Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 980 (GAU)

Pratap Karmakar v. State of Assam

2016-11-04

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. Criminal Appeal (J) No. 6 of 2014 and Criminal Appeal (J) No. 7 of 2014 are directed against a common judgment and order dated 17.12.2013 passed by learned Additional Sessions Judge (FTC) No. 2, Tinsukia in Sessions Case No. 35(T)/2012 under Section 302/34 of the IPC. By the impugned judgment and order, the learned Sessions convicted Pratap Karmakar, the appellant in Criminal Appeal (J) No. 6/2014 and Biswadev Karmakar, the appellant in Criminal Appeal (J) No. 7/2014 under section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 4 months each. 2. The prosecution story is that one Dipali Mahali, as informant, lodged an ejahar with the Officer In-charge of Doomdooma Police Station on 14.08.2011 at about 11.45 A.M. informing that on 08.08.2011 at around 9 P.M., one Jiban Karmakar, Pratap Karmkar and Beswadev Karmakar of Badlabheta Spring Line, severely assaulted her husband Sunil Mahali suspecting that the victim had committed rape on Minu Karmakar, a 17 year old daughter of Pratap Karmakar. They brought him injured condition and dropped at the door step of the informant and again staged assault on him causing grievous injuries in her presence. Upon receipt of the ejahar, the police registered Doomdooma Police Station Case No. 241/2011 under section 325/34 of the IPC and got the injured victim admitted into Badlabheta Hospital. As the condition of the victim deteriorated, he was shifted to Longswal Central Hospital at Hapjan. At that stage, the statement of the victim was recorded by the Investigating Officer. Ultimately, on 19.08.2011 i.e. 11 days after hospitalization, the victim succumbed to the injuries whereupon police added section 302 in the case. Police held inquest and post mortem examination of the dead body and after recording statements of witnesses submitted charge sheet against Pratap Karmakar and Biswadev Karmakar vide charge sheet No. 8 dated 30.01.2012 but prayed for dropping the name of Jiban Karmakar as no material was available against him. The charge sheet was filed against the accused persons alleging commission of offence under section 325/302/34 of the IPC and so the learned Chief Judicial Magistrate, Tinsukia by his order dated 28.02.2012 committed the case to Sessions leading to registration of Sessions Case No. 35(T)/2012. The charge sheet was filed against the accused persons alleging commission of offence under section 325/302/34 of the IPC and so the learned Chief Judicial Magistrate, Tinsukia by his order dated 28.02.2012 committed the case to Sessions leading to registration of Sessions Case No. 35(T)/2012. By his order dated 21.03.2012, the learned Additional Sessions Judge (FTC) No. 2, to whose court the case was transferred, framed charges against appellant Pratap Karmakar and appellant Biswadev Karmakar under section 302/34 of the IPC. The charges were explained to the accused persons whereupon they pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined 7 witnesses whereas defence examined 2 witnesses. Having examined the accused persons under section 313 of the Code of Criminal Procedure and upon appreciation of the evidence led by the parties, the learned Additional Sessions Judge passed the impugned judgment and order holding both the accused persons guilty of committing offence under section 302/34 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 4 months. This judgment of conviction and sentence has been challenged by the 2 accused persons separately. Both these appeals, therefore, are taken up together for disposal and are being disposed of by a common judgment. 4. We have heard Ms. A Das, learned Amicus Curiae for the appellant, Pratap Karmakar in Criminal Appeal (J) No. 6/2014 and Mr. A Sharma, learned Amicus Curiae, for the appellant Biswadev Karmakar in Criminal Appeal (J) No. 7/2014. We have also heard Mr. K Konwar, learned Additional Public Prosecutor for Assam in both the cases. We have also perused the lower court records. 