Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 9 September, 2021
Author: Suman Shyam
Bench: Suman Shyam, Parthivjyoti Saikia
Page No.# 1/13
GAHC010211902019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/57/2019
ROBIN KARMAKAR AND 5 ORS.
S/O.. LT. LALU KARMAKAR, VILL. SILIKHA CHAH BAGICHA 14 NO. LINE,
P.S. DOMDOOMA, DIST. TINSUKIA, ASSAM.
2: DHANDU KARMAKAR
S/O. LT. BUDHURAM KARMAKAR
VILL. SILIKHA CHAH BAGICHA 14 NO. LINE
P.S. DOMDOOMA
DIST. TINSUKIA
ASSAM.
3: FUSAI KARMAKAR
S/O. LT. LUCHAND KARMAKAR
VILL. SILIKHA CHAH BAGICHA 14 NO. LINE
P.S. DOMDOOMA
DIST. TINSUKIA
ASSAM.
4: AMAR KARMAKAR
S/O. LT. BUDHRAM KARMAKAR
VILL. SILIKHA CHAH BAGICHA 14 NO. LINE
P.S. DOMDOOMA
DIST. TINSUKIA
ASSAM.
5: CHUTU KARMAKAR
S/O. SRI RAGHU KARMAKAR
VILL. SILIKHA CHAH BAGICHA 14 NO. LINE
P.S. DOMDOOMA
DIST. TINSUKIA
ASSAM.
6: KESO KARMAKAR
S/O. LT. SAMA KARMAKAR
Page No.# 2/13
VILL. SILIKHA CHAH BAGICHA 14 NO. LINE
P.S. DOMDOOMA
DIST. TINSUKIA
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. B SARMA, AMICUS CURIAE
Advocate for the Respondent : Ms. B. Bhuyan, APP, Assam.
Linked Case : Crl.A./224/2019
DULEN MUKHAIR AND ANR
S/O- LATE ABHIRAM MUKHAIR
R/O- HILIKA TEA ESTATE
14 NO. LINE
P.S. DOOMDOOMA
DIST.- TINSUKIA
ASSAM.
2: PUTLU BHUMIJ
S/O- BINU SUKRA
R/O- HILIKA TEA ESTATE
14 NO. LINE
P.S. DOOMDOOMA
DIST.- TINSUKIA
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P.
ASSAM.
2:SMTI. CHANDRANI BORAIK
W/O- LATE SUBHASH BORAIK
R/O- HILIKA TEA ESTATE
14 NO. LINE
P.S. DOOMDOOMA
DIST.- TINSUKIA
ASSAM
Page No.# 3/13
PIN- 786151.
------------
Advocate for : MR. S ISLAM
Advocate for : Ms. B. Bhuyan, APP, Assam
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
Date of hearing : 07-09-2021 & 09-09-2021
Date of judgement : 09/09/2021
JUDGEMENT AND ORDER (ORAL)
Suman Shyam, J
1. Heard Ms. Bijita Sarma, learned Amicus Curiae, appearing for the appellants in Crl.A.(J) 57/2019 and Mr. S. Islam, learned counsel representing the appellants in Crl. A. 224/2019. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the informant/respondent no.2.
2. By the judgement and order dated 14/02/2019 passed by the learned Additional Sessions Judge - 2 (FTC) Tinsukia, in sessions case No. 70(T)/2015, the six appellants in Crl. A. (J) 57/2019 and two appellants in Crl. A. 224/2019 had been convicted under Section 302/34 IPC for committing the murder of Subhash Boraik and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each, and in default, to undergo rigorous imprisonment for one year each.
