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2022 DIGILAW 736 (JHR)

Kedar Karmkar v. State of Jharkhand

2022-06-27

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the judgment of conviction and order of sentence dated 31.01.2005 passed by the learned Sessions Judge, Dumka in Sessions Case No. 364 of 2003 corresponding to G.R. No. 792 of 2002, arising out of Raneshwar P.S. Case No. 41 of 2002, Dumka, Jharkhand whereby and where under the appellant Kedar Karmkar has been convicted for the offence punishable u/s 307 of IPC and sentenced him to undergo Rigorous Imprisonment for two years for the offence under section 307 of IPC and further imposed a fine of Rs. 1000/- (Rupees one thousand) in case for default in payment of fine, the convict shall have to undergo simple imprisonment of six months. 2. The prosecution story as unfolded in the fardbeyan of the informant Mantu Mistry recorded by S.I. Maheshwar Singh, Officer-In-Charge of Raneshwar P.S. on 01.09.2002 at about 19.30 hours at Asanbani alleging therein is that today (1.09.2002) in the evening at 5.30 p.m. when the informant was going to his house from Asanbani Bazar and when he reached near the house of one Kedar Karmakar all of a sudden Kedar Karmakar threw a mug of petrol on the head of the informant and thereafter lit match and tried to burn the informant. It is alleged that the informant on noticing this fled away and during this he fell down and received injury on his thigh. It is alleged that the informant thereafter entered in the house of Uma Karmakar there upon Kedar Karmakar entered in the house of Uma Karmakar. In the meanwhile, Uma Karmakar came where upon Kedar Karmakar fled away. The motive of the said occurrence as disclosed by the informant in his fardbeyan was that a litigation was going on between the brother of Kedar Karmakar namely Jaideo-Karmakar and Uma Karmakar and in that case the informant (PW-1) was a witness and had also given evidence and hence, it was alleged that Kedar Karmakar had threatened the informant with dire consequences. It was alleged that Kedar Karmakar in order to kill the informant had poured petrol on the person of the informant. 3. On the basis of the fardbeyan, FIR was registered vide Raneshwar P.S. Case No. 41/2002 dated 01.09.2002 instituted u/s 307 of the IPC and the police after investigation submitted charge sheet on 31.05.2003 vide charge-sheet no. 25/2003 u/s. 341, 323, 307 of IPC. 3. On the basis of the fardbeyan, FIR was registered vide Raneshwar P.S. Case No. 41/2002 dated 01.09.2002 instituted u/s 307 of the IPC and the police after investigation submitted charge sheet on 31.05.2003 vide charge-sheet no. 25/2003 u/s. 341, 323, 307 of IPC. The case was committed to the court of sessions on 01.11.2003 under the order of the learned C.J.M. Dumka thereafter charges in this case was framed on 16.12.2003 against the accused Kedar Karmakar u/s 307 of IPC. After conclusion of the trial the learned Trial court found the appellant guilty under sections 307 of IPC and passed the impugned judgment of conviction and order of sentence which is challenged under this appeal. 4. Heard Mr. Purnendu Sharan, learned counsel appearing on behalf of the appellant and Mrs. Nehala Sharmin, learned A.P.P. appearing on behalf of the State. Arguments on behalf of the learned Counsel for the appellant 5. Learned counsel for the appellant submitted that the impugned judgment of conviction and order of sentence is not passed on the materials available on record by the learned trial court. From the evidence adduced on behalf of PW-9 doctor, it cannot be established that petro chemical was poured on the informant. The learned trial court ignored the fact that there was an enmity between the parties since long, as it is evident from the deposition of PW-5. The learned court below has also ignored the testimony of the witnesses PWs. 3, 4 and 7 who have not supported the case of the prosecution rather from their version, it is found that the informant himself was alcoholic and he used to go to take alcoholic liquor from the vendors situated in front of the house of the appellant and after taking alcoholic liquor using abusive languages upon which the appellant used to prohibit and, therefore, the informant had been quarrelling with the appellant regularly after taking liquor in front of their house and the present case is the culmination of that quarrel between them. Learned trial court has also ignored the fact that during cross examination PW-5 has not stated about the odor or smell coming out from the informant is the petrol rather it was by alcohol and in view of the fact that appellant was alcoholic and, therefore, the odor found was of alcohol and not of petrol and the learned defence counsel in support of his contentions relied upon the judgments rendered by the Hon’ble Apex Court in the case of: (i) Sadakat Kotwar and Another vs. State of Jharkhand, 2021 SCC Online 1046 (ii) Rabindra Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 By which it has been argued on behalf of appellants that no ingredients of section 307 of IPC is found against the accused appellant and it is a case of simple injury as found by the doctor and, therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the learned A.P.P. for the State 6. On the other hand, the learned A.P.P. for the State vehemently opposed the contentions raised on behalf of the appellant and submitted that the learned trial court has rightly appreciated the evidence adduced on behalf of the prosecution and no legal evidence is found to interfere in the impugned judgment of conviction and order of sentence and accordingly it is submitted by the learned A.P.P. that the learned trial court has rightly appreciated the evidences and passed the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. 