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2020 DIGILAW 200 (GAU)

Karma Rajgarh v. State of Assam

2020-02-13

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. I. Hussain, learned Amicus Curiae appearing for the appellant and Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 22.06.2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 10[J-J] 2014, whereby the appellant was convicted under section 302 IPC and sentenced to Rigorous Imprisonment for life and fine of Rs. 15,000/- with default stipulation. 3. As per the prosecution case, on 14.12.2013 at about 8.00 PM, when the victim Ajay Bakti went to his place of work at Katonibari Tea Estate Garden Hospital, the accused appellant Karma Rajgarh who resides near the hospital suddenly inflicted injuries to Ajay Bakti by stabbing him with a sharp weapon. When Mangal Gowala brother in law of the accused asked him as to why he had assaulted the deceased, the appellant also inflicted injury to him by hacking him with a dao. Immediately the injured was taken to Jorhat Hospital for treatment where he was declared dead. 4. P.W.-1 brother of the victim lodged the FIR exhibit-1 on the basis of which Mariani PS Case No. 224/2013 was registered under sections 302/326 IPC. In course of investigation, police recorded the statement of the witnesses, seized the alleged weapon of offence, prepared the inquest report, arrested the accused and send the body for postmortem examination. 5. P.W.-8 Dr. Nitu Kumar Gogoi, who conducted the post-mortem examination found the following injuries on the body of the victim: "1. Incised wound of size 2 cm x 0.5 cm x muscle deep over right side of cheek, 1 cm away from the area of nose. 2. Incised wound of size 3 cm x 0.5 cm x muscle deep over base of right thump on inner aspect. 3. Stab wound of size 4 cm x 1.5 cm x thoracic cavity deep over right side of neck, 6 cm away from the midline and 11 cm below the chin. 4. Stab wound of size 3 cm x 1.5 cm x cavity deep over back of chest on the right side 21 cm below the acromion and 11 cm away from the midline: 5. Stab wound of size 3 cm 1.5 cm cavity deep over the back of chest and abdomen on the right side, 10 cm below injury No. 4. 6. Stab wound of size 3 cm 1.5 cm cavity deep over the back of chest and abdomen on the right side, 10 cm below injury No. 4. 6. Stab wound of size 4 cm x 2 cm x cavity deep on the lateral aspect of right side of the abdomen, 8 cm away from injury No. 5 and 24 cm away from the midline. Portion of mesentery protruded out of the wound underneath soft tissues, vessels, lobe of liver, intestine lacerated at places." 6. In the opinion of the autopsy doctor death was caused due to haemorrhage and shock as a result of stab injuries sustained by the deceased. All the injuries were sufficient to cause instantaneous death of the deceased. According to the autopsy doctor, death was within 12 to 18 hours from the post-mortem examination. 7. On conclusion of investigation, charge-sheet was laid against the appellant under section 304/324 IPC. As the case was triable by the Court of Sessions, learned Magistrate upon taking cognizance, committed the case to the Court of Sessions. Learned Sessions Judge framed charges under sections 302/324 IPC against the accused/appellant, to which he pleaded not guilty. 8. During the course of trial 11 (eleven) witnesses were examined by the prosecution in order to bring home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellants under section 302 IPC and awarded sentence as indicated above. 9. Aggrieved the appellant preferred the appeal. 10. During the hearing of the appeal, this Court felt the necessity of examining one Mangal Gowala and the case was remitted back to the learned Sessions Judge for taking additional evidence by way of examining said Mangal Gowala and the learned Sessions Judge having examined the said witness sent back the record along with the certificate in terms of sub-section (2) of Section 391 Cr.P.C. 11. Learned Amicus Curiae has not contested the finding of the learned Sessions Judge as to the involvement of the appellant in the commission of offence, however, his contention is that the accused/appellant while inflicting injuries to the victim did not have any premeditation or intention to cause death and as such, the conviction of the appellant could not be recorded under section 302 IPC, and the conviction ought to have been recorded under section 304 (Part-II) IPC for culpable homicide not amounting to murder. Supporting the conviction and sentence of the appellant, learned Addl. PP contends, that the prosecution has proved the offence of murder against the appellant beyond all reasonable doubt inasmuch as, there was no materials on record to suggest even remotely that the accused acted under any sudden provocation or he did not have the intention to cause death and as such, the impugned judgment of conviction and sentence calls for no interference. 