Kishan Koiri vs The State Of Assam And Anr
2022 Latest Caselaw 4760 Gua

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GAHC010002802019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/9/2019

            KISHAN KOIRI
            SIVASAGAR.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY PP, ASSAM.

            2:SRI BOPOI KARMAKAR
             S/O -LATE TIKIRA KARMAKAR
            VILL.- GOSAIBARI T.E.
             PS- DEMOW
             DISTRICT-SIVASAGAR
            ASSA

Advocate for the Petitioner   : MS. M BARMAN, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

Date of hearing : 05.12.2022.

Date of judgment :            05.12.2022.
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                              JUDGMENT & ORDER (Oral)

(Suman Shyam, J)

Assailing the judgment and order dated 04.09.2018 passed by the learned

Sessions Judge, Sivasagar in connection with Sessions Case No.21(S-S)/2018 whereby,

the sole appellant was convicted under Section 302 of the Indian Penal Code (IPC)

for committing the murder of Anubhab Karmakar and sentenced to undergo rigorous

imprisonment for life and also to pay fine of Rs.1000/- (Rupees One Thousand) with

default stipulation, the instant Jail appeal has been filed.

2. The prosecution case, in a nutshell, is that on 21.09.2017, at around 8:00 p.m.,

an altercation took place between the appellant/accused and the victim Anubhab

Karmakar whereby, the appellant had assaulted the victim on his head and other

parts of the body with a bamboo 'lathi' (stick) causing grievous injury on Anubhab

Karmakar. The victim was rushed to the hospital but he died on the next day morning

at about 3:15 a.m. On 21.09.2017, Sri Bopoi Karmakar i.e. the elder brother of the

victim, lodged an ejahar before the In-Charge of Nitaipukhuri Police Outpost

reporting the incident, based on which GD Entry No.331/2017 dated 21.09.2017 was

made and the same was forwarded to the Officer-in-Charge of Demow Police

Station for registering a case. Consequently, Demow P.S. Case No.205/2017 came to

be registered under Section 302 of the IPC and the matter was taken up for

investigation by the police. On completion of investigation, the Investigating Officer

(I.O.) had submitted charge-sheet under Section 302 of the IPC against the appellant.

3. Based on the charge-sheet the learned trial court had framed charge against Page No.# 3/13

the appellant under Section 302 of the IPC. However, since the appellant had

pleaded innocence and claimed to be tried, the matter went up for trial.

4. Prosecution case is primarily based on the testimony of PW-3, who was

projected as an eye-witness as well as the evidence of other witnesses adducing

circumstantial evidence.

5. After recording the evidence of the prosecution side, the statement of the

accused was recorded under Section 313 of the Cr.P.C. The accused/ appellant

had also examined himself as the lone defence witness. The DW-1 had projected a

case that he had acted in exercise of right of self defence, so as to regal out of the

rigors of Section 302 of the IPC.

6. Upon analyzing the evidence available on record the learned trial court had

held that the prosecution side had succeeded in establishing the charge brought

against the accused/appellant under Section 302 of the IPC beyond reasonable

doubt. Consequently, the appellant was convicted under Section 302 of the IPC and

sentenced as aforesaid. Since then the appellant is in jail.

7. We have heard Ms. Meghali Barman, learned Amicus Curiae appearing for

the appellant. Also heard Ms. Barnali Bhuyan, learned senior counsel (Addl. P.P.,

Assam) assisted by Ms. M. Chakraborty, learned counsel appearing for the

State/respondent No.1. None has appeared for the informant/respondent No.2.

8. Ms. Barman has argued that this is not a case of conviction under Section 302

of the IPC inasmuch as, there are materials to show that the occurrence was

preceded by an altercation between the appellant and the victim. Moreover, Page No.# 4/13

submits Ms. Barman, the accused has not only explained his stand but has also

adduced defence evidence to establish that he had acted in exercise of right of self-

defence but the said aspect of the matter had not been correctly considered by the

learned trial court. The learned Amicus Curiae has further argued that even the

element of sudden provocation meted out to the appellant by the victim and his

family members was ignored by the learned court below while convicting the

appellant under Section 302 of the IPC. On such counts, the learned Amicus Curiae

submits that this is at best a case for conviction of the appellant under Section 304

Part-II of the IPC but not under Section 302 IPC.