7. Having heard the parties, perused the materials available on record including the Lower Court Records. Appraisal and Findings 8. Further it is found in order to substantiate the case of the prosecution altogether ten witnesses have been examined out of whom PW-1: Manatu Mistry, who is the informant of this case PW-2 is Kamla Devi, wife of Manatu Mistry, PW-3 is Manik Pal, PW-4 is Manatu Mirdha and PW-5 is Uma Karmakar, PW-6 is Rajbati Karmakar, PW-7 is Dulia Devi, PW-8 is Sahdeo Mistry, PW-9 is Dr. Keshari Pd. Choudhary, who has examined the injured informant PW-1 and PW-10 is Maheshwar Singh, who is I.O. of the case. 9. Keshari Pd. Choudhary, who has examined the injured informant PW-1 and PW-10 is Maheshwar Singh, who is I.O. of the case. 9. At the outset learned defence counsel submitted that there is no ingredient to constitute the offence punishable u/s 307 of IPC as held by the learned trial court which is not based on the legally acceptable evidences available on record. I.O. who has been examined in this case as PW-10 categorically stated in Para 17 that the informant has never produced before him any material in proof of sprinkle of petrol as alleged in the FIR. Further during the course of the investigation when he reached to the place of occurrence neither petrol nor the lucaa fire (fire burning stick) was recovered from the place of occurrence, in contravention of the statement given by the informant in his deposition including the FIR and the subsequent statement deposed by him during the course of the trial. 10. Further, it has also been stated by the doctor who has medically examined the informant as PW-9 Dr. Keshari Prasad Choudhary on 01.09.2002 at 9.35 p.m. and found the following injuries on the person of the informant PW-1: (i) Light odor could be smelt of above the upper half of the body. The quality of smell is pungent. (ii) Abrasion 2¼” x 1¼” over the lower part of anterolateral aspect of the right knee joint. (iii) Headache is mild. (iv) Otalgia (left) is mild. (v) There is mild superficial congestion (redness) of conjunctures of the either eyes. It has been opined by the Doctor PW-9 that the nature of odor is vague possibly petro chemical. Nature of injures were simple and the injury report has been marked as Ext. 2. In the cross examination PW-9 has categorically stated that there was only one physical injury on the informant victim PW-1 which is injury no. 2 and further it is stated by the doctor that injury no. 2 was not on vital part of the body and it can be caused due to fall on hard and blunt substance. It has been clarified by the doctor PW-9 in his statement that injury nos. 3, 4 and 5 were not the injury rather it was a physical features of an injured during the time of medical examination of the injured PW-1 Manatu Mistry. It has been clarified by the doctor PW-9 in his statement that injury nos. 3, 4 and 5 were not the injury rather it was a physical features of an injured during the time of medical examination of the injured PW-1 Manatu Mistry. PW-9 further stated that the pungent smell can be due to alcohol and the defence taken on behalf of the appellant cannot be ruled out that the odor of alcohol was there rather than petro chemical because the informant Mantu Mistry was alcoholic as told by the prosecution witness PW-10 who was the I.O. of this case and he had explicitly in unequivocal manner has stated in Para-13 during the course of investigation the Chowkidar Mithu Mian had told that the informant Mantu Mistry was a habitual drunkard and after taking drink he used to quarrel with the appellant Kedar Karmakar inasmuch as the appellant Kedar Karmakar used to oppose him from drinking alcoholic drink, and thus the learned trial has committed gross error in holding the guilt of the appellant for the offence punishable under section 307 of the IPC when neither the intention nor knowledge to cause murder is inferred from the circumstances of the case in view of the fact that only one injury has been found and the injury is simple in nature and it is not on the vital part of the body and no trace of petro chemical or burn injury has been found to support the case of the prosecution that the appellant had attempted to kill the informant by setting him on fire by sprinkling petrol. Neither the petrol nor any burnt cloth has been found by I.O. (PW-10) nor any burn injury has been found by doctor PW-9. 