Gauhati High Court
CRL.A(J)/78/2019 on 6 September, 2021
GAHC010212122019
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IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRL.A.(J) No. 78/2019
Sri Tulsi Karmakar
Sivasagar, Assam.
...... Appellant
-Versus-
1. The State of Assam
represented by PP, Assam.
2. Lakheswar Karmakar
S/o: Lt. Petua Karmakar
Vill: Santak T.E. Line No.3,
P.S.: Bihubor, Dist.: Sivasagar
Assam.
.....Respondents
:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE MANISH CHOUDHURY
Advocate for the Appellant : Ms. B. Choudhury, Amicus Curiae.
Advocate for the Respondent No.1 : Mr. P. Borthakur,
Additional Public Prosecutor, Assam
Advocate for the Respondent No.2 : Ms. B. Sarma, Legal Aid Counsel.
Date of Hearing and Judgment : 06.09.2021.
CRL.A.(J) 78 of 2019
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JUDGMENT & ORDER (ORAL)
(N. Kotiswar Singh, J)
Heard Ms. B. Choudhury, learned Amicus Curiae appointed by this
Court to assist this Court on behalf of the appellant. Also heard Mr. P.
Borthakur, learned Additional Public Prosecutor, Assam for the State and
Ms. B. Sarma, learned Legal Aid Counsel appears for the informant
(respondent No.2).
2. The present appeal has been preferred against the judgment dated
20.12.2018 passed by the learned Sessions Judge, Sivasagar in Sessions
Case No.83(S-N) of 2017 arising out of G.R. Case No. 647/2015, whereby
the appellant has been convicted under Section 302 IPC and sentenced to
undergo rigorous imprisonment for life with a fine of Rs.2,000/-only in
default of which to undergo simple imprisonment for another 2 (two)
months with further conviction under Section 325 IPC and sentenced to
undergo rigorous imprisonment for 2 (two) years with a fine of Rs.1,000/-
in default of which, to undergo further simple imprisonment for 1(one)
month. Both the sentences were directed to run concurrently.
3. The brief facts of the case as can be gathered from the records is
that an FIR was lodged on 29.12.2015 by one Sri Lakheswar Karmakar,
father of the appellant alleging that on 23.12.2015, at about 8 PM he had
a quarrel with his eldest son Tulsi Karmakar (alias Latu) and at that time,
his son was in a heavily drunken state. He took a dao from his home and
inflicted severe injuries on him (Lakheswar) and Drupadi Karmakar, the
mother of the appellant thus hacking them with the dao indiscriminately
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and fled away from the house. Soon after Tulsi fled, the neighbours came
and immediately took them to the hospital of Chantak Tea Estate. Seeing
the seriousness of the injury, the Doctor of the Tea Estate referred them
to the Government Hospital at Assam Medical College and Hospital
(AMCH), Dibrugarh. However, on the way his wife, Drupadi Karmkar died.
4. Based on the aforesaid FIR, a case being Bihubor P.S. Case
No.60/2015 under Section 326/302 IPC was registered. On completion of
the investigation, the following charges were framed against the appellant
(Tulsi Karmakar).
Firstly, that on 23.12.2015, at about 8.00 P.M., the appellant
had assaulted Smt. Drupadi Karmakar with a dao and on
24.12.2015 the said Drupadi Karmakar succumbed to her injuries
during treatment at AMCH, Dibrugarh and thereby committed the
offence punishable under Section 302 IPC.
Secondly, that on 23.12.2015, at about 8.P.M. the appellant
voluntarily caused grievous hurt to Sri Lakheswar Karmakar by
means of a Dao and thereby committed an offence punishable
under Section 326 IPC.
5. The prosecution produced 7 (seven) witnesses and the defence, 2
(two) witnesses in course of the trial.
6. The learned Trial Court after considering the evidences adduced by
the prosecution convicted the appellant under Sections 302 IPC, and
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Section 325 IPC instead of Section 326 IPC and sentenced as mentioned
above.
7. Before we go to the merit of the case, we will consider the relevant
evidence on record, first the prosecution witnesses and then the defence
witnesses.
8. P.W.1, Sri Lakheswar Karmakar is the informant and the father of
the appellant. He deposed that the appellant is his son and the deceased
Drupadi Karmakar, his wife and the mother of the appellant. The appellant
Tulsi Karmakar resided in the nearby house in same compound. He
deposed that on 23.12.2015, at about 8 P.M, he along with his wife,
Drupadi Karmakar and his daughter, Nemita Karmakar and son Naresh
Karmakar, were in his house. At that time, the appellant asked his sister to
open the door for taking some vegetables. On opening the door, the
appellant entered his house and physically assaulted his mother Drupadi.
On hearing the cry, when P.W.1 came out of his room, the appellant
assaulted him on the left side of the head. He also stated that he saw
injury on the back side of his wife's neck. When P.W.1 raised an alarm, his
youngest son P.W.2 who was in another room came out of the room. The
local villagers also gathered there who then took them to Santak Bagan
Hospital for treatment and from there, they were taken to Assam Medical
College and Hospital (AMCH), Dibrugarh. They reached there on the next
day early morning. However, his wife Drapudi died at AMCH and he
remained at AMCH as an indoor patient for about 10 days.
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He also deposed that on the date of incident, in the afternoon, his
wife Drapudi had scolded the appellant Tulsi Karmakar concerning missing
of some money.
During the cross-examination P.W.1 stated that he had signed the
FIR on the date of occurrence at Santak Bagan Hospital. He, however,
stated that he could not say about the contents of the FIR nor who had
written the FIR. He stated that the police personnel might have taken his
signature. He also stated that an altercation started relating to taking of
Rs.2000/-. Initially his wife asked him (the appellant) as to whether he
had taken the money and on his denial, she scolded the appellant and out
of anger, his wife told the appellant that he is not her son etc.
During the cross-examination, P.W.1 denied the suggestion that it
was the mother and not the son, who attempted to assault the appellant.
P.W.1 also denied that the appellant snatched the dao from his wife and
hit her.
The appellant also stated that Lakhi, wife of the appellant, was
pregnant, and on the date of the incident she had some abdominal pain.
