Gauhati High Court
Lal Mohan Das vs The State Of Assam on 4 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/13
GAHC010282112019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/109/2019
LAL MOHAN DAS
S/O. JITEN DAS, R/O. NO.2 MURKONG SELEK, P.S. JONAI, DIST. DHEMAJI.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR ANJAN KALITA, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
Advocate for the Appellant : Shri A. Kalita, Amicus Curiae
Advocate for the respondent : Ms. S. Jahan, APP, Assam
Date of hearing : 06.01.2025
Date of Judgment : 04.02.2025
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Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred from jail against a judgment dated
21.06.2019 passed by the learned Sessions Judge, Dhemaji in Sessions Case
No. 115(JN)/2015 convicting the appellant under Sections 302 / 447 / 324 / 326
of the Indian Penal Code and sentencing him to undergo Rigorous
Imprisonment (RI) for life and to pay a fine of Rs.2000/- i/d RI for another 2
months under Section 302 IPC; RI for four years and fine of Rs.1000/- i/d for
one month under Section 326 IPC; RI for two years and fine of Rs.1000/- i/d for
another one month under Section 324 IPC and RI for one month under Section
447 IPC with default clauses.
2. The criminal law was set into motion by lodging of an Ejahar on
19.04.2013 by one Nagen Karmakar (PW-1) wherein it was stated that on the
earlier evening at 8.30 PM, the two accused persons namely, Lal Mohan Das
(appellant) and Sanjib Gupta had illegally entered into the residential compound
and threw a bottle containing petrol like inflammatory substance through the
open window of the kitchen which came into contact with a burning lamp
causing a huge fire in which the inmates had suffered grievous burn injury. In
the said injury, his granddaughter Archana Karmakar and wife Renu Karmakar
had died and the others were taken for treatment. Based on the aforesaid
Ejahar, the formal FIR was registered. After completion of the investigation,
Charge Sheet was laid. As the offence involved were Sessions triable, the matter
was committed to the learned Court of Sessions Judge, Dhemaji. Charges were
framed and on its denial by the accused persons, the trial had begun.
3. The prosecution had adduced evidence through 8 nos. of prosecution
witness (PWs).
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4. The Informant had adduced evidence as PW-1 who proved the Ejahar. As
per his version, on the fateful evening after having dinner when it was drizzling
outside, he was sitting on the verandah of the house when the other members
of the family were having dinner in the kitchen. At that time, the two accused
persons including the present appellant had came and threw a bottle of petrol
inside the kitchen through the window. It has been stated that the present
appellant had threw the bottle and accused Sanjib Gupta was with him
whereafter the fire had started causing grievous injuries and death to his wife
and granddaughter. He had stated that he could distinctly see from the
verandah both the accused running away. In the cross-examination, he had
clarified that he had his dinner before the rest of the family and was sitting at
the verandah at the time of occurrence.
5. PW-2 is the Doctor, who had treated the members of the family who had
suffered from burn injuries. He had separately examined the victims namely,
Sweety Karmakar, Raj Kumar Karmakar, Umananda Karmakar and Parul
Karmakar. There is however no mention of any other victims that he had treated
or brought before him.
6. PW-3 is Dipak Karmakar, who is the son of the informant and deposed that
at the relevant time, he was not at home and had heard a blast coming from
their home and accordingly rushed home and found his mother and his
daughter Archana in a burnt condition. He also deposed that while coming
home he saw the two accused persons running away. He has also deposed that
in the year 2013 his father had filed a case against the accused persons as they
had assaulted his father in which he was hurt in the head. He has also deposed
that subsequently during the trial, his wife had also died.
7. PW-4 is the Gaonburah of the concerned village, who however had
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deposed that at the relevant time, accused Sanjib Gupta and his wife were at
his house in connection with PAN card. At that time, they could hear that the
house of the informant was on fire and he had accordingly informed the
concerned Police Station.
8. PW-5 is the Doctor, who had conducted the post mortem of both the
deceased wife and granddaughter of the informant. As per his opinion, the
cause of death was due to shock and fluid loss from the burnt surface which
was ante mortem in nature. The Post Mortem report was proved as Exhibit 7.
9. PW-6 is one Sushanta Borah, Sub-Inspector of Police, who had made the
initial investigation and PW-7 is Gokul Ch. Borah, Sub-Inspector, who had made
the subsequent investigation. PW-7 has however stated that from the Case
Diary, he could find that deceased Renu Karmakar had made a dying
declaration. He had also submitted that at the time of laying of the Charge
Sheet, the present appellant was absconding. The Charge Sheet was proved as
Exhibit 9.
10. PW-8 is also a Police Officer, Rituparna Baniya. He had deposed that he
had submitted requisition before the hospital authority for recording dying
declaration of the wife of the informant, Renu Karmakar and the dying
declaration was recorded by Dr. Jyoti Kutum (PW-2). The said dying declaration
was proved as Exhibit 11.
11. After completion of the evidence perused by the prosecution and on an
application made, the Court had examined five more witnesses as Court Witness
(CW).
12. CW-1 and CW-2 are co-villagers and VDP Nayak. However their deposition
is not of much relevance.
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13. CW-3 is Raj Kumar Karmakar, who is the son of the informant (PW-1). He
had deposed that when on the fateful evening the members of the family
including himself were taking meal in the kitchen, they saw a bottle being
thrown into the kitchen which blasted causing a huge fire. He also deposed that
on coming out he saw the appellant going away from near the window of the
kitchen and also saw accused Sanjib Gupta running away. He had also deposed
that three days prior to the incident, accused Lal Mohan Das (present appellant)
had assaulted his father. He had also deposed that though Sweety Karmakar,
who had suffered burn injuries was taken back from the Hospital, she died after
six months. He has also deposed that he himself took treatment in the Jonai
Medical and thereafter, at the Dhemaji Civil Hospital.
14. CW-4 is Umananda Karmakar son of the informant (PW-1). The said CW-4
had however deposed that while the members of the family were having meal in
the kitchen on the fateful evening and it was drizzling outside, they saw a bottle
containing petrol being thrown to the kitchen by accused Lal Mohan Das
(present appellant) whereafter the fire had started. He also claims to have seen
the two accused person from the window.
15. CW-5 is Parul Karmakar, who is the daughter of the informant. She also
claims to have seen the appellant throwing a bottle containing petrol into the
kitchen which had caused the fire. She also claims to have seen both the
accused from the window.
16. After the examination of the prosecution witnesses as well as the court
witnesses, the two accused including the appellant were examined under
Section 313 of the CrPC wherein they had denied the allegations.
17. After considering the materials on record and the evidence, the learned
Trial Court has passed the impugned judgment convicting and sentencing the
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appellant in the manner indicated above. It may however be mentioned that by
the said judgment, the other accused person, namely, Sanjib Gupta was
acquitted. It is the legality and validity of the aforesaid judgment which is
questioned by way of this appeal preferred from jail.
18. We have heard Shri A. Kalita, learned Amicus Curiae appearing for the
appellant. We have also heard Ms. S. Jahan, learned Additional Public
Prosecutor appearing for the State respondent.
19. Shri Kalita, the learned Amicus Curiae has submitted that the impugned
judgment is not sustainable in law as there are no materials on record which
could have enabled the learned Trial Court to come to a finding of guilt. He has
submitted that the learned Trial Court, on the same set of evidence has
acquitted one accused namely, Sanjib Gupta and on the other hand, has
convicted the present appellant. He has submitted that though there is a so-
called dying declaration in the form of Exhibit 11 which was allegedly recorded
before Dr. Jyoti Kutum, the said Doctor who had deposed as PW-2 did not even
make any such mention. It is submitted that the dying declaration is a written
dying declaration containing the thumb impression of the deceased Renu
Karmakar which also reveals that there were two witnesses. However, even
those two witnesses were not examined and therefore, the same cannot be
treated as a relevant piece of evidence.
20. The learned Amicus Curiae has submitted that the FIR itself is
contradictory to the stand of the informant as PW-1. By referring to the sketch
map which has been exhibited as Exhibit 10, he has submitted that admittedly
the informant had his meal at a prior point of time and at the relevant point,
was sitting on the verandah which was on the front side of the house whereas
the kitchen is on the back side. He submits that it was impossible on the part of
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the informant to have claimed to see the two accused persons hurling a bottle
with petrol like substance from the window of the kitchen. He has also
submitted that while the kitchen was on the back side of the house, even if
some mischief is committed by any person by throwing a bottle with petrol like
substance by the window, he would not come out from the front side of the
house and would rather flee from the back side. It is also submitted that none
of the prosecution witness had stated anything which would constitute as
relevant evidence to come to a finding of guilt.
21. As regards the court witnesses, he has submitted that CW-1 and CW-2 are
VDP Nayak and their testimonies would not throw any light in the matter. As
regards the deposition of CW-3, he was admittedly not present at the time of
occurrence at the home and has simply deposed of witnessing the two accused
running away from the place of occurrence which would not be sufficient to
convict them. As regards the depositions of CW-4 and CW-5, who claim to have
seen the appellant throwing the bottle with petrol like substance into the
kitchen, the learned Amicus has submitted that admittedly the time was about
7.30 P.M. when the members of the family were having meal and it was also
drizzling outside. Under those circumstances, it would not at all be safe to rely
upon the depositions of CW-4 and CW-5 that they had seen the appellant
hurling the bottle. He has also highlighted the aspect that if the aforesaid two
witnesses were having the knowledge or had seen the occurrence involving the
appellant, their statement should have been recorded by the Police and should
have been cited as prosecution witness which was not done. The learned
Amicus submits that the probability of such evidence being tutored cannot be
ruled out and therefore it would not be safe at all to base a conviction only on
such evidence. The learned Amicus accordingly submits that the present is, at
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best, a case based on suspicion which cannot be the basis of conviction and
accordingly he submits that the impugned judgment is liable to be interfered
with and the appellant be acquitted.
22. Per contra, Ms. Jahan, the learned Additional Public Prosecutor, Assam has
submitted that the materials on record would be sufficient to maintain the
conviction. She submits that apart from the CWs 4 and 5, who claim to have
seen the involvement of the appellant in hurling the bottle, the PW-1 had also
seen the accused persons hurling the bottle into the kitchen. It is also submitted
that the motive behind the aforesaid act is also proved inasmuch as, the
informant had lodged a case against the accused as he was assaulted by the
accused on the head few days prior to the incident. She has submitted that the
depositions of PW-1, CW-4 and CW-5 are also corroborated by the deposition of
CW-3 who had stated that he saw both the accused fleeing away from the place
of occurrence.
23. As regards the dying declaration which has been exhibited as Exhibit 11,
the learned APP has fairly submitted that though the said dying declaration is in
a written format, the reading of the same would not lead to a definite
conclusion as the declarant had stated that she could not recall the names of
the assailants. She has also fairly admitted that though the dying declaration
was proved as Exhibit 11 by PW-8, there is no such reference in the deposition
of the Doctor (PW-2) before whom the declaration was allegedly made. She
however submitted that irrespective of the relevancy of the dying declaration,
the deposition of the witnesses would be sufficient to come to a finding of guilt.
24. As regards the acquittal of the co-accused, the learned APP submitted that
the circumstances / evidence against both the accused are not exactly similar
and therefore the benefit of doubt has been given to accused Sanjib Gupta and
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that by itself may not be a ground to acquit the present appellant.
25. The rival submissions have been duly considered and the materials
including the LCR placed before this Court have been carefully examined.
26. As mentioned above, the ejahar was lodged on the very next date i.e
19.04.2013 by PW-1. It was stated that the two accused persons had threw a
bottle containing petrol like inflammatory substance through the open window
of their kitchen which caused the incident leading to the death of his wife and
granddaughter. In the FIR, he had specifically named both the accused persons.
In his examination as PW-1, he said that he could see the involvement of the
accused persons with the commission of the offence. His specific statement is
that the present appellant had thrown the bottle inside the kitchen through the
window and the other accused Sanjib was with him. At the same time, in his
cross-examination, he has stated that he had his dinner before the rest of the
family and at the relevant time was sitting at the verandah. As pointed out by
the learned Amicus Curie, the sketch map gives a rough idea of the house which
has a verandah on the front side and the kitchen is on the back side. If that be
so, which is the projected case of the prosecution, it is not possible for anyone
sitting on the verandah to witness hurling of any substance through the window
of the kitchen which is on the back side. The said PW-1 had also submitted that
he could see the two accused persons running away by the front side. We have
however noticed that the kitchen was on the back side and the normal human
conduct after commission of such an offence would be to flee from the back
side and there would be no occasion to use the front side where there is a main
road. The deposition of PW-1 so far as it claims of witnessing hurling of the
bottle by the appellant does not seem to be trustworthy or acceptable.
27. As regards the deposition of PW-2, the Doctor before whom the written
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dying declaration was made, the said deposition however does not even make a
passing reference of any such dying declaration. This Court has read the entire
evidence and there is not even a mention that deceased Renu Karmakar was
under his/her treatment when such dying declaration could have been made.
Considering that the dying declaration which has been proved as Exhibit 11 by
the Police Officer (PW-8) is in a written format, it would be highly improbable
that the person who had recorded the dying declaration would not even make a
reference of the same when the said person had deposed as PW-2. Be that as it
may, even a bare look at the dying declaration would show that the same
cannot be said to have any implication. It cannot be said to implicate the
accused persons as the declarant had said that she did not recall the names.
The aforesaid statement is of immense importance as both the accused persons
were well known to the family and in fact, the evidence would reveal that the
appellant was staying in the house of the informant for a long period of time.
28. The witness PW-3, who is the son of the informant, had stated about a
previous incident whereby motive has been tried to be proved. PW-4 is the
Gaonburah whose evidence would however go against the prosecution. He has
stated that accused Sanjib Gupta with his wife was at his house regarding Pan
Card at the relevant point of time when the incident had occurred. PW-5 is the
Doctor who had conducted the post mortem and the opinion given by him has
already been mentioned above.
