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2019 DIGILAW 692 (GAU)

Jahan Karmakar v. State of Assam

2019-06-03

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. B. Prasad, learned Amicus Curiae for the accused appellant. Also heard Mr. T.K. Misra, learned Additional Public Prosecutor for the State authorities. Although office note dated 13.06.2018 shows that service of notice after being served on the informant respondent No. 2 returned back, which is available at Flag-X, a perusal of Flag-X shows that notice was duly served. 2. An ejahar dated 09.02.2014 was lodged by Nirmal Phukan before the Officer-in-Charge of Bordubi Police Station inter alia stating that at around 7.00 p.m. on 08.02.2014, in course of a quarrel over some timber, their co-villager Jahan Karmakar had caused grievous injuries upon his elder brother Sri Sunit Phukan by dealing blows on his head with a dao. It was stated that the injured was shifted from Tinsukia Civil Hospital to Sanjeebani Hospital, Dibrugarh where his condition was critical. 3. Subsequently, Sunit Phukan died and Section 302 was added to the FIR with the permission of the CJM, Tinsukia. In the circumstance, the accused appellant was charged to have committed the offence under Section 302 IPC for having caused death to the deceased. 4. PW-1 Nirmal Phukan in his deposition stated that on the day of the occurrence at about 5 to 6 pm in the evening, he had gone to the market when Rajen Phukan informed him over phone that his brother was seriously injured with a dao by the accused. Immediately upon returning back, he noticed that his brother was taken to the house of Jatin Gogoi where people were attending to his injury and that he noticed the injury to be on the back side of the head. He deposed that at the relevant time his brother was in a position to speak and that on being asked told him that he was assaulted by the accused from the back side with a dao. Thereupon, the deceased was taken to the Civil Hospital, Tinsukia and after first-aid he was advised to be taken to the Assam Medical College & Hospital, Dibrugarh. Thereafter, on the advice of the doctor, he was taken to the Sanjeebani Hospital, Dibrugarh where he succumbed to his injury after staying there for the night. In cross, PW-1 reiterated that on being asked his elder brother told him that he was assaulted by the accused from back side of the dao. 5. Thereafter, on the advice of the doctor, he was taken to the Sanjeebani Hospital, Dibrugarh where he succumbed to his injury after staying there for the night. In cross, PW-1 reiterated that on being asked his elder brother told him that he was assaulted by the accused from back side of the dao. 5. PW-3 who had conducted the post mortem had stated the following injury:- 1. Stitched would of size 8 cm present over occipital area of the scalp on right side obliquely, stitched by 7 surgical stitches. On dissection, fissured fracture present over right side of occipital bone of size 7 cm transversely. Skull and scalp- as described. Vertebrae-healthy. Membrane-Congested. Diffuse subdural haemorrhage present over right hemisphere of brain. Brain congested. Spinal cord-not examined. Liver congested. Spleen healthy. Both kidneys congested and bladder empty. Organs of generation-healthy. Walls, ribs and cartilages-healthy. Pleurae-congested. Laryax and trachea congested. Both lungs congested. Pericardim congested. Heart-healthy and empty. Stomach congested and contained partially digested food materials. Small intestine congested and contained gas like substance. Large intestine congested and contained gas and faecal matter." PW-3 gave the opinion that death was caused due to coma following the head injury which was ante mortem and was caused by blunt force impact. According to the doctor the injury was sufficient to cause death of a person. 6. PW-4 Jatin Gogoi in whose house the deceased was found by PW-1 in his deposition stated that at around 7.00 pm on the day of occurrence, the deceased fell down in a nulla in front of his house and cried for help. He went there and on being asked, the deceased told him that he was cut by Putlu on the back side. He found blood was oozing out from his injury and he tried to stop the bleeding with the help of a towel but could not succeed. Then he tied the injured part with a bed-sheet and took him to his house and then his brother came and they took him to garden hospital, from where he was shifted to Civil Hospital, Tinsukia and therefrom he was shifted to AMCH, Dibrugarh. To a suggestion in cross, the witness stated that it is not a fact that he had not stated before the police that the deceased told him that he was cut by Putlu on the back side of his neck. 7. To a suggestion in cross, the witness stated that it is not a fact that he had not stated before the police that the deceased told him that he was cut by Putlu on the back side of his neck. 7. PW-5 Sibam Munda stated that on the day of the occurrence at about 6 p.m. he was in the house of the deceased and at that time the accused came there with a dao and assaulted the deceased with the dao on the back side of the neck. The witness stated that seeing the occurrence he fled away out of fear. In cross, the witness stated that he came out of the house upon hearing the deceased shouting and at that time it was dark. The witness also stated that he was sitting nearby in the courtyard of the deceased and there was one bulb in the room. He also stated that after assaulting the deceased, the accused went away. To a suggestion in cross, he stated that it is not a fact that he did not see the accused assaulting the deceased. 