Samir Karmakar vs State Of Tripura

[1] Heard Mr. R. G. Chakraborty, learned counsel appearing for the accused-appellant also heard Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.

[2] This present appeal is directed against the judgment and order of conviction and sentence dated 03.04.2018, passed by the learned Sessions Judge, South Tripura, Belonia, in case No. S.T. 01 (ST/S) of 2015, whereby and whereunder, the appellant has been convicted under Section-302 read with Section-34 of IPC and thereby sentenced to suffer RI for life and to pay a fine of Rs.10,000/-[Rupees ten thousand] with default stipulations.

[3] The prosecution case is as under:

On 04.09.2014 Dr. Prasenjit Das of Sabroom SD Hospital informed in writing to the O/C, Sabroom P.S. that he received a burnt case [patient name Bulti Nama Karmakar. 22Y/F W/O Samir Karmakar, West Jalefa, Sabrrom PS.] during his duty time at Sabroom emergency block. The Officer-in-charge (O/C, for short), registered Sabroom P.S. Case No. 60 of 2014 under Sections-326, 307 of IPC. On the following day Pratima Nama, the mother of Bulti Nama lodged ejahar with the O/C Sabroom P.S. alleging inter alia that, her daughter Bulti eloped with accused Samir three years back. Thereafter, Bulti was given marriage with Samir and they started their conjugal life at Santirbazar in a rented house and that after eight months Bulti and Samir shifted to the house of Samir at Saroom and now Samir started physical torture on Bulti. Bulti used to inform such torture to her elder sister. On 05.09.2014, the informant received information from Baikhora P.S. and went to Udaipur Hospital with Bulti. On way to Udaipur hospital Bulti informed that Samir poured kerosene on Bulti and set her ablaze when Saraswati, the first wife of Samir was also present.

[4] The Officer-in-charge Sabroom P.S. registered the information of Pratima Nama in G.D. vide SBM P.S. G.D. Entry No. 120 dated 05.09.2014 and it was tagged with Sabroom P.S. Case No. 60 of 2014 which was registered on the allegation of Dr. Prasenjit Das and on which S.I. Sri Badal Mallik took up its investigation being endorsed. In fact, before receiving written information from Dr. Prasenjit Das which was registered as Sabroom P.S. Case No. 60 of 2014, S.I. Sri Badal Mallik received some information which was entered in Sabroom P.S. G. D. Entry No. 98 dated 04.09.2014 and rushed to the scene of occurrence and seized one gas lighter, one bottle containing kerosene, one sweater and wearing apparels of the victim.

[5] He also prepared hand sketch map of the house of the convict-appellant, Samir Karmakar. From there he went to Sabroom hospital and examined the victim there and also examined some witnesses under Section-161 of Cr. P.C. in connection with G.D. Entry No. 98. After that, on registration of a specific case he was formally endorsed to the investigation. The victim was referred to Udaipur hospital, as such he contacted Udaipur P.S. and thereafter the accused- appellant was arrested from Udaipur by the police officer of Udaipur P.S. Ultimately, the victim succumbed to the burn injuries at Udaipur. After that, on completion of investigation, S.I. Badal Mallik filed charge sheet against the accused-appellant Samir Karmakar and Smt. Saraswati Karmakar.

[6] During inquiry, charge was framed punishable under Section-302 read with Sections-34, 494 & 495 of IPC against Samir Karmakar and separate charge was framed against accused Smt. Saraswati Karmakar for commission offence punishable under Section-302 read with Section-34 of IPC.

[7] In course of trial, the prosecution examined as many as 25 witnesses and the exhibited documents were brought on record. At the closure of recording evidence, the accused Samir Karmakar was examined under Section-313(1) (b) of Cr. P.C. However, he denied to adduce any evidence in self-defense.

[8] Having heard the learned counsel appearing for the parties and on consideration of the evidence and materials on record, the learned Sessions Judge returned the finding of guilt against the accused Samir Karmakar and convicted and sentenced him as aforestated. However, since Saraswati Karmakar was absconded during trial and she could not be tried.

[9] Feeling aggrieved, and dissatisfied with the order of conviction and sentence, the convict-appellant, Samir Karmakar has preferred this present appeal before this Court.

[10] During hearing, this Court has made an overview of the facts and circumstances of the case wherein, it is surfaced that in the hospital the deceased i.e. the second wife of the convict-appellant has made a statement which was recorded by the doctor, PW-1 and in presence of two nurses. The entire statement which was recorded by the doctor as dying declaration (Exbt.2), reads as under:

"According to her,

Here the whole incidence took place as a result of individual quarrel between husband and wife. She has also informed about the assault (burn injury) that her husband did to her.

According to her,

Husband is suloumnly responsible for the whole incidence. I am giving my statement about the incidence which was recorded through a conversation with her."

[11] Noticeably, Exbt.2 does not speak about any direct assertion by the victim against the accused-person or against anybody and hardly it reveals that cause of her death or circumstance, in which her death resulted. The entire statement in Exbt.2 has been recorded as indirect statement of a 3rd person. Under these circumstances, this Court shall definitely look for other materials which would connect the accused-persons, particularly, the appellant herein, with the crime.

