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2017 DIGILAW 1561 (GAU)

Mantu Mall v. State of Assam

2017-12-21

HITESH KUMAR SARMA, HRISHIKESH ROY

body2017
JUDGMENT : H.K. SARMA, J. 1. This Criminal Appeal (J) No. 79/2014 has been preferred by appellant Sri Mantu Mall against the judgment, dated 30.6.2014, passed by learned Sessions Judge, Sivasagar, in Sessions Case No. 155(S-S)/2011 convicting the appellant for the offence under section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life with payment of fine of Rs. 1,000, in default, to suffer further imprisonment for two months. 2. Heard the learned counsel for the appellant, Mr. S. Borgohain and learned amicus curaie, Mr. U. Choudhury and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State respondent. 3. The facts preceding the appeal are as follows: 4. An FIR was lodged by Smt. Parbati Karmakar with the Officer in-Charge, Haluating Police Station, on 9.6.2011, alleging that in that night, at about 9.15 p.m., the appellant grievously injured her husband, Ajoy Karmakar, by inflicting dao blows. The deceased Ajoy Karmakar was thereafter taken to Amguri Tea Estate Hospital and from there to Sivasagar Civil Hospital. On receipt of the FIR, Haluating P.S. Case No. 16/11 under section 326/307 of the IPC was registered. However, during the course of investigation Ajoy Karmakar succumbed to his injuries. On completion of investigation a charge sheet was laid against the appellant for offence under section 302, IPC. 5. The offences being triable exclusively by the Court of Session, the case was committed to the Court of Session at Sivasagar after exhausting the legal requirements. After hearing both sides, the learned Sessions Judge, Sivasagar, framed a charge against the appellant for the offence under section 302 of IPC. The charge was explained to the appellant to which he pleaded guilty. The plea of guilt of the appellant was recorded in separate sheet. The learned Sessions Judge, however, did not convict the appellant on his plea of guilt and posted the case for trial. 6. In the course of trial, prosecution examined eleven witnesses including the Medical Officer and the Investigating Police Officer. After the closure of prosecution evidence, as required under section 313 of Cr.PC, all the incriminating materials were put to the appellant. The appellant denied the accusation levelled against him and also declined to adduce any evidence. The appellant also stated that on the day of occurrence some 10-12 persons assembled outside his residence. After the closure of prosecution evidence, as required under section 313 of Cr.PC, all the incriminating materials were put to the appellant. The appellant denied the accusation levelled against him and also declined to adduce any evidence. The appellant also stated that on the day of occurrence some 10-12 persons assembled outside his residence. When he came out of his residence the persons who had gathered had beat him up. The appellant then brandished a lathi which was in his hand and then went to police station. 7. After hearing arguments tendered by the prosecution as well as the defence, the learned Sessions Judge, Sivasagar, convicted and sentenced the appellant as aforesaid. 8. We have examined the trial court's record including the evidence led by the prosecution as well as the judgment put to challenge in this appeal. 9. For the sake of convenience of appreciation, the evidence tendered by some of the material witnesses are being reproduced herein below: 10. P W1, Dr. Pradip Kumar Saikia, conducted the post mortem examination of the deceased Ajoy Karmakar. He deposed that major vessels of left side of the neck of the deceased completely severed at the root of the neck following two sharp cut 5 cm in deep. This apart, 4 Nos. superficial cut injury were present over the dorsal of the left hand. He also found sharp cut injuries over the lateral aspect of the arm below the joint, length upto bone, size 7 cm and left hummerus fractured at the proximal part. In his opinion the death occurred due to severe haemorrhage following major vessel injuries on the left side of neck and cerebral ischemia. He has proved the post-mortem examination report, marked as Exhibit. 11. The injuries, found on the deceased, certainly come within the ambit of clause 3rdly to section 300, IPC which provides as follows: “3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,.” 12. 11. The injuries, found on the deceased, certainly come within the ambit of clause 3rdly to section 300, IPC which provides as follows: “3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,.” 12. In the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 the hon'ble Supreme Court observed that that the prosecution must prove the following facts before it can bring a case under section 300 “thirdly” Firstly, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 13. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 14. The hon'ble Supreme Court in Virsa Singh(supra), held that once the four elements, as aforesaid, are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind is likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. 15. Now, coming to the other oral evidence adduced by the prosecution. 15. Now, coming to the other oral evidence adduced by the prosecution. The PW2, Smt. Parbati Karmakar, the widow of the deceased, Ajoy Karmakar, deposed that on the fateful night her husband had gone to a nearby shop to have a pan. Soon thereafter, there was a hue and cry and when PW2 reached the spot she found her husband in an injured condition, PW2 deposed that, on inquiry from her husband, he told that appellant had cut him with a Naga dao. She deposed to have seen cut injuries on the neck of her husband. PW2 further deposed that her husband was immediately taken to Amguri Hospital in pushcart and from there to Sivasagar Civil Hospital but her husband could not survive the injuries and died as a result of the injuries sustained. 16. PW2 also deposed about certain other relevant facts which she considered to be the motive behind the killing of her husband by the appellant. PW2 deposed that appellant had enticed their daughter Swapna Karmakar and accordingly she eloped with the appellant. However, the appellant used to torture her daughter and as such she returned to their house. Since the deceased did not permit her daughter to join the society of appellant, as such the appellant killed the deceased. 