9. Responding to the above, Ms. Bhuyan has argued that although there is no

element of doubt in this case that it was none other than the appellant who had

assaulted the victim with a 'lathi' causing grievous injury not only in other parts of the

body but also on the head of the victim which had led to his death, yet, it cannot be

denied that there is evidence to show that there was an altercation preceding the

incident. Under such circumstances, the plea of grave and sudden provocation to

the appellant deserves to be considered in the light of the facts and circumstances

of the case. The learned Addl. P.P., however, submits that no case of exercise of right

of self-defence has been made out by the accused/appellant.

10. We have considered the submissions made at the Bar and have also gone

through the materials on record.

11. From an analysis of the evidence available on record it is firmly established

that the victim had died a homicidal death due to the multiple bodily injuries Page No.# 5/13

sustained by him. The post-mortem examination on the dead body was conducted

by Dr. Subhajyoti Deka, who was posted as Associate Professor, Department of

Forensic Medicine, Assam Medical College & Hospital, Dibrugarh on 21.09.2017 when

the body of the victim was brought for post-mortem examination. Dr. Deka was

examined as PW-9. He has proved the post-mortem report (Ext-6). According to the

post-mortem report, the following injuries were found in the body of the victim :-

"Injury :

1. Lacerated wound of 2 cm x 1cm over right knee, reddish.

2. Abraded contusion of 6cm x 2cm over left eyebrow and maxilla, redish.

3. Abraded contusion of 10cm x 1cm over right chest, below nipple, vertically placed.

4. Abraded of 6cm x 5cm over left shoulder. Cranium & spinal cannel :

Scalp - Rigor temporal contusion & skull - Rigor temporal fissure fracture 10 cm length.

Vertebrae - healthy."

PW-9 has opined that the death was due to coma as a result of head injury sustained

and that all the injuries were ante-mortem and caused by blunt force impact. In his

cross-examination, PW-9 has further stated that this sort of injury sustained by the

victim might be caused during scuffle by exchange of blunt force.

12. Sri Bopul Karmakar @ Bopoi Karmakar, who is the informant in this case and

also the elder brother of the victim, was examined as PW-1. He has deposed that the

incident occurred on 20.09.2017 at about 7:00 p.m. while he was in his residence. On

hearing the hue and cry coming from the house of the accused situated on the back

side of his house, he went there and saw his mother Anjana Karmakar and wife of Page No.# 6/13

Anubhab on the road and they were found to be holding Anubhab Karmakar. His

brother Jitul was also holding Anubhab. Jitul told him that accused Kisan Koiri had

assaulted Anubhab with a 'lathi' and fled away. He saw injuries on the head of

Anubhab. Initially, Anubhab was taken to the Bagan (Garden) hospital and from

there to Demow whereafter, he was brought to the Assam Medical College &

Hospital (AMCH), Dibrugarh. Anubhab died at around 3:30 a.m. Post-mortem was

conducted at Dibrugarh. He had lodged the ejahar by putting his thumb impression.

13. PW-2, Smti. Dhanmani Karmakar alias Anjana is the mother of the deceased.

She has also deposed that the incident took place on 20.09.2017 at about 7:00 a.m.

when she was in her residence. At that time, her daughter-in-law Junumati had

informed her that accused Kishan had assaulted Anubhab and kept him lying in the

house of the accused. On coming to know about the same, she, along with others,

went to the house of the accused and saw that Anubhab was lying in the courtyard

with injuries on his head. She immediately took Anubhab to the Bagan hospital along

with her other sons Jitul and Bopul. The victim died at around 3:00 a.m. at the AMCH,

Dibrugarh.

14. As noted above, PW-3, Smt. Jubati Karmakar is the sister-in-law of the victim

and she was projected by the prosecution as the eye-witness to the occurrence.

While confirming that the incident occurred on 20.09.2017 at around 6/7 p.m., PW-3

has further deposed that at that time she had heard accused Kishan involved in a

quarrel with his parents. She had also heard that the accused was rebuking her and

her parents. On hearing the same, her brother-in-law Anubhab (deceased) went to Page No.# 7/13

the courtyard of the accused and asked him not to rebuke her (PW-3). On hearing

this, she also came out of the house and went there and saw that accused/appellant

Kishan was engaged in an altercation with Anubhab. At that time, Anubhab

requested her not to enter the house of the accused but by this time her husband

Jitul Karmakar had also arrived there and asked the accused not to scold her. While

Anubhab was leaving the house of the accused, Kishan had assaulted him on the

head with a bamboo piece. Anubhab fell down on the ground. She raised a hue and

cry. After assaulting Kishan, the accused fled away. Her husband Jitul had chased

Kishan. By that time, the wife and sister of accused had also fled their house. On their

hue and cry, other persons gathered there and Anubhab was taken to the Bagan

hospital by Bopul and her mother-in-law. Anubhab died at about 3:00 a.m. at the

AMCH.

