Conviction for murdering the informant's father by a scissor stab to the neck was challenged in appeal from jail. The court upheld guilt but held absence of intention to cause death or knowledge, converting the offence from Section 302 IPC to culpable homicide punishable under Section 304 Part II IPC with eight years' rigorous imprisonment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010127712022
2024:GAU-AS:9476-DB
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Criminal Appeal [J] No. 64/2022
Siva Karmakar ……………… Appellant - VERSUS - The State of Assam Represented by the Public Prosecutor, Assam, GHC, Guwahati. ………………. Respondent Advocates : Appellant : Mr. A.K. Bhuyan, Amicus Curiae. Respondent : Mr. K.K. Das, Additional Public Prosecutor, Assam. Date of Hearing, Judgment & Order : 12.09.2024
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BEFORE HON’BLE MR. JUSTICE MANISH CHOUDHURY HON’BLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER [ORAL]
[M. Choudhury, J]
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13.04.2020 and thereafter, forwarded the FIR to the Officer In-Charge, Dibrugarh Police Station for registering a case under proper sections of law. While forwarding the FIR, the In-Charge, Borbari Police Out Post, Dilip Kumar Kotoki [P.W.8] took up the investigation of the case himself as the Investigating Officer [I.O.]. On receipt of the FIR, the Officer In-Charge, Dibrugarh Police Station registered the same as Dibrugarh Police Station Case no. 629 of 2020 [corresponding PRC no. 916 of 2020 and G.R. Case no. 1376 of 2020] for the offences under Sections 447/302, IPC.
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[P.W.3], and [ii] Jonali Karmakar [not a witness] during his visit to the P.O. on 12.04.2020. The I.O. [P.W.8] also forwarded Anita Nayak [P.W.3] and Sumitra Mundra [P.W.4] to the Court for recording their statements under Section 164, CrPC. The statements of Anita Nayak [P.W.3] and Sumitra Mundra [P.W.4] were recorded under Section 164, CrPC on 22.04.2020. After collecting the PostMortem Examination [PME] Report and completing the remaining part of the investigation, the I.O.[P.W.8] laid a charge sheet under Section 173[2], CrPC vide Charge-Sheet no. 380/2020 on 22.07.2020 finding a prima facie case well established against the accused who was named in the FIR, for committing offences under Sections 447/302, IPC.
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offence under Section 302, IPC is exclusively triable by the Court of Sessions, the Court of learned Chief Judicial Magistrate, by an Order of Commitment dated 22.10.2020, committed the case records of G.R. Case no. 1376/2020 to the Court of Sessions, Dibrugarh after notifying the learned Public Prosecutor. The Jail Superintendent was also directed to produce the accused before the Court of Sessions, Dibrugarh on 05.11.2020.
On 12.08.2020, at about 05-30 p.m., at Maijan Tea Estate Pakka Line under Dibrugarh Police Station.
Firstly – That you committed criminal trespass by entering into the house premises of Suraj Nayak with intent to commit an offence, and thereby committed an offence punishable under Section 447 of the Indian Penal Code and within the cognizance of the Court of Sessions.
Secondly – That at the same time and place, you committed murder by intentionally causing the death of Bhim Nayak, and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions.
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prosecution examined eight nos. of witnesses and exhibited eight nos. of documents apart from one material exhibit to bring home the charges against the accused. The prosecution witnesses examined and the documents and materials exhibited were as follows :-
| Prosecution Witnesses | |
|---|---|
| P.W. | Name |
| P.W.1 | SurajNayak Informant – Son the deceased |
| P.W.2 | Raju Karmakar Neighbour |
| P.W.3 | Anita Nayak Daughter of the deceased |
| P.W.4 | Sumitra Mundra Neighbour of the deceased |
| P.W.5 | Purtam Karmakar Gaonburah |
| P.W.6 | R. Sharma Judicial Magistrate,1stClass,Dibrugarh |
| P.W.7 | Dr. Debarshee Chakraborty Demonstrator,AMC&H |
| P.W.8 | DilipKumar Kotoki I.O. & In-Charge,Borbari Police Out Post |
| DocumentaryExhibits | |
| Exhibit no. | Description |
| Exhibit - 1 | FIR dated 13.04.2020 |
| Exhibit - 2 | Inquest Report |
| Exhibit - 3 | Seizure List,M.R. no. 84/2020 dated 12.04.2020 |
| Exhibit - 4 | Statement ofAnita Nayakrecorded under Section 164,CrPC |
| Exhibit - 5 | Post-Mortem Examination[PME]Report |
| Exhibit - 6 | DeadbodyChallan |
| Exhibit - 7 | Intimation letter of the AMC&H dated 12.04.2020 about death |
| Exhibit - 8 | Charge-Sheet no. 380/2020 on 22.07.2020 |
| Material Exhibit | |
| Mat. Ext. 1 | One steel scissor of length 6 inches with black handle. |
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prosecution. The plea of the accused was denial and according to him, he was falsely implicated. After hearing the learned counsel for the parties and upon evaluation of the evidence/materials on record, the learned trial court proceeded to deliver the Judgment and Order of conviction and sentence, impugned herein.
