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2019 DIGILAW 643 (GAU)

Sambhu Karmakar v. State of Assam

2019-05-23

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Malla Bujor Barua, J. Heard Ms. Bijita Sarma, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State authorities. 2. Office note of 16-05-2017 shows that service upon the informant/respondent No. 2 is complete, but none appears. 3. An Ejahar dated 08-10-2015 was lodged by Smt. Selina Malhar before the In-Charge of Deberapar Police Outpost of Mariani Police Station, inter alia stating that on 06-10-2015 her son-in-law, Sambhu Karmakar, a resident of Line No. 7 of Balijan Tea Estate, had killed her daughter Maina Karmakar and had buried her dead body. 4. Pw-1 in his deposition stated that he came to learn that accused Sambhu Karmakar had killed his wife Maina Karmakar and he went to the place of occurrence when the police and Magistrate came there. He also stated that police and Magistrate came to the place of occurrence after two days of the incident and that Sambhu was not available in the house. At that time the accused kept the dead body buried on the orchard behind his house and that the accused himself had buried it. In cross, PW-1 stated that his house is about 2 kms. away from the house of the accused and that he has no personal knowledge as regards who had buried the dead body of the wife of Sambhu after killing her. 5. Pw-2, Smt. Selina Malhar, the informant in her deposition stated that the deceased was her daughter and the accused was her son-in-law. When she reached the house of her daughter, upon hearing that she was suffering from some illness, the first wife was present in the house and when she questioned the first wife about the whereabouts of her daughter, the first wife disclosed that she had gone to her mother's house. She also deposed that she went to the place of occurrence along with police and that the dead body was dug out from the back side of the compound of the house of the accused. 6. Pw-5, Ajit Karmakar stated that on the day of the occurrence he was not present in his residence and was back after three days. When he returned, he was informed by his daughter-in-law that the accused had assaulted his second wife. 6. Pw-5, Ajit Karmakar stated that on the day of the occurrence he was not present in his residence and was back after three days. When he returned, he was informed by his daughter-in-law that the accused had assaulted his second wife. After the police arrived, the dead body was dug out from a place situated in the compound of the accused. 7. Pw-6, Bishal Karmakar in his deposition stated that the deceased Maina Karmakar was his step mother and on the day of the incident in the night hours there was a quarrel between the accused, who was his father and the deceased, who was his step mother. He also deposed that at the relevant point of time he was sleeping, but when the woke up at about 7 am in the morning, he did not find his parents inside the house. The witness deposed that the police arrived at his residence and thereafter the dead body of his step mother was dug out from a place within the house of his Jethai who is described as the elder brother of his father. In cross-examination, PW-6 stated that he had not witnessed the incident of quarrel as he had gone to sleep by that time. 8. Pw-7, Smt. Jonaki Karmakar who was the first wife of the accused, in her evidence stated that the deceased Maina Karmakar and the accused used to reside separately from her and on the day of the occurrence, she was at her residence. She stated that on the day of the occurrence, while she returned back from her work around 5 p.m., the police arrived at their residence and the dead body was found beneath the earth from a place within the compound of the house of the elder brother of the accused. She also deposed that she came to know about the incident from her son, Bishal Karmakar, who is the PW-6. In cross, PW-7 stated that she resides separately from her husband after he married the deceased and she does not know anything about the incident. She also stated that she does not know who had dumped the body of the deceased. 9. Pw-10 Dhiren Mahato, who is a pharmacist, in his deposition stated, that on 06-10-2015, the accused came to the Garden Hospital along with his wife and he had noticed certain swelling over her face. She also stated that she does not know who had dumped the body of the deceased. 