5. The conviction of the accused persons are based on the depositions of three eye witnesses, namely, PW 1 (Smti. Dipali Mahali), PW 2 (Sri Bhimsen Mahali) and PW 3 (Smti. Anju Mahali). PW 1, Smti. Dipali Mahali stated on oath that at around 9 P.M. on the night of occurrence she was in her house. She saw accused Pratap Karmakar and Biswadev Karmakar brought victim Sunil Mahali at her door step in serious condition after assaulting him severely with iron rod and stone. Anju Mahali). PW 1, Smti. Dipali Mahali stated on oath that at around 9 P.M. on the night of occurrence she was in her house. She saw accused Pratap Karmakar and Biswadev Karmakar brought victim Sunil Mahali at her door step in serious condition after assaulting him severely with iron rod and stone. Having dropped the victim in injured condition at the door step they held another episode of beating on him in presence of PW 2 with iron rod and stone and thereafter left the place. Having found the condition of the victim serious, PW 1 with the help of other persons, took him to Badlabheta tea garden hospital where he was treated for 2 days and thereafter the victim was shifted to Longsowal Central Hospital, Hapjan. The victim was under treatment of the hospital as an indoor patient till 19.08.2011 when he succumbed to the injuries. The informant further stated that although the occurrence had taken place at 08.08.2011, she remained busy for treatment of her husband and submitted the ejahar only on 14.08.2011 after he was shifted to Longsowal Central Hospital. 6. PW 2, Bhimsen Mahali, is the brother of PW 1. He was in the house at the time accused persons allegedly brought the victim in serious condition and dropped him at the door step of the victim after severely beating him. They assaulted him again with iron rod and stone at the door step which the PW 2 witnessed. It came to light that the accused persons assaulted the victim merely on suspicion that he had attempted to rape Minu Karmakar, the daughter of Pratap Karmakar. The victim died in Longsowal Central Hospital whereafter police held inquest and post mortem examination. PW 2 became a witness to the inquest. 7. PW 3, Smti. Anju Mahali, is yet one more eye witness to the incident. She was also present when Pratap Karmakar and Biswadev Karmakar brought the victim in serious condition and dropped him at his door step. Thereafter Biswadev Karmakar assaulted the deceased by bamboo lathi and Pratap Karmakar assaulted him by stone in her presence and she witnessed the last episode of beating. Even in course of cross examination all these three witnesses remained firm. 8. PW 4, Minu Karmakar appears to have been examined by the prosecution to bring to light the motive behind the assault leading to death of the victim. Even in course of cross examination all these three witnesses remained firm. 8. PW 4, Minu Karmakar appears to have been examined by the prosecution to bring to light the motive behind the assault leading to death of the victim. PW 4 stated in the witness box that on the night of occurrence at around 7 P.M. she was standing near the house of Jiban Karmakar when victim Sunil Mahali came there in inebriated condition and caught her. He pressed her mouth forcibly and took her inside the garden. The victim took out her wearing clothes and attempted to commit rape on her, however, failed. She gave a kick to the assailant and somehow managed to flee. She informed this matter to her maternal grand-father Sri Jiban Karmakar when a number of people assembled there for ‘Kirtan’. All of them came and found the assailant lying in a drain in drunken state. They were of the view that there was no point for killing the assailant and so they took him from there and brought to his house and handed over him to his wife Dipali Mahali (PW 1) who out of anger assaulted Sunil with a wooden piece from the veranda causing severe injuries. Rather, Pratap Karmakar and Biswadev Karmakar asked her to refrain from doing so. This witness was not cross examined. 9. PW 5, Dr. Sailen Roy, held post mortem over the dead body and found the following injuries:- (1) Repaired scalp injury over left vertex in anterior posteriorly direction 5 cm length partially healed up with black scab formation on dissection tearing of scalp tissues with ecchymosed. (2) Another repaired scalp injury over left temporal regions is oblique in direction 4 cm. In length partially healed up with black scab formation. On dissection there is echymosis of scalp tissues. (3) Healed abrasion over left forehead measuring 2 cm x 2 cm and another healed abrasion present mid forehead 2 cm x 2 cm. (4) Bruise mid back in horizontal direction. Yellowish discolouration of the wound measuring 10 cm x 3 cm. (5) Bruise right shoulder oblique in direction. Yellowish discolouration measuring 5 cm x 2 cm on dissection there is achymosis of subcutaneous issue, fractured 4th and 5th ribs at angles of right side. Right lung is lacerated posteriorly with collection of haemorrhagic fluid in the pleural cavity. Yellowish discolouration of the wound measuring 