Salim Uddin @ Salim, S/o. Md. Hussain Ali vs State of Assam, Represented by P. P. Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 961

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, ARUN DEV CHOUDHURY, JJ.
Salim Uddin @ Salim, S/o. Md. Hussain Ali & Ors. - Petitioners
Versus
The State of Assam, Represented by P.P. Assam & Ors. - Respondents
Crl.A.(J) Nos. 71, 72 of 2018, Crl. A. No. 322 of 2019
Decided On : 22-12-2022

Advocates Appeared:
For the Appellant : Ms. Susmita Kanungoe, Amicus Curiae.
For the Respondents: Mr. D. Das, Addl. PP, Assam, Mr. A.K. Bhuyan.

Headnote:
Indian Penal Code, 1860 - Sections 201, 302, 376A, 34 – Criminal Procedure Code, 1973 - Section 313, 366, 164 - Indian Evidence Act, 1872 - Section 25, 26, 27 - Murder offence - Rape – Appeal against Conviction - Appellants were convicted for rape and murder – Held, If confessional statement of appellants are discounted, there is nothing to sustain charge of rape under Section 376A merely on basis of post-mortem report - Though bite marks have been shown in body of deceased, yet, it is not proved as to who had caused and how it was caused - There is also no opinion by medical expert that deceased was subjected to sexual intercourse before she died - Therefore, under circumstances, in absence of any clear evidence of sexual assault on victim woman, Court cannot sustain conviction of appellant on charge of offence under Section 376A – Court is of view that appellant can not be convicted for committing offence punishable under Section 302 of IPC or Section 376A of IPC - Accordingly, while Court affirm conviction of appellant under Section 302/201 of IPC, Court set aside conviction of appellant Moinul under Section 302 of IPC as well as 376A of IPC, but uphold his conviction under Section 201 of IPC - Crl.A allowed.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Mr. P.K. Munir, learned amicus curiae in Crl.A.(J) No.72/2018; Ms. S. Kanungoe, learned amicus curiae in Crl.A.(J) No.71/2018; Mr. A.K. Bhuyan, learned counsel for the appellant in Crl.A.No.322/2019 and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the State.

2. The present appeals arise out of the order of judgment dated 24.07.2018 and order on quantum of sentence dated 01.08.2018 passed by the learned Additional District & Sessions Judge, FTC, Hojai, Sankardev Nagar, in Sessions Case No.70(N)/2017 by which the appellants Salim Uddin @ Salim and Moinul Haque were convicted for rape and murder.

The appellant Moinul Haque was convicted for the offences punishable under Sections 201/302/376A of the IPC and awarded death sentence for the offence committed under Section 302/376A of the IPC and Salim Uddin @ Salim was sentenced to undergo rigorous imprisonment for 5 (five)years and a fine of Rs.10,000/-(Rupees ten thousand) only for the offence under Section 201 IPC, in default to undergo simple imprisonment 3(three) months and for the offence under Section 302 IPC, he was sentenced to undergo rigorouos imprisonment for life and a fine of Rs.20,000/- only, in default to undergo simple imprisonment for 5(five) months in addition, and it was directed that the sentence of imprisonments shall run concurrently.

3. The genesis of the case can be traced to the ezahar lodged by one Bimal Bora, the husband of the deceased on 31.05.2017 stating that his wife was serving as the Headmistress of the Changjurai Elachi Deuri L.P. School of Jamunamukh area on the North bank of Kopili river, and he was informed by one Tarun Bordoloi over phone that the bag of his wife was lying on the bank of the river and her whereabouts was not known, and later he got the information that a dead body was found floating at some distance downstream the river, which was suspected to be of his wife, whereupon, he proceeded to the place of recovery of the dead body and identified it to be his wife. He then filed the complaint.

4. Based on the aforesaid complaint lodged, the police made G.D. Entry being Jamunamukh P.S. GDE No.493 dated 31.05.2017 and thereafter, the FIR was registered vide Jamunamukh P.S. Case No.52/2017 under Section 302/201 IPC and investigation was launched. The police after conducting necessary investigation and recording of evidence of relevant witnesses charged two persons, namely, Moinul Haque and Salim Uddin of committing offences punishable under Section 302/34 IPC, 201/34 IPC and 376A/34 IPC. The Trial Court after taking cognizance framed charge against the aforesaid two persons. In the trial both of them pleaded not guilty.

5. In course of the trial, the Prosecution examined as many as 19(nineteen) witnesses. The defence examined 3(three) witnesses in their defence. The accused were examined under Section 313 of Cr.P.C. in which they denied all the allegations and incriminating materials which came up in course of the trial and took the plea that they were innocent and they were ignorant of the said crime.

6. The learned Additional District & Sessions Judge, FTC, Hojai, Sankardev Nagar, after appreciating the evidence on record held that the charges against the accused Moinul Haque under aforesaid Sections 302/201/376A IPC were proved beyond reasonable doubt and sentenced him to death considering the heinousness of the offence proved against him and the other accused Salim Uddin was convicted under Section 201/302 IPC and was sentenced to undergo rigorous imprisonment for life without the benefit of parole or remission.

7. It is in respect of the capital punishment awarded to Moinul Haque that a reference was made as required under the law under Section 366 of Cr.P.C. in Death Reference No.1 of 2018 which has been disposed of on 19.12.2022 setting aside the death penalty and directing that appropriate punishment in resepct of Moinul Haque will be considered in the other remaining appeal