Then the appellant called P.W.1 to his room through his daughter, who
then arranged one local nurse for treating Lakhi. P.W.1 denied of any
altercation between Lakhi and his youngest son Naresh Karmakar. P.W.1
stated that subsequently he came to know that Lakhi had sustained cut
injury on her stomach and she was also taken to AMCH and admitted
therein.
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P.W.1 denied the suggestion that on getting injury by Lakhi, when
the appellant came to his house for asking his mother about the incident,
an altercation took place between appellant's mother and the appellant.
P.W.1 stated that on hearing hue and cry, the family members of
his neighbour and many others arrived. He also stated that Dilip Tanti
(P.W.4) who resides about 500 metre from his house also came there on
being called by somebody.
He denied that he had falsely implicated the appellant in order to
save his youngest son. He also denied that he had lodged a false FIR.
9. P.W.2, Sri Naresh Karmakar was the younger brother of the
appellant. The appellant Tulsi Karmakar used to reside in the nearby
house in same compound.
He deposed that at the time of incident, he along with his mother
Drupadi Karmakar, sister Nemita Karmakar and father Lakheswar were in
their house.
He stated that on 23.12.2015, at about 8 PM when he was in his
room, on hearing a hue and cry, he came out of the room and saw the
appellant leaving their house with a dao. He also saw his father coming
out of the house holding his injured head and his mother lying with
injuries inside the house. He saw injury on the back of the neck and hand
of his mother. Local villagers also soon gathered there. They took his
parents to Santak Bagan Hospital for treatment. From there they were
taken to Sivasagar Hospital at Joysagar and thereafter to AMCH.
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P.W.2 stated that his mother died on the way to Dibrugarh and his
father remained at AMCH as an indoor patient for about 15 days. P.W.2
deposed that on the date of incident, in the afternoon hours his mother
had scolded the appellant for stealing her money. After arrest of the
appellant, the police brought the appellant to their residence in search of
dao used by the appellant but the said dao could not be recovered. He
also deposed that the police had interrogated him.
In the cross-examination by the defence, P.W.2 stated that Lakhi,
the wife of the appellant had sustained cut injury on her stomach and was
taken to AMCH by him from Santak Hospital and was admitted there.
He denied that he had inflicted cut injury on Lakhi's abdomen and
could not say if Dilip Tanti had taken Lakhi to Santak Hospital.
He denied that after getting injury by Lakhi, the incident of
assaulting of his parent happened.
He denied that while giving statement to police he had not stated
that "I have seen the accused going out of my house with Dao."
He stated that 5-6 villagers accompanied him while taking his
parents to Sivasagar Hospital and Lakhi's mother also accompanied them.
He stated that Lakhi's mother was also a resident of Santak Bagan and the
police met all those persons at Santak Hospital.
10. P.W.3, Dr. Durlakh Thengal, was the Registrar, Department of
Surgery, AMCH, Dibrugarh who examined the injured Sri Lakheswar
Karmakar. He deposed that the patient was admitted in the hospital on
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24.12.2015 and was discharged as per medical advice on 27.12.2015 and
on examination he found the following injuries on him:
"History : alleged history of physical assault on 23.12.2015 at around 8.00
p.m. at Santak Sivasagar.
Injury : Appox. 10 cm x 1 cm x 1 cm lacerated wound over left fronto
parietal region of sclap exposing skull bone.
The patient was advised NECT Head"
NECT head report (CT No.5428) : Communicated displaced fracture at
left parietal bone and soft tissue swelling with air-foci over left fronto
parietal region."
P.W.3 gave his opinion that the injury was grievous in nature.
In the cross-examination, P.W. 3 deposed that in his report
exhibited as Ext.3 he had mentioned the injury as grievous as it was a
fracture injury caused by suspected to be a blunt object.
11. P.W..4, Sri Dilip Tanti, a Tea Estate employee and VDP Secretary,
deposed that the appellant Tulsi Karmakar @ Ladu was known to him
being a worker of the same bagan and also knew the deceased Drupadi
Karmar and the injured Lakheswar Karmakar, the parents of the appellant.
He deposed that on 23.12.2015, at about 9 P.M, when he was at
his residence, one Maya Bawri, a neighbor of the appellant informed him
over phone that some incident of assault had taken place at the residence
of Lakheswar Karmkar. On learning this, being the VDP Secretary, he went
to the residence of Lakheswar Karmkar saw him in a pull cart. He
accompanied them to Santak Bagan Hospital, and from the Hospital, he
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had informed to Bihubar PS about the incident. He stated that due to the
critical condition, both the injured were taken to Santak Civil Hospital in a
Bagan Ambulance and from there they were referred to Sivasagar Hospital
at Joysagar. The patients were sent to Sivasagar with the villagers and
one son of the injured. He came to the residence of the injured with the
police and found pool of blood near the kitchen. He also saw bunch of hair
of woman and scattered boiled rice at that place. He stated that he came
to know that on the way to Dibrugarh, Drupadi died, and Lakheswar
Karmakar was admitted at AMCH.
He also stated that he saw injury on the neck of Drupadi and
bleeding injury on the head of Lakheswar Karmakar. After few days, police
apprehended appellant Tulsi Karmakar.
P.W.4 also stated that he was called by the police and accompanied
them while searching for the dao near banana trees on the backside of
the house as led by the appellant but failed to recover the dao though
appellant stated that he had thrown the dao at that place. He also stated
that Sankar Chawra, VDP President was also with him.
During the cross-examination by the defence, P.W.4 denied that he
had seen the incident of assault on the injuries. He stated that while
giving statement to police, he had not stated about knowing about the
incident from Maya Bawri, meeting the injured Drupadi Karmakar and
Lakheswar Karmakar while bringing in a pull cart, seeing injury on the
back side of the neck of Meya, visiting residence of the injured and finding
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of pool of blood near the kitchen, seeing bunch of hair of woman and
scattered boiled rice at that place, patients being admitted at Sivasagar
Hospital and referred to AMCH, Dibrugarh, about the death of Drupadi on
the way to Dibrugarh and of admission of Lakheswar Karmakar at AMCH.
