Case title: JASHIM UDDIN BARBHUIYA Vs THE STATE OF ASSAM AND ANR
Case no.: Crl.A./389/2018
Dated on: 19.04.2024
Quorum: Hon’ble. MR JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
FACTS OF THE CASE
On 14.03.2018, Madhuchandra Riyang lodged an FIR before the Officer in Charge of Ramnathpur Police Station, inter-alia, alleging that on this said day, i.e., 14.03.2018, his neighbour, Brojendra Riyang and the first informant were doing house repairing work and his two nieces, namely, Vishnupriya Riyang and Debarung Riyang, returned to their house and noticed another niece “X”(real name not disclosed, to protect the identity of the victim, the victim shall hereinafter be referred to as “X” in this judgment) was found lying dead with a cut on her neck and on seeing this they raised hue and cry. The first informant along with his companion Brajendra Riyang rushed to the place of occurrence and found his niece “X” lying dead with a cut on her neck. It is stated in the FIR that the elder brother of the first informant had gone to harvest Jhum (shifting cultivation), and after calling him home, the police was informed about the matter over the telephone. It is also stated in the FIR that the first informant noticed the accused Jashim Uddin Barbhuiya, running away with a blood-stained dao in his hand and therefore he believes that the accused Jashim Uddin Barbhuiya, finding the niece of the informant namely, “X” alone in the house, committed rape on her and in order to conceal evidence, he killed her by cutting her neck.
The Criminal Appeal No. 389/2018 has been registered on filing of an appeal under Section 374 of the Code of Criminal Procedure, 1973 by the appellant, Jashim Uddin Barbhuiya, impugning the judgment dated 1.10.2018 passed by the learned Sessions Judge, Hailakandi in Sessions (T-1) Case No. 60/2018. appellant has been convicted under Sections 376/302 of the Indian Penal Code as well as under Section 4 of the POCSO Act, 2012. the appellant has been sentenced to imprisonment for life for the offence of committing rape/penetrative sexual assault and to pay a fine of Rs. 10,000/- under Section 376 of the Indian Penal Code, read with Section 4 of the POCSO Act, 2012, in default of payment of fine to undergo rigorous imprisonment for 3 months. The appellant has also been sentenced to death for committing the offence of murder under Section 302 of the Indian Penal Code, and was also sentenced to pay a fine of Rs. 10,000/ under Section 302 of the Indian Penal Code, in default of payment of fine to undergo rigorous imprisonment for 3 months.
ISSUES
- Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
- Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
- Whether the accused person, on the aforesaid date, time and place, committed penetrative sexual assault upon the victim ‘X’, a minor girl and thereby committed an offence punishable under Section 4 of the POCSO Act, 2012?
LEGAL PROVISIONS
Section 376 of The Indian Penal Code, 1860
Section 376 of the Indian Penal Code (IPC) deals with the punishment for the crime of rape. The section prescribes imprisonment for a term not less than seven years, which may extend to life imprisonment, and also includes a fine.In cases involving aggravated rape, such as when the victim is a minor, the punishment is more severe, including rigorous imprisonment for a term not less than ten years, which may extend to life imprisonment, and also includes a fine.
Section 4 of the POCSO Act, 2012
Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, deals with the punishment for penetrative sexual assault on a child. Whoever commits penetrative sexual assault shall be punished with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
In cases where the penetrative sexual assault results in the child becoming pregnant, contracting a sexually transmitted disease, or suffering from mental illness, or the assault results in the death of the child or causes the child to become mentally or physically incapacitated, the punishment can be imprisonment for the rest of the natural life of the person and shall also be liable to fine.
Section 302 of The Indian Penal Code, 1860
Section 302 of the Indian Penal Code (IPC) pertains to the punishment for murder being death sentence or life imprisonment, along with a fine.It applies to individuals who commit murder, which is defined under Section 300 of the IPC.
CONTENTIONS OF THE APPELLANT
The appellant denied the truthfulness of the incriminating evidence adduced against him by the prosecution side and pleaded his innocence. He also stated that he has been falsely implicated in this case out of grudge due to a land dispute between the informant side and the present appellant, however, the appellant declined to adduce any evidence in his defence.
