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2015 DIGILAW 22 (GAU)

Dilip Karmakar v. State of Assam

2015-01-08

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2015
JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 11.02.2011 rendered by Sessions Judge, Jorhat, Assam in Sessions Case No. 61(JJ) of 2008 convicting the appellant Dilip Karmakar of offence u/s. 302 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs. 5,000/- (Rupees Five Thousand), in default R.I. for another 3 (three) months for offence u/s. 302 IPC. Being aggrieved by the aforesaid judgment, the appellant, Dilip Karmakar (hereinafter referred to as accused person) preferred this appeal from jail citing several infirmities in the judgment under challenge. 2. We have heard Mr. M. Choudhury, learned Amicus Curiae appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State. 3. The projected case of the prosecution is that on 17.02.2008, one Ramesh Majhi of Balijan Tea Estate under Deberapar Police Outpost was found lying dead near on a ridge in Section 18 of the Balijan Tea Estate. He was found sustaining penetrating wounds on his abdomen. In that connection, an FIR was lodged by his brother Biswa Majhi with I/C Deberapar Police Outpost on 18th of February, 2008. 4. I/C Deberapar Police Outpost on making G.D. Entry on the aforesaid FIR forwarded the same to O/C, Mariani PS. for registering a case and for doing the needful. On receipt of such an FIR, O/C, Mariani Police Station registered a case vide Mariani P.S. No. 23 of 2008 u/s. 302 IPC and ordered Shri Kalidur Rahman Choudhury (PW 14) to conduct a preliminary investigation into the case. 5. Being so entrusted with the investigation, Sri Choudhury visited the place of occurrence, caused inquest on the dead body of the deceased through the Executive Magistrate, thereafter, sent the dead body to hospital for post mortem examination, examined the witnesses well acquainted with the facts and circumstances of the case, arrested the accused person and on the conclusion of trial, he submitted charge-sheet u/s. 302 IPC against the accused person. 6. The Magistrate before whom the charge sheet was so laid, committed the case to the court of Sessions, Jorhat since the offence u/s. 302 IPC is exclusively triable by the Court of Sessions. On receipt of the case on commitment and on hearing the learned counsel for the parties, the court below framed charge u/s. 302 IPC against accused the person. On receipt of the case on commitment and on hearing the learned counsel for the parties, the court below framed charge u/s. 302 IPC against accused the person. Charge, so framed, on being read over and explained to him, the accused person pleaded not guilty and claimed to be tried. 7. During the course of trial, the prosecution had examined as many as 14 witnesses including the Medical Officer, who conducted autopsy on the dead body of the deceased, as well as the Investigating Officer. On the conclusion of trial, the learned trial court examined the accused u/s. 313Cr.P.C. In his statement, recorded u/s. 313 Cr.P.C., the accused pleaded that on the fateful night he along with the deceased Ramesh Majhi, Ganesh Karmakar and Lobin Boraik consumed liquor. 8. Sometime thereafter, when the deceased was about to leave such place, an altercation took place between the accused and the deceased. All of a sudden, the deceased pulled out a knife and tried to attack him with the knife in his hand. Being so attacked, he snatched away the knife from the deceased and left such place. He claims that he did not hurt the deceased. The accused, however, did not adduce any evidence of his own to support his claim aforesaid. 9. On the conclusion of trial, the learned trial court found the accused guilty of offence u/s. 302 IPC, convicted him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been challenged in the present appeal. 10. Opening up argument on behalf of accused person, Mr. M. Choudhury, learned Amicus Curiae submits that the prosecution case is basically founded on extrajudicial confession which accused reportedly made before the PW4 & PW5. The prosecution case is also founded on the evidence of PW 9 (Lobin Boraik) who claimed to have witnessed the incident under consideration. 11. According to him, neither the extra judicial confession nor the testimony, rendered by eye witness Lobin Boraik can be acted upon since such extra judicial confession or for that matter the testimony of PW9 is riddled with several infirmities of enormous proportion. 