12. We have considered the submissions made by the learned Amicus Curiae and learned Addl. PP, Assam and also scrutinised the evidence brought on record. 13. On our assessment of the evidence, we find that there were two eye witnesses of the occurrence, being P.W.-4 & P.W.-5. We therefore, deem it apposite to have a relook on the oral testimony of these two prime witnesses at the outset. 14. P.W.-4 Umesh Garh testified that on the relevant day, he was playing cards along with deceased Ajay Bakti, Nakul (P.W.-5) and some of his friends on the backside of Katonibari Tea Estate Garden Hospital. At that point of time, the accused arrived there and assaulted Ajay Bakti by means of a dao. On seeing the incident of assault, he got frightened and had fled away from the place of occurrence. He further stated that after sometime he returned back to the place of occurrence and saw Ajay Bakti lying with injuries. He also stated to have called the wife of the deceased to the place of occurrence and later on, the neighbouring people also assembled there. During cross-examination he denied the defence suggestion that the deceased had altercation with the accused. He also denied the defence suggestion that they assaulted the accused at the place of occurrence. Nothing more could be elicited from his cross-examination to create any dent in his evidence. 15. Close on the heal of the evidence of P.W.-4, P.W.-5 Nakul also deposed, that at the relevant point of time, he was playing cards along with Ajay Bakti and some friends including Umesh Garh (P.W.-4). At that point of time, the accused arrived there and assaulted Ajay Bakti with a dao. On seeing the incident of assault, they got frightened and left the place. On the next day, he came to know that the deceased succumbed to the injuries. During cross-examination it was further confirmed, that the accused assaulted the deceased with a dao. At that point of time, the accused arrived there and assaulted Ajay Bakti with a dao. On seeing the incident of assault, they got frightened and left the place. On the next day, he came to know that the deceased succumbed to the injuries. During cross-examination it was further confirmed, that the accused assaulted the deceased with a dao. It was also confirmed that they were playing cards at the place of occurrence in the light of a "chaki" (lamp). This witness also denied the defence suggestion that they have assaulted the accused at the relevant point of time. Except putting the suggestion that the prosecution witness assaulted the accused, which was denied by both P.W.-4 & P.W.-5, the oral testimony of the P.W.-4 & P.W.-5 remained unshaken. Evidently there was no material on record to show that accused sustained any injury. 16. The wife of the deceased Laxmi Bakti was examined as P.W.-2. She stated in her evidence that her husband was working at the Katonibari Tea Estate Hospital as a dresser. P.W.-4 came running to her residence and informed that her husband has been assaulted. Having come to know about the occurrence she along with her children and P.W.-4 went to the place of occurrence. She also stated to have heard the accused saying in loud voice that he had assaulted the victim. According to her, the elder brother of the deceased also heard the accused saying that he had assaulted the victim. During her cross-examination it was elicited, that she did not see anybody at the place of occurrence. Although the defence during cross-examination sought to project a contradiction with her previous statement suggesting that she did not state before the I/O. that she had heard the accused saying in loud voice regarding assaulting the victim which was denied by her. However, the I/O. in his evidence confirmed that P.W.-2, in fact, stated before him regarding P.W.-2 having heard the accused uttering in loud voice that he had assaulted her husband with "dao." Therefore, palpably the testimony of the P.W.-2 also was consistent and there was no inconsistency between the previous statement and the evidence in Court of the P.W.-2. 17. However, the I/O. in his evidence confirmed that P.W.-2, in fact, stated before him regarding P.W.-2 having heard the accused uttering in loud voice that he had assaulted her husband with "dao." Therefore, palpably the testimony of the P.W.-2 also was consistent and there was no inconsistency between the previous statement and the evidence in Court of the P.W.-2. 17. P.W.