He denied that he had deposed falsely as tutored. He also denied
giving statement to police that appellant Tulsi resided in same compound
with different mess and the appellant is married and lives with his wife.
Though he stated that on the date of incident, wife of Tulsi also
got injured on her abdomen, he could not notice the type of injury as
cloth was wrapped on her abdomen. He stated that while giving statement
to police, he had not stated that he brought Lakhi Karmakar, wife of Tulsi
to Santak Hospital. However, he knew that she was taken to Santak and
then to AMCH for treatment, where she was treated for a few days. He
stated that he had heard from the villagers that Naresh Karmakar,
younger brother of the appellant had inflicted cut injury on Lakhi
Karmakar. He, however, denied that Naresh had assaulted his parents.
12. P.W.5, Sri Sankar Chawra stated that the accused Tulsi Karmakar
@ Ladu was known to him a being worker of same Bagan. He stated that
on 24.12.2015 at about 7 A.M., while he was at his work place, he came
to know from the co-labourers that a quarrel had taken place at the
residence of the appellant. He also stated that he had heard that the
appellant injured his parents. After three days, police came to the factory
with the appellant and took him and the VDP Secretary Dilip Tanti to the
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residence of the appellant where the police searched for the dao near
banana trees on the backside of the house as led by the appellant but
they failed to recover the dao though the appellant had stated that he had
thrown the dao by which he cut his parents at that place. He stated that
he did not ask Lakheswar as to how the incident took place.
He was not cross-examined by the defence.
13. P.W.6, Sri Utpal Bora deposed that on 23.12.2015, when he was
posted as O/C at Bihubhar Police Station, on that day, at about 10.30 PM
he received an information over phone from the VDP Secretary, Sri Dilip
Tanti of Santak regarding a quarrel at Line No.3 of Santak T.E. On
receiving the information, the same was entered in Bihubar PS GD Entry
book vide GD Entry NO.377 dated 23.12.2015 and proceeded to the place
of occurrence to investigate the matter
P.W.6 deposed that accordingly, at 11.10 PM, he went to the place
of occurrence i.e. the residence of Lakheswar Karmakar and came to know
that Lakheswar Karmakar and his wife Drupadi Karmakar were taken to
Santak PHC, from where they were referred to Sivasagar Civil Hospital and
from there to AMCH. On entering the house of the injured with local
villagers, he did not find any there. He stated that he had noticed blood
stain in the kitchen room inside the house of the injured. He had also
searched the place of occurrence and its nearby areas but could not seize
anything. He stated that he had recorded the statement of the witnesses
at the place of occurrence. From the witnesses he came to know that Tulsi
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Karmakar had assaulted his father Lakheswar Karmakar and Drupadi
Karmakar by sharp object. He also learnt that Naresh Karmakar, brother
of the accused had assaulted Lakhi Karmakar, wife of the appellant and
after the said incident, Tulsi assaulted his parents. On the next day
morning, he had also visited the place of occurrence and prepared a rough
sketch map, Ext.5. He stated that during the investigation, he came to
know that Drupadi Karmakar succumbed to her injuries at AMCH. The
inquest was done by Borbari OP and the post mortem was done at AMCH.
P.W.6 stated that on 29.12.2015, he had received one written FIR
from Lakheswar Karmakar and registered Bihubari PS Case No. 60/2015
under Section 326/302 IPC and took charge to make further investigation
of the case. He further stated that on 04.01.2016 appellant Tulsi Karmakar
surrendered at Police Station and was arrested and forwarded to judicial
custody.
He stated that on his transfer, he had handed over the Case Diary
to his successor. From the Case Diary, it appeared that his successor I/O
had collected the post mortem report, SCD from Borbori OP, injury report
of Lakheswar Karmakar, and upon completion of investigation, charge
sheet was submitted against the appellant under Section 302/326 IPC. He
stated that in this case, he had recorded the statement of all the
witnesses.
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During the cross-examination by the defence, P.W.6 stated that
witness Naresh did not state before him that he had seen the accused
going out of his house with dao.
P.W.6 also stated that witness Dilip Tanti P.W.4 had not stated
before him about knowing of the incident from Maya Bawri,but stated that
on arriving at the house of Lakheswar, he saw injured Drupadi Karmakar
and Lakheswar Karmakar and took them to local hospital in a pull cart and
saw injury on the backside of the neck of Drupadi and bleeding injury on
the head of Lakheswar.
P.W.6 stated that however, Dilip Tanti did not say about finding of
pool of blood near the kitchen, seeing a bunch of hair of woman and
scattered boiled rice at that place, etc. as stated in his deposition.
He stated that during the investigation, he came to know that apart
from Drupadi and Lakheswar Karmakar, appellant's wife Lakhi was also
brought to Santak PHC and from there to Sivisagar Civil Hospital. He had
not collected any medical examination report from Santak PHC or from
Sivasagar Civil Hospital. He also did not collect any medical report of Lakhi
Karmakar as he did not meet her during investigation, though he came to
know that she was treated at AMCH. He did not register any case on the
assault on Lakhi Karmakar as no FIR was submitted on that aspect. FIR
was lodged after 6 days of the incident and no reason for delay was
mentioned in the FIR. He did not question the informant for the delay in
lodging the FIR. In the FIR there was no mention of the scribe of FIR and
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he did not investigate about the scribe of the FIR. He stated that he
examined the informant on 29.12.2015. He did not visit AMCH for
recording statement of injured Lakheswar Karmakar.
He denied that FIR was signed by the complainant on 03.01.2016
at PS Campus after returning from AMCH.
He stated that the residence of the appellant and the deceased are
in the same campus. He searched for the appellant but was found absent
in his house. He denied the suggestion of the defence that he did not
search for the accused and that the accused was not absconding.
14. P.W.7, Dr. Subhajyoti Deka, Associate Professor, Department of
Forensic Medicine, AMCH, Dibrugarh deposed that he had appeared on
being directed by the Superintendent, SMCH, Dibrugarh with the post
mortem register in respect of the post mortem done on the body of
Drupadi Karmakar.