12. In elaborating his contention, learned Amicus Curiae submits that the extra judicial confessions reportedly made by PW 4 and PW5 are inconsistent with one another since the testimonies of both the witnesses on the point accused making extra judicial confession do not go hand to hand. 12. In elaborating his contention, learned Amicus Curiae submits that the extra judicial confessions reportedly made by PW 4 and PW5 are inconsistent with one another since the testimonies of both the witnesses on the point accused making extra judicial confession do not go hand to hand. In fact, those two witnesses gave two different versions on some very fundamental aspects. Therefore, the claim of PW 4 and PW 5 that the accused made extra judicial confession before them on the night in question cannot be accepted as truthful one. 13. In regard to the evidence, rendered by PW9, it may be stated that his evidence too cannot be considered as truthful one. According to learned Amicus Curiae, if one believes the testimony of PW9, then he would find that on the night in question, the accused had attacked the deceased in front of his house, and that too, quite severely. 14. However, he did nothing in regard to capturing the accused person or helping the deceased to get treatment after sustaining severe injuries in the incident in question. Rather, he chose to return to his house on that night silently and retired for the day without intimating such a serious incident to anyone. Worse still, he claims to have been posted with the news of the death of the deceased only on the next day. Such conduct on the part of PW 9 is enormously against normal human conduct. 15. More importantly, such conduct is also inconsistent with the testimonies, rendered by other PWs, more particularly, PW4 and PW5 since despite they being close to the place of occurrence at the time in question, they did not find PW 9 at such place which raise a serious doubt about the claim of PW 9 that he saw the incident in question. 16. According to the learned Amicus Curiae, prosecution claims that the victim was attacked, injured and killed with the help of knife. Though the knife was recovered on the very next day of the alleged incident, yet, same was not sent to Forensic Laboratory to ascertain as to whether the knife was stained with blood and if so, whether such blood matched with the blood of the deceased. 17. Though the knife was recovered on the very next day of the alleged incident, yet, same was not sent to Forensic Laboratory to ascertain as to whether the knife was stained with blood and if so, whether such blood matched with the blood of the deceased. 17. Since the weapon of offence which was allegedly seized during the course of investigation was not sent to the Forensic Laboratory to connect the same with the crime in question, it raises a serious doubt about the claim of prosecution that on the night in question, the accused attacked, injured and killed the deceased by planting knife blows on his abdomen. 18. Controverting the submissions, so advanced from the side of learned Amicus Curiae, the learned Addl. Public Prosecutor submits that submissions, advanced from the side of learned Amicus Curiea is based more on conjectures and surmise than on facts. According to learned Public Prosecutor, there is no marked difference between the evidence rendered by PW4 and PW5 on the point of accused making extra judicial confession to them. 19. Though there are some inconsistencies in the evidence of those witnesses, such inconsistencies occurred on the peripheral aspect of the prosecution case and such inconsistencies are far too inconsequential in invalidating the confessions, which the accused person reportedly made to the PW4 and PW 5. Being so, the extrajudicial confession which accused made to PW4 and PW 5 cannot be rejected as prayed for by the learned Amicus Curiae. 20. Regarding the infirmity in the evidence of PW9 it has been submitted that PW9 in clear terms stated that he saw the accused hitting the deceased in his abdomen for which he snatched the knife from the accused person which police seized subsequently during the course of investigation. He also saw the accused planting knife blows twice on the abdomen of the deceased. Though he was subjected to cross-examination, such cross-examination does not elucidate anything to show that the evidence of PW 9 is not reliable. 21. The further case of the learned Addl. P.P. is that the Doctor had opined that the deceased died a homicidal death having sustained wounds on his abdomen being caused by sharp pointed object. Such evidence of the Doctor lends support to the evidence of PW 9 that on the fateful night, accused hit and injured the deceased with a knife on his abdomen. 