-1 Bijay Bakti stated that having heard about the occurrence from one Samra Garh he went to the place of occurrence along with his brother and P.W.-2 and on reaching the place of occurrence, Samra Garh showed the place where Ajay Bakti was lying injured. He further stated that on reaching the place of occurrence he saw Ajay Bakti lying on the ground and immediately took him on his lap and proceeded towards the garden hospital. This witness further stated that he had seen the accused near the jungle situated at the backside of the garden hospital in a drunken condition and he confessed before him that he (accused) had killed the victim. He further stated that the accused had threatened to kill him. Though this witness did not see the occurrence, his evidence, that he had seen the accused near the jungle in a drunken condition and making a confession that he had committed the offence was not challenged in the cross-examination. 18. P.W.-3 & P.W.-7 were the staff of the garden hospital. They only deposed about the victim bringing to the garden hospital and attending the victim in the garden and sending the victim to Jorhat hospital. 19. P.W.-6 who happens to the brother-in-law of the accused, stated that in the evening the accused visited his house. They consumed liquor together and thereafter the accused left his house. He further stated that after the accused left his house, he followed the accused, as he was under the influence of alcohol and on his reaching the house of the accused, he noticed someone going out of the house in a run While he was coming back from the house of the accused, someone assaulted him but he could not recognize the assailant. 20. The evidence of P.W.-9 Dr. 20. The evidence of P.W.-9 Dr. Nilutpal Bhattacharjee who examined P.W.-6 found that the injuries were caused by sharp weapon but in view of the evidence of P.W.-6 that he was assaulted at the house of the accused and he could not recognize as to who assaulted him, the evidence of this witness as well as the evidence of P.W.-6 does not appears to be on any significance. 21. The P.W.-12, who was examined under section 391 Cr.P.C., as additional evidence, testified that he came to know about the occurrence from P.W.-1 and accordingly, conveyed the information to the police. According to him, he did not have any personal knowledge about the occurrence. Thus the prosecution case is apparently banking on the oral testimony of P.W.-1, 2, 4 & 5 and the medical evidence of P.W.-8. 22. A dispassionate scrutiny of the oral testimony of this four vital witnesses, P.W.-1, 2, 4 & 5 shows, that the evidence of P.W.-4 & P.W.-5 that when they were playing cards at the place of occurrence along with the victim, the accused came thee and inflicted injury to the victim with a "dao" remained unshaken during cross examination. The evidence of P.W.-2, that he was informed by P.W.-4 about the occurrence and accordingly they went to the place of occurrence along with P.W.-4 also lends support to the oral testimony of P.W.-4, who was an eye witness to the occurrence. The P.W.-1 who came to the place of occurrence accompanied with P.W.-2 & P.W.-4 after having come to know about the incident, clearly stated, that though, the accused was not available at the place of occurrence, he had seen the accused in intoxicated condition nearby the jungle behind the hospital and he confessed to have assaulted the victim. This evidence of P.W.-1 as to the extra judicial confession made by the accused remained un-controverted during cross-examination. The uncontroverted testimony of the P.W.-1 regarding extra judicial confession also finds support from the oral testimony of P.W.-2, who also stated to have heard the accused saying in loud voice that he killed the victim. 23. In his examination under section 313 Cr.P.C., the appellant in an apparent endeavour to establish his innocence, stated that he came home at about 5.00 PM from the work and met the accused at 6.30 PM. 23. In his examination under section 313 Cr.P.C., the appellant in an apparent endeavour to establish his innocence, stated that he came home at about 5.00 PM from the work and met the accused at 6.30 PM. He also stated that some people were playing cards at the backside of the hospital, who tried to assault him when he reached near the place of occurrence and therefore, he had fled away leaving his bicycle, on being chased by those persons, playing cards. What we notice in his statement in course of examination under section 313 Cr.P.C. is that though, he tried to establish his innocence by saying that the persons who were playing cards attempted to assault him, thereby, infact he admitted his presence at the place of occurrence and also supported the prosecution version as deposed by P.W.