Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 306 (GAU)

Deepak Karmakar v. State of Assam

2014-03-13

B.P.KATAKEY, P.K.SAIKIA

body2014
JUDGMENT B.P. Katakey, J. 1. This appeal, by the convict, is directed against the judgment of conviction dated 10th July, 2012 passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 60/2010, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 1000/- (Rupees One Thousand), in default, to undergo simple imprisonment for 3(three) months. A criminal investigation was set in motion on lodging of a First Information Report (FIR) by Smti. Rimpi Karmakar (PW-2), the mother of the deceased and the wife of the accused/appellant, on 20th March, 2010, with the Officer-in-Charge of Kamarbandha Police Station, alleging that at about 10:00 P.M. on the previous night, i.e. on the night of 19th March, 2010, her husband Deepak Karmakar (the appellant) gave blow to her daughter Jaya Karmakar and pressed her neck and thereafter, pour kerosene oil on her person and set her on fire. 2. Based on the said FIR lodged, Golaghat Police Station Case No. 151/2010, under Section 302 IPC, was registered and police started investigation. During investigation, the statements of the persons acquainted with the facts of the case were also recorded under Section 161 Cr.P.C. Statement of PW-2, Rimpi Karmakar was recorded under Section 164 Cr.P.C. and the dead body was sent for conducting post mortem examination. On completion of investigation, charge-sheet was filed under Section 302 IPC. The case being exclusively triable by the Court of Sessions, the accused was committed for trial by the Court of Sessions and hence, Sessions Case No. 60/2010 was registered and numbered. The learned Sessions Judge, thereafter, framed the charge under Section 302 IPC, which when read over and explained to the accused/appellant, he pleaded not guilty and claimed to be tried. Hence, the trial commenced. 3. During trial, the prosecution examined 11 witnesses, namely, Dr. (Mrs.) Rekha Boruah (PW-1), who conducted the autopsy and submitted the post mortem examination report; Smti. Rimpi Karmakar (PW-2), the witness to the occurrence; Smti. Hence, the trial commenced. 3. During trial, the prosecution examined 11 witnesses, namely, Dr. (Mrs.) Rekha Boruah (PW-1), who conducted the autopsy and submitted the post mortem examination report; Smti. Rimpi Karmakar (PW-2), the witness to the occurrence; Smti. Bhani Karmakar (PW-3), who was a reported witness; Shri Dilip Karmakar (PW-4) before whom extra judicial confession, according to the prosecution, was made by the accused; Shri Bisheswar Karmakar (PW-5), who is another reported witness; Shri Dipu Tanti (PW-6), another witness before whom extra judicial confession was allegedly made; Shri Rahul Medhi (PW-7), the learned Magistrate, who recorded the statement of PW-2 under Section 164 Cr.P.C.; Shri Amit Karmakar (PW-8), the witness to the seizure and Shri Rajesh Tanti (PW-9) and Shri Chenmoy Nath (PW-10), who are witnesses to the inquest. The prosecution has also examined Shri Dambourdhar Bora, the Investigating Officer as PW-11. The witnesses were cross examined by the defence. The statement under Section 313 Cr.P.C. was also recorded. The defence did not, however, adduce any evidence despite giving opportunity in that regard. 4. The learned Sessions Judge, upon appreciation of the evidences on record, has passed the judgment of conviction, as aforesaid. Hence, the present appeal. 5. We have heard Mr. R. Adhikari, learned Amicus Curiae for the accused/appellant and Mr. D. Das, learned Additional Public Prosecutor appearing for the respondent. 6. Mr. Adhikari, learned Amicus Curiae taking us through the evidence of PW-2, the witness to the occurrence, has submitted that it is apparent therefrom that the appellant was under the influence of liquor at the time of commission of the offence and was provoked by the neighbours for commission of the offence and hence, the appellant cannot be punished under Section 302 IPC but can be punished under Part-II of Section 304 IPC. Referring to the evidence of PW-4 and PW-6, it has also been submitted that the story put forwarded by the prosecution relating to making of extra judicial confession cannot be believed, as the PW-4, for the first time in Court, stated about making of such extra judicial confession and PW-6 in his evidence has stated that such confession was made in presence of the police. The learned counsel, therefore, submits that the conviction of the accused/appellant may be altered from 302 IPC to Part-II of 304 IPC. 7. Mr. The learned counsel, therefore, submits that the conviction of the accused/appellant may be altered from 302 IPC to Part-II of 304 IPC. 7. Mr. Das, learned Additional Public Prosecutor, on the other hand, supporting the judgment of conviction recorded by the learned Sessions Judge and also the sentence imposed, has submitted that it is apparent from the evidence of PW-2, the witness to the occurrence, who is the wife of the appellant and mother of the deceased, the brutality in which the appellant has committed murder of his 11 year old daughter, Jaya, as he first gave blows and thereafter, strangulated her and then poured kerosene oil and burned her. It has also been submitted that though this witness in the statement made under Section 164 Cr.P.C. did not say pouring of Kerosene oil and burning of Jaya by the appellant, the said omission would not affect the otherwise trustworthy evidence of PW-2, having regard to her state of mind at that point of time, who has lost her 11 year old daughter. The learned Additional Public Prosecutor, however, has fairly submitted that the story put forwarded by the prosecution relating to making of extra judicial confession is not believable. 8. We have considered the submissions advanced by the learned counsel appearing for the parties and perused the materials available on record. 