IMPORTANT POINT
No leniency can be shown towards accused in case of rape and murder.

JUDGMENT

ARUN MISHRA, J.

1. The appeal has been preferred by the State against the judgment and order of the High Court thereby setting aside the conviction of the accused under section 376 IPC and altering the conviction under section 302 to section 304 Part II IPC, sentencing the accused to 7 years’ imprisonment while maintaining the conviction recorded by the trial court under section 454 IPC thereby sentencing him to undergo RI for one year.

2. As per the prosecution case the incident took place on 1.5.2003 at about 5 p.m. when accused Ramen Dowarah and Janmejoy Gogoi alias Sanju entered the house of victim and committed rape on her and after pouring kerosene oil set her ablaze. When the victim raised hue and cry, people assembled and the victim was taken to the Civil Hospital. She sustained 55% burn injuries as her condition was serious she was referred to AMCH, Dibrugarh where in the course of her treatment she died after 2 months on 11.7.2003. On the date of the incident the paternal uncle of the victim Mr. Khirode Hazarika, PW 1, lodged a First Information Report at P.S. Tinsukia.

3. The accused were chargesheeted. After committal they were tried for commission of offences under sections 454/376(G)/302/34 IPC. The prosecution examined 11 witnesses. The accused persons abjured the guilt and contended that they had been falsely implicated in the case. The trial court convicted the accused/respondent Ramen for commission of offence under sections 454/376/302 IPC, and sentenced him to 1 year, 10 years and life imprisonment respectively and a fine of Rs.3,000; in default of payment of fine to undergo simple imprisonment for 1 month. Aggrieved thereby, accused Ramen preferred appeal before the High Court and the same has been partly allowed. Aggrieved thereby State has come up in appeal.

4. The High Court has found that it was a case of consensual sexual intercourse with the accused Ramen and when the victim threatened him that the incident would be disclosed by her to mother, on the spur of the moment he poured kerosene oil on her so as to cause burn injuries. It could not be said to be a case of intentionally causing death falling under section 300 IPC, Hence conviction under section 302 IPC has been set aside. Conviction has been recorded under section 304 Part II IPC.

5. Learned counsel appearing on behalf of the State has submitted that it was not a case of consensual sexual intercourse. The High Court has gravely erred in law in reversing the finding of the trial court. The victim had raised a hue and cry and threatened the accused that she would disclose the incident to her mother. On that accused had poured kerosene oil on her and set her ablaze. It could not be said to be a case falling under section 304 Part II IPC. The conviction was rightly recorded by the trial court under sections 302 and 376 IPC.

6. Learned counsel appearing on behalf of the respondent has strenuously argued that the victim had not resisted when the sexual intercourse was performed. In her dying declaration she has not stated that she resisted the commission of sexual intercourse. In the circumstances as the victim had threatened accused to disclose the incident to her mother, in a fit of rage, the accused had poured kerosene oil over her without intending to cause death of the deceased. There was no pre-meditation. Thus considering the relatively young age of the accused the conviction under section 304 Part II IPC calls for no interference. Accused could not have been convicted in view of the evidence adduced by the prosecution under section 376 IPC.

7. We have carefully assessed the evidence adduced by the prosecution. When we consider the evidence of the various witnesses examined by the prosecution, Khirode Hazarika – PW1 – has stated that the deceased had made oral dying declaration as to the complicity of the accused. Mridula Hazarika, PW2, saw the accused Ramen and other acquitted accused fleeing the house, in oral dying declaration v