-4 & P.W.-5, that they were playing cards with the victim and two others at the time of occurrence as well as the occurrence itself. P.W.-4 & P.W.-5 clearly stated, that they were playing cards with their friends including the victim, where the accused came and assaulted the victim. Evidently the accused was drunk at the time of occurrence. Had the four/five persons attempted to assault the accused, a drunken person, he could not have escaped without any injury. Evidently the accused did not receive any injury. It is also in the evidence of the P.W.-1 & P.W.-2 that after the occurrence also the accused was near the place of occurrence. Therefore, the story sought to be projected by the appellants in his statement recorded under section 313 Cr.P.C., that, he was attacked by the persons who were playing cards appears to be absurd and totally unbelievable. 24. Though the second part of his statement made under section 313 Cr.P.C., is inherently improbable and cannot be accepted, there is no difficulty in accepting the first part, which is found to be trustworthy and supports the prosecution version, atleast to the extent of his presence at the place of occurrence and the evidence of P.W.-4 & P.W.-5 that the occurrence took place, when they were playing cards. The first part appears to be believable, though, to some extent inculpatory, inasmuch as, it establishes the presence of the accused at the place of occurrence and supported the genesis of the occurrence as deposed by prosecution witnesses. The first part appears to be believable, though, to some extent inculpatory, inasmuch as, it establishes the presence of the accused at the place of occurrence and supported the genesis of the occurrence as deposed by prosecution witnesses. Though as a general rule, a statement of the accused under section 313 Cr.P.C., which comprised of both inculpatory and exculpatory version is required to be taken as a whole, if the inculpatory part can be separated from the exculpatory part, there is no difficulty in accepting the inculpatory part of the statement which is found to be trustworthy and consistent with the other prosecution evidence and rejecting the exculpatory portion which is not believable because of its inherent improbability (vide Nishi Kant Jha Vs. State of Bihar 1969 (1) SCC 347 ) It is the settled position, that though the statement made by the accused during examination under section 313 Cr.P.C., is not evidence 'stricto senso' such statement even confessional can be taken into consideration against the accused by virtue of sub-section (4) of section 313 Cr.P.C. 25. Thus oral testimony of the P.W.-4 & P.W.-5, coupled with the medical evidence as well as the evidence of P.W.-1 & P.W.-2 together with the extrajudicial confession of the appellant leaves no room for doubt that it was the accused/appellant who had inflicted the injuries to the victim Ajay Bakti which led to his death. The statement of the accused during examination under section 313 Cr.P.C., as indicated above also further re-enforced the above conclusion. 26. The medical evidence of P.W.-8 and the post-mortem report Exhibit-2 shows that multiple stab injuries were inflicted to the victim by the accused on vital parts which speaks loud and clear the intention of the accused to cause death. Though learned Amicus Curiae canvassed before us, that there was quarrel and the injuries were caused due to sudden provocation, in course of quarrel, we do riot find any iota of evidence or materials on record to support such submission of the learned Amicus Curiae. Therefore, having regard to the medical evidence and also the nature of injury, as well as the weapon of offence, we find no reason to differ with the conclusion arrived at by the learned Sessions Judge for recording conviction and awarding sentence to the appellant under section 302 IPC. Therefore, having regard to the medical evidence and also the nature of injury, as well as the weapon of offence, we find no reason to differ with the conclusion arrived at by the learned Sessions Judge for recording conviction and awarding sentence to the appellant under section 302 IPC. Accordingly, we upheld and confirm the conviction and sentence of the appellant and consequently the appeal stands dismissed. 27. A copy of this judgment be forwarded to the Superintendent of the Central Jail, Jorhat for furnishing to the appellant. 28. Appreciating the assistance rendered by Mr. I. Hussain, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of Rs. 7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Hussain. 29. Send down the LCR along with a copy of this judgment.