Mr. A. I. Uddin, learned counsel for the appellant has submitted that the prosecution side has failed to prove its case beyond all reasonable doubt. He has submitted that the prosecution case is full of doubt and conviction cannot be sustained on the basis of insufficient evidence which is available on record. The learned counsel for the appellant has also submitted that the prosecution case is based entirely on circumstantial evidence and there are several missing links in the chain of circumstances which do not lead to the only inference that the appellant is guilty of the offence with which he is charged. He has submitted that the circumstances do not point towards the guilt of the appellant only and there are gaps in between the circumstances and the appellant is to be given benefits of such gaps or doubt which the prosecution side has not been able to fill up by adducing credible evidence. Learned counsel for the appellant has submitted that though the appellant has also been convicted under Section 4 of the POCSO Act, 2012, which deals with penetrative sexual assault, however there is no evidence of any penetration by the present appellant and other ingredients of Section 4 of the POCSO Act, 2012, as well as Section 376 of the Indian Penal Code. It is submitted by the learned counsel for the appellant that merely finding stains of semen on the panty of the deceased in the forensic examination would not implicate the present appellant unless the semen found on the panty of the deceased is cross-matched with the semen of the present appellant so as to ascertain that as to whether the semen found on the panties of the deceased were of the present appellant or not. Further, it is submitted by the learned counsel for the appellant that no evidence of recent sexual assault was found on the dead body of the deceased and no spermatozoa were found inside the vagina of the deceased on medical examination which only leads to the inference that she was not subject to penetrative sexual assault before her death.
CONTENTIONS OF THE RESPONDENTS
Ms. S. Jahan, learned Additional Public Prosecutor has submitted that in this case, the circumstances from which the conclusion of guilt of the present appellant has been drawn are fully established and from the proved circumstances, no other hypothesis except the guilt of the accused is established in this case. She has submitted that from the evidence of PW-4, who is the father of the victim, as well as PW-8, who is the sister of the victim, it becomes clear that when the alleged offence occurred, the victim was alone in her house and the appellant took advantage of that and committed the gruesome act against the helpless victim. She also submitted that the conduct of the appellant prior to the occurrence of the incident is also relevant, as from the testimony of PW-6, i.e., Shri Dilip Kumar Riyang, it appears that the appellant had come in his house before the incident with a dao in his hand and had asked about the parents of the victim. It is also submitted by the learned Additional Public Prosecutor that the Executive Magistrate who conducted the inquest on the dead body of the victim also found the lower part of vagina of the victim swollen and open with scratch marks and bruises on her back and also found the neck of the victim half cut. Learned Additional Public Prosecutor also submitted that the evidence of PW-17, i.e., the doctor who conducted the post mortem examination of the dead body of the victim girl clearly shows that the death of the victim was homicidal as he also opined that the injury on the neck could have been inflicted by the dao that was recovered.
COURT’S ANALYSIS AND JUDGEMENT
The court considered as to whether the trial court was right in convicting the appellant under Section 376 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012 and whether sufficient materials are there on record to arrive at such a conclusion. The court held that there is no eyewitness to the alleged offence who could have adduced direct evidence, hence, the prosecution’s case is based on circumstantial evidence only. However, in the instant case, there appears to be no circumstantial evidence on record to conclusively prove the existence of any of the four ingredients required to for Section 4 of POCSO and 376 of IPC. PW-18 who is the doctor who conducted the post-mortem examination of the dead body of deceased ‘X’ has deposed that during post-mortem examination the external labia majora were found to be swollen and the vagina was found to be wide open. However, he has opined that there is no evidence of recent sexual intercourse as there was absence of any spermatozoa or any injury in and around the vagina. The trial court while discussing this evidence has concluded that from the swollen labia majora it is presumed that something came into forceful contact with the private parts of the deceased and contrary to the opinion of the doctors, who conducted the post-mortem examination of the dead body of the victim “X”, the trial court had presumed that the victim was raped before she was killed, only due to the swelling of the labia majora of the deceased “X”. The most important circumstance in the chain of circumstances which have been established by the prosecution witnesses is the recovery of dao from the house of the appellant which was kept beneath a table and the said recovery was made on the basis of the information given by the appellant in his statement.
Thus, in view of the discussions made and reasons stated in foregoing paragraphs, the conviction of the appellant under Section 376 of the Indian Penal Code, as well as under Section 4 of the POCSO Act, 2012 were set aside. However, the conviction of the present appellant under Section 302 of the Indian Penal Code for committing murder of the deceased ‘X’ was upheld.
In view of the above discussion, the court did not think that any of the factors in the present case discussed above warrants the award of the death penalty. There were no special reasons to impose the death penalty and the mitigating factors in the present case, in its opinion, were sufficient to place it out of the “rarest of rare” category and for the reasons aforementioned, the court was of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, was sentenced to undergo rigorous imprisonment for life.
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Judgement Reviewed by – Fathima Sara Sulaiman