10 cm x 3 cm. (5) Bruise right shoulder oblique in direction. Yellowish discolouration measuring 5 cm x 2 cm on dissection there is achymosis of subcutaneous issue, fractured 4th and 5th ribs at angles of right side. Right lung is lacerated posteriorly with collection of haemorrhagic fluid in the pleural cavity. (6) Multiple healed abrasion right forearm extensor surface measuring 1 cm x 1 cm (3 nos.) up to 3 cm x 3 cm (3 nos.) and 5 cm x 2 cm (6 nos.). (7) Multiple healed abrasion left forearm extensor surface measuring 1 cm x 1 cm (3 nos.), 2 cm x 1 cm (2 nos.) and 4 cm x 3 cm (5 nos.). (8) Multiple healed abrasion right leg, front aspect 3 cm x 3 cm (5 nos.), 2 cm x 1 cm (2 nos.) and 4 cm x 1 cm (5 nos.). Left leg front and lateral aspect measuring 2 cm x 1 cm (5 nos.), 2 cm x 2 cm (6 nos.) and 5 cm x 1 cm (5 nos.) Pleurae : Ruptured posteriorly as a collection of haemorrhage fluid in the thorasic cavity 500 ml. Other organs found normal. In his opinion, death was due to Asphyxia due to collapsed lungs resulting from haemotharax caused by blunt force impact on the upper right back as described. He proved post mortem report as Exhibit 3. 10. PW 6, Sri Jalinder Tanti, is the Line Chowkidar of the area but he could not furnish any material information relevant for the purpose of the trial. He spoke of hearsay evidence only and so deposition of this witness is of no help. 11. PW 7, Kamal Chetia, is the Investigating Officer in the case. According to him, on 14.08.2011 the written ejahar (Exhibit 1) was filed by PW 1 before him in connection with the occurrence which had taken place on 08.08.2011 at 9 P.M. The OC, Biswajit Sarma registered a case accordingly. He went to the place of occurrence, recorded the statement of complainant. He also recorded the statement of the victim on 15.08.2011 at Longswal Central Hospital. The statement of the victim was not exhibited but the same is available in case diary which we have gone through. 12. The defence thereafter examined one Sibraj Tanti and Sanjit Koya as DW 1 and DW 2 to establish their innocence. He also recorded the statement of the victim on 15.08.2011 at Longswal Central Hospital. The statement of the victim was not exhibited but the same is available in case diary which we have gone through. 12. The defence thereafter examined one Sibraj Tanti and Sanjit Koya as DW 1 and DW 2 to establish their innocence. DW 1, Sibraj Tanti stated that victim Sunil Mahali tried to rape Minu near the road. Minu hit Sunil and thereby he sustained leg injuries. He was informed by Minu about the incident and then they ran and found Sunil in a drunken state. They took him to his wife who on turn informed them that Sunil was a habitual drinker. Thereafter Dipali Mahali (PW 1) hit her husband with a wooden lathi. 13. DW 2, Sanjit Koya, deposed that on the night of occurrence at around 8.30 P.M. Minu went to the house of Jiban Karmakar and informed that Sunil had tried to rape her. All of them became angry and went out to catch Sunil and thereafter brought him to Jiban Karmakar. They scolded Sunil and then took him to house. It is thereafter Dipali picked up a wooden lathi and hit Sunil. Then Sunil was taken to the hospital where he died after 10 days. 14. The learned trial court thereafter examined both the accused persons under section 313 of the Code of Criminal Procedure when they pleaded innocence and ignorance. 15. From an apprisal of the evidence adduced by the prosecution it is clear that the defence has not denied of bringing the victim at the door step of PW 1 in injured condition. Three eye witnesses spoke in one voice that the two accused persons along with others assaulted the victim with iron rod and stone even after dropping him at his door step. No cross examination of these three witnesses has been made to raise any reasonable doubt as to the veracity of such statements by the three witnesses. The prosecution by examining PW 4 has also provided a clue to find out motive behind such assault inflicted on the victim. It is the case of the defence witnesses and the PW 4 that the victim was in inebriated condition after taking liquor. He came across PW 4, Minu Karmakar and sought to rape her. The prosecution by examining PW 4 has also provided a clue to find out motive behind such assault inflicted on the victim. It is the case of the defence witnesses and the PW 4 that the victim was in inebriated condition after taking liquor. He came across PW 4, Minu Karmakar and sought to rape her. PW 4 is the grand-daughter of Gaon Bura of the village and it sparked strong reaction in the