15. During her cross-examination, PW-3 had remained firm and denied the

suggestion that the family members of the accused had left the house because she

along with others had trespassed into the house of the accused. She has also denied

the suggestion made by the defence side that she could not witness the incident

properly due to darkness.

16. PW-4, Sri Jitul Karmakar is the husband of PW-3. In his testimony this witness has

deposed that accused Kishan had rebuked his wife and at that time, Anubhab went

to the house of the accused and requested him not to rebuke his wife. He has further

stated that he came to know from his wife (PW-3) that the accused had hit his

brother (victim) on the head with a bamboo piece. He along with his brother Bopul Page No.# 8/13

took Anubhab to the hospital. Anubhab died at the AMCH next day, early in the

morning.

17. Sri Lal Bhuyan, who was known to both the accused and the victim was

examined as PW-5. He has also confirmed that the incident took place on 20.09.2017

at around 7:00 p.m. At that time, he was in his residence. VDP members informed

him over phone that the accused had assaulted Anubhab and the victim had been

taken to the hospital. He then went to the Bagan hospital and saw injuries in the

forehead of Anubhab. As directed by the Garden Manager, he then accompanied

the injured and his family members to Demow hospital and on the way, they had

entered Nitaipukhuri Outpost and informed the Police about the matter. He came to

know that Anubhab died at the AMCH, Dibrugarh.

18. PW-6, Constable Muhiram Deori had accompanied SI Guneswar Kumar to the

Line of Gohainpukhuri T.E. in connection with investigation of the murder case. He has

deposed before the court that during investigation the I.O. had recovered and

seized one bamboo 'lathi' from the house of the accused vide Ext-1.

19. Sri Bijay Lohar is the uncle of the deceased. He was examined as PW-7. This

witness had not seen the occurrence but he has stated that on being asked, the wife

of Anubhab told him that accused Kishan had assaulted her husband.

20. SI Guneswar Kumar was the I.O., who had carried out the investigation in

connection with Demow P.S. Case No.205/2017. The I.O. was examined as PW-8. He

has deposed as regards the usual steps taken in connection with the investigation in

this case and submission of charge-sheet against the accused person. Since the Page No.# 9/13

deposition of the I.O. is based on materials available on record which are not under

challenge by the defence side, we do not deem it necessary to go into the

excruciating details of the evidence of PW-8. However, during his cross-examination

the defence side had made an attempt to bring out the

contradictions/improvements in the testimonies of the prosecution witnesses by

putting him the relevant questions.

21. We have noticed that during his examination under Section 313 Cr.P.C., the

accused has stated that in order to save himself, he had waived a bamboo lathi but

could not say as to whom it hit. According to the accused, he did so in order to save

himself from Jitul and his brother he fled away so as to take shelter in the house of his

father-in-law. In response to question No.14, the accused has stated that the three

brothers of the victim came to his house together and responding to question No.15,

he has further stated that the three brothers had come together to quarrel with him.

22. In his deposition as DW-1, the accused/appellant has stated more or less in the

same lines as indicated in his statement recorded under Section 313 Cr.P.C. In his

deposition, DW-1 has stated that on the day of the incident, at about 5:00 p.m. while

he had returned home and was in his house, his mother Monoi Koiri had also returned

home in a drunken state and started rebuking him. At that, he had requested her not

to consume liquor and had also requested her not to go to the house of Anubhab for

consuming liquor. He had stated that Jitul and his family members used to take rice

from his mother and in exchange, they used to provide her with liquor. On the day of

the occurrence, at about 8:00 p.m. there was an altercation between him, his Page No.# 10/13

mother, Bapoi, Anubhab Karmakar, Jitul Karmakar and Jubati, wife of Jitul Karmakar,

who had entered his house by pushing the door. To save his life, he had used lathi but

could not say as to whom it had hit. Thereafter, he fled the scene to save his life and

took shelter in the house of his father-in-law. Subsequently, he came to know that

Anubhab had expired. After a week, he had surrendered at the Demow Police

Station wherefrom he was sent to Nitaipukhuri Outpost.

