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2017 DIGILAW 1456 (GAU)

Dipak Karmakar v. State of Assam

2017-11-18

AJIT SINGH, UJJAL BHUYAN

body2017
JUDGMENT : AJIT SINGH, J. 1. This judgment shall decide Crl. Appeal (J) Nos. 81, 82 and 83, all of 2014, because they arise out of the same incident and common judgment of the trial court. All the appellants, namely, Dipak Karmakar, Draupadi Karmakar and Lakhan Mura have been convicted under section 302 of the Penal Code and sentenced to imprisonment for life and fine of Rs. 1,000 each, with default stipulation. 2. The victim of the incident was Debaru Kharia, aged about 35 years. 3. According to the prosecution case, appellants-Dipak Karmakar and Draupadi Karmakar are brother and sister whereas Lakhan Mura is their close associate. All of them including Debaru Kharia lived in the same locality within Khetujan Tea Estate, District Tinsukia. The house of Debaru Kharia was just 100 yards from the house of Dipak Karmakar and Draupadi Karmakar. On 1.10.2012 at about 7 p.m., Dipak Karmakar invited and took Debaru Kharia to his house. Debaru Kharia, however, did not return home that night. Bishal Kharia (PW-2) is younger brother of Debaru Kharia and both of them lived in one house, but in separate rooms. Pinki Kharia (PW-6) is wife of Debaru Kharia. When Debaru Kharia did not return home, Bishal Kharia became worried. He on the morning of 21.10.2012, looked for Debaru Kharia and found him lying in the verandah of Dipak Karmakar's house. Debaru Kharia had injuries and on the asking of Bishal Kharia he disclosed that he was assaulted by the appellants with lathi. From there, Debaru Kharia was taken to the hospital of Tea Estate, but the doctor referred him for better treatment to Tinsukia Hospital. There also, the doctor further referred him to Dibrugarh Hospital, but due to financial constraint, Debaru Kharia was brought back to Tea Estate Hospital. Debaru Kharia unfortunately died en route to Tea Estate. Dipak Karmakar had accompanied Bishal Kharia during shifting of Debaru Kharia from one hospital to another. But when Debaru Kharia died, Dipak Karmakar tried to run away. He and Draupadi Karmakar were, however, caught by the public. Sushil Tanti (PW-3) was informed about the incident in the capacity of President, Village Defence Party. He then informed Bordubi Police Station. It appears that information given by Sushil Tanti to the police was not recorded. Instead, the report made by Bishal Kharia was recorded as Ejahar Exhibit 2. He and Draupadi Karmakar were, however, caught by the public. Sushil Tanti (PW-3) was informed about the incident in the capacity of President, Village Defence Party. He then informed Bordubi Police Station. It appears that information given by Sushil Tanti to the police was not recorded. Instead, the report made by Bishal Kharia was recorded as Ejahar Exhibit 2. The police prepared the inquest report exhibit 3 of the dead body of Debaru Kharia on 3.10.2012 at 10 p.m. The body was then sent for the post mortem examination. 4. Dr. Sailen Roy (PW-1) conducted the post mortem examination on the dead body of Debaru Kharia. He found imprint abrasion over abdominal wall 1cm below the umbilicus in horizontal direction of size 10 cm × 2 cm. The doctor also found imprint abrasion on right lateral mid chest in horizontal direction at the level of 9th rib of size 5 cm × 2 cm. According to doctor, he even found blood stain fluid in the abdominal cavity, ruptures of omentum and right lobe of the liver. The doctor in his post mortem examination report Exhibit 1 opined that Debaru Kharia died due to injuries caused by the impact of blunt force. The police arrested Dipak Karmakar and Draupadi Karmakar on 4.10.2012 whereas Lakhan Mura surrendered to police custody on 9.10.2012. After investigation, the police filed charge sheet against them for an offence under section 302/34 of the Penal Code, 1860. 5. During trial the appellants abjured their guilt and pleaded false implication. The trial court, however, believing the prosecution case, convicted and sentenced them, as aforesaid. 6. It is argued on behalf of the appellants that the trial court committed an illegality in convicting them despite there being no evidence whatsoever to connect them with the death of Debaru Kharia. The learned Additional Public Prosecutor, on the other hand, defended the impugned conviction and sentence of the appellants. 