- (1.) This appeal is filed against the judgment and order dated 26.09.2006 passed by the Division Bench of the Gauhati High Court in Criminal Death Reference No. 1 of 2006 along with Criminal Appeal No. 67 of 2006 whereby the High Court disposed of the appeal preferred by the appellant-herein by confirming his conviction and altering the sentence of death to imprisonment for life passed by the Court of Ad-hoc Additional Sessions Judge, Lakhimpur at North Lakhimpur dated 18.03.2006 in Sessions Case No. 40(NL) 03 for the offence punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (in short 'IPC').
(2.) Brief facts: (a) As per the prosecution case, on 29.03.2000, at around 12 noon, one Rupamoni Dutta (the deceased), aged about 22 years, r/o Mauza Talwa, Village Kakattiup, PS Lakhimpur, Assam went to the field near an embankment to attend her goats. When she did not return home, Ganesh Dutta (PW-2), father of the deceased, went in search for her. After enquiring about her daughter in the house of his elder brother, Khira Dutta, PW-2 started searching for her along the embankment. While returning, he heard a loud laughter at the farm house of the appellant-accused. Thereafter, he returned home and called for his daughter but when he found that she did not return, he again went to the embankment and shouted for her. On hearing this, the appellant came out of the farm house and looked at him. Then, PW-2 came down the embankment by a path where he saw his daughter lying dead on the left side. There was cut injury on her chin and blood was also oozing from her body. (b) On seeing this, he raised alarm and his son - Bhaba Kanta (PW-3) came there and they tried to lift her. By that time, other people from the village also gathered there. The appellant-accused also came and enquired. Thereafter, they brought home the dead body. On being informed, Anand Ozah, Sub-Inspector of Police, Panigaon Police Outpost, came and seized the wearing apparels of the deceased and prepared a seizure list. After holding inquest over the dead body, the same was sent for post-mortem examination. (c) On the same day, PW-3, brother of the deceased, lodged a written complaint with the police at Panigaon police out-post. A case was registered vide G.D. Entry No. 389, at North Lakhimpur P.S. During the course of investigation, the police seized the underwear of the deceased stained with semen on that very day. The appellant-accused Bhaikon @ Bakul Bora and Balin Saikia (PW-1) were also apprehended and interrogated. (d) On 30.03.2000, at about 9.30 a.m., the police alleged to have seized a blue underwear of the appellant-accused suspected to have been stained with semen. They also seized one bed sheet, a sporting and a 'dao' from the farm house of the appellant-accused and prepared a seizure list. The seized underwears of both the appellant and the deceased were sent to FSL for examination. The post mortem was conducted on the dead body by Dr. Tulen Pagu (PW-9), who submitted a report stating that the victim died of asphyxia as a result of throttling. He also stated that the vaginal smear showed no spermatozoa. (e) On 31.03.2000, the Magistrate recorded the statement of PW-1 under Section 164 of the Code of Criminal Procedure, 1973 (in short 'the Code). After conclusion of the investigation, the police submitted charge-sheet against the appellant-accused under Sections 376 and 302 of the IPC. The case was committed to the Court of Ad-hoc Additional Session Judge, Lakhimpur and numbered as Sessions Case No. 40 (NL) of 2003. (f) The Additional Sessions Judge, Lakhimpur, by order dated 18.03.2006, convicted the appellant under Sections 376 and 302 of IPC and sentenced him to death for the offence punishable under Section 302 of IPC and rigorous imprisonment (RI) for life for the offence punishable under Section 376 of IPC along with a fine of Rs. 10,000/-, in default, to further undergo RI for a period of 1 (one) year. (g) Challenging the order of conviction and sentence, the appellant preferred Criminal Appeal No. 67 of 2006 and the trial Court preferred Death Reference No. 1 of 2006 before the High Court. (h) By impugned judgment dated 26.09.2006, the High Court disposed of the appeal preferred by the appellant accused by confirming his conviction and altering the sentence of death to imprisonment for life for the commission of offence punishable under Section 302 of IPC along with a fine of Rs.1,000/-, in default, to further undergo imprisonment for 1 (one) month and for the offence under Section 376 of IPC, the High Court sentenced him to imprisonment for 7 years. (i) Being aggrieved, the appellant preferred this appeal by way of special leave petition before this Court and leave was granted on 18.01.2008.
(3.) Heard Mr. Parmanand Katara, learned senior counsel appearing for the appellant-accused and Mr. Navnit Kumar, learned counsel appearing for the respondent-State.;