3. By this common judgement and order, we proposed to dispose of both the appeals.
4. The prosecution story, in a nutshell, is that on 06/10/2010, Smt. Chandmoni Boraik (PW-1) i.e. the wife of the deceased Subhash Boraik had lodged an ejahar before the Officer- in-Charge, Doom-Dooma Police Station reporting that on 05/10/2010 at around 9-30 p.m. (1) Sri Kamand Karmakar, (2) Sri Kesu Karmakar, (3) Sri Dhanda Karmakar, (4) Fusoi Karmakar, (5) Sri Raja Karmakar, (6) Sri Budhu Karmakar, (7) Sri Rabin Karmakar, (8) Sri Dhanda Karmakar, (9) Sri Tutu Karmakar, (10) Sri Amar Karmakar, (11) Sri Putlu Karmakar and (12) Sri Dulen Mukhiar, all resident of Line No. 14, had called her husband Subhash Boraik from Page No.# 4/13 their home and killed him in front of the house by assaulting him.
5. On receipt of the ejahar dated 06/10/2010, Doom-Dooma Police Station Case No. 331/2010 was registered under Section 302/34 of the Indian Penal Code (IPC). Upon completion of usual investigation, the I.O. had submitted charge sheet on 09/04/2015 against eight accused persons, viz. (1) Putlu Bhumij @ Karmakar, (2) Robin Karmakar, (3) Dulen Karmakar, (4) Dhando Karmakar, (5) Fusai Karmakar, (6) Amar Karmakar, (7) Chutu Karmakar and (8) Keso Karmakar.
6. It appears from the record that one of the FIR named accused persons, viz. Raju Karmakar had committed suicide on 11/09/2014 i.e. before charge sheet was laid in this case by the I.O.
7. On the basis of the charge sheet submitted by the I.O., the learned Court below had framed charge against all the accused persons under Section 302/34 of the IPC. Since the accused persons had pleaded innocence and claimed to be tried, the matter went up for trial.
8. The prosecution had examined seven witnesses including the doctor (PW-2) who had conducted the post-mortem examination on the dead body, the IO (PW-6) who had carried out investigation in the aforesaid Police case in part and the I.O. (PW-7) who had completed the investigation and submitted the charge sheet.
9. The statement of the accused persons were recorded under Section 313 Cr.P.C., wherein, they had denied all the incriminating circumstances put to them. However, the defence side did not adduce any evidence.
10. The prosecution case is primarily based on the testimony of PW-1 Smt. Chandmoni Boraik, who was called as an eye witness. In her deposition, PW-1 had stated that she knew the accused persons. The accused persons had murdered her husband on being armed with lathi (sticks), hand etc. According to the PW-1, the incident took place at about 7-8 p.m. when the accused persons had barged into her house and forcefully took her husband outside the house and assaulted him. As a result of the assault made on him, her husband had succumbed to his injuries. PW-1 has also stated that at that time, she was pregnant and that is why and also on account of nightfall, she could not inform anybody. Next morning, the neighbours and the people of the locality came to know about the incident. Subsequently, she had lodged the ejahar before the Police Station. PW-1 has further stated that FIR was written Page No.# 5/13 by the Police and she had put her thumb impression in the ejahar. Thereafter, the Police came and conducted inquest over the dead body and then, had sent the dead body to the hospital for post-mortem examination. Her statement was recorded by the Police.
11. In her cross-examination, PW-1 has stated that she is a resident of Line no 14 of the Hilika T.E. and there are about 15 houses in and around her house. The house was allotted to her husband by the Garden authority, wherein, she used to live with her deceased husband, mother-in-law, three children, brother-in-law as well as his wife, at the time of the incident. Raja Ratia, Patlu, Sadhen Mulabia, Tumpa Karmakar, Atowa Karmakar etc. were her neighbours. PW-1 has also stated that she had delivered a child six months after the death of her husband; that the ejahar was written by the Police and the contents of the ejahar was not narrated to her. In her cross examination, she has also categorically deposed that at the place of occurrence there was darkness and she could not exactly say the name of the accused persons, who were armed with " lathi (sticks)" at that time. She has, however, denied the suggestion put to her by the defence counsel that she did not witness the incident as she was inside the house.
