Gauhati High Court
Lakhiya Karmakar vs The State Of Assam on 23 May, 2013
Author: M.R. Pathak
Bench: M.R. Pathak
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRL.A.(J) No. 3 of 2009
Lakhiya Karmakar.
......Accused Appellant.
-Versus-
The State of Assam.
......Respondent.
Advocate(s) for the Appellant :
Ms. K. Devi
Amicus Curiae.
Advocate(s) for the Respondent :
Mr. K.A. Mazumdar
Addl. P.P., Assam.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
THE HON'BLE MR. JUSTICE M.R. PATHAK
Date of Hearing : 23.05.2013
Date of Judgment & Order : 23rd May, 2013
JUDGMENT AND ORDER (ORAL)
[Katakey, J.] This appeal by the convict from jail is directed against the judgment of conviction dated 03.12.2008 passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No.38/2008, convicting the accused appellant under Section 448/326/304 Part-I IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for 5(five) Crl.A.(J) 3/2009 Page 1 of 8 months for the offence committed under Section 304 Part-I IPC, to undergo rigorous imprisonment for 7(seven) years and to pay a fine of Rs.2,000/- in default to undergo further rigorous imprisonment for a period of 2(two) months for the offence committed under Section 326 IPC and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for 15(fifteen) days for the offence committed under Section 448 IPC. All the sentences were directed to run concurrently.
2. The prosecution story, in brief, is that on the night of 20.11.2007 at about 8 P.M. the accused Lakhiya Karmakar, a neighbour entered into the house of the informant and hacked the informant's son-in-law Ajit Karmakar with a dao and as a result of which he receives severe injuries and admitted to Dibrugarh Medical College and Hospital for treatment. It is also the case of the prosecution that after 19 days of treatment in Dibrugarh Medical College and Hospital, where the deceased was in coma, he eventually died. On the basis of the first information report dated 25.11.2007 (Ext.-5) lodged by Debari Karmakar (PW-1), Namrup P.S. Case No.97/2007 has been registered, initially under Section 326 IPC, as the deceased was at that point of time undergoing treatment in Dibrugarh Medical College and Hospital. During investigation the informant's son-in-law Ajit Karmakar, however, died in Dibrugarh Medical College and Hospital on 10.12.2007 and thereafter the said police station case has been registered under Section 302 IPC. During investigation the police apart from recording the statement of the persons acquainted with the facts also seized the weapon of assault being the dao and send the body for post mortem Crl.A.(J) 3/2009 Page 2 of 8 examination. Upon completion of the investigation, the charge-sheet was filed on 31.12.2007 under Section 448/326/302 IPC. The case being exclusively triable by the Court of Sessions the learned S.D.J.M.(S), Dibrugarh on 17.03.2008 committed the accused person for trial to the Court of Sessions. Charges under Section 448/326/302 IPC were thereafter framed by the learned Sessions Judge vide order dated 31.03.2008, which when read over and explained to the accused, he pleaded not guilty and claimed to be tried. Hence the trial commenced.
3. The prosecution in order to bring home the charges levelled against the accused appellant examined 9(nine) witnesses, namely, Smt. Debari Karmakar, first informant, who is the mother-in-law of the deceased as PW-1; Smt. Sukurmoni Karmakar, wife of the deceased as PW-2; Smt. Mangri Karmakar, sister-in-law of the deceased as PW-3; Smt. Budhuri Karmakar, another sister-in-law of the deceased as PW-4; Shri Suril Tirkey, a neighbour who took the injured to the hospital on the next date as PW-5; Shri Badan Danoh Deka, another neighbour as PW-6; Dr. Renuka Rongpharphi, who conducted the autopsy on the body of the deceased as PW-7; Shri Prathamesh Bora, an Asstt. Sub- Inspector of Police attached to Borbari Outpost, who made the G.D. entry and issued the dead body challan as PW-8 and Shri Debeswar Dowari, the I.O. as PW-9. The defence has cross-examined all the witnesses. No defence witness, however, has been examined. The statement of the accused under Section 313 Cr.P.C. was also recorded by the learned Sessions Judge.
Crl.A.(J) 3/2009 Page 3 of 8
4. The learned Sessions Judge upon appreciation of the evidence on record convicted the accused appellant, as aforesaid. Hence the present appeal.
5. We have heard Ms. K. Devi, learned amicus curiae, who has been engaged to argue the case on behalf of the accused appellant, since he is in custody and did not engage any advocate. We have also heard Mr. K.A. Mazumdar, learned Addl. P.P., Assam.
6. Referring to the evidence of PWs-1 to 4, Ms. Devi, learned amicus curiae submits that it is evident from their evidence that the occurrence took place on the winter night of 20.11.2007 and hence it is not possible on the part of those witnesses to recognize the assailant on such dark night. The learned counsel, therefore, submits that there being no proper identification of the accused, the learned Sessions Judge ought not to have convicted the accused.
