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2020 DIGILAW 190 (GAU)

Rabi Karmakar v. State Of Assam

2020-02-12

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. A.K. Gupta, learned amicus curiae for the appellant and Mr. N.K. Kalita, learned Addl. P.P., Assam for the respondent. 2. This appeal is directed against the judgment and order dated 30.06.2018, passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case No. 54/2016. By the said judgment, the learned Sessions Judge convicted the appellant under Section 307/326 IPC and sentenced him to rigorous imprisonment for 10 years with fine of Rs. 3,000/- each, in default to simple imprisonment for four months on both the counts. 3. As per the prosecution case, on 20.01.2016, the injured Mintu Karmakar and his father Sufal Karmakar had an altercation with the appellant on some petty matters and in course of such altercation, the appellant inflicted injuries to Mintu Karmakar by hitting him with a knife. Immediately, the injured was shifted to hospital and the elder brother of the injured lodged the FIR (Ext.1). On the basis of the said FIR, police registered Teok P.S. Case No. 37/2016 under Section 326 IPC and on completion of investigation, laid charge sheet against the appellant under Section 326/307 IPC. In course of trial, learned Additional Sessions Judge framed charge under Section 307/326 IPC, to which, the appellant pleaded not guilty. 4. Seven witnesses were examined by the prosecution in order to bring home the charges. After completion of the prosecution evidence, the accused appellant was examined under Section 313 CrPC, wherein he admitted the guilt and stated that he had inflicted the injured Mintu Karmakar with a Kalam Katari (knife). He further stated during examination under Section 313 CrPC that the injured and his father assaulted his wife, for which, his wife lodged and FIR and out of anger, he assaulted Mintu Karmakar and caused the injury. 5. I have considered the submissions made by the learned counsel for the appellant and the learned Addl. P.P. 6. On assessment of the evidence adduced by the prosecution, it appears that except the injured, there was no other eye witness of the occurrence and all other oral witnesses were post occurrence witnesses. The injured Mintu Karmakar was examined as PW-3. The PW-3 deposed that on the day of occurrence, at about 2 PM, when he was going to the house of his brother to fetch a mobile phone, the accused appellant suddenly appeared and hit him with a ''Kalam Katari''. The injured Mintu Karmakar was examined as PW-3. The PW-3 deposed that on the day of occurrence, at about 2 PM, when he was going to the house of his brother to fetch a mobile phone, the accused appellant suddenly appeared and hit him with a ''Kalam Katari''. He inflicted several injuries on his body and his right hand was severed. Having caused the injury, the appellant left the place and he was immediately shifted to hospital in a 108 Ambulance. During cross examination of this witness, it was elicited that very often, the appellant picked up quarrel with his father in drunken condition. 7. The wife of the injured, Sunita Karmakar has been examined as PW-5, who stated that her husband went to the nearby shop to recharge his mobile. When he was coming back, the appellant Rabi Karmakar assaulted him with a ''Kalam Katari''. Hearing hue and cry, she arrived the place of occurrence and found her husband lying with injuries and his cloths were drenched in blood. She also stated to have seen the appellant fleeing from the place of occurrence. During cross examination, she stated that she did not see the accused inflicting injury to her husband. 8. Pw-1, Jintu Karmakar, who lodged the ejahar deposed, that hearing scream of the wife of Mintu Karmakar, he arrived at the place of occurrence and found Mintu Karmakar with injuries. According to him, PW-5 told him that the accused appellant assaulted Mintu. The injured also told him that Rabi Karmakar assaulted him with a ''Kalam Katari''. During cross examination of this witness, it was elicited that the injured and the appellant resided in the same campus and they were cousin brothers. He further stated during cross examination that the appellant and the injured Mintu Karmakar very often picked up quarrel and Mintu used to threaten him. Before the occurrence also, the father of Mintu Karmakar being drunken intimidated the appellant and threatened to kill him. 9. Pw-2 & PW-6 came to know about the occurrence later on and these two witnesses also did not have any personal knowledge about the occurrence. 10. Dr. Swapna Pran Saikia, who attended the injured after the occurrence has been examined as PW-4. The PW-4 found the following injuries on Mintu Karmakar. 9. Pw-2 & PW-6 came to know about the occurrence later on and these two witnesses also did not have any personal knowledge about the occurrence. 