 1 P.M. they came home. At that time, at 3 A.M. the appellant came to her house and told them that they should again go in search of her daughter. Then her husband told the appellant that he would go for search of when it is dawn with some other people of the village. She also stated that she was told by other children that the appellant had taken her daughter by holding her hand. In the cross-examination, PW-6 mentioned that when they had gone to the house of the appellant in the night searching for her daughter, the appellant was not found in his house. 26. PW-7 is a co-villager who was a seizure witness to the clothings seized by the police from the house of the appellant as well as the wearing apparels of the deceased. 27. 26. PW-7 is a co-villager who was a seizure witness to the clothings seized by the police from the house of the appellant as well as the wearing apparels of the deceased. 27. PW-8 is also another witness to the seizure of the clothes from the house of the appellant. 28. PW-9 is the wife of the appellant who stated that her husband had been falsely implicated as her husband was in the house. She also stated that during the day time her husband remained outside and during night he did not go out of the house. She also stated that the police did not interrogate her. 29. PW-10 is the cousin of the victim and was the seizure witness in respect of clothes siezed from the house of the appellant. 30. PW-11 is also another cousin of the victim child who was a witness to the inquest report as well as to the seizure of the clothing of the victim child. 31. PW-12 is the Doctor who performed the post mortem examination on the dead body of the deceased and found the following injuries on the dead-body: “(1) Body was in fresh condition. There was abrasion under chin and right side of the neck. Frothy secretion from the nostril and the mouth and there was multiple abrasion on the right hand. Laceration on the vaginal canal was bleeding. Other organs were healthy. Injuries are anti-mortem in nature and caused by rape and throatling.” PW-12 gave the opinion that the death was due to asphyxia as a result of throttling following rape. In the cross-examination, he stated that he had not mentioned in his report whether the abrasion under chin and right side of neck is old and new and such type of injuries may be caused if the victim gets rubbed on grass or herbs. He stated that the bleeding was caused from laceration. He also stated that in this case vaginal smear was not taken as there was bleeding from vaginal canal and the laceration was inside the vaginal canal. 32. PW-13 is the Forensic Expert who conducted the forensic test on the three articles sent by the Investigating authorities, namely: “Descriptions of articles 1. Ext-Marked as A-contains one blue color under wear with stain of suspected blood and semen. Seizure list no. 1 Sero 2896A. 2. 32. PW-13 is the Forensic Expert who conducted the forensic test on the three articles sent by the Investigating authorities, namely: “Descriptions of articles 1. Ext-Marked as A-contains one blue color under wear with stain of suspected blood and semen. Seizure list no. 1 Sero 2896A. 2. Ext Marked as B contains one blue color jeans half pant with stain of suspected blood and semen. Seizure no. 2 Sero-2896B. 3. Ext. Marked as B contains one blace colour long pand with stain of suspected blood and semen. Seizure No. 2896C.” PW-13 gave her opinion as follows: “Result of examination: According to BPRL D guideline laboratory manual furnished my report result of my examination. 1. Ext No. Sero 2896 A gave positive test for human blood and seman. 2. Ext. No. 2 and 3 Sero 2896 C gave negative test for presence of human blood and seman.” 33. PW-14 is the I.O. of the case who mentioned about the various steps taken during the investigation. He also stated that he had examined the witnesses and recorded the statements. 34. PW-15 had conducted the further investigation in the case who ultimately submitted the charge-sheet against the appellant. 35. Since the charge against the appellant is that he committed rape and thereafter murdered the child, it would therefore be necessary to ascertain as to whether the victim girl was raped and thereafter, murdered before we try to ascertain who had perpetrated the aforesaid crime. As regards the death, there cannot be much dispute about it in view of the post mortem report, which was exhibited and proved by the doctor who performed the postmortem on the dead body of the victim girl. 36. The other fact to be ascertained is whether the said girl was subjected to rape before she was killed. As regards the aforesaid issue, it is supported by the post mortem report as well as the inquest report conducted on 03.10.2011 soon after the body was discovered, which was exhibited as Exbt-3 and also proved in course of the trial which clearly indicate that several scratches