22. P.P. is that the Doctor had opined that the deceased died a homicidal death having sustained wounds on his abdomen being caused by sharp pointed object. Such evidence of the Doctor lends support to the evidence of PW 9 that on the fateful night, accused hit and injured the deceased with a knife on his abdomen. 22. The I/O had already recovered the alleged knife during the course of investigation. The recovery of knife alleged to be used in committing the crime in question from PW 9 on the next day of the alleged incident lends more and more support to the prosecution case that on the fateful night accused hit and injured the deceased with a knife which was, however, snatched away from the accused person by the PW9. 23. The learned P.P., therefore, submits that the judgment under challenge does not suffer from any infirmity whatsoever and therefore, he submits that the present appeal needs to be dismissed on upholding the aforesaid judgment 24. We have considered the rival submissions having regard to the evidence on record and the judgment under challenge. 25. Before we proceed further, we find it necessary to have a look at the evidence of the Dr. Anirudha Gogoi (PW11) who conducted autopsy on the body of the deceased. According to him, on 19.02.2008, he was posted at Jorhat Civil Hospital. On that day, he performed post mortem examination on the body of one Ramesh Maji at Jorhat Civil Hospital and found the following :-- "Penetrating incised wound over epigastrium measuring 1" x 1/2" abdomen cavity deep. 1) Penetrating incised wound over the left side of back at the level of 10th intercostal space, the posteur axillary line measuring 2" X thoracic cavity deep. 2) Penetrating incised wound over the left side of back at the level of 9th intercostal space just 2" anterior to 2 No. wound measuring 1/2" X 1/4" thoracic cavity deep. All the injuries described in the external appearance are ante mortem in nature. Injury No. 1 which corresponds to injury over liver in hemopentonem is ante mortem and grievous in nature. Injury No. 2 and injury No. 3 which corresponds to injuries over left lung in hemothorax are ante mortem and grievous in nature. In the opinion of doctor, the cause of death is syncope as a result of injuries of injuries sustained by the deceased. Injury No. 2 and injury No. 3 which corresponds to injuries over left lung in hemothorax are ante mortem and grievous in nature. In the opinion of doctor, the cause of death is syncope as a result of injuries of injuries sustained by the deceased. The injury No. 1 & 2 are sufficient to cause instantaneous death. The injuries were caused by sharp weapon. In cross-examination by the defence, the doctor stated that there was remote chance of survival if sophisticated treatment would have been given." 26. The evidence of the Doctor clearly shows that the victim sustained ante mortem wounds on his abdomen being inflicted with sharp weapon which occasioned his death. The Doctor also opined that the deceased died a homicidal death. Now, the question is who caused the death of the deceased on or about 17.02.2008? In that connection, we find it necessary to have a look at the evidence of PW 9. 27. PW9, Lobin Boraik deposes that on the fateful night, he was in the house of the accused person where he had his meal on that night When he was about to leave the house of the accused person, a quarrel broke out between the accused and deceased for which the accused stabbed the deceased with a knife on his abdomen. 28. The accused hit the deceased with knife twice. PW 9, Lobin Boraik immediately snatched away the knife from the accused person. Next day, in the morning, police came to the place of occurrence and seized the aforesaid knife from him on the strength of seizure list, Ext. 4. In his cross-examination, he claims that when the incident occurred none was there at the P.O. except the deceased, accused and PW9. 29. PW4, Sri Bhaijan Karmakar deposes that on the fateful night he heard Dilip Karmakar raising hue and cry for which he came out of his house and met Dilip on the road. When he met Dilip Karmakar, the later told him that he had killed the deceased inflicting two knife blows on his abdomen. On getting such information, he returned home immediately. 30. Next day police came to the P.O. and recovered a knife on being produced by PW9, Lobin Boraik. In that connection, he made the statement before the Magistrate as well which was proved as Ext. 3. On getting such information, he returned home immediately. 30. Next day police came to the P.O. and recovered a knife on being produced by PW9, Lobin Boraik. In that connection, he made the statement before the Magistrate as well which was proved as Ext. 3. In his cross examination, he admitted that he did not witness the incident in question. 