He deposed that on 24.12.2015, at about 03.45 PM, Dr. S.J. Gogoi
who was working as the Demonstrator, Department of Forensic Medicine,
AMCH, Dibrugarh, on police requisition performed the post mortem
examination on the dead body of the deceased, Drupadi Karmakar. He
stated that the dead body was brought and identified by Dilip Lohar and
Naresh Karmakar, P.W.2.
Relevant portions of the post-mortem report are reproduced
hereinbelow:
"I - EXTERNAL APPEARANCE
1. Condition of subject stout emaciated, decomposed, etc .
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One average built wash complexioned female body deceased
with a sari petti coat, blouse. Eyes and mouth closed. Rigor
mortis present all over the body. Body cold on touch.
2. Wounds, Position, Character:
Injury -
(1) Chop wound of sixe 8 x 2 cm. bone deep present over
occipital area of scalp on left side obliquely 4 cm. from
midline.
(2) Chop wound of size 6 x2 cm x muscle deep present over
left side of back of neck longitudinally 6 cm. from midline.
Underlying muscles, vessels cut.
(3) Chop wound of size 6 x 3 x muscle deep present over back
of chest on left side obliquely.
N.B.: Margins of injuries No. (1) to (3) are abraded at places.
Blood clots adherent to wound margins which resist washing
with running water.
3.Bruise Position size and nature :
4. Mark of ligature on neck dissection, etc.: Healthy.
II - CRANIUM AND SPINAL CANAL
1. Scalp, skull, vertebrae : Scalp- As described.
Skull, vertebrae- All healthy.
2. Membrane : Healthy.
3. Brain and spinal cord : Brain - Healthy.
Spinal cord- Not examined.
Note: The spinal canal need not be examined unless any indications of
disease or injury exist.
III- THORAX
1. Walis ribs and cartilages : Walis- As described.
Ribs, cartilages- All healthy.
2. Pleurae : Both pleurae healthy, pale.
3. Laryax and trach ere : All healthy, pale.
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4. Right lung : Both lungs healthy, pale.
5. Left lung :
6. Pericar (dium) : Healthy.
7. Heart : Healthy/empty.
8. Vessels : All healthy.
IV- ABDOMEN
1. Walls : Healthy.
2. Peritonoum : Healthy, pale.
3. Mouth, pharyanx, oesophagus : All healthy, pale.
4. Stomach and its contents : Healthy, pale and contains liquid
substance.
5. Small intestine and its contents : Healthy, pale and contains liquid
substance.
6. Large intestine and its contents : Healthy, pale and contains gases
and fecal substance.
7. Liver : Healthy, pale.
8. Spleen : Healthy.
9. Kidneys : Both kidneys healthy, pale.
10. Bladder : Healthy, pale and empty.
11. Organs of generation extema and internal: Ext.- Healthy,
Int. - Uterus healthy
(..illegible).
Others- All healthy.
V- MUSCLES, BONES AND JOINTS
1. Injury : As described
2. Disease or deformity :
3. Fracture : NIL
5. Dislocation :
..........................................................................................
.........................................................................................
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ASSISTANT SURGEON
OPINION OF..... AS TO CAUSE OF DEATH
SUB- ASSISTANT SURGEON
Death was due to haemorrhage and shock resulting from injuries as
described. All the injuries were antemortem and caused by moderately heavy
sharp cutting weapon and homicidal in nature.
Approx. time since death was 8 to 16 hours."
15. P.W.7 identified the signature of the doctor who conducted the post
mortem in Ext.8, post-mortem report. Ext.9 was the Post Mortem Register
of AMCH and Ext.9(1) was the relevant entry by which the fact of conduct
of post mortem examination was entered. He deposed that as per the
Register, the post mortem was conducted at 03.30 PM. Ext. 9(3) was the
Xerox copy of the relevant entry of Ext.9(1) which was proved in original.
P.W.7 was not cross-examined.
16. D.W.1, Lakhi Karmakar was the wife of the appellant, Tulsi
Karmakar, who deposed in favour of the appellant. She deposed that
appellant was her husband and she lived with him in a different house
from her father-in-law but in the same campus. According to her, on
23.12.2015, at about 7 PM, when she was at her residence, her brother-
in-law (husband's brother, Naresh Karmakar) came to her residence and
stabbed at her abdomen with a kalam katari. At that time she was
pregnant for 5 (five) months. She stated that she got cut injury on left
side of her belly. Naresh also assaulted on the back of her chest and she
got injury there. At that time, her husband, Tulsi Karmakar, the appellant
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was in the kitchen. On getting injury, she fell down and lost
consciousness, whereupon, her husband Tulsi went out of her room in
search of Naresh and entered his father's room. She stated that she
regained sense at Dibrugarh and came to know that initially she was taken
to Bagan Hospital and from there to Sivasagar Hospital and finally at
AMCH, Dibrugarh. She stayed for 9 days at Dibrugarh. She stated that at
AMCH, Naresh informed her that her husband had killed his mother
Drapudi and also asked her to return to matrimonial home and as such,
since after her return from medical college she was not allowed to enter
her husband's room and was living with her parents.
On being cross-examined by the prosecution, D.W.1 stated that
Naresh (P.W.2) had insulted her inside her bedroom and that on getting
2(two) cut injuries she fell down on her bedroom and lost consciousness.
She, however, could not say in which direction Naresh had gone, and in
which direction her husband had gone in search of Naresh. She admitted
that Naresh was also at AMCH, Dibrugarh. She also admitted that she was
taken to AMCH by Naresh in a vehicle in and her father in law and mother
in law who also got injuries were also taken in the same vehicle.
She denied that Naresh did not assault her. She also denied that
when her husband Tulsi assaulted his parents, she went there to resist
him and in that process she got injury from the dao used by her husband.
She denied that for that reason, she did not file any case against Naresh
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for her injuries. She also denied that in the interest of her husband, she
had deposed falsely against Naresh.
17. D.W.2, Sri Sukarmani Tanti, deposed that the appellant was his
son-in-law and Smt. Lakhi Karmakar was her daughter through her first
husband Ramchandra Goala.
She stated that about 3 years back, in one evening on being
informed by a neighbor of her daughter that her daughter was assaulted
at her abdomen, she came to Lakhi's house and saw her with cut injury on
her abdomen and back of the chest. From there she took Lakhi to Bagan
Hospital. She accompanied them to Hospital and from threre her daughter
Lakhi was taken to AMCH, Dibrugarh. She stated that she heard from her
daughter that her brother-in-law Naresh inflicted the cut injury on her.