9. Pw-10 Dhiren Mahato, who is a pharmacist, in his deposition stated, that on 06-10-2015, the accused came to the Garden Hospital along with his wife and he had noticed certain swelling over her face. He accordingly called for a nurse for giving medical treatment and thereafter the doctor was called. The doctor came and admitted the deceased in the Teok Primary Hospital for medical treatment. Later on when he queried the accused as to how the face of his wife got swollen, it was replied that she had fallen on the ground after consuming alcohol. In cross-examination PW-10 stated that he does not know anything about the incident and that he had not witnessed the incident and that he had seen the deceased only in the Garden Hospital when she went for the treatment. 10. From the evidence on record, the only relevant evidence that may connect the accused/appellant with the incident would be the evidence of PW-6, who had stated that there was a quarrel between the accused and the deceased in the night. But again the said evidence itself had been confronted in cross, where PW-6 had stated that he goes to sleep early and that he had not witnessed any quarrel between the accused and the deceased. The rest of the prosecution witnesses are all hearsay and no one had seen the occurrence. Even if we take the evidence of all the prosecution witnesses, no circumstance is created, where the chain is complete by itself, to lead us to a conclusion that it is the accused/appellant who had committed the offence. 11. We further take note of that the prosecution evidence does not reveal as to where the occurrence had taken place. The only evidence available is that the dead body was found buried either in the back side of the compound of the accused or in the back side of the compound of his elder brother. Merely because the dead body was found buried either in the back side of the compound of the accused or in the back side of the compound of his elder brother, that by itself would be insufficient to arrive at a conclusion that the occurrence also took place in the house of the accused. Merely because the dead body was found buried either in the back side of the compound of the accused or in the back side of the compound of his elder brother, that by itself would be insufficient to arrive at a conclusion that the occurrence also took place in the house of the accused. In the absence of there being any evidence as to where the occurrence had taken place, it would be unsafe to invoke the provisions of section 106 of the Indian Evidence Act, 1872, so as to shift the burden on the accused to explain as to how the death was caused to the deceased. 12. In view of the unacceptability of the evidence of PW-6 that there was a quarrel in the night between the accused and the deceased, even the presence of the deceased along with the accused prior to her death, also could not be established, which again leads to a situation that section 106 of the Indian Evidence Act cannot be invoked in the present case. In the absence of there being a complete chain of events circumstantially leading to a conclusion that it is the accused alone who had committed the offence and also in the absence of a circumstance, where section 106 of the Indian Evidence Act can be invoked, to extract an explanation from the accused as regards how the death was caused to the deceased, we are of the view that the prosecution had failed to prove beyond all reasonable doubt that it is the accused/appellant who had caused the death of the deceased. Accordingly, the conviction of the accused/appellant under Sections 302/201 of the Indian Penal Code is not sustainable. The judgment and order dated 23-12-2016 of the learned Sessions Judge, Jorhat in Sessions Case No. 182(J-J)/2015 convicting the accused/appellant under sections 302/201 of the Indian Penal Code and sentencing him to rigorous imprisonment for life with a fine of Rs. 20,000/-, in default thereof, to undergo further rigorous imprisonment for 6 (six) months for the offence under Section 302 IPC and rigorous imprisonment for 3 (three) years with fine of Rs. 5,000/-, in default thereof, to undergo further rigorous imprisonment for 1 (one) month for the offence under Section 201 IPC are accordingly set aside. 13. The accused/appellant Sambhu Karmakar is set at liberty forthwith, subject to being not required with any other offence. 14. 5,000/-, in default thereof, to undergo further rigorous imprisonment for 1 (one) month for the offence under Section 201 IPC are accordingly set aside. 13. The accused/appellant Sambhu Karmakar is set at liberty forthwith, subject to being not required with any other offence. 14. The appeal stands allowed. 15. Appreciating the assistance rendered by Ms. Bijita Sarma, learned Amicus Curiae, we hereby provide that she will be paid Rs. 7500/- as her professional fees. Upon production of a copy of this judgment, the Gauhati High Court Legal Services Committee, Guwahati shall pay the said fee to Ms. Bijita Sarma. 16. Send back the LCR.