7. Admittedly, there is no eye witness to the incident and the entire prosecution case is based on circumstantial evidence. The trial court has convicted the appellants on the following circumstances: (i) That on the evening of 1.10.2012 Dipak Karmakar went to the house of Debaru Kharia and took him to his house. (ii) That before his death, Debaru Kharia told Bishal Kharia and Pinki Kharia that appellants had assaulted him by means of a lathi. The trial court has convicted the appellants on the following circumstances: (i) That on the evening of 1.10.2012 Dipak Karmakar went to the house of Debaru Kharia and took him to his house. (ii) That before his death, Debaru Kharia told Bishal Kharia and Pinki Kharia that appellants had assaulted him by means of a lathi. (iii) That Dipak Karmakar though accompanied injured Debaru Kharia with Bishal Kharia to the Tea Estate Hospital, he fled when Debaru Kharia died on way to hospital. (iv) Thereafter, Dipak Karmakar and Draupadi Karmakar were detained in their house by the public and handed over to the police and Lakhan Mura surrendered before the police station on 9.10.12. 8. We are required to examine whether the circumstances form a complete chain to uphold the conviction and sentence of the appellants, as passed by the trial court. 9. As regards the first circumstance that on the evening of 1.10.2012, Dipak Karmakar went to the house of Debaru Kharia and took him to his house, we find ample trustworthy evidence on record. Pinki Kharia has deposed that the house of Dipak Karmakar is about 100 yards from her house. She then says that on the date of incident Dipak Karmakar came to her house and took her husband Debaru Kharia along with him to his house. According to her evidence, on the next morning when she searched for Debaru Kharia she found him lying in the verandah of the house of Dipak Karmakar in an injured condition. Similar is the evidence of Bishal Kharia. He says that Debaru Kharia did not return home on the night of 1.10.2012. He, therefore, in the morning looked for Debaru Kharia and found him lying injured in the verandah of Dipak Karmakar. According to him. Debaru Kharia was then shifted to Tea Garden Hospital in an ambulance. At that time, Dipak Karmakar had also accompanied them. The evidence of both these witnesses is consistent and nothing has been brought out in their cross elimination to discredit them on this point. It is thus proved that Dipak Karmakar had come to the house of Pinki Kharia and Debaru Kharia and took Debaru Kharia to his house on the evening of 1.10.2012 whereafter Debaru Kharia was found in an injured condition in the verandah of his house. 10. It is thus proved that Dipak Karmakar had come to the house of Pinki Kharia and Debaru Kharia and took Debaru Kharia to his house on the evening of 1.10.2012 whereafter Debaru Kharia was found in an injured condition in the verandah of his house. 10. The next circumstance is that Debaru Kharia, before his death, on the asking of Pinki Kharia and Bishal Kharia, disclosed that all the appellants had assaulted him by means of lathi. To ascertain whether this circumstance can be relied upon, we shall examine the evidence of both these witnesses. According to Pinki Kharia and Bishal Kharia, Debaru Kharia told them on their asking that appellants had assaulted him. Pinki Kharia has deposed that Debaru Kharia told her that appellants gave lathi blows on his back and his back was paining. Bishal Kharia has testified that on his asking also Debaru Kharia told him that he was beaten by the appellants by means of lathi. But neither Pinki Kharia nor Bishal Kharia mentioned about this important fact in their earlier police case diary statements. Even in the First Information Report, Bishal Kharia did not mention this fact. They have deposed about the oral dying declaration, for the first time, in the witness box. Moreover, the post mortem examination report of Debaru Kharia does not reveal that death was caused to him due to blows on his back. We are, therefore, unable to believe that Debaru Kharia made any disclosure against the appellants to Pinki Kharia or Bishal Kharia. Their evidence regarding oral dying declaration apparently seems to have been developed subsequently and is, therefore, not trustworthy. 