on the hands and in the front and back side of the body and swelling was noticed in the vaginal parts. The post mortem report also corroborates the aforesaid injuries giving more details of the injuries received by the victim, wherein it has been mentioned that there were abrasions found under the chin, right side of neck, multiple abrasions on the right hand, laceration in the vaginal canal with bleeding from vaginal canal and the doctor who performed the post mortem gave his opinion that the injuries were anti mortem in nature and caused by rape and throttling and in his opinion the death was due to asphyxia as a result of throttling following rape. 37. It may be noted that the I.O. got the panty which was worn by the deceased girl for forensic examination and in the report of the forensic examination, it is clearly mentioned that there were traces of human blood and semen. Therefore, from the above it is clearly evident that the victim girl was subjected to rape before she was killed by throttling. 38. The question to be considered is as to whether the appellant is responsible for the said heinous crime. Though in the present case there is no direct eye witness of the actual crime being committed upon the victim girl, but there were many circumstantial evidences which came on record. The circumstantial evidences which can be said to have been established in the light of the evidences already discussed above, are as follows. 39. The victim girl was playing with her friend Marami in her house, the daughter of Smt. Pramila Karmakar (PW-5). When the deceased girl was playing with her friend Marami, the appellant along with one Jiten and another person came and consumed wine in her house. After sometime the deceased girl told her that she will go back home to take rice. Later the mother of the deceased girl Smt. Seeta Pradhan came to her house and enquired about her daughter. Then PW-5 told her that the girl had already left her house earlier. That the appellant and two others were consuming wine in the house of Pramila Karmakar (PW-5) on the day of incident has been also corroborated by the statement of the mother of the deceased girl, who happened to have gone there while her daughter was playing with her friend Marami. That the appellant and two others were consuming wine in the house of Pramila Karmakar (PW-5) on the day of incident has been also corroborated by the statement of the mother of the deceased girl, who happened to have gone there while her daughter was playing with her friend Marami. In the cross-examination, she (PW-5) stated that immediately after the deceased girl went away from her house the appellant and other two also left her house. The aforesaid evidences clearly indicate that the appellant and two others were aware of the presence of the victim girl in the house of Pramila Karmakar (PW-5) and they had followed her. This evidence is corroborated by the other evidences. During cross-examination, PW-5 stated that many villagers had also informed her that the deceased was seen with the appellant. 40. PW-1 Smt. Rina Gowala, a villager, stated that on the day of incident while she was coming from the shop in the evening, when it was dusk, she saw the appellant taking the victim girl by holding her hand. In fact, she also testified that she had a conversation with the appellant who asked her where she had gone. In the cross-examination, she stated that when she had gone to the shop there were no other customers except her. When she met the appellant and the girl there was none on the road. The road continues after the shop towards the tea garden and the line residences, which is the garden road. She also stated that she met the appellant and the victim in between the houses of two villagers. She also stated that the appellant and the deceased girl were coming towards the house of the victim girl. The said evidence of Rina Gowala (PW-1) clearly shows that the victim girl was being followed by the appellant and he was accompanying her by holding her hand. 41. The appellant was seen holding the hand of the victim girl not only by said Rina Gowala (PW-1), but also by another villager Smt. Anita Karmakar (PW-3), who stated that while she was going to the house of her paternal aunt in the late evening, she saw the appellant and the victim girl, and the appellant was holding the hand of the victim girl and going towards his house. She also stated in the cross-examination that when she saw the appellant with the victim girl, she did not find any other person nearby. Thus, it can be said without any doubt that the victim girl was seen last along with the appellant by two villagers. We have also noted that the defence could not shake the credibility of these two witnesses and as such it is proved beyond reasonable doubt that the victim girl was seen last with the appellant before she was found dead in the next morning. 