12. PW-3 Sri Bablu Boraik is the younger brother of the deceased. PW-3 has deposed that the incident occurred about 5 (five) years ago at around 10 p.m. when some unknown persons came to his house and called his elder brother Subhash Boraik to go with them. Thereafter, they had assaulted his elder brother in the nearby line, as a result of which, his brother died on the spot. On the following day of the incident, he had informed the matter to the Police. The dead body of his elder brother was lying in front of the house. PW-3 has further stated that he did not know who had assaulted his brother on that day, as a result of which, he had died. This witness was declared as a hostile witness. During his cross examination by the prosecution, PW-3 has denied of having stated before the Police that on 05/10/2010 around 9-30 p.m., his brother Subhash Boraik was forcefully taken from his residence by the accused persons, viz. Raju Karmkar, Bhandu Karmakar, Kamando Karmakar, Fusu Karmakar, Keso Karmakar, Putlu Karmakar, Amar Karmakar, Dulen Karmakar, Budhu Karmakar, Robin Karmakar and Chutu Karmakar and thereafter, assaulted him on the road, as a result of which he died. During his cross examination by the defence side, PW-3 has stated that he did not inform the matter to the Manager of the Tea Estate as he could not communicate to him. He has also stated that the accused persons did not belong to the same Page No.# 6/13 family and the wife of his deceased brother was pregnant at the time of his death.
13. PW-4 Smt. Raj Kumari Boraik is the wife of PW-3 and she was also declared as a hostile witness by the prosecution. In her deposition, PW-4 had stated that the incident had occurred at about 9 p.m. and at that time, she was in her residence. Subhash Boraik went out of the residence and thereafter, an altercation took place between the accused persons and Subhash Boraik. Out of fear, she had immediately gone to the residence of Raja Raotia with her children. On the following day in the morning, she saw the dead body of Subhash Boraik lying on the road near her residence. Later, Police came and recorded her statement. In her cross-examination by the prosecution, PW-4 has denied that she had stated before the Police that on the date of the occurrence, all the accused persons came to their residence and called Subhash Boraik outside and thereafter, assaulted him, as a result of which he had died on the spot. During her cross examination by the defence, this witness has stated that the accused persons were not the sons of the same parents and at the time of the incident, her husband (PW-3) was with her in the same quarter, that there were five rooms in the allotted quarter and at the time of the incident, she, her husband, father-in-law, mother-in-law and three children were present inside the quarter.
14. PW-5 Smt. Rekha Boraik is the sister of the victim and she had deposed that on the day following the incident, she came to know about the incident in the morning hours from her brother Bablu Boraik (PW-3), who had called in her cell phone at about 4 a.m. and told her that the accused persons were assaulting Subash Boraik. At about 5 a.m. she went to the Doomdooma Police Station and informed the matter to the Police. Thereafter, she reached the place of occurrence along with the Police and saw the dead body of her brother lying near the residence. PW-5 has stated that she had also seen blood oozing out from the nose of Subash Boraik but her brother Bablu Boraik did not tell her as to how the incident took place. On being asked, her mother Hiron Boraik had told her that the incident had occurred at about 11 p.m. and the accused persons had been assaulting Subash mercilessly from 11 p.m. to 2 a.m., as a result of which, he died.
15. PW-2 Dr. Babul Hussain was on duty as the SMD & HO in the Tinsukia Civil Hospital on 06/10/2010 and he had performed the post-mortem examination on the dead body of Subhash Boraik. According to the post-mortem report, the following injuries were found in the dead body :-
Page No.# 7/13 "external appearance A 30 years healthy dead body with dark Brown colour putting one read colour half pant and a jangia. Rigormortis present all over the body. Injuries
1) Contusion right temporal region and on right cheek. On dissection, blood clot present under the scalp.
2) Contusion on left temporal region and on left cheek. On dissection blood clot present below scalp. On removing the skull bone dura meter is intact varticles are full of blood clot.
3) Contusion with laceration on right tibia at the middle laceration 1cm x 2 cm x 4 cm.
4) Contusion on middle of left tibia with laceration 1 cm x 2 cm x 4 cm. Blood clot present on both nostril.
Cranium and Spinal Canal Scalp, skull and vertebrae:- As described. Other organs found healthy. Thorax Walls, ribs and Cartilages :- contusion on right lower chest fracture on right 6 th, 7th and 8th rib. Contusion on left lower chest. Pleurae :- Opening with right plural part with collection of plural cavity. Other organs were found healthy. Other organs found healthy.