8. PW-6 in his deposition stated that he resided in the neighbourhood of the deceased and on the day of the incident at about 6.00 p.m. he heard a hue and cry from the house of the deceased and upon hearing it he came out and found the deceased in front of the house of Jatin Phukan in an injured condition and that he had injury on the back side of his head. But he was in a position to talk. He deposed that the injured told him that Putlu @ Johan Karmakar had assaulted him with a dao whereupon, the witness made a telephone call to the brother of the deceased and thereafter, when they came had shifted him to the hospital. In cross to a suggestion, the witness stated that he did not state before the police that the deceased told him that Putlu had assaulted him with a dao and that he had stated about it for the first time in the Court. 9. In cross to a suggestion, the witness stated that he did not state before the police that the deceased told him that Putlu had assaulted him with a dao and that he had stated about it for the first time in the Court. 9. PW-8 the I/O stated that the informant had lodged the ejahar on 08.02.2014 stating that in the evening at about 7.00 pm his elder brother Sunit Phukan had an altercation with Johan Karmakar in respect of some timber and in the altercation, the accused inflicted cut injury on him causing grievous injury on his head and he was admitted in Sanjeebani Hospital, Dibrugarh. He deposed that thereupon, he proceeded to the place of occurrence, prepared a sketch map, recorded statements of the witnesses and seized one dao on being produced by the accused which was exhibited as Ext.4. In cross, the I/O stated that the witness Jatin Gogoi had not stated before him that Sunit Phukan had told him that he was cut by Putlu on the backside of his neck. 10. The defence had examined the witness Badal Tanti as DW-1 who had deposed that on the day of the occurrence, he and the accused and another person Dipak Mura after drawing their salary went to the Mahakali Grant market where they took food and alcohol and remained there till 8.00 pm. He also deposed that he came to know from some children of the village that the deceased died after falling in a drain. The witness also deposed that there was no T.V set in the house of the deceased at the relevant time of the occurrence and that PW-5 used to work in the house of Nirmal Phukan i.e. the elder brother of the deceased. In cross, DW-1 reiterated that the accused is also known by the name Putlu. In his statement under Section 313 Cr.P.C. the accused appellant except for a general denial had not taken any specific stand. 11. From the reading of the aforesaid evidence it is discernible that the prosecution seeks to make out that the incident was witnessed by PW-6 and also seeks to make out a case of oral dying declaration being made by the deceased before PW-1, 4 and 6. 11. From the reading of the aforesaid evidence it is discernible that the prosecution seeks to make out that the incident was witnessed by PW-6 and also seeks to make out a case of oral dying declaration being made by the deceased before PW-1, 4 and 6. As regards eye witness of PW-5, we have verified the statement under Section 161 Cr.P.C. from which it is discernible that he had also stated before the police that he had witnessed the occurrence of the dao blow being inflicted by the accused. But again when we go through the evidence of PW-4, we find that upon hearing a cry for help he came out and found the deceased in an injured condition in a nulla in front of his house and when he had asked as to what had happened, the deceased replied that he was assaulted by the accused with a dao on the back side of his head. Thereafter, PW-4 had taken the injured inside of his house and tried to provide first aid treatment to the injured part. It is also discernible from the evidence of PW-1 the elder brother of the deceased upon being informed found the deceased in an injured condition in the house of PW-4 where people were trying to provide some treatment to the injured part. Thereafter, the deceased was taken to the Garden Hospital from where he was taken to the Civil Hospital, Tinsukia and then to the AMC&H, Dibrugarh and subsequently to the Sanjeebani Hospital, Dibrugarh. There are evidences on record that all along the deceased was in the injured state and therefore, there is nothing to conclude that he was not in a state to make statement as to who had assaulted him. 12. The evidence of PW-4 that upon being asked, the deceased had informed that he was assaulted by the accused is also corroborated by the evidence of PW-1 as well as PW-6 both of whom stated that the deceased himself had said that it was the accused who had inflicted the injuries. 12. The evidence of PW-4 that upon being asked, the deceased had informed that he was assaulted by the accused is also corroborated by the evidence of PW-1 as well as PW-6 both of whom stated that the deceased himself had said that it was the accused who had inflicted the injuries. Although the I/O makes a statement that PW-4 had not stated as such before him but upon verification of the statement of PW-4 under Section 161, it is seen that the said witness had stated before the police that the deceased had told him upon being asked that it was the accused who had inflicted the dao blow on his head. The evidence in chief of the PW-4 as corroborated by PW-1 and PW-6 had not been adequately confronted so as to discredit the same. 13. As it has been established through the evidence of PW-4, who is an independent witness that the deceased was found in a nulla in front of his house and there-being no reason to disbelieve the PW-4, we are not inclined to accept the evidence of PW-5, although he claims himself to be an eye witness for the reason that firstly, PW-5 had stated that he was watching TV in the house of the deceased but the evidence of DW-1 shows that there was no TV in the house of the deceased. Secondly, PW-5 in his cross had stated that it was dark outside and there is no indication of there-being any light. The said two inconsistencies lead us to a conclusion that the deposition of PW-5 that he had seen the occurrence is dis-believable. It is more so as PW-4 who is an independent witness had found the deceased in front of nulla of his house, which apparently is not within or near the house of the deceased. 