[12] We find some statements which, according to us, carry enough probative value to connect the appellant with the crime. In this regard, the evidences of PWs-5, 6, 7 and 8 are important.

[13] PW-5, Smti. Chandana Debnath is an adjacent resident of accused Samir Karmakar. She rushed to the house of Khagendra Karmakar, the father of the appellant when she witnessed that the victim had been shouting "Bachou Bachou and take me to hospital. They will not take me to hospital". The victim further lamented that "they set me fire and they will not save me".

[14] The deposition of PW-6 reveals that when she rushed to the house of father-in-law of the victim, she noticed that the victim was lying in the courtyard being severely burnt and the victim uttered that "village people save me, they have killed me".

[15] PW-7, Smti. Bishakha Debanth, is another neighbour of the accused Samir Karmakar and she deposed that she rushed to the place of occurrence and in her presence the victim appealed to the villagers uttering that "village people save me, save me, they have killed me, they have killed me. Take me to the hospital."

[16] PW-8, Sri Subhas Nath, the driver of the Auto Rickshaw who shifted the victim to the hospital and has stated that on the way to Sabroom hospital, the victim uttered that "you (Tora) have killed me without any fault."

[17] On close scrutiny of the evidences of PWs-5, 6, 7 and 8, it clearly reveals that the victim within a short while of setting her ablaze gave statement relating to the cause of her death in front of them. The statements of the neigbouring witnesses who rushed to the spot and witnessed the victim being engulfed with fire are evidences of res gestae. Another striking feature is that the victim had uttered such statements time and again on her way to hospital. We find another episode where PW-2 directed the accused Samir Karmakar to bring a vehicle and shift the victim to the hospital. This statement of PW-2 has been corroborated by PW-3 when he has stated that PW-2 scolded the accused Samir Karmakar for not shifting the victim to the hospital, and only thereafter, the accused took initiative to make necessary arrangement to shift the victim to the hospital.

[18] The entire case is based upon circumstantial evidence as none of the witnesses had seen as to who set the victim ablaze. The time tested rule of circumstantial evidence is that, the circumstances must form a complete chain, consistent of the guilt of the accused and inconsistent with his innocence. The learned Sessions Judge while scripting the judgment had rightly borne in mind the golden rule circumstantial evidence as exposited by the Apex Court in the criminal justice system. In Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, reported in AIR 1952 SC. 343 the Apex Court propounded the rule as under:

".... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "

[19] In another celebrated judgment in Sharad Birdhichand Sarda Vrs. State of Maharastra, reported in AIR (1984) SC 1622, in paragraph-152 Honn‟ble Apex Court was pleased to expound as follows:

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, reported in (1973) 2 SCC 793: (AIR 1973 SC 2622, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. They should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The Hon'ble Supreme Court in the case of G. Parshwanath Vs. State of Karnataka; reported in (2010) 8 SCC 593, has observed as follows:

"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts."

[20] In the present case, PWs-2, 3, 4, 5, 6, 7 and 8 are the neighbours of accused-appellant. The appellant has never stated that he has any enmity with these neighbours. From the evidences of the witnesses, it further reveals that they found the victim in a standing position, and though her body was almost set ablaze, but, they did not see the accused-appellant to make any effort to extinguish the fire.

[21] We find yet another important circumstance that at 10.am while PW-3 had been working in her house, she heard the cry of „fire- fire‟ and immediately found deceased Bulti running from the house of the accused Samir towards the courtyard of Khagendra Karmakar, the father of the convict-appellant. We are in full agreement with the learned Sessions Judge that the „fact‟ as defined and embedded in illustration (b) of Section-3 of the Evidence Act is that, a man „heard‟ something is a „fact‟. As such, hearing of quarrel in the house of accused Samir Karmakar in the morning of occurrence is a „fact‟. In furtherance thereof, PW-3 found Bulti rolling on the courtyard being set on fire. At the same time, Chandana Debnath, Tapashi Debnath, Shibani i.e. PW-5, PW-6 and one Shibani also arrived there. PW-3 makes it clear that PW-2 scolded accused Samir for not shifting the victim to hospital and after being scolded only, accused Samir and absconder- accused Saraswati shifted the victim to hospital. It transpires that PW-4, Bhaskar Bhowmik, another adjacent neighbour of accused-appellant also heard sound of quarrel in the house in the morning of occurrence and he heard the incident when he returned from his place of work. PW-5, another adjacent neighbour of accused Samir also heard hue and cry coming from the house of Samir and saw Samir assaulting Bulti at around 9 am. After assaulting, deceased Bulti took shelter in the house of Kajal. At around 10.30 am while PW-5 had been cooking food in her kitchen, noticed smoke coming from the house of the accused- appellant and PW-5 came out from her hut and noticed Bulti running towards the house of her father-in-law i.e. Khagendra Karmakar with fire burning in her person. She had been shouting „bachao-bachao‟ etc. PW-5 is very specific that accused Samir though came out of his house followed by absconder accused Saraswati, but took no initiative either to save Bulti or to take her to the hospital. PW-5 has cemented the episode that Shiba Prasad Nath, PW-2, scolded accused Samir for not taking deceased Bulti to hospital and only then the convict-appellant shifted Bulti to hospital. Another adjacent neighbour of accused Samir is PW-6, Tapashi Debnath, who also saw deceased Bulti burning in fire in the courtyard of her father-in-law and requested the village people to save her as accused person set her ablaze. PW-7 yet another neighbour who saw the victim burning.

