*A CONVICTION U/SEC.326 IPC

In the Court of Judicial Magistrate, 1st Class, 1st Court

JANGIPUR (MURSHIDABAD)

Present: Sri H. Singh, J.M. 1st Class,

Dated the 14th day of January, 1992.

C.R. No.669/84 (T.R. No.9/90)

State vs. Dasarath Karmakar.

u/Sections 324/326 I.P.C.

JUDGEMENT.

            The complainant Kanai Karmakar s/o Late Ramesh Karmakar on 26.10.1984 at 17.30 hours lodged an F.I.R. u/Sec.326 I.P.C. against the brother Dasarath Karmakar in respect of an incident dated 24.10.84 that took place at about 14.00 hours at Dafahat under P.S. Suti (Murshidabad).

            The prosecution story as per the F.I.R. lodged by the complainant is that on 24.10.84 at about 2.00 P.M. (Wednesday) the accused Dasarath Karmakar assaulted Smt. Tuktuki Karmakat the wife of the complainant with a Heso, when she was sleeping, on her head and chopped off her fingers of left hand and flew away leaving her behind in an unconscious condition. At the time of incident, her mother Atash Bala Karmakar and brother Nikhil Karmakar were inside the house.

            On learning about the incident from his younger brother Nikhil Karmakar, the complainant (Kanai Karmakar) rushed to his house from the Bidi Factory and found that the villagers had taken his wife in an unconscious condition to the Mohisail Hospital. When the complainant reached Mohisail Hospital, the doctor advised him to take the patient to Jangipur Hospital. As such, the victim Tuktuki Karmakar was first taken to Jangipur Hospital and then to Berhampur Hospital. At the time when the F.I.R. was lodged, the wife of the complainant was still struggling with death and she needed blood transfusion. As a result of this F.I.R. a Suti P.S. case No.15 dated 26.10.84 u/Sec.326 I.P.C. was started against the accused Dasarath Karmakar and after investigations, a charge-sheet No.1 dated 9.1.85 u/Sec.324 I.P.C. was filed by the I.O. against the accused. On 16.3.90 a charge u/Secs.324 and 326 I.P.C. was framed against the accused and he was tried for the said offence by this Court.

            The accused pleaded not guilty to the charge and claimed that he has been falsely implicated in this case.

POINTS FOR DETERMINATION

1.     Did the accused cause any voluntary hurt to Smt. Tuktuki Karmakar with any sharp cutting weapon like Hesso on the date, time and place as alleged?

2.     Did the accused cause any grievous hurt to the said Smt. Tuktuki Karmakar with any sharp cutting weapon like Hesso on the date, time and place as alleged?

3.     Is the accused guilty of having committed an offence u/Secs.324/326 I.P.C. or entitled to the benefit of doubt of doubt, if any?

D E C I S I O N

Points Nos.1 to 3:- All these three points are taken up together for adjudication for the sake of convenience, continuity and brevity. The prosecution examined five witnesses namely, P.W.1 (Kanai Karmakar), P.W.2 (Smt. Tuktuki Karmakar), P.W.3 (Kalipada Biswas), P.W.4 (Dr. Tuktuki Bhattacharyay) and P.W.5 (Ranadhar Chakraborty) and proved three documents i.e. the F.I.R. (Ext.1), Sketchmap (Ext.2) and formal F.I.R. (Ext.3) in support of their case.

            The accused neither filed any written statement nor adduced by any evidence in support of his defence case within the meaning of Sec.243 Cr.P.C.