11. In view of the aforesaid findings and glaring evidences adduced on behalf of the prosecution the fact remains to taken into consideration the evidences of PWs. 1, 2, 5 and 8 that there was a dispute/litigation/case between brother of appellant and PW-5 where PW-1 (the informant Mantu Mistry) was witness against the brother of the appellant and, therefore, it was an admitted case of the prosecution that there was an enmity between the informant and the appellant which is a double edged weapon and there was a possibility of false implications as well as the commission of the offence cannot be ruled out. PWs. PWs. 1, 2, 5, 6, 7 and 8 have stated that the appellant had assaulted the informant and he had also given threatening not to give the evidence in support of PW-5 Uma Karmakar in the case pending between the PW-5 Uma Karmakar and the brother of the appellant. But, the prosecution did not produce the evidence in order to substantiate the charges of setting on fire by sprinkling petrol upon the informant by the appellant who had threatened him not to give evidence against brother of the appellant as stated by Mantu Mistri in his deposition in trial in Para 16 which has been totally negated by the I.O. in Para 19 where it has been stated by the I.O. that Mantu Mistri had not stated that he would be killed if evidence in the case is given by him against the brother of the appellant and as such the testimony of PW-1 informant is not fully trustworthy. As discussed above in the foregoing paragraphs in the deposition of I.O. PW-10 and also evident from the testimonies of the doctor that only simple injury is found and it is also not on the vital part and, therefore, utmost it is an offence punishable u/s. 323 of IPC and no offence under section 307 of IPC is substantiated form the testimony of the witnesses examined on behalf of the prosecution. Three witnesses namely hostile witness PW-3 Manik Pal and the tendered witnesses PW-4 Mantu Mirdha and another hostile witness is PW-7 Dulia Devi have not only falsified the case of the prosecution rather the defence taken on behalf of appellant is corroborated. From the deposition of the I.O. particularly vide Para 13 it is well founded that alcoholic liquor was sold in front of the house of appellant and the informant used to come and drink there and thereafter he used to fight with the appellant by using abusive languages and appellant used to oppose and asked him not to drink and, therefore, there had been quarrel between the two and there is a strong possibility of false implication of the appellant by the informant in this case. Further, it has also come in the evidence that PW-5 who himself appeared to be a criminal being an accused in a serious offence of rape and kidnapping (as evident from the Para 4 in his cross examination) and he was on inimical terms with the accused appellant. Thus from the versions of PW-1, PW-2, PW-5, PW-6 and PW-8 along with PW-9 and PW-10 the prosecution has been able to prove the case of simple assault under section 323 of the IPC. 12. Recapitulating the entire evidences as discussed in foregoing paragraphs it is well established that the learned trial court did not appreciate the evidences adduced on behalf of the prosecution in a holistic manner. Particularly, the depositions of PW-10 the I.O. PW-9 the doctor and PW-3, PW-7, PW-4 and PW-5 throw doubt on the prosecution case and makes the defence taken by appellant strong that the informant himself was a drunkard and used to drink from local vendors selling the liquor in front of the informant’s house and after taking alcoholic liquor quarreling with the appellant and on objection being raised by appellant not to drink and quarrel with him, the dispute has taken place and, therefore, the learned court below erred in passing conviction of the appellant on the depositions of the part witnesses ignoring the depositions of all the witnesses in a holistic manner, some of whom were declared hostile and some were not, vis-a-vis the defence taken on behalf of the appellant. Further no iota of evidence found about the use of petro chemical as alleged by the informant in his deposition as evident from the depositions of the doctor which throws suspicion on the prosecution case entailing its rejection by the court as evaluated above. 13. Having taking into consideration the aforesaid findings the impugned judgment of conviction and order of sentence passed by the learned trial court against the sole accused appellant is set aside and after finding the appellant guilty for the offence punishable u/s 323 of IPC he is convicted for the offence punishable u/s 323 of IPC. 14. So far as the sentence is concerned, it is found that there is nothing on record to show about the criminal history of the appellant and he had also remained in custody during the course of the trial. 14. So far as the sentence is concerned, it is found that there is nothing on record to show about the criminal history of the appellant and he had also remained in custody during the course of the trial. Further, the offence is said to have committed in the year 2002 about 20 years back and, therefore, this accused appellant had been suffering from the trauma and misery since last 20 years and with the efflux of time he has become about 60 years old, therefore, instead of awarding the sentence of further imprisonment it is just and fair to award the sentence of imprisonment for the term of period already undergone by the appellant and as such the impugned judgment of conviction and order of sentence is modified accordingly. 15. The appeal is dismissed as above. 16. Since, the appellant is on bail he is discharged from the liabilities of bail bond. 17. Let the copy of the judgment be sent to the learned court below along with Lower Court Records.