CRIMINAL APPEAL NO. 70 OF 2011 P R E S E N T HON BLE MR. JUSTICE AMITAVA ROY HON BLE MR. JUSTICE P.K.SAIKIA JUDGMENT & ORDER (ORAL)

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1 IN THE GAUHATI HIGH COURT (THE HIGH OF ASSAM; NAGALAND;MEGHALAYA;MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL NO. 70 OF 2011 Rusna Begum.. Appellant -versus- The State of Assam.. Respondent P R E S E N T HON BLE MR. JUSTICE AMITAVA ROY HON BLE MR. JUSTICE P.K.SAIKIA For the appellant : Mr TJ Mahanta, Advocate For the respondent : Mr KA Mazumdar, Addl. P.P., Assam Date of hearing & Judgment : Amitava Roy, J JUDGMENT & ORDER (ORAL) Being aggrieved by the judgment and order dated passed by the learned Addl. Sessions Judge (FTC), Kamrimganj in Sessions Case No. 19/2010 convicting the accused/ appellant under Section 302 of the Indian Penal Code (for short, hereinafter referred to as the IPC ) and sentencing her to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default to undergo rigorous imprisonment for three months, she is in appeal seeking redress.

2 2 2. We have heard Mr TJ Mahanta, learned counsel for the appellant and Mr KA Mazumdar, learned Addl. Public Prosecutor, Assam for the respondent State. 3. The genesis of the prosecution case is in the FIR lodged by one Saira Begum with the Officer-in-Charge, Ramkrishna Nagar P.S. on to the effect that the appellant had, while the deceased Jaynal Abedin was sleeping in her (informant) house, dealt three blows on his neck by a sharp cutting weapon killing him instantly. On the FIR, R.K. Nagar P.S. Case No. 45/08 u/s 302 IPC was registered and the investigation ensued. Chargesheet was thereafter submitted against the accused/ appellant. On being committed, the learned Trial Court framed charge under Section 302 IPC against her to which she pleaded not guilty. 4. The prosecution examined eight witnesses including the doctor who had performed the post mortem examination as well as the Investigating Officer and the learned Magistrate who had recorded the confessional statement of the appellant under Section 164 of the Code of Criminal Procedure (for short, hereinafter referred to as the Cr.P.C ). Upon closure of the evidence of the prosecution witnesses, the accused/ appellant was examined under Section 313 Cr.P.C. in course whereof she admitted to have made the confessional statement. She declined to adduce any evidence in defence. The impugned verdict followed. 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 established by her confessional statement as well as her statement under Section 313

3 3 Cr.P.C. Mr Mahanta has emphatically urged that as it would transpire from the attendant facts and circumstances that the appellant had dealt the assaults being uncontrollably provoked by the beastly attempt of the deceased to forcibly commit rape 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 assault was in a fit of rage being deprived of the power of self control and, thus, the offence at best ought to be construed as one of culpable homicide not attempting to murder. The learned counsel has urged that in the overwhelming background in which the appellant had as a matter of action reflex committed the assaults, 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 accordingly. 6. On the other hand, Mr Mazumdar while referring to the confessional statement and the statement of the appellant under Section 313 Cr.P.C. as well as the other evidence on record, has submitted that as the offence is a pre-planned one with a predetermined mind, no interference with the adjudication made by the learned Trial Court ought to be made and that the conviction and sentence 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 (deceased) 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/ appellant and others were busy talking in another room,

4 4 all of a sudden she (accused/ appellant) left the room, whereafter, she heard cries of the deceased. The witness 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 Bibi 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 disclosed 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 commit rape on her. The witness proved the ejahar, Exhibit P.W.6, Smt. Rita Kar at the relevant point of time was the Additional CJM, Karimganj and had recorded the confessional statement which she proved as Exhibit-3. P.W.7, Dr. Lipi Deb who had performed the post mortem examination on the dead body disclosed to have noticed the following injuries : INJURIES : (1) One incised wound 6 x 1 muscle cut over right side of neck. (2) Incised wound over right scapula size 7 x 1 ½ muscle and bone cut. Injuries are ante mortem. All other organs are healthy but pale.. She also proved the post mortem report, Exhibit 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 inter alia proved the inquest report, Exhibit-2.

5 5 11. The confessional statement which occupies the center stage of the present debate deserves to be quoted as hereunder: 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 mason before my marriage. After our marriage, he stayed in his house at Asanala for 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 residence and again went to Kohima and never came. Jaynal Abedin is maternal uncle of my husband. Jaynal Abedin has many wives. He has been living in our house since about 5 months leaving his wife and children. 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 gives 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-law 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 myself from him and went out from kitchen. This incident made me feel sick. Thereafter, I saw him sleeping in the bed near the kitchen room. At that time, I felt so ruminated that I hit Jaynal repeatedly in his neck with a Aai dao myself in the 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, because he raped me.. The accused/ appellant in answer to a question made under Section 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.

6 6 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, Musstt. Rajia Begum had testified that when asked the accused/ appellant had admitted to have cut the deceased, P.W.5, Aftab Uddin stated that she (accused/ appellant) had disclosed that she did so as the deceased tried to commit rape on her. To 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 statement, 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 reason to reject the confessional statement on account of any legal failings. A plain reading of the text of the confessional statement discloses the following salient features:- i) Deceased Jaynal Abedin was the maternal uncle of the husband of the appellant and had many wives. ii) He had been living in her (accused/ appellant) house since about 5 months leaving his wife and children. iii) Often he used to utter lewd remarks towards her and gesture immoral proposals. iv) On the date of the incident her mother-in-law and maternal uncle had gone out of the house after having meals. v) On that day while she was placing utensils in order in the kitchen, the deceased grabbed her from behind and forcibly raped her.

7 7 vi) vii) The incident left her defiled and devastated and, thus, when she found the deceased sleeping in the bed soon thereafter near the kitchen room, she assaulted him with a dao in his neck more than once and, thereafter, became senseless. When the police came and enquired of the incident, she disclosed to have assaulted the deceased as he had raped her. 14. The post mortem report in clear terms indicates two sharp cutting injuries one on the right side of the neck and the other over right scapula. It is clear from the evidence of the doctor as well as the post mortem report that the death had occurred due to shock and haemorrhage resulting from the ante mortem injuries sustained. 15. On a cumulative consideration of the evidence on record, there is 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 confessional 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 not 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 Indian society, such a reaction, violent though, is not unusual or unexpected. The 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

8 8 dismiss the prosecution s plea of pre-determined murder vis-à-vis the accused/ appellant. In all probability any married Indian woman having been so savagely ravished and desecrated would have exhibited such retaliatory conduct intending the same consequence as was meted out to the deceased. 16. Be that as it may, the above facts and circumstances cannot exonerate the accused/ appellant of the offence committed by her. Having regard to the weapon of assault, the portion of the body chosen by her as well as the number of blows inflicted, we are persuaded to hold that she at all relevant times had the intention to eliminate the deceased. Her distressed, agonized and bewildered state of mind, however, in view of the narration hereinabove cannot be discounted in any manner whatsoever. Balancing the prevailing factors, we are of the view 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 undergo imprisonment for a further period of one month. 17. Needless to say the period already served by the accused/ appellant would stand adjusted against the sentence now awarded. 18. The appeal stands partly allowed as indicated hereinabove.