            From F.I.R., it is clear that the victim Smt. Tuktuki Karmakar was first taken to Mohisail Hospital and thereafter shifted to Jangipur Hospital and then again transferred to Berhampore Hospital where the victim was struggling with life for survival when the F.I.R. (Ext.1) was lodged at Suti P.S. The complainant Kanal Karmakar (P.W.1) reiterated these facts in his evidence and further stated, “I informed the incident at the P.S. 3 days after the incident as I was busy with looking after my wife who was in serious condition.  In my opinion, the delay in lodging F.I.R. is properly explained and the cause of delay which is obvious in the can’t be ignored merely because the complainant did not say in the F.I.R. the cause for the delay in lodging the F.I.R. A similar cause for delay was accepted by the Hon’ble S.C. in Kanhayalal and ors. Vs. State of Rajasthan, AIR 1989 SC 1515 = 1989 Cr.L.J.1482, Gurbachan Singh v. Satpal Singh, 1990 Cri.L.J. 562 = AIR 1990 sc 209. In Ram Jug and others v. The State of U.P. 1974 Cri.L.J. SC 116 Hon’ble SC observed, “………Even a long delay in filing report of occurrence can be condoned if the witnesses on whose evidence the prosecution relies have not motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. In Tara Singh and others v. State of Panjab, 1990 Cri.L.J.2681 Hon’ble S.C. keeping in view Human nature and the Indian conditions observed, “………..At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to police station for giving the report.”  Hon’ble S.C. further observed, “……However, unless there are indications of fabrication, the Court can not reject the prosecution version as given in the F.I.R. and later substantiated by evidence merely on the grounds of delay….” Therefore, keeping in view the aforesaid legal position and evidence regarding case of delay, I hold that the delay in lodging F.I.R. is properly explained. PW1 (Kanai Karmakar) who is the husband of the victim and also the complainant proved the F.I.R. (Ext.1) and corroborated the prosecution story in material particulars. But, he is not witness to the occurrence, though he saw his wife in injured condition in the Hospital and attended to her during her admission and stay at Mahisail, Jangipur and Berhampore Hospitals. His  conduct is natural probable and expected of any loving husband when one’s wife is Hospitalized in a serious condition. But in order to find the criminal liability of the accused the Court must turn to the evidence of the victim P.W.2 (Tuktuki Karmakar) who in her evidence described the incident as follows:-

            “The incident took place 7 to 8 years ago at about 2.00 P.M. on the following day of Kalipuja. There was a dispute between the brothers over property prior to the incident. My mother-in-law and younger brother-in-law went to see off the wife of the accused. Then I was sleeping in the verandah on Kaintha and Balish with my son. Then at that time somebody gave me a stroke over my head and when I turned to see the assailant, I found it was accused Dasarath. Then when the accused was going to give me the second stroke of Hesso on my head, I placed my left hand on the head to save my head. At this the stroke of Hesso fell on my head and as a result my little finger and ring fingers were partially chopped off (shows the cut fingers). Then I raised a hue and cry and the accused then fled towards the fields………”

            Ld. Advocate for the accused emphasizing the fact that the victim as per F.I.R. was sleeping, argued that she could not have seen the accused while sleeping. Had there been just one stroke of Hesso, this argument could have carried some weight. But in this case, there were two strokes of Hesso and the victim(P.W.2) in her cross-examination revealed, “I woke up on receiving the first stroke of Hesso,” which is quite natural. To argue that the victim kept sleeping even after receiving a stroke of Hesso with such  brute force as us evident from the nature of injuries received, would be nothing short of an absurd statement. PW2 in her cross-examination revealed two more important facts that would help the court evaluate her evidence in true perspective. She in her cross examination stated, “………I did not loose my senses……….My son was lying on my right-side with his head on my right hand and I was facing the room of my house.” These facts if true, would clear all doubts regarding the identity of the accused and the manner of defence adopted by the victim at the time of assault keeping in view her mobility was restricted on account of her child sleeping on the right hand. We know very well that consciously as well as unconsciously a defence mechanism sets into motion in our body to save ourselves when our life is in danger. This is also called reflex-action in biological terms. For example when we accidently tough a hot object, our body moves away from the said object by virtue of ‘reflex-action’ without any conscious effort on our part. Similarly, when we fall, our limbs get stretched towards ground to reduce the impact of fall on vital organs of our body. Chopping off of two fingers of the victim, as is also established by the evidence of doctor coupled with two  lacerated injuries on the left parietal region of head clearly shows that the said fingers were indeed  on the head when the second stroke of Hesso fell and the fingers being caught in between the head and Hesso got chopped off. The brute force of the Hesso was so strong that even after chopping of the two fingers, the Hesso still  succeeded in making an injury ¾” in depth on the head. In order to fully appreciate the evidence of the victim, I feel the medical evidence should not be perused. PW4 (Dr. Bhaskar Jyoti Bhattacharyay in his evidence stated, “……….As the lady stated that she was assaulted by her brother-in-law when she was sleeping in her house at about 2.00 P.M. with a Hesso (sharp curved knife) on 24.10.84. On examination I found:-

1.     Extremely lacerated exteroposteriorly of length 1/2” and breadth 1/2” and breadth 1/2”  and depth ¾”.

Number two disposed transverse lenth 3 ½” and breadth ½” and depth ¾”.