31. PW 5, Sri Jogesh Maji deposes that on the fateful night, he was in his house. On hearing hue and cry, he came out of his house and found Dilip Karmakar raising hulla on the road. When he met Dilip, he told him that he killed the deceased planting knife blows on his abdomen. 32. It is also in his evidence that his house is situated near the house of PW 4. In that connection, he rendered statement before the Magistrate which was proved as Ext. 4. The suggestion that the accused did not confess his guilt before him was denied by PW5. 33. So situated, let us examine the evidence of other PWs. PW 1 is Sri Bisu Maji and he is the brother of the deceased. According to him, one night Dilip came to his house (PW 1) along with the victim. However, Ramesh did not return home on that night The next day in the morning, they came to know that the deceased was lying dead near the ridge in Section 18 of the Balijan Tea Estate. He immediately went there and found his brother lying dead in the place aforementioned. 34. He, thereafter, lodged an FIR with I/C Debrapar Police Outpost which he proved as Ext. 1. According to him, the deceased sustained penetrating injuries on his abdomen. In due course, the Executive Magistrate also came to such place and conducted an inquest on the dead body and in that connection, a report was prepared which he proved as Ext. 2. In his cross examination, he admitted that he did not tell the police during the course of investigation that accused came to his house on the fateful night and took the deceased with him. 35. PW 2, Sutu Maji, PW 3 Pitu Maji, PW 6, Ganesh Karmakar, PW 7, Paramesh Maji are the witnesses who came to know about the death of the deceased on 18th of February, 2008. On the other hand, PW 8 Md. 35. PW 2, Sutu Maji, PW 3 Pitu Maji, PW 6, Ganesh Karmakar, PW 7, Paramesh Maji are the witnesses who came to know about the death of the deceased on 18th of February, 2008. On the other hand, PW 8 Md. Rafique Ahmed, PW 10, Abdul Rahman are the witnesses in whose presence, police seized the knife from PW9 on the strength of seizure list Ext. 4. 36. The aforesaid weapon of offence was proved by them as Mat. Ext. 1. PW11 is the scribe of the FIR whereas PW13 and PW 14 are the I.Os. the principal I.O. being PW 14, Mr. Kalidur Rahman Choudhury, ASI of Police. 37. In his evidence, PW 14 deposes that on being entrusted with the preliminary investigation, he visited the place of occurrence, caused an inquest to be done on the dead body with the help of Executive Magistrate, seized the weapon of offence same being a knife from PW9, Labin Boraik on the strength of Ext. 4. He also proved the aforesaid knife as Mat Ext. 1. His further case is that during the course of investigation, he got the statements of PW 4 and PW5 recorded by Magistrate. In his cross examination, he deposes that he arrested the accused person on 19.02.2008. 38. Above being the evidence on record, let us see how far such evidence makes out the allegation brought against the accused person. A careful perusal of evidence of PW 4 and PW 5 reveals that both of them came out of their respective house on hearing hue and cry made by the accused person. On coming out of their houses, they met the accused who told them that he killed the deceased having subjected him to knife blows. 39. Though these two PWs were subjected to cross examination, such cross examination did not reveal any infirmity in the testimonies rendered by these two PWs. There is nothing on record to show that these two witnesses who are found to be neutral and impartial witnesses had falsely implicated the accused with the crime in question. 40. On a conjoint reading of the evidence of PW 4 and PW 5, we have found that the evidence of PW 4 and PW 5 seems to be trustworthy and truthful. Such evidence further shows that the accused on his own volition admitted his guilt before PW4 and PW5. 40. On a conjoint reading of the evidence of PW 4 and PW 5, we have found that the evidence of PW 4 and PW 5 seems to be trustworthy and truthful. Such evidence further shows that the accused on his own volition admitted his guilt before PW4 and PW5. Thus, it is found that the confession which the accused had made to the PW 4 and PW5 are truthful and voluntary as well. 41. Coming to the evidence of PW 9, we have found that he too states that on the fateful night he was in the house of accused person. He took his meal in the house of the accused on that night When he was about to leave the house of accused person, a quarrel broke out between the accused and deceased and the accused all of a sudden planted two knife blows on the abdomen of the deceased. There is nothing on record to show that such evidence of PW 9 who happens to be the own uncle of accused person cannot be accepted for any reason whatsoever. 