Abdomen Peritonoum :- Congested. Stomach:- contained partially digested food with 100 ml of fluid having smell of alcohol. Small intestine:- Digested food with gases. Large intestine :- Fecal matter with gases. Other organs found healthy."
16. PW-2 had proved the post-mortem report (Ext-1) and had opined that the death was due to "Coma" as a result of ceranio cerebral injury sustained by the deceased. All the injuries were ante-mortem and caused by blunt force impact. The time since death was 12-24 hours.
17. PW-6 Sri Pratap Borgohain was working as the Sub-Inspector (SI) of Police at the Page No.# 8/13 Doomdoma Police Station on 06/10/2010. PW-6 has deposed that on that day, PW-1 had lodged a written FIR with the Officer-in-Charge of Doomdoma Police Station reporting about the murder of Subhash Boraik that took place on 05/10/2010 at about 9-30 p.m. Upon receipt of the FIR, Doomdooma Police Station case No. 331/2010 was registered and he was entrusted with the responsibility of carrying out investigation in the case. PW-6 has also stated that he had recorded the statement of the informant in the Police Station under Section 161 Cr.P.C. and then proceeded to the place of occurrence, drew a sketch map and prepared the inquest report in presence of witnesses and then sent the dead body to the Tinsukia Civil Hospital for post-mortem examination. He had also arrested two accused persons, viz. Raja Karmakar and Dhandu Karmakar and forwarded them to the Court but the other accused persons could not be arrested as they could not be found in their respective address. PW-6 has further stated that he had made a prayer before the Court to record the confessional statements of the two arrested accused persons. In the meantime, he had been transferred and so the Case Diary was handed over to the Officer-in-Charge of Doomdooma Police Station. During his cross examination, PW-6 had stated that when he visited the place of occurrence, he had found the door of the informant open and the dead body was lying near the garden road. However, he did not measure the distance from the place of occurrence to the house of the informant, nor did he investigated as to how the victim came out of his house on the road before his death. The PW-6 had proved the contradiction in the testimony of PWs 3 and 4.
18. PW-7 Md. Abidur Raman is the I.O., who had taken over the investigation from the PW-6 after his transfer and submitted the charge sheet (Ext. 7) after completing the investigation.
19. After evaluating the evidence brought on record by the prosecution side, the learned trial Court has held that the charges framed under Section 302/34 of the IPC was conclusively proved by the prosecution on the basis of evidence brought on record and accordingly, convicted the appellants and sentenced them to suffer imprisonment as aforesaid and also to pay fine.
20. Ms. B. Sarma, learned Amicus Curiae, submits that PWs- 2, 6 and 7 are official witnesses and the remaining witnesses are all related to the deceased and, therefore, they are interested witnesses in this case. According to Ms. Sarma, the testimony of PW-1 is full of Page No.# 9/13 contradictions and, therefore ought not to have been relied upon by the learned trial Court. In so far as the evidence adduced by PWs 3 and 4 is concerned, the same also does not support the prosecution case and PW-5 has not seen anything and hence, her evidence is that of a "hearsay" nature. Under the circumstances, submits Ms. Sarma, the learned trial Court was not correct in holding that the prosecution had succeeded in proving the charges brought against the appellant beyond reasonable doubt. Ms. Sarma has further argued that the findings of the learned trial Court as regards "common intention" of the accused persons, so as to convict them under Section 34 of the IPC is perverse and, therefore, viewed from that angle also the impugned judgement and order is un-sustainable in law. Ms. Sarma has, therefore, prayed for acquittal of the appellants.
21. Mr. Islam, learned counsel for the appellant has supported the submission advanced by the learned Amicus Curiae and contends that there is no evidence to implicate the two appellants represented by him in commission of an offence under Section 302/34 IPC and, therefore, the present is a fit case for acquittal of the accused persons.
