Chullay Kullu @ Rabi vs State of Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 958

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, ARUN DEV CHOUDHURY, JJ.
Chullay Kullu @ Rabi – Appellant
Versus
The State of Assam – Respondent
Crl. Appeal (J) No. 11 of 2017
Decided On : 22-12-2022

Advocates:
Advocate Appeared:
For the Appellants : K. Goswami, A. Sandilya.
For the Respondents: B. Bhuyan, J. Das.

Headnote:
Indian Penal Code, 1860 - Sections 376/302, 201 – Criminal Procedure Code, 1973 - Section 53A and 313 - Murder by strangulation - Rape – Appeal against Conviction - Appellant was charged was rape and murder by strangulation of a minor aged about 7(seven) years in a tea estate - Held, If there is evidence that victim girl was seen last together with appellant by independent witnesses, whose evidence have remained unshaken, this would clearly indicate that appellant was not forthcoming in giving proper explanation as to what he did with victim girl after he was seen holding her hand and going away - In Court view, once such clear credible evidence have been brought on record, he had a duty to explain circumstances under which he took victim girl away by holding her hand - It cannot be a mere coincident that when a search was launched in initial stage and when parents of victim girl went to house of the appellant, he was not found present - According to Court, these are circumstances which have been proved beyond reasonable doubt which would clearly link appellant with crime committed - Under circumstances, Court is of opinion that prosecution has been able to prove charge against appellant beyond reasonable doubt and accordingly, Court uphold conviction of appellant by learned Additional Sessions Judge – Court thus, find no reason to interfere with sentence imposed upon appellant - Appeal dismissed.

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.

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 tha