42. It is worth noting here that PW 9 claims that he snatched away the knife from the accused person which police seized from him next day on the strength of seizure list, Ext. 4. The evidence rendered by PWs, particularly, PW 8, PW 10 and PW 14 as well as statements rendered in seizure list Ext. 4 support such a claim by PW9. The recovery of knife from the PW9 together with the evidence of PW4 and PW5 as well as PW11 fortifies more and more the claim of the prosecution that on the night in question, the accused had hit, injured and killed the deceased planting two knife blows on his abdomen. 43. It is true that there was some abnormalities in the behavior of PW9 since he did not report the incident in question to anyone. Nor did he try to provide any assistance to the injured person. But then, one must not read too much in such abnormalities in the behavior of PW 9, more so, when there is evidence on record to show that PW 9 and more so, when his cross examination fails to elucidate anything to show that what he had rendered before the court was not reliable for any reason whatsoever. 44. But then, one must not read too much in such abnormalities in the behavior of PW 9, more so, when there is evidence on record to show that PW 9 and more so, when his cross examination fails to elucidate anything to show that what he had rendered before the court was not reliable for any reason whatsoever. 44. We have already found that the accused confessed his guilt to PW4 and PW5 which are also found to be voluntary and truthful. Such confession coupled with the evidence of PW9, in our opinion, clearly establish that on the fateful night the accused planted knife blows on the abdomen of the deceased which occasioned his death sometime thereafter. 45. In his statements, recorded u/s. 313 Cr.P.C., the accused admitted that he was with the deceased on the night in question. He also admitted having involved in a quarrel with the deceased. Though he claims that the deceased tried to attack him with a knife in his hand for which he had to snatch away such weapon from the deceased, such claim is found to be totally incompatible with the evidence tendered from the side of prosecution. 46. One may note here that the accused too admitted that the PW9 had snatched away the knife from him. His such admission gives more and more credibility to the claim of PW9 that seeing the deceased being hit and injured by the accused person, PW9 snatched away such knife from the accused person which, in facts and circumstances of the case, in our opinion, provide more and more firm footing to the prosecution case. 47. It is worth noting here that in his examination under Section 313 Cr PC the accused admitted that during the course of investigation, police seized the knife from the PW9. Such admission, in the facts and circumstances of the case, once again, lends more and more support to the prosecution case. 48. The accused person adduced the evidence of one defence witness, he being Santosh Karmakar. Sri Karmakar (DW1). DW1 however, could not throw any light on the dispute in question. Being so, his evidence no way supports the plea of the accused person that he did not commit the crime in question. 49. We have found that the deceased was subjected to injuries of extremely serious nature with ruptured liver and lungs occasioning the death of the deceased. DW1 however, could not throw any light on the dispute in question. Being so, his evidence no way supports the plea of the accused person that he did not commit the crime in question. 49. We have found that the deceased was subjected to injuries of extremely serious nature with ruptured liver and lungs occasioning the death of the deceased. Being so, it needs to be concluded that the accused intentionally caused the death of the deceased. 50. In view of our forgoing discussion, we are of the opinion that prosecution has successfully proved the charge u/s. 302 IPC against the accused person and as such, the court below has rightly convicted him there under and punished him as aforementioned. 51. Therefore, we find no infirmity in the judgment under challenge and accordingly the same is upheld on dismissing the present appeal. 52. Before we part with records, we deeply appreciate the assistance rendered by Mr. M. Choudhury, learned Amicus Curiae and therefore, it is ordered that the State Legal Service Authority shall pay him Rs. 7,000/- (Rupees seven thousand only) as being his professional fees. Return the LCR forthwith.