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during the trial was found to be one which was not used and as such, the present one is a case of non-recovery of the weapon of assault. He has alternatively submitted that even if after appreciation of evidence/materials on record if a ring of truth is noticed then also the alleged homicidal death of the deceased cannot be brought within the scope and ambit of the offence of murder, defined in Section 300, IPC.
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testimony of all the prosecution witnesses and the documentary evidence, available in the case records of Sessions Case no. 72 of 2020, in original.
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of the assault, the deceased fell down on ground. Then she ran out to call her brother, Suraj Nayak [P.W.1] from the field where he was playing at that time. The deceased was thereafter, taken in a vehicle to the hospital but her father breathed his last on the way. P.W.3 stated that Police personnel came to their house in that night itself and made an enquiry with her. The Police also seized the scissor from the house of the accused by preparing a Seizure List [Ext.-3] wherein she gave her signature as Ext.-3[2]. When a scissor as Mat. Ext.-1 was shown to P.W.3 during her deposition, P.W.3 stated that the scissor was not the one which was seized and the seized scissor was a small one. P.W.3 also exhibited her statement recorded under Section 164, CrPC as Ext.-4 with her signature therein as Ext.-4 [1] and Ext.-4 [2] respectively. During her crossexamination, the defence elicited from P.W.3 that there was no one at the P.O. when the incident took place but Raju Karmakar [P.W.2] came to the P.O. when she shouted. A number of suggestions were given to P.W.3 by the defence and all those suggestions were categorically denied by P.W.3.
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Anita Nayak [P.W.3] was present near her father, that is, the deceased when the incident took place. The Police also inquired about the incident from her. P.W.4 further stated that she was brought to the court to record her statement wherein she put her thumb impression. A number of suggestions were put to the witnesses and all those suggestions were denied by the witness.
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courtyard of the house of the deceased uttering ‘ Moi koisilu nohoi mur logot nelagibi, ji hol atia tohote bujibi ’ [I told you not to confront me, now you all would understand what has happened]. P.W.2 stated that the accused crossed him while going out. At the courtyard of the house of the deceased, P.W.2 saw Bhim Nayak lying on the ground with blood coming out from a cut injury on his neck and the deceased was heard making some hissing sounds from his mouth. P.W.2 then came out and called a cousin of the deceased named Rajesh. Though Rajesh [not a witness] did not come to the P.O., one Bholu Nayak [not a witness] who was an uncle of the deceased, came to the P.O. and called an ambulance to take the deceased to a hospital. On that night itself, Police personnel came searching for the accused and at that time, P.W.2 narrated the incident to the Police. P.W.2 stated to have heard that the deceased was referred to AMC&H from the tea estate hospital and on the way he expired. When Police personnel came to the P.O., he [P.W.2] along with the Police personnel entered into the house of the accused and there, the daughter of the accused showed a bloodstained scissor kept on the table. The said scissor was seized by the Police by a Seizure List, Ext.-3 wherein he gave his signature as Ext.-3 [1]. When the scissor was shown to P.W.2 as Mat. Ext.-1 during his deposition, he identified the scissor to be the one which was seized in his presence from the house of the accused. P.W.2 stated that at the time of seizure, the accused was not present in his house. In cross-examination, P.W.2 stated that he had a grocery shop adjacent to his house and when he came for lunch, the shop was kept open. It was elicited by the defence from P.W.2 that the daughter of the deceased, Anita Nayak [P.W.3] and Sumitra Munda [P.W.4] were near the deceased at the time of the incident. P.W.2 denied the suggestion that he had deposed falsely due to old grudge against the accused.
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Examination [PME] Report which was exhibited as Ext.-5. P.W.7 stated that the post-mortem examination on the deadbody of the deceased was performed on Police requisition on 13.04.2020. The deadbody was brought and identified by EBC, Simanta Konwar. After performing the post-mortem examination, P.W.7 recorded the findings in the PME Report [Ext.-5] in the following manner :-
| I- EXTERNAL APPEAR | ANCE |
|---|---|
| 1. Condition of subject | Sex of the deceased : male |
| stout emaciated, | Built : average; |
| decomposed etc. | Wearing garments : a long pant, a red half |
| pant and an underwear and a shirt Eyes and mouth : Closed. |
|
| Temperature : Cold to touch both externally and internally Rigor mortis : Fully developed all over the body |
|
| 2. Wounds – position, and character |
Following injuries are found on the body : A stab injury of size 1 cm X 0.5 cm X |
| Bruise – position, size and nature |
muscle deep is present over right side on the posterolateral aspect of the right side |
| of the neck 12 cm from the midline and 7cm below the lobule of left ear. The margins of the wound are found regular and skin tags are found at places. The shape of the wound is spindle shaped and the injury is directed upward and medially and traverses through the floor of the posterior triangle muscles that is levator scapulae, speniuscapitis and simispinaliscapitis muscle upto the apex of the triangle to injure the occipital artery |
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| and the artery is com | pletely ruptured. The |
|---|---|
| subcutaneous tissue | planes of the whole |
| left side of the neck | are filled with liquid |
| and clotted blood. |
Death was due to hemorrhagic shock as a result of the injury sustained over neck as described. The injury described was ante mortem and caused by sharp pointed weapon and was homicidal in nature.