14. Having said so, we have taken note of the evidence on record and more particularly the FIR lodged by PW-1, wherein, it is an admitted case of the prosecution that prior to the blows being inflicted by the accused, there was quarrel between the accused appellant and the deceased. 15. In the circumstance, by relying upon the pronouncement of the Supreme Court in Rambir vs. State NCT of Delhi (Crl. 15. In the circumstance, by relying upon the pronouncement of the Supreme Court in Rambir vs. State NCT of Delhi (Crl. Appeal No. 839 of 2019) in its judgment dated 06.05.2019, the existence of a quarrel immediately prior to the assault would by itself have to be construed to be a mitigating factor to bring the case within Exception 4 of Section 300 IPC. The evidence of DW-2 that the accused appellant had consumed alcohol prior to the incident, would also have to be construed to be a circumstance leading to the occurrence. 16. As because the blows were inflicted by the accused appellant by the back side of the dao and that there was only one injury which was caused perhaps in the darkness, we are of the view that, that by itself cannot lead to a conclusion that there was no intention on the part of the accused appellant to cause the death on the deceased. In this respect reference is made to the conclusion of the Supreme Court arrived at in its judgment dated 31.05.2019 in Criminal Appeal No. 1411 of 2013 in State of Madhya Pradesh vs. Kalicharan and Others, wherein it was concluded as follows:- "Now, so far as the impugned judgment and order passed by the High Court altering the conviction of the accused Ramavtar from Sections 302/149 to Section 304 Part II of the IPC is concerned, it is required to be noted that the fatal blow was caused by the said accused Ramavtar. The deceased Kalyan sustained the injury on his head which was caused by the accused Ramavtar. The said injury caused by the accused Ramavtar was on the vital part of the body i.e. head and proved to be fatal. Merely because the accused Ramavtar caused the injury on the head by the blunt side of Farsa, the High Court is not justified in altering the conviction to Section 304 Part II of the IPC. As held by this Court in catena of decisions, even in a case of a single blow, but on the vital part of the body, the case may fall under Section 302 of the IPC and the accused can be held guilty for the offence under Section 302 of the IPC. As held by this Court in catena of decisions, even in a case of a single blow, but on the vital part of the body, the case may fall under Section 302 of the IPC and the accused can be held guilty for the offence under Section 302 of the IPC. However, in the facts and circumstances of the case, more particularly that it was a case of free fight, considering the fact that the weapon used by the accused Ramavtar was Farsa and he caused the injury on the vital part of the body i.e. head which proved to be fatal, in the facts and circumstances of the case, we are of the opinion that the High Court has committed a grave error in altering the conviction of the accused Ramavtar from Sections 302/149 of the IPC to Section 304 Part II of the IPC. In the facts and circumstances of the case and considering the evidence on record, more particularly, the medical evidence and the manner in which the incident took place, we are of the opinion that the accused Ramavtar should have been held guilty for the offence under Section 304 Part I of the IPC." 17. In the instant case also the blows were inflicted by the accused appellant by the back side of the dao but it having been inflicted on a vital part i.e. back side of the head, it cannot be said that there was no intention on the part of the accused appellant to cause death to the deceased. Accordingly, we are of the view that the circumstance under which the assault was made would bring the case under Section 304 Pt-I of the IPC. 18. We accordingly convict the accused appellant under Section 304 Part-I IPC and sentence him to undergo RI for 8 years by retaining the fine of Rs. 50,000/- and in default thereof a further RI for 6 months as imposed by the learned Sessions Judge, Tinsukia in Sessions Case No. 66(T)/2015 dated 28.06.2017. The judgment dated 28.06.2017 of learned Sessions Judge, Tinsukia is therefore interfered to the extent as indicated above. 19. The appeal is partly allowed. 20. Before parting with the record, we appreciate the valuable service rendered by Mr. B. Prasad, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. The judgment dated 28.06.2017 of learned Sessions Judge, Tinsukia is therefore interfered to the extent as indicated above. 19. The appeal is partly allowed. 20. Before parting with the record, we appreciate the valuable service rendered by Mr. B. Prasad, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order. Send back the LCR.