During cross-examination, D.W.2 denied that her daughter had
never informed her that Naresh had inflicted the cut injury on her.
She stated that she heard from her daughter that the appellant
Tulsi had assaulted his parents with dao and his mother died due to the
injury at Dibrugah and his father also got some injury on his head and
they were taken to Dibrugarh. She stated that her daughter was pregnant
at that time and she heard that during the scuffle, when her daughter
tried to snatch the dao from her husband, she got the injuries on her
abdomen and presently, Lakhi and her children were living with her.
She also stated that she or her daughter did not file any case
against Naresh for the injuries.
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18. In the light of the evidences discussed above and other evidences
adduced before the Trial Court, the issue before this Court is whether the
prosecution has been able to establish the charge that the appellant had
intentionally caused the death of his mother and also injured his father for
which he was convicted by the Trial Court under Section 302 IPC and
Section 325 IPC respectively.
19. For the aforesaid purpose, it is to be established by the Prosecution
through direct or circumstantial evidences that it was the appellant who
was responsible for the death of his mother and causing injury to his
father.
20. There are medical evidence to show that the mother of the
deceased received three injuries,
(1) Chop wound of size 8 x 2 cm bone deep present over occipital
area of scalp on left side obliquely 4 cm from midline;
(2) Chop wound of size 6 x 2 cm muscle deep present over left
side of back of neck longitudinally 6 cm from midline, underlying muscles,
vessels cut and,
(3) Chop wound of size 6 x 3 cm muscle deep present over back of
chest on left side obliquely.
The opinion of the medical expert was that these injuries were ante
mortem and caused by moderately heavy sharp cutting weapon and were
homicidal in nature and death was due to hemorrhage and shock resulting
from aforesaid injuries.
CRL.A.(J) 78 of 2019
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Thus, it was incumbent upon the prosecution to establish that it
was the appellant who had caused the aforesaid injuries to the said
deceased.
21. As regards the injuries received by P.W.1, father of the appellant,
the medical report shows that he had received injury of appox. 10 cm x 1
cm x 1 cm lacerated wound over left fronto parietal region of scalp
exposing skull bone which, according to the medical opinion, was grievous
in nature and it was a fracture caused by an object suspected to be blunt.
Similarly, it was incumbent upon the prosecution to prove that it
was caused by the appellant.
22. From the above, what transpires is that while the injuries received
by the deceased was caused by heavy sharp cutting weapon, as far as the
injury received by the appellant's father was concerned, it was by a blunt
object.
The allegation of the prosecution is that the appellant had used a
dao.
If the use of dao is established, it can certainly cause the aforesaid
two kinds of injuries, sharp as well as blunt. It is a well-known fact that a
dao is a local general purpose instrument used by villagers for cutting
firewood etc. of which one edge is sharp and the other, blunt.
We have to now examine whether such a weapon was used by the
appellant.
CRL.A.(J) 78 of 2019
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23. As far as the occurrence of the incident is concerned, there are
2(two) eye witnesses, i.e., the appellant's father, Lakheswar Karmakar,
P.W.1, who received injuries as well as the appellant's younger brother,
Naresh Karmakar and defence witness, D.W.1, Lakhi Karmakar who
narrated a different story but both the narration involved use of dao.
As per the prosecution and the evidence adduced by P.W.1, father
of the appellant, who received injury, stated that the appellant on the date
of incident, at about 8 P.M. had asked his daughter to open the door for
taking some vegetables. Thereafter, on opening the door, the appellant
entered his house and assaulted his mother, Drupadi. On hearing the cry,
when he came out of his room, the appellant also inflicted injury on his
head. Though P.W.1 did not specifically say that he witnessed the actual
assault of his wife by his son, there is evidence on record to show that
when he heard the cry of his wife and he came out of his room, the
appellant inflicted injury on his head. He also saw injury on the backside
of the neck on his wife. Therefore, he raised an alarm. Upon raising hue
and cry by P.W.1, his son Naresh Karmakar came out of his room.
P.W.1 stated that in the afternoon hours on the same day, his wife
had scolded the appellant regarding missing of some money. The evidence
regarding the incident became clearer during the cross-examination by the
defence.
CRL.A.(J) 78 of 2019
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P.W.1 stated that an altercation started regarding missing of
Rs.2000/- between his wife and the appellant when the wife scolded the
appellant that the appellant is not her son, etc.
24. As to whether there was an altercation between the appellant's
mother and the appellant, the appellant clearly admitted that on the date
of the incident, the mother of the appellant had scolded the appellant.
To the question No. 13 asked by the Trial Court to the appellant
which reads as follows:
"P.W.2 also deposed that on the date of incident, in afternoon hours your
mother has scolded you for stealing her money. What is your say?",
the appellant had replied in affirmative - "Yes".
Thus, the fact that the mother of the appellant scolded the
appellant is fully corroborated by the statement made by the appellant
under Section 313 Cr.P.C.
This fact of scolding, according to the appellant, was the reason for
assaulting of his parents by him.
25. The statement of the appellant under Section 313 Cr.P.C., as
regards the other aspects corroborates the case of the prosecution.
The appellant never denied entry to the house of his mother where
the assault had taken place. This is evident from the answers given by the
appellant to the Court while being examined under Section 313 Cr.P.C.
To the question No. 2 asked to the appellant by the Trial Court
which reads as follows:
CRL.A.(J) 78 of 2019
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"P.W.1 also deposed that on 23.12.2015 at about 8 PM, you asked your
sister to open the door for taking some vegetables. On opening the door,
you entered inside the house of your parents and physically assaulted your
mother Drupadi. He also saw injury on the back side of neck of his wife.
What is your say?",
the answer given by the appellant to the said question was as
follows:
"I went there to stop my mother who was rebuking me for taking money
from my father. However out of anger, some incident of assault happened
there. I did not do so with intention to cause her death."