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prosecution case. The identification of the scissor in a different manner by the two seizure witnesses, P.W.2 and P.W.3 goes to indicate that either the scissor seized on 12.04.2020 was presented before the Court or a different scissor was presented before the Court or one of the said two prosecution witnesses failed to identify it correctly due to failure of memory or for any other reason. The same might be a defect on the part of the investigating authority or on the part of the prosecution. We are of the unhesitant view that such defect would not result in any benefit to the accused for the fact that the ocular evidence of the prosecution witnesses – P.W.2, P.W.3 and P.W.4 – are found to be consistent, reliable and credible all throughout.
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P.W.4 or the family of the deceased. As the prosecution witnesses, P.W.3 and P.W.4 used to reside in the houses located in close proximity to each other and in the same courtyard, where the incident of assault occurred, their presence at the P.O. was found to be quite natural. There is not apparent inconsistency between the previous statement of P.W.3 [Ext.-4] and the testimony of P.W.3 resulting in any material contradiction or omission. The versions of the P.W.3 has been found to be consistent throughout. Even on strict scrutiny, we find the evidence of P.W.3 and P.W.4 consistent, reliable and credible to inspire the confidence of the Court.
30.1. As per Section 6 of the Evidence Act [ Relevancy of facts forming part of same transaction ] - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The Hon’ble Supreme Court of India in Gentela Vijayavardhan Rao and another vs. State of Andhra Pradesh , [1996] 6 SCC 241,
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after considering the rule of evidence embodied in Section 6 of the Evidence Act, has held as under :-
15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue ‘as to form part of the same transaction’ becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement on fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. ….
30.2. Illustration [a] to Section 6, which are quoted hereinbelow ready reference, has aptly demonstrated the said rule. Illustration [a] : A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact . In the context of the case in hand, the utterance made by the accused while leaving the place of occurrence after assault and heard by the P.W.2 while entering the house of the deceased and crossing the path with the accused is admissible in evidence by the rule of evidence embodied by the rule of res gestae under Section 6 of the Evidence Act. The utterance made by the accused, quoted in a preceding paragraph, is clearly suggestive of an act of assault by him after some kind of confrontation, and such evidence has lent corroboration to the case of the prosecution. The conduct of the accused as
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regards leaving the house of Bhim Nayak with Bhim Nayak lying in an injured condition in the courtyard along statements accompanying such act of leaving also assumes relevance under Section 8 of the Evidence Act.
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to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder — Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
There are also four exceptions provided in Section 300, IPC. If an offence despite fulfilling all the conditions of any of the clauses stated therein, comes within any of the exceptions then the offence would be culpable homicide not amounting to murder punishable under the first part of Section 304, IPC.
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proportionate to the gravity of the generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it, is also the lowest amongst the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304, IPC.
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whether the act was in the course of sudden quarrel or sudden fight or free for all fight; [vi] whether the incident occurs by chance or whether there was any premeditation; [vii] whether there was any prior enmity or whether the deceased was a stranger; [viii] whether there was any grave and sudden provocation, and if so, the cause for such provocation; [ix] whether it was in the heat of passion; [x] whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; [xi] whether the accused dealt a single blow or several blows.
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Ext.-1. Meaning thereby, the scissor, according to the sole eye-witness, used in the offence was shorter than six inches.
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Report, with such precision. It is true that though the nature and size sustained by the deceased seemed to be not a major proportion, yet, the damages caused by the injury were extremely serious leading to instantaneous or almost instantaneous death of the deceased. Still, it is not possible for us to conclude that the accused had struck at the neck of the deceased with a scissor with the intention to cause his death to bring his act of causing homicidal death to fall either the category of culpable homicide of the first degree or in the category of culpable homicide of the second degree.
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JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the conviction under Section 302/447 IPC was sustainable on the ocular and medical evidence.
Whether the homicidal death amounted to murder under Section 300 IPC or culpable homicide not amounting to murder.
Colour shows how this judgement treated each authority
Gentela Vijayavardhan Rao and another vs. State of Andhra PradeshRelied on¶30
[1996] 6 SCC 241 · Who else cites this
State through the Inspector of Police vs. Laly @ Manikandan @ another etc.Referred¶31
[2022] 15 SCR 613 · Who else cites this
Thangaiya vs. State of Tamil NaduExplained¶35
[2005] 9 SCC 650 · Who else cites this
Angazhagan vs. The State represented by the Inspector of PoliceExplained¶36
[2023] 10 SCR 1091 · Who else cites this
10 provisions across 3 enactments
Siva Karmakar
The State of Assam
Manish Choudhury
Mitali Thakuria
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