community. It came to light from the depositions of PW 4 and DW 1 that they held the victim and took him to the house of the Gaon Bura, Jiban Karmakar and scolded him. When there is allegation against a person of making attempt to commit rape on the minor grand-daughter of a Gaon Bura and it is admitted that he was held by the public and scolded, it is difficult to believe that they did not assault him. This only corroborates the deposition of three eye witnesses who found that the two accused persons along with others carried the victim and dropped him at the door step in a serious condition. Even if it is assumed for the time being that there was no beating prior to bring him at the door step but all the three witnesses have asserted that the victim was assaulted again with iron rod and stone even in front of his house on the allegation that he had attempted to commit rape on Minu Karmakar. Assault by the accused persons on the victim, therefore, has been established by the prosecution beyond reasonable doubt. But the question arises as to whether such assault which ultimately resulted in death of the victim after 11 days at hospital would come within the definition of murder under section 300 of the IPC. The prosecution having established a background for motive by examining PW 4 in this case, it served as a factor behind inciting public opinion against the victim. The father of PW 4 is accused No. 1 (Pratap Karmakar) and accused No. 2 Biswadev Karmakar is none other than maternal uncle of PW 4, Minu Karmakar. Naturally, they took a lead in assaulting the victim for the wrong he did or attempted to do against the PW 4. But it is also to be noted here that they carried the victim to his door step and handed over to PW 1, his wife. Naturally, they took a lead in assaulting the victim for the wrong he did or attempted to do against the PW 4. But it is also to be noted here that they carried the victim to his door step and handed over to PW 1, his wife. Had they intended to kill him, they would have otherwise disposed the dead body or dumped elsewhere. They would not have created evidence against them of making the assault. The injuries are also 8 in number which are of various nature. This is only suggestive of the fact that not only the accused persons but others might have joined them in the stage of assault. All of them wanted to teach a lesson to the deceased but incidentally two of the ribs, namely, ankle of 4th and 5th rib got fractured and pierced the lung but for which haemorrhage took place inside the pleural cavity and consequently the accused died of Asphyxia. If causing death of the victim was the intention of the accused persons, they could have done so very easily near their own house by striking with the weapon at the vital part of his body as he was in a drunken state at that time and there was none in his support. Such facts and circumstances only lead to the irresistible conclusion that the accused persons had no intention to kill the victim. They held assault on him without premeditation and in a sudden hit of passion once they were informed by PW 4 that the offender had attempted to rape a minor girl. It served as the cause for their sudden provocation and so the Exception (4) of Section 300 of the IPC became applicable. It is, therefore, a case of culpable homicide not amounting to murder and so the conviction is liable to be converted into a one under section 304 Part-I and not under section 302 of the IPC as has been done by the learned trial court. 16. Accordingly, the conviction of the appellants under section 302 is hereby set aside and they are convicted under section 304 Part-I of the IPC. Consequently, the sentences have to be modified. The sentence of rigorous imprisonment for life is hereby set aside and they are sentenced to suffer rigorous imprisonment for 7 years. 16. Accordingly, the conviction of the appellants under section 302 is hereby set aside and they are convicted under section 304 Part-I of the IPC. Consequently, the sentences have to be modified. The sentence of rigorous imprisonment for life is hereby set aside and they are sentenced to suffer rigorous imprisonment for 7 years. In view of the facts and circumstances stated above, we are of the opinion that the accused persons are not liable to be sentenced for 10 years or more. However, the sentence as to fine is not interfered with. Both the accused persons shall be released from jail after they have completed the sentence of 7 years rigorous imprisonment. 17. The appeal stands partly allowed. 18. Send down the lower court records.