10. Dr. Swapna Pran Saikia, who attended the injured after the occurrence has been examined as PW-4. The PW-4 found the following injuries on Mintu Karmakar. wxyz (i) amputation of right hand upto wrist zyxw wxyz (ii) multiple stitch over the scalp, leg and elbow and he had also fracture on left elbow. zyxw wxyz In the opinion of the doctor, the injuries were grievous and caused by sharp weapon. zyxw wxyz During cross examination of this witness, nothing material could be elicited and the testimony of this witness as to the injury sustained by the victim remained uncontroverted. zyxw 11. Apparently, the medical evidence transpires that atleast two injuries caused by the appellant to Mintu Karmakar were grievous and evidently, the injuries were also caused by sharp weapon. What is evident from the oral testimony of the injured himself as well as the medical evidence is that none of the major injuries including fracture were caused on the vital part of the body. It is also evident that there was quarrel immediately before the occurrence and the appellant inflicted the injury out of anger. The statement of the appellant during examination under Section 313 CrPC that injured Mintu Karmakar and his father assaulted his wife also received support from the oral testimony of PW-1, who has categorically stated, that the father of the injured intimidated the appellant and also threatened to kill him. In the FIR lodged by PW-1 also, it has been categorically stated that there was altercation and quarrel between the injured and the appellant on trivial matters and pursuant to such quarrel, the appellant assaulted the injured causing the injuries as indicated above. 12. From the oral testimony of PW-5 and the medical evidence, it is palpable that charge under Section 326 IPC has been established, inasmuch as, the grievous injury was caused by the appellant voluntarily with a sharp weapon and therefore, I find no reason to disagree with the learned trial court so far the conviction of the appellant under Section 326 IPC is concerned. 13. 13. So far, the conviction of the appellant under Section 307 IPC is concerned, in order to convict a person under Section 307 IPC for attempt of murder, prosecution needs to establish that the accused has done some act with such intention or knowledge as laid down in Section 300 IPC and under such circumstances, that if by the act done, the accused had caused the death of the victim he would be liable for committing the office of murder or in other words all the ingredients of offence of murder, except the ultimate consequence to death has to be proved. The appellant in his examination under Section 313 CrPC has fairly admitted that the injured and his father assaulted his wife, for which, an FIR was also lodged and out of anger, he had inflicted the injury. PW-1 also supported the said version of the appellant that prior to the occurrence, the father of the injured had quarreled with the appellant and he also threatened him with dire consequence. PW-1 also stated that very often the injured pinked up quarrel with the appellant. What therefore emerges from the evidence and materials brought on record is that there was quarrel and in course of such quarrel, the appellant inflicted the injuries. Admittedly, the accused and the injured are counsin brothers and live in the same campus. Thus, the evidence of PW-1, the statement made in the FIR was well as the own version of the accused appellant during examination under Section 313 CrPC would clearly demonstrate that there was no intention to cause death and the injury was caused in course of quarrel. In the above facts and circumstances, even in the event of causing death, no offence under Section 302 could have been made out and therefore, the basic ingredients to establish a charge under Section 307 IPC is found absent in the instant case and as such, the conviction and sentence under Section 307 IPC is not sustainable. According, the accused appellant is acquitted of the charge under Section 307 IPC. However, his conviction under Section 326 IPC is upheld. Having taken note of the facts and circumstances under which the occurrence took place, this court is of the view that the sentence of rigorous imprisonment for a period of four years and fine of Rs. 3000/- would meet the ends of justice. However, his conviction under Section 326 IPC is upheld. Having taken note of the facts and circumstances under which the occurrence took place, this court is of the view that the sentence of rigorous imprisonment for a period of four years and fine of Rs. 3000/- would meet the ends of justice. In default of payment of fine, the appellant shall undergo further simple imprisonment for one month. 14. With the above modification in the conviction and sentence, the appeal stands partly allowed. 15. Appreciating the assistance rendered by Mr. A.K. Gupta, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 7000/- as professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 16. Send back the LCR.