Similarly, to the question No.3 asked by the Court to the appellant
which reads as follows:
"P.W.1 also deposed that on hearing cry, when he came out of his room,
you also inflicted cut injury on his head. He got injury on the left side of
the head. What is your say?",
the answer given by the appellant was as follows:
"Might be."
26. From the above answers given to the questions asked by the Trial
Court, it is clearly evident that the appellant, in fact, admitted of going to
the house of his mother who on being rebuked for taking money from his
father, out of anger had assaulted his mother though he claimed that he
did not have any intention to cause her death. This admission clearly
corroborates the prosecution case.
CRL.A.(J) 78 of 2019
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Similarly, the appellant also had not clearly denied the case of the
prosecution that he caused injury to his father. On the contrary, the
following answer given by the appellant to the Trial Court rather
corroborates the case of the prosecution.
To the question No. 7, asked by the Trial Court to the appellant,
which reads as follows:
"P.W.1 also deposed that on the date of incident, in afternoon hours your
mother has scolded you for missing of some money. What is your say?",
the appellant gave the answer in the affirmative as "Yes"
The appellant admitted that his mother had scolded him regarding
missing of some money.
Similarly, when the Trial Court asked him about the deposition of
P.W.2 that on re-entering his house, he saw that his father had come out
of the house with holding his head in injured condition and his mother was
lying with injuries inside the house and he saw injury on the back side of
neck, hand of his mother, the appellant answered that it may be possible.
Thus, the appellant did not deny the evidence of P.W.2 as regards
his mother lying in the house with injuries.
27. From the above, it can be said that the case of the prosecution that
the appellant had come to the house of the deceased mother and had
assaulted his mother and father after being rebuked by his mother
regarding missing of some money stands established. He also never
CRL.A.(J) 78 of 2019
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denied of assaulting his parents, though the appellant had not admitted of
using dao.
28. From the above evidence, when the appellant has admitted
assaulting his parents and causing such injuries, the evidence of P.W.2,
the younger brother of the appellant that he saw the appellant leaving the
house with the dao stands corroborated. In fact, the use of dao by the
appellant has also come out clearly from the evidence of P.W.1 who
received the injury from his son.
29. Though P.W.1 did not categorically mention the use of dao to
assault him and his wife, it was suggested by the defence that during the
altercation, the appellant's mother tried to hit the appellant with a dao,
then the appellant snatched the dao from his mother and hit her. Thus, it
was the suggestion of the defence that a dao was used during the
altercation which was snatched by the appellant.
30. Under the circumstances, it can be clearly inferred that a dao was
used and it was the appellant who used the dao to assault. Thus, the use
of dao by the appellant stands established.
31. The fact that the appellant had admitted that he went to the house
of his mother, though he claims that he went there to stop her who was
rebuking him for missing of the money and out of anger, the incident of
assault happened clearly corroborates the prosecution case that he
assaulted his mother. Though he might not have any intention to cause
CRL.A.(J) 78 of 2019
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death, the assault which caused the death of his mother has been
established by the prosecution beyond any reasonable doubt.
32. It may be noted here that the appellant also tried to make a case
that his younger brother Naresh Karmakar assaulted his mother.
In this regard, it may be apposite to mention the answer given by
the appellant in his cross-examination under Section 313 Cr.P.C.
In question No.21, the Trial Court asked the following question to
the appellant,
"P.W.5 Sri Sankar Chawra, VDP President in his evidence deposed that
on 24.12.2015 at about 7 AM, while he was at this work place, from co-
labourers, he came to know that incident of quarrel took place at your
residence. He heard that you cut your parents. What is your say?",
his answer was
"Some incident of assault with my parents took place."
In question No.26, the Trial Court asked the appellant as follows:
"P.W.6 also deposed that he has recorded statement of witness at the P.O.
From the witnesses, he came to know that you have assaulted your parents namely
Lakheswar Karmakar and Drupadi Karmakar by sharp object. What is your say?"
The appellant answered as follows:
"Some incident of assault took place with my parents."
In Question No. 32, the Trial Court asked the following question,
"P.W.6 also deposed that from the CD, it appears that his successor I/O
has collected the PM report, SCD from borbori OP, injury report of Lakheswar
Karmakar and upon completion of investigation, SI Bhaskar Deogharia has
submitted charge sheet against you u/s 302/326 IPC. Exht. 6 is the charge sheet.
What is your say?"
The appellant answered as follows:
CRL.A.(J) 78 of 2019
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"I did not kill mother intentionally."
33. The aforesaid answers given by the appellant to the questions put
by the Trial Court would clearly show that he never denied the assault
rather admitted it, but he claimed that he had no intention to kill his
mother. However, at the same time, the appellant had tried to put up an
alternative scenario for implicating his younger brother Naresh Karmkar,
as the provocateur.
34. To the Question No. 36 of the Trial Court as to whether he had
anything more to say on the case and the evidence adduced, the appellant
answered that because of the cut injury inflicted on his pregnant wife at
her abdomen by his brother Naresh Karmakar and seeing blood on her, he
had lost control and by taking a dao he went to the house of his parents
and started assaulting them. He also stated that, in such a situation, they
might have sustained some injuries, though he did not cause the death of
his mother intentionally and it was due to sudden provocation and out of
anger.
35. Thus, what the appellant tried to project is that he was provoked
on seeing his pregnant wife being assaulted by his younger brother and
thereafter, losing his control by taking a dao he went to the house of his
parents and assaulted them.
36. We, however, fail to understand if the younger brother of the
appellant had caused injury to his pregnant wife and thereby he lost his
CRL.A.(J) 78 of 2019
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temper, why the appellant did not assault his younger brother Naresh
Karmakar who had assaulted his wife but his parents?
37. On the other hand, there is evidence on record to show that Naresh
Karmakar had taken his wife to the hospital along with his parents which
clearly indicates any absence of conflict between his younger brother
Naresh and his wife.
Though D.W.1, Lakhi Karmakar had stated that Naresh had
assaulted her inside her room, she admitted that she was taken to AMCH
by Naresh in a vehicle in which her mother-in-law and father-in-law were
also taken. It defies logic that if it was Naresh who had assaulted the wife
of the appellant, there was no reason for Naresh to have cooperated by
helping her (Lakhi) to be carried to the hospital, more so, when the
parents were grievously injured by the husband of Lakhi.