17. Supporting the evidence of PW2, Smt. Parbati Karmakar, is the evidence of PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar, and PW9, Smt. Sakuntala Karmakar. These witnesses are in complete unison so far as the events leading to the death of Ajoy Karmakar as stated by the deceased himself prior to his death. All these witnesses have stated that the appellant had cut him with a Naga dao. 18. We have also perused the cross-examination of the PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar and PW9, Smt. Sakuntala Karmakar but there is hardly any fact elicited in their cross-examination which renders their testimonies untrustworthy. 19. Now, as to relevancy of the depositions made by the PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar and PW9, Smt. Sakuntala Karmakar we may take a look into the provisions of section 6 of the Evidence Act which provides as follows: “6. Relevancy offsets forming part of same transaction. 19. Now, as to relevancy of the depositions made by the PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar and PW9, Smt. Sakuntala Karmakar we may take a look into the provisions of section 6 of the Evidence Act which provides as follows: “6. Relevancy offsets forming part of same transaction. - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.” 20. The hon'ble Supreme Court, in the case of Gentela Vijayavardhan Rao v. State of A.P., (1996) 6 SCC 241 , had the occasion to discuss the scope of section 6 and it was held that the principle of law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. 21. The relevant paragraph in the case of Gentela Vijayavardhan Rao (supra), is reproduced as follows: “5. The principle of law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however, slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.” 22. Analyzing the evidence of PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar, and PW9, Smt. Sakuntala Karmakar in the light of law laid down in Gentela Vijayavardhan Rao (supra), it would appear that statement by the deceased that appellant had cut him by a Naga dao was made immediately after the occurrence. PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar and, PW9, Smt. Sakuntala Karmakar reached the place of occurrence immediately after the occurrence. The place of occurrence was near the house of PW2, as stated in her cross-examination. Hence, the attack on the deceased, the appearance of the witnesses on the place of occurrence and the statement made by the deceased to the witnesses that appellant had struck him by a Naga dao, were events that happened with such spontaneity that any fabrication can be ruled out. It is, thus, found that the evidence of PW2, Smt. Parbati Karmakar, PW3, Sri Biki Karmakar, PW8, Smt. Swapna Karmakar and, PW9, Smt. Sakuntala Karmakar are relevant under section 6 of the Evidence Act and, therefore, the evidence of these witnesses can be treated as direct evidence on the point that none but the appellant had caused the fatal injuries on the person of Ajoy Karmakar resulting in his death. 23. 23. The motive behind the killing of Ajoy Karmakar is amply established from the evidence of PW2, Smt. Parbati Karmakar and supported by PW8, Swapna Karmakar that appellant had enticed Swapna Karmakar and accordingly she had eloped with the appellant. However, the appellant used to torture PW8, Swapna Karmakar and as such, she returned to her parental home. Since the deceased did not permit her daughter to join the society of appellant, as such the appellant had killed the deceased. 24. The learned counsel for the appellant argued mainly on two points. First, the deceased could not have been in a position to speak with the nature of injuries he sustained. The fact that the witnesses, PW2, PW3, PW8 and PW9 led consistent evidence that the deceased told them that the appellant had inflicted the injuries on his person and the defence could not demolish such evidence of the said witnesses. The second argument made by the learned counsel for the appellant is that out of the questions put to the appellant with regard to the incriminating evidence under section 313 of the Cr.PC, the answer to two questions, have not been recorded by the learned trial court for which the case be remanded to the trial court. We have carefully perused the statement of the appellant recorded under section 313 of the Cr.PC and found that the incriminating evidence, adduced by the PW1, PW2, PW3, PW8 and PW9, were put to him and his answers, to those questions have also been recorded. The questions, answers of which have not been recorded, did not prejudice the appellant as the incriminating evidence on the basis of which the learned trial court recorded the conviction, were put to him and he also gave answers to those questions. The appellant has also taken a stand in his statement under section 313 of the Cr.PC that some 10/12 persons came to his house and they did beat him and then he brandished a ‘lathi’ which was in his hand. It appears from such statement that the appellant got the opportunity to explain the incriminating evidence against him. That being so, since no prejudice is caused to the appellant by not recording the answer of two questions, there is no reason for remanding the case to the trial court as argued by the learned counsel for the appellant. 25. It appears from such statement that the appellant got the opportunity to explain the incriminating evidence against him. That being so, since no prejudice is caused to the appellant by not recording the answer of two questions, there is no reason for remanding the case to the trial court as argued by the learned counsel for the appellant. 25. In view of the clear motive behind the act of murder coupled with cogent evidence linking the appellant with the murder of deceased Ajoy Karmakar, the learned Sessions Judge was right in convicting the appellant. Hence, no interference with the conviction and sentence of the appellant is called for. 26. The appeal is dismissed. 27. Send down the LCR with a copy of this judgment. 28. This court appreciates the assistance rendered by the learned amicus curiae and directs that an amount of Rs. 7,000 be paid to the learned amicus curiae as honorarium for the assistance rendered by him.