2.     Amputated distal part of left little finger at distal inter-phallangial joint with a lacerated exposed extremity.

3.     Lacerated injury over dorsal aspect of the left ring finger measuring ¾” x ½” x ½”.

Since the victim herself told the doctor who assaulted her with what weapon, it is clear that she was not unconscious when she was brought to the Hospital. Injuries 2 and 3 are on fingers suggesting that the left of the victim was indeed on the left side of her head near left parietal region of the head when the 2nd stroke was given by the accused, otherwise, almost similar lacerated injuries on the head and fingers can’t be explained. The victim would not keep her left hand on her left side of head unless she had seen the accused with a Hesso on his hand about to inflict the 2nd stroke of Hesso on her head and normally no person sleeping on the right side would keep the other hand on its head as such a posture is inconvenient and abnormal.  Normally the hand in such a posture would be either on one’s side towards waist or on the bed and in this case the left hand could be resting around the child while the child was sleeping on the right arm of the victim.  The victim kept her left hand on her head (left parietal region) to defend herself in a hurry on seeing the accused charge at her again because while lying on the floor of the verandah with one child  lying on her right hand it was not possible for the victim to stop the stroke of the Hesso from its starting point of the assault which must be far away from her reach because the victim was then lying on the ground and the accused must be then in either standing or sitting position.

The manner of defence used by the victim clearly shows that the victim was well awake and conscious when she saw the accused about to give the second stroke of Hesso. Since she was found conscious and talking even by the doctor, it would be absurd to hold that she became unconscious after the assault. Therefore, the victim Smt. Tuktuki Karmakar (P.W.2) can’t be doubted when she stated, “I woke-up on receiving the first stroke of Hesso. I did not loose my senses.”

Therefore, where the victim saw the accused in broad daylight at the time of assault and the accused having been known to her since long on account of familial relationship, no doubt regarding identify of the accused can be entertained in view of the evidence of the victim that when she turned to see the assailant, she found it was accused Dasarath. P.W.2 (Smt. Tuktuki Karmakar) being the victim of assault and an injured witness, her evidence must ordinarily be ranked high and should receive credence by virtue of Hari Har Bhagwan Din and others v. State of Gujarat, AIR, 1988 SC 696 = 1988 Cri. L.J. 848 (Para 13).

The accused, it should be noted, is the real brother of the complainant while the victim is the wife of the complainant. Therefore, unless the complainant be convinced about the crime of the accused, he would not lodge an F.I.R. against his own brother. Hon’ble S.C. in Dalip singh & others v. State of Panjab, A.I.R. 1953 SC 364 (Vol.4Cc.n.81) observed, “……..ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation of criticism of the evidence is often a sure guarantee of truth……..” A similar view was echoed by the Hon’ble S.C. in Balbir Singh and another v. State of Panjab, 1991 Cri.L.J. 3286 = AIR 1991 SC 2231 in para 7, of their Judgement where the accused  in a similar family feud committed patricide. The fact that both the victim and accused are close relatives of the complainant, this is a double guarantee that the complainant when he chose to put criminal law in motion against his own brother, he would not do so falsely nor would he allow any real culprit to escape and falsely implicate his own brother. After all, blood is indeed thicker than water.

A co-related question that when the accused had the option to use sharp portion of the Hesso, why he chose to attack the victim from the blunt end of the sharp cutting weapon, does not need deliberation. Human conduct is a very complex phenomenon and is often very difficult to predict how a person would react to a given stimuli. But, if we keep in view the evidence of the victim that there was dispute between the brothers over property prior to the incident, it may be that the accused identified the victim who as an outsider created bad blood amongst real brother over joint-property and thus all his ire was diverted against the victim (Smt. Tuktuki Karmakar). The incident if viewed from this angle, tends to show that the accused did not blame his brother (Complainant) for the family dispute over property. In other words, the accused did not have any animosity against his brother – the complainant – nor his offspring – the child – who was in the arms of the victim at the time of incident. In my opinion, the accused might have used blunt side of the Hesso in preference to the sharp-cutting curved end of the Hesso, lest the sharp and curved end does not reach and harm the child who was in the arms of the victim when the incident took place. Therefore, no undue importance to the fact that blunt end of the sharp-cutting weapon was used by the accused, should be given.