11. The third circumstance replied upon by the trial court is that Dipak Karmakar had accompanied injured Debaru Kharia with Bishal Kharia to the Tea Estate Hospital, but fled, when Debaru Kharia died on way to Hospital. Bishal Kharia has proved this circumstance in his evidence. But it can, at best, be used only against Dipak Karmakar and not against Draupadi Karmakar and Lakhan Mura. 12. The last circumstance is of Dipak Karmakar and Draupadi Karmakar having been detained in their house by the public and handed over to the police and surrendering of Lakhan Mura before the Police Station on 9.10.2012. Again this circumstance, at the most, can be used against Dipak Karmakar alone. 12. The last circumstance is of Dipak Karmakar and Draupadi Karmakar having been detained in their house by the public and handed over to the police and surrendering of Lakhan Mura before the Police Station on 9.10.2012. Again this circumstance, at the most, can be used against Dipak Karmakar alone. We say so because the local public was under a belief that Dipak Karmakar had caused the death of Debaru Kharia. Draupadi Karmakar being the sister of Dipak Karmakar also happened to be in his house. The public, therefore, detained both of them in the house and handed over to the police. Also merely because Lakhan Mura surrendered before the Police Station on 9.10.2012, it cannot be held, by any stretch of imagination, that he had anything to do with the injuries caused to Debaru Kharia. 13. Admittedly, there is no evidence to suggest that Draupadi Karmakar and Lakhan Mura was seen, at any stage, quarreling with Debaru Kharia nor any incriminating material has been seized from their possession to connect them with the death of Debaru Kharia. Since we have disbelieved the evidence of oral dying declaration, we find absolutely no other evidence against both Draupadi Karmakar and Lakhan Mura. We, accordingly, set aside their conviction and sentence and acquit them of the charge. 14. As regards Dipak Karmakar, we have seen above that on the evening of 1.10.2012, he came to the house of Debaru Kharia and took him to his house. Thereafter, on the next morning, Debaru Kharia was found lying in the varandah of Dipak Karmakar's house with injuries. Dipak Karmakar did not explain as to why Debaru Kharia was lying injured in the verandah of his house and what happened after he brought Debaru Kharia to his house in the previous night. It was incumbent upon Dipak Karmakar to explain under what circumstances Debaru Kharia sustained injuries in his house. Also, after Dipak Karmakar brought Debaru Kharia to his house, Debaru Kharia was not seen elsewhere by any one. For these reasons, it can safely be inferred that Dipak Karmakar was the perpetrator of crime. However, the question still arises what offence has been committed by him. Dr. Sailen Roy has found blunt force impact on the body of Debaru Kharia. But no weapon has been seized from his possession, though he was apprehended immediately after the incident. For these reasons, it can safely be inferred that Dipak Karmakar was the perpetrator of crime. However, the question still arises what offence has been committed by him. Dr. Sailen Roy has found blunt force impact on the body of Debaru Kharia. But no weapon has been seized from his possession, though he was apprehended immediately after the incident. He hardly had sufficient time to conceal any weapon, if it was used. Moreover, he had also accompanied Debaru Kharia to hospital and tried to abscond only when Debaru Kharia died. Therefore, the possibility of Dipak Karmakar giving multiple fist blows to Debaru Kharia in his house, for some reason, cannot be ruled out. And though he assaulted Debaru Kharia, he did not intend to kill him. We, accordingly, set aside the conviction and sentence of Dipak Karmakar under Section 302 of the Penal Code, 1860 and instead, convict him under Section 304 Part-II of the Penal Code, 1860 and sentence him to undergo 5 years rigorous imprisonment. The sentence of fine is, however, affirmed. 15. In the result, Crl. Appeal Nos. 82(J) and 83(J) of 2014 are allowed. Draupadi Karmakar and Lakhan Mura are reportedly in jail. They be released forthwith. Crl. Appeal 81(J)/2014 is partly allowed. Dipak Karmakar be also released from jail, if he has undergone the sentence awarded by us.