High Court
Case Details
CRL.A(J) 3/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE M.R. PATHAK [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 448/32 6/304 Part-I IPC and sentencing him to undergo rigorous imprisonment for life an d to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for 5( five) 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 defa ult to undergo further rigorous imprisonment for a period of 2(two) months for t he offence committed under Section 326 IPC and to pay a fine of Rs.500/-, in def ault to undergo simple imprisonment for 15(fifteen) days for the offence committ ed under Section 448 IPC. All the sentences were directed to run concurrently.
Facts
2. The prosecution story, in brief, is that on the night of 20.11.2007 at a bout 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 Medi cal College and Hospital for treatment. It is also the case of the prosecution t hat 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 informat ion 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 Col lege 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 ther eafter the said police station case has been registered under Section 302 IPC. D uring 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 s end the body for post mortem 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), Dib rugarh on 17.03.2008 committed the accused person for trial to the Court of Sess ions. Charges under Section 448/326/302 IPC were thereafter framed by the learne d 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.
Legal Reasoning
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 re quire any interference. 15. Hence the appeal stands dismissed. 16. Before parting, we place on record our appreciation to the service rende red by Ms. K. Devi, learned amicus curiae, who shall be entitled to the fee of R s.5,000/-, payable by the Govt. of Assam.
Arguments
The prosecution in order to bring home the charges levelled against the 3. accused appellant examined 9(nine) witnesses, namely, Smt. Debari Karmakar, firs t informant, who is the mother-in-law of the deceased as PW-1; Smt. Sukurmoni Ka rmakar, 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. Ren uka 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 Outp ost, who made the G.D. entry and issued the dead body challan as PW-8 and Shri D ebeswar Dowari, the I.O. as PW-9. The defence has cross-examined all the witness es. 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. 4. onvicted the accused appellant, as aforesaid. Hence the present appeal. The learned Sessions Judge upon appreciation of the evidence on record c 5. We have heard Ms. K. Devi, learned amicus curiae, who has been engaged t o 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 o n the winter night of 20.11.2007 and hence it is not possible on the part of tho se witnesses to recognize the assailant on such dark night. The learned counsel, therefore, submits that there being no proper identification of the accused, th e 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 alo ng 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 l earned amicus curiae in that regard cannot be accepted. It has also been submitt ed that the accused being the neighbour there was absolutely no difficulty in re cognizing him while inflicting the dao blow on the person of the deceased, namel y, Ajit. 8. We have considered the submissions advanced by the learned counsel for t he 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, na mely, 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 decea sed 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 re cognize the accused as he is their neighbor and lamp was burning. She has furthe r stated that she snatched the dao from the accused, who thereafter fled away fr om the scene. PWs-2, 3 and 4 have supported the version of PW-1. They have state d in their evidence that on the night of occurrence at about 8 P.M. while they a long 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 mea ns 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 infl icting 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 sna tching of dao i.e. the statement of PW-1 that she snatched the dao and the state ment of PWs-2, 3 and 4 that they snatched the dao, there is no material contradi ction on the testimony of the witnesses. All the 4(four) witnesses have supporte d the prosecution case. Those witnesses though were cross-examined by the accuse d, no contradiction could be brought out and their testimony also could not be d emolished. The accused during cross-examination though made an attempt by sugges ting that they did not say so before the police at the time of recording stateme nt under Section 161 Cr.P.C., the accused did not brought out those contradictio ns, if any, while cross-examining the I.O., namely, PW-9. 10. There being positive evidence relating to the burning of a lamp and cons equent light and the accused being a neighbour, there was absolutely no difficul ty on the part of the PWs-1 to 4 to recognize the accused who inflicted the dao blow on the person of the deceased. PW-5 as well as the PW-1 in their evidence have stated the reason for ca 11. using 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 init ially 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 manag e the vehicle at night, the deceased was taken to the Naharoni Hospital only on the next date after arranging the vehicle. 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 fou nd on the person of the deceased and also the reason for the death. The doctor h as found the following injuries on the person of the deceased: Injury:- Healed wound on left forehead extended upward upto left parietal area o f the scalp on the mid line of length 13 cm with a secondary inflection on the i nitial 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 th e heavy sharp edged weapon. 13. The prosecution could, therefore, establish the death of the deceased be cause of the injuries sustained by him. The prosecution could also establish tha t the accused has inflicted the injuries on the person of the deceased, which re sulted in his death. 14.