22. Ms. Bhuyan, learned APP, Assam, on the other hand, had supported the impugned judgement of the learned trial Court and argued that PW-1 is the informant and the wife of the victim and her testimony is consistent and reliable. She had seen the occurrence and had lodged the ejahar before the Police. If the testimony of PW-1 is believed, then in that event, there cannot be any justifiable ground to interfere with the impugned judgement and order.
23. We have considered the submission advanced by the learned counsel for the parties and have also examined the materials available on record.
24. From a careful reading of the impugned judgement and order passed by the learned trial Court, it appears that PW-1 (informant) has not been treated as an eye witness to the occurrence. We do not find any good reason to disagree with such view of the learned trial Court. Upon appreciating the evidence on record, the learned trial Court had recorded the conclusion that the prosecution has succeeded in establishing the charges brought against the accused persons through circumstantial evidence. Let us, therefore, examine as to whether such conclusion of the learned trial Court is justified on the basis of materials available on record.
25. As mentioned above, the prosecution has heavily relied upon the evidence of PW-1 i.e. the pregnant wife of the deceased who had lodged the ejahar. In the ejahar, names of 12 Page No.# 10/13 accused persons have been mentioned. However, during her cross examination, PW-1 has stated that due to darkness, she could not say exactly the names of those accused persons, who were holding stick. PW-1 has also not claimed to her seen the accused persons assaulting her husband but evidence appears to be limited to referring to the persons who had called her husband from the house. This witness has also stated that the ejahar was written by the police in the Police Station and the contents were not narrated to her. We also find from the testimony of PW-1 that the incident had taken place at about 7-8 p.m. in the evening but she had not informed anybody about the same. PW-1 has, however, cited her pregnancy and night fall for not doing so. At the same time, we find that despite her pregnancy, PW-1 had gone to the Police Station to lodge the ejahar. There is also no indication as to why, the other members living in the house did not inform anyone about the incident till the next morning.
26. The witnesses PWs 3 and 4 are the own brother and sister-in-law of the deceased respectively. Both of them were declared as hostile witnesses. PW-3 has stated that some unknown persons had come to their house and called his elder brother. PW-4 had also stated that some altercations took place between the accused persons and her brother-in-law (Subhash Boraik) but did not give any details as to with whom and where the altercation did take place. PW-3 has also not identified the persons who had called Subhash Boraik out of the house on the day of occurrence.
27. PW-5 is the sister of the deceased and she has stated that on receipt of information about the incident at 4 a.m. in the morning, she went to the Police Station and informed the matter to the Police. Thereafter, she went to the place of occurrence with the Police. However, PWs 6 and 7 did not support such version of the PW-5. Rather, PW-6 has deposed that he had gone to the place of occurrence after the case was registered on the basis of ejahar lodged by the PW-1 on 06/10/2010.
28. It is also to be noted herein that as per the evidence available on record, the house of the deceased person was surrounded by 14-15 other houses but none of the neighbours appears to have heard or seen anything. This assumes great significance in view of the fact that as per the evidence of PWs- 1, 3, 4 and 5, the incident took place in the evening of 05/10/2010 at about 7-8 p.m.and the dead body was lying on the road for the entire night. The aforesaid version of the witnesses, more particularly, the PW-1 is difficult to believe for Page No.# 11/13 the following reasons. Firstly, if a number of persons coming in a group and had forcefully taken the victim out of his house and assaulted him at around 7-8 p.m. in the evening, the people from the neighbourhood would have certainly come to know about the same and rushed to the place. However, as per the prosecution story, no such person came out nor was there any commotion created in the locality. Although, the PW-4 had mentioned about some altercation that took place between the accused persons and the deceased, no further particulars could be furnished by her in this regard. PW-5 had stated that she had learnt from her mother that the accused persons had assaulted the deceased for about three hours (11 p.m to 2 a.m.) at a stretch leading to his death. However, there is no corroboration of such evidence adduced by the PW-5. Even her statement made to the effect that she had informed the police in the next morning on being informed by the PW-3 and went to the place along with the police did not find corroboration from the testimonies of PWs 3, 6 and 7. If an assembly of persons would assault one of their neighbours for such long hours, it is but natural that people from the neighbourhood would have come to his rescue or at-least made an attempt to defuse the situation, which was evidently not done in his case. Therefore, the evidence of PWs 1, 3, 4 and 5 does not appear to us to be reliable at all.