23. From the evidence of PW-3, it appears that she had seen the occurrence.

There is no inherent contradiction in her version and this witness could not be shaken

during her cross-examination. Therefore, we do not find any ground to disbelieve her.

24. From an objective analysis of the evidence available on record, more

particularly the testimony of PW-3, it is well established that the incident took place on

20.09.2017 at around 7/7:30 p.m. in the evening in the house of the

accused/appellant Kishan Koiri. It appears that at that time the accused was

rebuking his mother for consuming alcohol in the house of the deceased. In the

process he had also taken the name of some of the family members of the

deceased. Since the house of the deceased was in the vicinity and he could hear

the accused rebuke his family members, the victim went to the house of the

accused. He was soon accompanied by other members of the family. It was at that

stage that the accused/appellant had hit the deceased with a lathi and ran away.

On a cumulative analysis of the evidence available on record as well as the

statement of the accused, we are of the opinion that the fact that it was none other

than the accused/appellant who had assaulted the victim on his head with a lathi Page No.# 11/13

causing grievous injury to him leading to his death in the hospital in the wee hours of

the next day. Having held as above, the next question that would fall for

consideration in this case is as to whether, there was any intent on the part of the

accused to cause death of the victim and if not, would this come within the purview

of Exception 4 of Section 300 of the IPC.

25. We have already noted herein above that it has come out from the evidence

of both the prosecution side and the defence side that the occurrence was

preceded by an altercation. The accused was annoyed by the conduct of his

mother for consuming liquor by going to the house of the deceased. He also

suspected that the family members of the deceased were trying to grab the land of

the appellant's mother by offering her alcohol in lieu of rice which they get from the

mother of the appellant. The accused had also started rebuking the family members

of the victim. Enraged thereby, the three brothers of the deceased had gone to the

house of the accused apparently to restrain him from using such foul language

against the family members of the victim and on that issue, an altercation took place.

26. From the evidence available on record, it is also clear that the accused was

not the aggressor in this case and the incident took place in the house of the

accused when the victim and his brothers had gone there. The weapon used in the

incident is also a bamboo 'lathi' which is commonly available in every rural

household of the State. There is nothing on record to indicate premeditation on the

part of the accused to cause death to the victim. It has come out from the materials

on record that the altercation took place between the accused and the victim in the Page No.# 12/13

house of the accused appellant and in the presence of his brothers. Therefore, it is

highly probable that during the course of altercation, strong words were exchanged.

As such, grave and sudden provocation to the accused in course of the altercation

prompting him to assault the victim in a heat of passion cannot be ruled out in this

case.

27. After the incident, the accused did not act in a cruel manner nor did he take

undue advantage of the situation. He had later surrendered before the Police.

Viewed from that perspective, we are of the un-hesitant opinion that this case would

come within the sweep of Exception 4 of Section 300 of the IPC. The accused might

have had the knowledge that the assault made on the head of the victim with a

'lathi' could cause death to him, but it cannot be said that there was intention on his

part to cause death to the victim. The said position is also amply highlighted from the

stand of the accused reflected in his statement recorded under Section 313 Cr.P.C.

as well as during his deposition before the Court.

28. For the reasons stated herein above, we set aside the conviction and

sentence awarded to the appellant under Section 302 of the IPC and convict him

under Section 304 Part-II of the IPC. Consequently, the accused is sentenced to

undergo rigorous imprisonment for a period of 10 (ten) years. The period of jail

sentence already undergone by the accused during investigation and trial, if any, as

well as during the pendency of this appeal, shall stand appropriately set off against

the sentence awarded by this Court and the appellant shall serve the remainder of

jail sentence, in accordance with law.

Page No.# 13/13

With the above observation, this appeal stands allowed in part.

Registry to send back the LCR.

Before parting with the record, we put on record our appreciation for the

valuable services rendered by Ms. Meghali Barman, learned Amicus Curiae and

recommend that the Registry may make payment of appropriate remuneration to

the learned Amicus Curiae as per the existing norms.

                               JUDGE                              JUDGE

T U Choudhury/Sr.PS




Comparing Assistant