38. D.W.1 (Lakhi), wife of the appellant tried to support her husband,
the appellant by stating that after Naresh had assaulted her, she fell down
and became senseless. If she became unconscious, it is hard to believe
her statement that after she was assaulted by Naresh, her husband went
out of her room in search of Naresh and entered his father's room. As to
how she could narrate what had happened after she had lost
consciousness is hard to believe.
In fact, during the cross-examination of the D.W.1, the prosecution
tried to project that when her husband assaulted his parents, D.W.1 went
there to stop her husband and in that process she got injury caused by
CRL.A.(J) 78 of 2019
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the use of dao by her own husband. Though it was denied by D.W.1, it
appears to be more plausible in the light of the evidences which have
emerged.
39. The fact that D.W.1 or any of her relative did not file any case
against Naresh for the injuries allegedly caused by Naresh to her also
points to the concocting of an alternative scenario by the appellant. In
fact, Naresh never caused any injury to D.W.1 but she had tried to project
that it was Naresh who assaulted her to save her husband.
40. The stand taken by the accused in his answers recorded by the
court under Section 313 Cr.P.C. runs contrary to the aforesaid stand taken
by the defence of appellant that it was Naresh who had assaulted his wife.
41. Thus, this Court holds that the narration put through the mouth of
the wife of the appellant, D.W.1 of her being assaulted by Naresh under
the circumstances hardly instills any confidence to be believed.
42. From the above, it is clear that the prosecution has been able to
prove the case that it was the appellant who caused the injuries to his
mother which led to her death and also caused injuries to his father. As
regards injuries which were received by Lakhi, the wife of the appellant,
there is no evidence that these were caused by Naresh.
43. The next question which is to be considered, is whether the
appellant had the intention to cause death of his mother. It is the plea of
the appellant that he had assaulted his parents on being provoked after
he was scolded by his parents on being accused by her mother about the
CRL.A.(J) 78 of 2019
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missing of Rs.2000/-. It appears that the appellant might not have
assaulted his parents if there was no such quarrel. The appellant was
staying in the same compound as that of his parents. Thus, it cannot be
said with certainty that the appellant had an intention to kill his mother or
cause such bodily injury which would cause the death of his mother.
As regards intention, it can be ascertained from the immediate or
proximate circumstances which led to the incident. It was the case of the
prosecution that the appellant had assaulted his parents after being
rebuked by his mother regarding missing of Rs.2,000/- and also on being
rebuked by his mother that he is not her son.
44. As per the medical evidence, the injuries caused to the deceased
mother were responsible for her death. Therefore, we have to examine
whether the plea taken by the appellant, in the light of the evidences
which had emerged in course of the trial, would entitle the appellant to
any of the benefits of the Exceptions mentioned under Section 300 IPC so
as to convict him under Section 304 IPC, rather than under Section 302
IPC.
45. Exception 1 as mentioned under Section 300 IPC, provides that
culpable homicide is not murder if the offender, whilst deprived of the
power of self-control by grave and sudden provocation, causes the death
of the person who gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following provisos-
CRL.A.(J) 78 of 2019
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First, that the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person.
Secondly, that the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of the
powers of such public servant.
Thirdly, that the provocation is not given by anything done in the
lawful exercise of the right of private defence.
46. The Second Exception provides that culpable homicide is not
murder if the offender, in exercise in good faith of the right of private
defence or property, exceeds the power given to him by law and causes
the death of the person against whom he was exercising such right or
defence without premeditation, and without any intention of doing more
harm than is necessary for the purpose of such defence.
As regards this Exception 2, there must be an assault by the victim
to the accused who in self defence must have acted, which ultimately
results in the death of the other person. In the present case, there is no
evidence of the victim assaulting the appellant nor such a plea by the
appellant and as such, the question of considering this Second Exception
by way of self defence does not arise.
47. The Third Exception relates to when the offender is a public
servant. In the present case, the appellant is not public servant and as
such, the Third Exception is not attracted.
CRL.A.(J) 78 of 2019
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48. The Fourth Exception provides that culpable homicide is not murder
if it is committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender having taking
undue advantage or acted in a cruel or unusual manner.
The common thread which runs in Exception 1 and Exception 4 is
the loss of self-control due to grave and sudden provocation or sudden
quarrel or in the heat of passion upon a sudden quarrel and accordingly, it
has to be ascertained whether either of Exception 1 or 4 is attracted in
the present case.
For this, there must be evidence that there was a quarrel or an
incident which led to sudden provocation leading to deprivation of self
control due to his grave and sudden provocation.
49. From the evidence as discussed above, there was certainly a
quarrel between the appellant and the appellant's mother because of
missing certain amount of money. Even if, it is assumed that the rebuke
and scolding of the mother of the appellant led to a sudden quarrel, can it
be said that such scolding by the mother was of a grave and sudden
provocation? We think not.
There is also no reason why the appellant should go armed with
dao to rebuke his mother as he claimed. If he brings the dao which is not
really needed in a house, for the purpose of rebuking his mother, he
certainly cannot invoke any of these Exceptions. If the Exceptions have to
be proved in the context of his quarrel with his mother, the appellant has
CRL.A.(J) 78 of 2019
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to take specific plea and prove that the dao was lying nearby when the
sudden quarrel erupted in a heat of anger out of a sudden provocation, he
picked up the dao and assaulted his mother. But such a plea was not
taken by the appellant nor there is any such evidence. It is also to be
noted that if any assailant seeks the plea of Exceptions under Section 300
IPC, the onus is upon him to establish the case, not for the prosecution.
But, the appellant has failed to prove existence of such an Exception.
50. On the other hand, in the present case, the prosecution had been
able to establish beyond reasonable doubt that the appellant had
assaulted his mother with dao which caused grievous injuries. The fact
that the appellant had caused not merely one injury but three injuries and
these injuries were caused on the vital parts of the body i.e. near neck
would clearly indicate that even if the appellant did not have any intention
to kill his mother, he inflicted the injuries, which he knew in ordinary
course, would cause death.
51. Thus, even if, a benefit of doubt given to the appellant that he had
no intention to kill his mother, he knew that by assaulting an unarmed
woman with a deadly weapon like dao, it was so imminently dangerous
that it must in all probability cause death or was likely to cause bodily
injury as was likely to cause death. He committed such an act, without
any excuse, which caused death as provided under the Fourth situation
contemplated under Section 300 IPC, as such, it will amount to
CRL.A.(J) 78 of 2019
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committing a murder, even if, he did not have any premeditated design to
kill his mother.
52. As discussed above, his action does not come under any of the
Exceptions as contemplated under Section 300 IPC so as to render his
offence as culpable homicide not amounting to murder, to bring within the
scope under Section 304 IPC.
53. While coming to our conclusion we have extensively referred to the
statements made by the appellant during the examination under Section
313 Cr.P.C. Law is well settled as to the use of statement recorded under
Section 313 Cr.P.C. It is not evidence in the true sense of the term for the
reason that while recording statements under Section 313 Cr.PC., the
accused does depose as a witness and no oath is administered to him
when he is examined under this Section. Furthermore, he is also not
subjected to cross-examination.
In State of Maharashtra Vs. R.B. Chowdhury, AIR 1968 SC
110: 1968 CrLJ 95(SC), Supreme Court held as follows
"5..............No doubt under the Code of Criminal Procedure the
statement of an accused may be taken into consideration in an inquiry or
trial but it is not strictly evidence in the case. An accused, when makes his
statement under Section 342, does not depose as a witness because no oath
is administered to him, when he is examined under that Section.........."
The object of examination of an accused under Section 313 Cr.P.C.
is to afford him an opportunity to explain the circumstances appearing
against him as well as to put forward his defence.
CRL.A.(J) 78 of 2019
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However, it has been also settled that if he makes statement
supporting the prosecution's case, it can be used against him to
corroborate the prosecution case as held in Ramnaresh Vs. State of
Chhattisgarh, AIR 2012 SC 1357 : (2012) 4 SCC 257.
It was held in para 22 in Ramnaresh (supra) as follows :
"22. It is a settled principle of law that the obligation to put material
evidence to the accused under Section 313 Cr.P.C. is upon the Court. One
of the main objects of recording of a statement under this provision of
the Cr.P.C. is to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put forward his defence,
if the accused so desires. But once he does not avail this opportunity, then
consequences in law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313 Cr.P.C., in so far
as it supports the case of the prosecution, can be used against him for
rendering conviction. Even under the latter, he faces the consequences in
law."
Thus, the onus of the prosecution to prove the case beyond
reasonable doubt remains and never shifts, and any deficiency or lacuna
in the evidence of the prosecution case cannot be filled up by the
statement made by the accused under Section 313 Cr.P.C., and only a
part of such statement cannot be made the sole basis of conviction. It
can, however, be used to corroborate and bolster the evidence of the
prosecution as held in para 27 of Mohan Singh Vs. Prem Singh and
Anr., AIR 2002 SC 3582.
Relevant part of para 27 of Mohan Singh (supra) reads as follows:
"27. The statement made in defence by the accused under Section 313 CrPC can
certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a
CRL.A.(J) 78 of 2019
- 37 -
part of such statement under Section 313 of the Code of Criminal Procedure cannot be made
the sole basis of his conviction. The law on the subject is almost settled that statement under
Section 313 CrPC of the accused can either be relied in whole or in part. It may also be
possible to rely on the inculpatory part of his statement if the exculpatory part is found to be
false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of
Bihar [(1969) 1 SCC 347 : AIR 1969 SC 422]
......... .................................................................................................................
.................................................................................................."
54. Keeping the aforesaid legal position in mind, what we have noted is
that the case of the prosecution in brief, is that, the appellant by using a
deadly weapon, a dao assaulted his mother and father which resulted in
the death of his mother and injury to his father, thereby committing
murder of his mother.
As regards the death of his mother due to injuries caused by a
sharp weapon, it has been clearly established by the medical evidence and
corroborated by the statement of the P.W.1, the father of the appellant.
The evidence of P.W.1, as discussed above, had not been shaken
the evidence of the use of dao by the appellant, which has also come out
clearly through the cross-examination of P.W.1.
P.W.2, though did not see the actual assault, saw the appellant
leaving the house soon after the incident of assault occurred, after hearing
a hue and cry and leaving with the dao.
Though the defence has tried to discredit the evidence of P.W.2
that he saw the appellant going out of his house with the dao during his
cross-examination and also by proving the same with the evidence of the
CRL.A.(J) 78 of 2019
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I.O. that the P.W.2 did not state before him that he had seen the
appellant going out of his house with the dao, yet the eye witness account
of P.W.1 cannot be doubted who was assaulted by the appellant with the
dao.
The evidence of the prosecution that a dao was used stands
corroborated by the statement of the appellant himself made under
Section 313 Cr.P.C. to the effect that he used the dao to assault his
parents though he gave a different reason for assaulting his parents.
Thus, the assault of the parents and causing grievous injuries to
them with the use of the dao which is the case of the prosecution, stands
corroborated by the statement of the appellant made under Section 313
Cr.P.C..
It is not the case that no evidence was adduced by the prosecution
regarding use of dao. It was the case of the prosecution of the use of dao
as mentioned above, which stands corroborated by the statement of the
appellant made under Section 313 Cr.P.C.
Accordingly, we are of the view that the prosecution has been able
to establish the case against the appellant under Section 302 IPC as
regards death of his mother and also Section 325 IPC as regards the
injury caused to his father.
Accordingly, for the reasons discussed above, we uphold the
conviction of the appellant.
CRL.A.(J) 78 of 2019
- 39 -
55. As regards the punishment, we find no reason to differ from the
quantum of punishment awarded by the Trial Court.
56. Ms. B. Choudhury, learned amicus curiae, and Ms. B. Sarma,
learned Legal Aid Counsel, who have ably assisted this Court in conducting
this jail appeal, may be given the honorarium at the rate fixed under the
Rules.
57. For the reasons discussed above, the appeal is, accordingly,
dismissed as devoid of merit.
JUDGE JUDGE
Comparing Assistant
CRL.A.(J) 78 of 2019