29. The IO has also stated that he did not measure the distance between the house of the informant and the place where the dead body was found. There is no cogent evidence available on record to indicate as to the distance between the place of occurrence and the house of the informant or for that matter, the exact location of the occurrence or the identity of the persons present there.
30. In the above context, it would be significant to mention herein that there are two confessional statements allegedly recorded under Section 164 Cr.P.C. of the two accused persons, viz. Raju Karmakar and Dhanda Karmakar. However, on verification of the LCR, we find that those are not confessional statements recorded before the Magistrate but in reality, are the statements recorded by the IO under Section 161 Cr.P.C..
31. As a matter of fact, the prosecution has neither exhibited any confessional statement of the accused nor had they examined the Magistrate who had recorded the so called confessional statement. Moreover, we find that the accused/appellant Dhanda Karmakar was in the police custody when his alleged confessional statement was recorded. Therefore, viewed from any angle, it cannot be said that there is any valid confession of guilt Page No.# 12/13 by the appellant Dhanda Karmakar in this case. It would be significant to note herein that during recording of his statement under Section 313 of the Cr.P.C., the accused has also denied of having made any confession.
32. We also find that there is no witness in the inquest report and the IO has not explained any reason for not doing so. Moreover, no weapon was seized by the I.O. in this case. The aforesaid lapses in the investigation of the case, viewed in the light of the nature of evidence brought on record, clearly goes to show that the present is yet another example of botched up investigation leading to a shabby trial, whereby, the prosecution had failed to establish the charge brought against any of the accused persons by leading cogent evidence.
33. Since the PW-1 is not found to be an eye witness, there is no witness to the occurrence. There is also no evidence available on record to sustain the conclusion that the accused persons herein had acted in furtherance of a common intention to kill the victim, inasmuch as, the evidence led by the prosecution itself goes to show that all the accused persons are not related to one another and there was no common motive for killing the deceased. The learned trial Court has also failed to record proper finding as regards the "common intention" on the part of the accused persons based on evidence on record. There is also no finding as regards individual guilt of the accused persons in committing an offence under Section 302 of the IPC.
34. The post-mortem report goes to show that the deceased was in a state of intoxication on the date of the incident and, therefore, the possibility of the incident having taken place in a completely different circumstance as compared to what has been projected by the prosecution side, cannot be altogether ruled out.
35. The delay in lodging the FIR or informing the neighbours or the Management of the Tea Garden by the informant or her other family members for the entire night after the incident also raises a serious doubt on the credibility of the prosecution story.
36. We are, therefore, of the view that the prosecution has failed to establish the charge brought against the appellants/accused persons under Section 302/34 IPC. As such, they are liable to be acquitted due to lack of evidence against them.
37. For the reasons stated herein above, we are of the opinion that the impugned judgement and order dated 14/02/2019 passed by the learned Additional Sessions Judge - 2 (FTC) Tinsukia, in sessions case No. 70(T)/2015, is unsustainable in the eye of law. The same Page No.# 13/13 is accordingly set aside. The 8 (eight) appellants are hereby acquitted and set at liberty.
38. We are informed that all the appellants are presently in jail. As such, the appellants, viz. (1) Putlu Bhumij @ Karmakar, (2) Robin Karmakar, (3) Dulen Mukhiar, (4) Dhando Karmakar, (5) Fusai Karmakar, (6) Amar Karmakar, (7) Chutu Karmakar and (8) Keso Karmakar be forthwith released unless their custodial detention is found to be necessary in connection with any other proceeding.
Both the appeals stand allowed accordingly.
Before parting with the record, we wish to put on record our appreciation as regards the valuable assistance rendered in this case by Ms. Bijita Sarma, learned Amicus Curiae and direct the Registry to make available to her, just remuneration for the services rendered, as per the notified fee of Amicus Curiae.
Send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant