Binod Karmakar vs State Of Assam

Mir Alfaz Ali, J

1.  The appellant Binod Karmakar was convicted u/s 302 IPC by the learned Sessions Judge, Udalguri in Sessions Case No. 83 (D-U)/2012 and

sentenced to imprisonment for life and fine of Rs. 5,000/- with default stipulation.

As per prosecution case, on 02-04-2010, the accused/appellant Binod Karmakar pickedup quarrel with his wife Jonali Karmakar, on domestic

matters and severely assaulted her. On the next morning, i.e., on 03-04-2010, the victim Junali Karmakar was found lying dead on the bed with injuries

on her body. An FIR was lodged by the brother of the victim, on the basis of which, police registered a case. During investigation police recorded

statement of the witnesses, got the inquest report prepared, sent the body for post mortem examination, seized some incriminating articles and on

completion of investigation, laid charge-sheet against the appellant u/s 302 IPC.

During trial the accused denied the charge. Prosecution examined 15 witnesses toprove the charge against the accused and on appreciation of

evidence learned Sessions Judge convicted the accused u/s 302 IPC and awarded sentence as indicated above.

We have heard Mr. M. Haloi, learned Amicus Curiae, Mr. P.P. Baruah, learned PublicProsecutor for the State and also considered the evidence

and materials brought on record.

PW 12, Dr. Durgeswar Sarma, who conducted post mortem examination, found thefollowing injuries on the body of the victim :-

    “INJURIES :

(1) There was fracture of the skull bone in frontal region.

(2) Tear in the scalp in frontal region and haematoma below the scalp.

(3) Bleeding inside the brain matter.

(4) Bruise in the right thigh and the left hand.

(5) Multiple small lacerated injuries both the buttocks.â€​

In the opinion of the doctor, the cause of death was hemorrhage and shock as a result of injuries sustained. In fact, the homicidal death of the

deceased was not disputed.

Evidently there was no eye witness to the occurrence and the learned trial courtbasically relying on the circumstantial evidence emanating from the

oral testimony of the prosecution witnesses, recorded conviction of the accused/appellant. PW 2, PW 3, PW 5, PW 7 & PW 8 deposed that on

coming to learn about the occurrence, they came on the next day and found the victim lying dead on the bed with severe injuries. According to PW 2,

PW 3, PW 5, PW 6 & PW 7, the PW 8, minor daughter of the deceased told them that on the previous night, the accused assaulted her mother with

stick and since then her mother was lying on the bed. However, PW 8 clearly stated that on the night of occurrence she was not present in their house

and she was in the house of her grandmother. On the next morning, hearing hue and cry of her aunt, she came home and saw her mother lying dead

on the bed. Admittedly all these witnesses did not have personal knowledge and they stated to have learnt about the occurrence from PW 8. Whereas,

PW 8 deposed that she herself was not present in the house and she also did not tell anybody about the occurrence, and as such, oral testimony of PW

2, PW 3, PW 5, PW 6 & PW 7 is of no help to the prosecution, reason being that evidence of PW 8 rendered the oral testimony of PW 2, PW 3, PW

5, PW 7 and PW 8 a hearsay evidence. Therefore, we are left with only the oral testimony of PW 1, PW 4 and PW 6.

PW 1 stated that he did not see the occurrence. According to him, when he asked theaccused about the occurrence, the accused told that he had

committed a big mistake and thereafter, the accused went missing. He also stated that a firewood was seized by the police from the place of

occurrence vide Ext. 1.

PW 4 deposed, that on the evening, the accused had a quarrel with his wife (victim) and the victim came running to her house on being chased by

her husband(accused) and said that her husband being drunk attempted to assault her. PW 4 advised her to go home as her children were alone. PW

4 further stated that later on, she came to the house of the mother of the accused, which was in the same campus, where she found the deceased

taking country liquor. According to PW 4, victim was heavily drunk and at night the accused took her home and on the next morning she found the

victim lying dead on the bed. The testimony of this witness (PW 4), that on the previous night she saw the accused taking the victim home in an

inebriated condition remained unimpeached and such evidence of PW 4 established that the deceased was last seen alive with the accused late at

night and there was no evidence of access of any other person into the house of the victim. Therefore, the deceased having been last seen alive with

the accused in his house and the dead body of the victim having been found lying on the bed with injuries on the next morning and police also having

seized the firewood, being the weapon of offence, invariably raises a finger of accusation towards the accused in absence of any explanation in this

regard. We are not oblivious of the legal proposition that the accused has the right to keep silence because of the presumption of innocence in his

favour. But when there are circumstances which tend to attribute culpability to the accused and the accused remains silent by exercising his right of

silence, the Court cannot be held to have erred for presuming culpability of the accused on the basis of unexplained circumstances.

PW 6 in her evidence stated that both the accused and the victim consumed liquor in the house of the mother of the accused, which was in the

same campus and returned home in an inebriated condition. She also stated, that while coming back home, both of them quarreled. She further stated

that on the next morning, she came to know that the victim had died. Therefore, the evidence of PW 6 corroborated the evidence of PW 4 with regard

to the circumstances of the victim having been last seen alive with the deceased.

Learned amicus curiae relying on a decision of the Apex Court in Kanhaiya Lal-VSState of Rajasthan reported in (2014) 4 SCC 715 submits, that

the circumstance of last seen alone is not sufficient to lead to the inference of guilt of the accused in absence of any other evidence. The Apex Court

observed that â€" “the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who

committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part

of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.“

Added to the last seen circumstance, there was the oral testimony of PW 6, who deposed, that while going home at night in a drunken condition

both the husband and wife were quarrelling. PW 1 deposed that when he asked the accused about the occurrence, the accused told that he had

committed a big mistake, which was virtually an extra judicial confession on the part of the accused. Therefore, the circumstance of last seen together

coupled with the oral testimony of PW 4 that the accused and deceased were quarrelling while going back home at night in drunken condition, the

extra judicial confession of the accused, before PW 1, victim being found dead inside the room on the bed, recovery of the firewood, the weapon of

offence from the place of occurrence and disappearance of the accused after the occurrence, completed the chain of circumstances to lead to the

irresistible conclusion, that the perpetrator of the offence was none other than the accused/appellant. Therefore, we are of the considered view that

death of the deceased was caused by the accused and to that extent we are in agreement with the learned Sessions Judge.Â

The medical evidence demonstrated, that the injuries were caused by blunt object and basically there was only one fatal injury, which caused the

death. Evidently there was quarrel between the husband and wife. There was also evidence that both the accused and victim were drunk. Thus,

having regard to the fact, that the deceased was assaulted with a blunt object (firewood) in course of quarrel, that too in a drunken condition, no

intention to cause death could be attributed to the accused. Having regard to the weapon used, it is also difficult to attribute the knowledge or intention

to cause such injury, as is likely to cause death. Therefore, when evidently there was no intention to cause death or to cause such bodily injury, as is

likely to cause death, the accused could not have been convicted under Section 302 IPC. At best, conviction ought to have been recorded u/s 304

Part-II IPC for culpable homicide not amounting to murder. Thus, having regard to the facts and circumstances, we are of the firm view that the

offence committed by the accused/appellant would be covered under Section 304 Part-II IPC and not under Section 302 IPC. Therefore, while

maintaining the culpability of the accused, his conviction is converted to Section 304 Part-II IPC instead of Section 302 IPC.  Â

It appears from the record, that accused already has been in jail for more than 4years. Having considered the facts and circumstances, under

which, the offence was committed, we are of the considered opinion, that sentence of imprisonment for the period already undergone will meet the

ends of justice. Therefore, sentence of imprisonment is reduced to the period undergone in jail. Accordingly, the appeal is partly allowed. If the

appellant is not required in any other case, he shall be released forthwith.Â

Appreciating the assistance rendered by Mr. M. Haloi, learned Amicus Curiae, wehereby provide that he will be entitled to Rs. 7,000/- as fees,

which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

Send a copy of this judgment to the District Jail, Udalguri for release of the accused-appellant immediately. Release order be issued accordingly.

Send back the LCR.