High Court · 2012

5. The learned counsel for the appellant in his usual fairness has submitted that though there is no eye witness to the actual assault resulting in the death of the deceased, the culpability of the accused/appellant is establis hed by her confessional statement as well as her statement under Section 313 Cr. P.C. Mr Mahanta has emphatically urged that as it would transpire from the atten dant facts and circumstances that the appellant had dealt the assaults being unc ontrollably provoked by the beastly attempt of the deceased to forcibly commit r ape on her, the learned Trial Court had apparently erred in law and on facts in convicting her under Section 302 IPC. According to Mr Mahanta, having regard to the devastated state of mind of the appellant at the relevant time, the act of a ssault was in a fit of rage being deprived of the power of self control and, thu s, the offence at best ought to be construed as one of culpable homicide not att empting to murder. The learned counsel has urged that in the overwhelming backgr ound in which the appellant had as a matter of action reflex committed the assau lts, if this Court is satisfied that she was guilty of any offence, she ought to be at best convicted under Section 304. Part-II of the IPC and sentenced accord ingly.

6. On the other hand, Mr Mazumdar while referring to the confession al statement and the statement of the appellant under Section 313 Cr.P.C. as wel l as the other evidence on record, has submitted that as the offence is a pre-pl anned one with a pre-determined mind, no interference with the adjudication made by the learned Trial Court ought to be made and that the conviction and sentenc e needs to be sustained.

7. Before analyzing the rival submissions, it would be appropriate to briefly assess the evidence on record as a whole. P.W.1, Musstt. Chaina Begum , niece of the deceased, stated on oath that on the date of the incident he (dec eased) had returned home from fishing at about 8 a.m. and after having his meal had gone to sleep. She stated further that while she along with the accused/ app ellant and others were busy talking in another room, all of a sudden she (accuse d/ appellant) left the room, whereafter, she heard cries of the deceased. The wi tness stated that reaching the room where the deceased was sleeping, she saw the accused/ appellant with a ’dao’ in hand and the deceased lying on the bed with bleeding injuries in his neck and hand.

8. The evidence of P.W.2, Musstt. Saira Begum and P.W.3, Fuljan Bib i is in the same lines. In substance the testimony of P.W.4, Musstt. Rajia Begum is also identical. She further added that when asked the accused/ appellant dis closed that she had assaulted the deceased. P.W.5, Aftab Uddin is the writer of the ejahar. In cross-examination this witness stated that the accused/ appellant had disclosed that she had killed the deceased when the latter had tried to com mit rape on her. The witness proved the ejahar, Exhibit-1.

9. P.W.6, Smt. Rita Kar at the relevant point of time was the Addit ional CJM, Karimganj and had recorded the confessional statement which she prove d as Exhibit-3. P.W.7, Dr. Lipi Deb who had performed the post mortem examinatio n on the dead body disclosed to have noticed the following injuries : (cid:28)INJURIES : (1) (2) Injuries are ante mortem. All other organs are healthy but pale. (cid:29). One incised wound 6 x 1 muscle cut over right side of neck. Incised wound over right scapula size 7 x 1 ‰ muscle and bone cut. She also proved the post mortem report, Exhibit-4.

10. P.W.8, Sri Santosh Kr. Das who was the in-Charge of the Kalibari Out Post at the relevant point of time had conducted the investigation. He inte r alia proved the inquest report, Exhibit-2.

11. e present debate deserves to be quoted as hereunder: The confessional statement which occupies the center stage of th (cid:28)My name is Rusna Begum, wife of Rafique uddin. I got married with Rafique Uddin about 9 months ago. My husband is a mason. He has been working at Kohima as a m ason before my marriage. After our marriage, he stayed in his house at Asanala f or one month. Thereafter, he again went to Kohima leaving me with his mother. At the time of election, he returned from Kohima and stayed 15/16 days in his resi dence and again went to Kohima and never came. Jaynal Abedin is maternal uncle of my husband. Jaynal Abedin has many wi ves. He has been living in our house since about 5 months leaving his wife and c hildren. He use to fish in Sanbeel and live in our house. When he finds me alone, he often hurls obasence language to me and he gi ves bad proposal. When I inform my mother-in-law about this she says me to kill Jaynal if he repeats the same. In the morning on last Friday after having their meals, my mother-in-la w and maternal uncle had gone out. Putting the utensils in order in the kitchen when I collected the seats, suddenly, Jaynal Abedin caught me from the back side , pressed my mouth, felled me down on the ground and raped me. I tried a lot to separate myself from him, but failed. Thereafter, with an effort I separated mys elf from him and went out from kitchen. This incident made me feel sick. Thereaf ter, I saw him sleeping in the bed near the kitchen room. At that time, I felt s o ruminated that I hit Jaynal repeatedly in his neck with a Aai dao myself in t he kitchen. Then I felt sick I screamed and became senseless. When I came found my mother-in-law tied up me. When police came I told that I killed Jaynal, becau se he raped me. (cid:29). The accused/ appellant in answer to a question made under Sectio n 313 Cr.P.C. stated that the incident took place when the deceased had tried to rape her and that she assaulted him in order to save her honour.

12. On a scrutiny of the evidence of the prosecution witnesses it is obvious that there is no eye witness to the actual assault. Whereas P.W.4, Muss tt. Rajia Begum had testified that when asked the accused/ appellant had admitte d to have cut the deceased, P.W.5, Aftab Uddin stated that she (accused/ appella nt) had disclosed that she did so as the deceased tried to commit rape on her. T o this extent the stand of the accused/ appellant in her statement under Section 313 Cr.P.C. is consistent with the evidence.

13. On an examination of the proceedings of the confessional stateme nt, we are of the view that the legal mandates prescribed therefor had been duly complied with by the learned recording Magistrate. We, therefore, find no reaso n to reject the confessional statement on account of any legal failings. A plain reading of the text of the confessional statement discloses the following salie nt features:- On the date of the incident her mother-in-law and maternal uncle had gon Often he used to utter lewd remarks towards her and gesture immoral prop He had been living in her (accused/ appellant) house since about 5 month Deceased Jaynal Abedin was the maternal uncle of the husband of the appe i) llant and had many wives. ii) s leaving his wife and children. iii) osals. iv) e out of the house after having meals. v) deceased grabbed her from behind and forcibly raped her. vi) The incident left her defiled and devastated and, thus, when she found t he deceased sleeping in the bed soon thereafter near the kitchen room, she assau lted him with a ’dao’ in his neck more than once and, thereafter, became sensele ss. vii) On that day while she was placing utensils in order in the kitchen, the When the police came and enquired of the incident, she disclosed to have assaulted the deceased as he had raped her. The post mortem report in clear terms indicates two sharp cuttin 14. g injuries-one on the right side of the neck and the other over right scapula. I t is clear from the evidence of the doctor as well as the post mortem report tha t the death had occurred due to shock and haemorrhage resulting from the ante mo rtem injuries sustained.

15. On a cumulative consideration of the evidence on record, there i s no element of doubt that the accused/ appellant is the assailant and that the deceased had succumbed to the injuries sustained from the assaults made by her. On a conjoint reading of the evidence of the prosecution witnesses, the confessi onal statement of the accused/ appellant as well as her statement under Section 313 Cr.P.C., we feel persuaded as well to hold that the her act of assault was n ot a voluntary one but as a result of grave provocation, her modesty having been outraged by the deceased forcibly against her will. As a married women of the I ndian society, such a reaction, violent though, is not unusual or unexpected. Th e sequence of events as the evidence of the prosecution witnesses discloses also indicates that the time lag between the heinous and lustful act of the deceased and the consequential assaults in retaliation was minimal. We have, therefore, no hesitation to dismiss the prosecution’s plea of pre-determined murder vis-à-v is the accused/ appellant. In all probability any married Indian woman having be en so savagely ravished and desecrated would have exhibited such retaliatory con duct intending the same consequence as was meted out to the deceased.

16. Be that as it may, the above facts and circumstances cannot exon erate the accused/ appellant of the offence committed by her. Having regard to t he weapon of assault, the portion of the body chosen by her as well as the numbe r of blows inflicted, we are persuaded to hold that she at all relevant times ha d the intention to eliminate the deceased. Her distressed, agonized and bewilder ed state of mind, however, in view of the narration hereinabove cannot be discou nted in any manner whatsoever. Balancing the prevailing factors, we are of the v iew that her conviction ought to be scaled down to one under Section 304, Part-I of the IPC and she be sentenced to suffer imprisonment for seven years. Ordered accordingly. She is also required to pay a fine of Rs. 1000/-, in default, to u ndergo imprisonment for a further period of one month.

17. ant would stand adjusted against the sentence now awarded. Needless to say the period already served by the accused/ appell

18. The appeal stands partly allowed as indicated hereinabove.