42. It is also significant to note that when the search was conducted for the missing girl and when the parents also went to the house of the appellant, he was not present in his house. This would negate the defence plea that he did not go out and he remained in his house when the incident occurred. We also have noticed the behavior of the appellant who came to the house of the deceased informing her parents at around 3 A.M. asking them to search for the girl at that hour again, whereupon the victim’s father told the appellant that he will go for the search. We find the behavior of the appellant to be unusual to come to the house of the parents of the victim at 3 A.M. as testified by the mother of the victim Smt. Seeta Pradhan (PW-6) as well as Tek Bahadur Pradhan, father of the victim (PW-4). 43. There is another important evidence in the form of the pants seized from the house of the appellant by the police. Shri Biswanath Tapno (PW-7), a villager, stated that during the investigation the police seized the wet Jeans pants, one round neck sporting and black long pants which were hanging on the bamboo wall. During the cross-examination he stated that he saw the clothes to be wet and the seized clothes were mud stained. Though the said seized pants were sent for forensic lab to ascertain the presence of human blood and semen and it turned negative and the report was returned showing negative test for presence of human blood and semen. However, absence of human blood and semen on the pants does not necessarily rule out involvement of the appellant. The fact that these seized clothes were found wet and soiled indicates the engagement of involvement in the rape of the victim girl. 44. However, absence of human blood and semen on the pants does not necessarily rule out involvement of the appellant. The fact that these seized clothes were found wet and soiled indicates the engagement of involvement in the rape of the victim girl. 44. We have also noted that when he was examined by the Court and his statement recorded under Section 313 of the Cr.P.C. the appellant denied all the innocence stating that the witnesses have given false evidence against him. In our view, if there is evidence that the victim girl was seen last together with the appellant by independent witnesses, whose evidence have remained unshaken, this would clearly indicate that the appellant was not forthcoming in giving proper explanation as to what he did with the victim girl after he was seen holding her hand and going away. In our view, once such clear credible evidence have been brought on record, he had a duty to explain the circumstances under which he took the victim girl away by holding her hand. 45. It is to be noted that since the dead body of the victim girl was recovered in the next early morning and the incident certainly happened during that period before the dusk and early morning of the next day. It cannot be a mere coincident that when a search was launched in the initial stage and when the parents of the victim girl went to the house of the appellant, he was not found present. According to us, these are circumstances which have been proved beyond reasonable doubt which would clearly link the appellant with the crime committed. 46. Under the circumstances, we are of the opinion that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt and accordingly, we uphold the conviction of the appellant by the learned Additional Sessions Judge, Sonitpur, Tezpur. We thus, find no reason to interfere with the sentence imposed upon the appellant. 47. For the reasons discussed above, the appeal stands dismissed without any interference from our end by confirming the conviction and punishment imposed on the appellant. 48. As regards the acquittal by the learned Trial Court of the charge under Section 201 of the IPC, we, however, are unable to agree with the acquittal given. 47. For the reasons discussed above, the appeal stands dismissed without any interference from our end by confirming the conviction and punishment imposed on the appellant. 48. As regards the acquittal by the learned Trial Court of the charge under Section 201 of the IPC, we, however, are unable to agree with the acquittal given. Since the Trial Court as well as this Court have come to the conclusion that the appellant was responsible for the rape and murder of the victim girl, if the clothes worn by the appellant which was seized were found to be wet and washed by the appellant, it would amount to destroying evidence with the intention of screening himself from legal punishment. Since the learned Trial Court has sentenced him rigorous imprisonment for life which we have upheld, we impose sentence for a term of 3 years and also a fine of Rs. 5,000/- (Rupees five thousand) only punishable under Section 201 of the IPC, which sentence will run concurrently with the other sentences imposed under Sections 302/376 of IPC.