29. In this case, the investigation was done involving three Police Officers and
all of them had deposed as PW-6, PW-7 and PW-8. PW-6 had made the initial
investigation and the same was followed by PW-7 who had deposed that from
the Case Diary he could know that a dying declaration was made. The evidence
of PW-8 would also be relevant inasmuch as, he had stated that on 18.04.2013
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he had got a telephonic call from Dipak Karmakar (PW-3) that two unknown
persons had committed the offence.
30. As mentioned above, after completion of the prosecution witness, 5 nos.
of court witnesses were also examined out of which CW-1 and CW-2 are VDP
Nayak whose deposition would not be of much relevance. CW-3 who is the son
of PW-1 informant had stated that he saw both the accused persons fleeing
away from the place of occurrence. Both CW-4 and CW-5 had however deposed
of witnessing hurling of the bottle with inflammatory substance through the
window of the kitchen. To assess and examine their forced deposition it would
be relevant to note that at the time of deposition CW-4 was 14 years and CW-5
was 13 years of age. Their depositions were recorded on 26.04.2019 which is
more than 6 years after the date of occurrence which is 18.04.2013. At no point
of the investigation, it is seen that their statements were recorded or that they
were cited as PWs and it is for this purpose that the learned Trial Court had to
call for court witnesses.
31. Considering the tender age of the aforesaid two witnesses at the time of
deposition and also their respective ages at the time of occurrence which was 6
years prior, the aspect of being tutored cannot be fully ruled out and we find
sufficient force in the contention of the learned Amicus Curiae made in this
regard.
32. As discussed above, the sketch map which was proved as Exhibit 10
would also throw some light on the adjudication of this case. Admittedly, the
verandah where the PW-1 was sitting after his meal is on the front side whereas
the kitchen with the window was on the back side and it is practically impossible
for someone sitting on the verandah to see somebody throwing anything
through the window of the kitchen. Though the PW-1 had stated that he saw
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the accused running away from the front side, such statement would be difficult
to be accepted as it goes against the normal human conduct. This Court has
also noticed that so far as the evidence is concerned, the same is exactly
identical for both the accused persons and on the basis of the said evidence
accused Sanjib Gupta has been acquitted. We have also been informed that
against such acquittal, there is no appeal and the same has attained finality.
Though in a criminal trial, it is very much possible to acquit one person and
convict the other but that has to be based on the distinct evidence against each
of the persons. In the instant case, the allegations / depositions made by PW-1,
CW-4 and CW-5 are absolutely similar for both the accused.
33. It is a settled position of law that in a criminal trial, the conviction has to
be based on proof beyond all reasonable doubt and suspicion cannot be the
basis of a conviction. In this connection, it would be beneficial to refer to the
case of Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC 406
wherein the following has been laid down:
"13. Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that `may be' proved,
and something that `will be proved'. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of
proof. This is for the reason that the mental distance between `may be'
and `must be' is quite large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof. The large
distance between `may be' true and `must be' true, must be covered by
way of clear, cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict, and the basic
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and golden rule must be applied. In such cases, while keeping in mind the
distance between `may be' true and `must be' true, the court must
maintain the vital distance between mere conjectures and sure
conclusions to be arrived at, on the touchstone of dispassionate judicial
scrutiny, based upon a complete and comprehensive appreciation of all
features of the case, as well as the quality and credibility of the evidence
brought on record. The court must ensure, that miscarriage of justice is
avoided, and if the facts and circumstances of a case so demand, then the
benefit of doubt must be given to the accused, keeping in mind that a
reasonable doubt is not an imaginary, trivial or a merely probable doubt,
but a fair doubt that is based upon reason and common sense."
34. In view of the aforesaid facts and circumstances, we are of the considered
opinion that the materials in this case would not be sufficient to come to a
conclusion of guilt and that the same has been proved beyond all reasonable
doubt. We are of the opinion that the benefit of doubt is to be given to the
appellant. Accordingly, we set-aside the impugned judgment dated 21.06.2019
passed by the learned Sessions Judge, Dhemaji in Sessions Case No.
115(JN)/2015 convicting the appellant under Sections 302 / 447 / 324 / 326
Indian Penal Code and acquit the appellant. The appellant is accordingly
directed to be released forthwith unless he is wanted in any other case.
35. Send back the LCRs.
36. For the valuable assistance rendered by Shri A. Kalita, the learned Amicus
Curiae, we record our appreciation and he would be entitled to the prescribed
fee.
JUDGE JUDGE
Comparing Assistant