9. The prosecution, in order to prove the charge framed under Section 302 IPC, has examined Dr. (Mrs.) Rekha Boruah, who conducted the autopsy over the dead body of Smti. Jaya Karmakar and submitted the post mortem report (Exhibit-1). This witness has narrated the injuries found on the person of Jaya Karmakar, which is reproduced below:- Burn injuries found over the face, both upper limbs, front and back of chest, front and back of abdomen buttocks, both thigh and legs. 90% burn injuries were found over the dead body. The burn areas were reddened and brown in some places. The areas were surrounded by zone of hyperemia. In most places whole thickness of skin is destroyed with charring and scar formation. Few blisters were seen in burnt areas and in surrounding areas. The blisters contains serous fluid and the base is red and inflamed (2nd and 3rd degree burn). The burn areas were reddened and brown in some places. The areas were surrounded by zone of hyperemia. In most places whole thickness of skin is destroyed with charring and scar formation. Few blisters were seen in burnt areas and in surrounding areas. The blisters contains serous fluid and the base is red and inflamed (2nd and 3rd degree burn). The Doctor has opined that the cause of death of the deceased was due to shock and Toxemie as a result of ante mortem burn which is 90% 2nd and 3rd degree burn injuries sustained by the deceased. There was no cross-examination by the defence on the injuries found on the person of Jaya as well as the cause of the death and hence, the prosecution could prove the nature of injuries found as well as the cause of the death. 10. The next question which requires determination is whether the appellant is the author of the crime. Though the prosecution introduced making of an extra judicial confession by the accused, the prosecution, however, could not prove the same as Shri Dilip Karmakar (PW-4), before whom the extra judicial confession was claimed to be made, did not disclose anything in that regard before the police while recording his submission under Section 161 Cr.P.C. Such contradiction has been proved by the defence while cross-examining the Investigating Officer (PW-11). The alleged extra judicial confession made before PW-6 is also not acceptable, as admittedly the same was done in presence of the police. 11. The prosecution has also relied upon the evidence of the lone eye witness, namely, Smti. Rimpi Karmakar (PW-2), in support of the charge framed under Section 302 IPC against the appellant. PW-2, who is the wife of the appellant and the mother of the deceased, in clear term has narrated how the appellant came back home, assaulted Jaya, pressed her neck and set on to fire after pouring Kerosene oil on her person. This witness could not be demolished by the defence during cross-examination. This witness, however, has admitted, during cross-examination, that at the time of occurrence, the appellant was under the influence of liquor. This witness has also stated that she does not know if some other person had make the appellant drink alcohol. Going by the nature of the cross-examination, it appears that the appellant sought to take benefit of Section 85 of the IPC. This witness has also stated that she does not know if some other person had make the appellant drink alcohol. Going by the nature of the cross-examination, it appears that the appellant sought to take benefit of Section 85 of the IPC. Though the burden lies on the appellant to prove the same, no evidence, however, has been led to that effect. 12. The submission made by the learned Amicus Curiae that, because of the grave and sudden provocation, as the appellant strangulated Jaya and set her on fire after pouring Kerosene oil, it would come within the first exception to Section 300 and hence would be culpable homicidal not amounting to murder and hence, he cannot be convicted under Section 302 IPC but can be convicted under Part-II of 304 IPC, cannot be accepted, having regard to the fact that there is no evidence relating to the grave and sudden provocation by the neighbours on the date of commission of the offence. Mere complaint by the neighbours against Jaya on earlier occasion, cannot constitute grave and sudden provocation. 13. The omission as pointed by the learned Amicus Curiae on the part of the PW-2, while making the statement under Section 164 Cr.P.C., relating to non disclosure of setting Jaya on fire by the appellant, would not demolish the positive statement of the PW-2, as the omission naturally was because of the fact that the mother has lost her 11 year old child under very tragic and violent situation. The appellant has also not explained the death of the daughter as well as about the cause of the death of the daughter, when admittedly he was present in the house alongwith the mother, which is another incriminating circumstance, which goes against the appellant. 14. In view of the aforesaid discussion, we do not find any merit in the appeal and hence, it is dismissed. 15. The State, however, in view of the provisions contained in Section 357(A) Cr.P.C. and also having regard to its duty to protect the fundamental right of the citizen, is directed to pay compensation of Rs. 50,000/- to Smti. Rimpi Karmakar (PW-2), the mother of the deceased. 15. The State, however, in view of the provisions contained in Section 357(A) Cr.P.C. and also having regard to its duty to protect the fundamental right of the citizen, is directed to pay compensation of Rs. 50,000/- to Smti. Rimpi Karmakar (PW-2), the mother of the deceased. The said amount shall be deposited with the District Legal Services Authority, Golaghat, and on being deposited, the said amount shall be released in favour of Rimpi Karmakar by an account payee cheque and on being identified to the satisfaction of the Secretary, District Legal Services Authority, Golaghat. 16. The learned Amicus Curiae would be entitled to the professional fee of Rs. 7,500/-, which shall be paid by the State Legal Services Authority, within a period of 1(one) month from today. 17. The appeal is accordingly dismissed. The Registry is directed to send down the records. Appeal dismissed