There are minor discrepancies regarding the presence of mother and brother Nikhil Karmakar at the time of incident. As per F.I.R., they were present in the house when the incident took place, but as per evidence of P.W.2 (Smt. Tuktuki Karmakar) they had gone to see off the wife of the accused. I do not attach much importance to this discrepancy as because, either the complainant who was  admittedly not present when the incident took place was well informed about them or P.W.2 deliberately tried to make them insignificant witnesses by sending them out of the house at the time of incident so that the said witnesses, if examined by the prosecution do not shield the accused who being blood-relations of the said witnesses was much close to them then the victim. P.W.3 to 6 as per C.S. namely Nikhil Karmakar, Atash Karmakar, Atul Singha and Badal Singha who were present in the Court on 5.3.91 were not examined by the prosecution and the ld. A.P.P. on 5.3.91 submitted before this Court that the said witnesses are hostile witnesses/gained over witnesses as is clear from order dt. 5.03.91.

In view of the guidelines provided by Hon’ble SC in Appabhai and another v. State of Gujrat, AIR, 1988 SC 696 = 1988 Cri.L.J. 848 and State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = air 1988 SC.1978 regarding discrepancies and non-examination of certain witnesses by the prosecution, the prosecution case can not be thrown out for such minor discrepancies or for non-examination of some witnesses when there is enough evidence to establish the guilt of the accused. In Anil Singh, Hon’ble SC observed, “……..It is, therefore, not correct to reject the prosecution version only on grounds that all witnesses to occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case over-board, if true in the main…………..” A similar view was expressed by Hon’ble S.C. in Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 = 1983 Cri.L.J. 1096 and State of Rajasthan v. Kalki, 1981, Cri.L.J. 1012 regarding discrepancies in the evidence of witnesses.

Similarly, no undue importance to non-seizure of blood stained clothes etc. should be attached when direct ocular as well as medical evidence to corroborate evidence is available and when the F.I.R. is lodged more than 2 days after the incident allowing sufficient time to the mother of the complainant and accused to wash off such circumstantial evidence. Hon’ble S.C. in Ram Avtar Rai and others v.

State of M.P. 1985 Cri. L.J.902 did not attach much importance to absence of such circumstantial evidence in a murder case.

The medical evidence clearly shows that the left little finger was amputated at distal interphallangial joint with a lacerated exposed extremity which brings the injury inflicted within the realm of the word “grievous-hurt” as defined in Sec.326 IPC (Sub-clause fourthly and fifthly). Since the grievous injury was inflicted by a sharp cutting weapon i.e. a Hesso, the offence caused/committed by the accused falls within the ambit of Sec.326 I.P.C. notwithstanding the fact that the accused used the blunt end of the said weapon because the Sec.326 IPC does not require that only sharp end of such weapon should be used. The offence u/Sec.324 IPC being a minor offence of Sec.326 IPC merges into the major offence u/Sec.326 IPC.

Therefore, in my considered opinion, the prosecution has succeeded in establishing the guilt of the accused for the offences u/Secs.324/326 IPC by establishing all requisite ingredients of the aforesaid offences. As such, all the three points are decided against the accused. I hold the accused guilty of having committed offences u/Secs.324/326 IPC and he is convicted accordingly.

Exam. Of the accused u/Sec.248(2) Cr.P.C. on the question of sentence:- The accused on being asked if he has anything to state or submit regarding sentence submits, “Ami Nirdosh.”

This submission has nothing to do with the punishment to which the accused is liable. Keeping in view the gravity of the offence and severity of the punishment prescribed by the legislature u/Sec.326 I.P.C. and the victim being a woman with children, the accused deserves no  benefit of Sec.3 and 4 of the Probation of Offenders Act, 1958. Keeping in view the heinous offence, the accused deserves deterrent punishment. In my opinion a punishment of 3 years R.I. and a fine of Rs.2,000/- should suffice the ends of justice. The victim should also be awarded compensation u/Sec.357 Cr.P.C. in terms of the ruling of Hon’ble S.C. in Hari Kishan and State of Haryana v. Sukhvir Singh 1988 Cri.L.J.116 = AIR 1989 SC 2127. Hence, it is

                                                   ORDERED

That the accused is found guilty and convicted for the offences u/Secs.324/326 IPC. He is sentenced to suffer R.I. for three years for the offence u/Sec.326 IPC and to pay a fine of Rs.2000/- i.d. to suffer additional S.I. for six months. The period spent in Judicial custody, if any, in c.w. this case shall be set off from the period of sentence imposed. The fine if paid shall be given to the victim Smt. Tuktuki Karmakar as Compensation u/Sec.357 Cr.P.C.

324 IPC being a minor offence of Sec.326 IPC, no sentence u/Sec.324 IPC is passed separately.

                                                                                H. Singh,

                                                                 Judicial Magistrate, 1st Class,

                                                                             JANGIPUR.