7. Mr. Mazumdar, learned Addl. P.P., on the other hand, submits that it is evident from the testimony of PWs-1 to 4 that at the time of occurrence they along with the deceased were taking dinner and a lamp was burning, with the help of which PWs-1 to 4 could recognize the accused appellant, the submission of the learned amicus curiae in that regard cannot be accepted. It has also been submitted that the accused being the neighbour there was absolutely no difficulty in Crl.A.(J) 3/2009 Page 4 of 8 recognizing him while inflicting the dao blow on the person of the deceased, namely, Ajit.
8. We have considered the submissions advanced by the learned counsel for the parties and also perused the evidence adduced by the prosecution in order to bring home the charges levelled against the appellant.
9. The prosecution case based on the testimony of 4(four) eye witnesses, namely, PWs-1 to 4. PW-1 in her deposition, in clear terms has stated that on the date of occurrence at about 8 P.M. while she along with PWs-2 to 4 and the deceased Ajit were taking dinner, the accused entered into their house and inflicted a dao blow on the person of the deceased. She has also stated that they could recognize the accused as he is their neighbor and lamp was burning. She has further stated that she snatched the dao from the accused, who thereafter fled away from the scene. PWs-2, 3 and 4 have supported the version of PW-1. They have stated in their evidence that on the night of occurrence at about 8 P.M. while they along with their mother and the deceased were having dinner, the accused came and gave a dao blow on the person of the deceased, whom they could recognize by means of a lamp which was burning at that point of time. They have also stated that the accused is their neighbour. PWs-2, 3 and 4 have also stated that after inflicting the dao blow they snatched away the dao from the accused and then he fled away from the place of occurrence. Except the minor discrepancy relating to snatching of dao i.e. the statement of PW- Crl.A.(J) 3/2009 Page 5 of 8 1 that she snatched the dao and the statement of PWs-2, 3 and 4 that they snatched the dao, there is no material contradiction on the testimony of the witnesses. All the 4(four) witnesses have supported the prosecution case. Those witnesses though were cross-examined by the accused, no contradiction could be brought out and their testimony also could not be demolished. The accused during cross-examination though made an attempt by suggesting that they did not say so before the police at the time of recording statement under Section 161 Cr.P.C., the accused did not brought out those contradictions, if any, while cross-examining the I.O., namely, PW-9.
10. There being positive evidence relating to the burning of a lamp and consequent light and the accused being a neighbour, there was absolutely no difficulty on the part of the PWs-1 to 4 to recognize the accused who inflicted the dao blow on the person of the deceased.
11. PW-5 as well as the PW-1 in their evidence have stated the reason for causing delay in lodging the F.I.R. and also the hospitalization of the deceased. It is in evidence that the F.I.R. could not be lodged because PW-1's husband was ill and they were busy in extending the treatment to the deceased, who was initially hospitalized in a local Civil Hospital and thereafter shifted to Dibrugarh Medical College and Hospital. PW-5 has also stated that as they could not manage the vehicle at night, the deceased was taken to the Naharoni Hospital only on the next date after arranging the vehicle. Crl.A.(J) 3/2009 Page 6 of 8
12. PW-7 who conducted the autopsy on the body of the deceased and submitted the post mortem report (Ext.-2) in her deposition has narrated the injuries found on the person of the deceased and also the reason for the death. The doctor has found the following injuries on the person of the deceased:
Injury:- Healed wound on left forehead extended upward upto left parietal area of the scalp on the mid line of length 13 cm with a secondary inflection on the initial part.
Scalp:- Contusion on left parietal area with corresponding to injury No.1. Skull:- Partially healed cut fracture on the mid line of parietal bone of length 12 cm.
Brain:- Softened with pus of size 3 X 4 cm on frontal lobe on left side.
The doctor has opined that the death was due to coma as a result of the head injury and the injuries described were ante mortem and caused by the heavy sharp edged weapon.
13. The prosecution could, therefore, establish the death of the deceased because of the injuries sustained by him. The prosecution could also establish that the accused has inflicted the injuries on the person of the deceased, which resulted in his death.
14. In view of the aforesaid discussion, we are of the view that the learned Sessions Judge has rightly passed the judgment of conviction, which does not require any interference.
15. Hence the appeal stands dismissed.
Crl.A.(J) 3/2009 Page 7 of 8
16. Before parting, we place on record our appreciation to the service rendered by Ms. K. Devi, learned amicus curiae, who shall be entitled to the fee of Rs.5,000/-, payable by the Govt. of Assam.
JUDGE JUDGE
Roy
Crl.A.(J) 3/2009 Page 8 of 8