[22] Bearing in mind the evidence of the adjacent neighbourers, we find no fault in the finding of the learned Sessions Judge that the conduct of accused-appellant immediately after the occurrence justifies that he was totally reluctant to shift the victim to the hospital, meaning thereby, he intended the victim to die. The statement of PW-5, that although the ultimate incident of setting the victim ablaze took at 10.30 am, but, at 9.00 am on that day PW-5 saw that the victim was assaulted by the appellant, Samir Karmakar. This episode of assaulting by the accsued-appellant at 9.00 am, i.e. just ahead of 1/1½ hours of setting her ablaze, is relevant under Section-14 of the Evidence Act to prove the intention and ill-will of the convict- appellant towards victim Bulti.

[23] Mr. R.G. Chakraborty, learned counsel appearing for the convict-appellant argued that the appellant did not name the appellant in her dying declaration before the doctor. Mr. Chakraborty, learned counsel also tried to persuade this Court that the dying declaration was not above suspicion for the reason that the doctor did not specify the physical and mental status of the deceased. According to learned counsel for the appellant, it was absolutely impossible to speak even a work for a patient having suffered with 90% superficial burnt.

[24] Mr. S. Debnath, learned Addl. P.P. appearing for the respondent-State has supported the judgment and order of conviction and sentence passed by the learned Sessions Judge. He strongly contended that there is no reason to disbelieve the evidences of PWs-2, 3, 4, 5, 6, 7 and 8 who were present at the scene of occurrence immediately after the incident and they are very much trustworthy. The intention of the accused-appellant was also very clear as he did not make any attempt to save his wife by way of extinguishing fire which engulfed the body of his wife. The convict-appellant did not call for doctor at his own instance. He was scolded by PW-2 which was supported by the evidence of PW-3 and under compulsion he called the auto rickshaw after a consideration period of time when everything went out of control.

[25] Learned Addl. P.P. further argued that the accused- appellant failed to disclose under what circumstances his wife was set ablaze, though the entire episode of fire was within his special knowledge and the burden lies upon him to prove that circumstance under which his victim-wife was engulfed with fire.

[26] It has led us to peruse the evidence of Dr. Debasish Pal, PW-10, which reads as under:

"On 05.09.2014 I was posted as medical officer at Gomati District Hospital, Udaipur. On that date we consisting a board of 3 members namely, Dr. Narayan Ch. Das. Dr. Rituparna Dey and myself conducted P.M. Examination over the dead body of deceased Bulti Karmakar in connection with Udaipur Women P.S. G.D. Entry No. 14, dated 04.09.2014. Deceased was identified by woman constable Nilima Das. I conducted P. M. Examination at 3.00 pm on 05.09.2014. I submitted a preliminary examination report. In the report I mentioned that around 90% superficial burn was seen except head and face, skull hairs were intact. There was no other external injury seen. There was no foul smell found in oral cavity and stomach. Stomach and its contents preserved for chemical analysis. Kerosene oil smell was found in whole body except head and fact. Thereafter, I gave my opinion regarding cause of death and I opined that, 90% superficial burn caused by kerosene oil which was antimortem and homicidal in nature. In a suicidal case burn injuries are usually found on the head and fact and whole body. This is the report which I prepared and I put signature, thereafter, Dr. N. C. Das and Dr. Rituparna Dey also put their signature. I know their signature. The report is marked as Exbt.4 and signature of witness is marked as Exbt.4/1 and signature of Dr. N. C. Das is marked as Exbt.4/2 and signature of Dr. Rituparna Dey is marked as Exbt.4/3."

[27] We have given our conscious thought to the submission of the learned counsel for the appellant as well as the observation of PW-10, the doctor that the victim had suffered 90% burn injuries, but, interestingly, it is also transpired from the evidence of PW-10 and his report that though the victim had suffered 90% burn injuries but upper portion of her body i.e. the head and face were not burnt. Even it is found that the skull hairs were intact and the doctor has opined that the burn injuries are homicidal in nature since in the case of suicidal burn injuries usually the head and face whole body including hare found to be burnt.

[28] We may gainfully refer the decision of the Apex Court in Vijay Pal Vs. State (NCT of Delhi) reported in (2015) 4 SCC 749: (AIR 2015 SC 1495), where the statements made by the victim having suffered 100% burn injuries was also accepted and in this regard, the Apex Court had observed thus:

"23. (B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?

This question is also no longer res integra. In Vijay Pal v. State (NCT of Delhi); 2015 (4) SCC 749: (AIR 2015 SC 1495), we notice the following discussion; (SCC p. 759, paras 23-24): (at p.1502-1503, paras 21, 22 of AIR)

It is contended by the learned counsel for the appellant when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69: (AIR 1992 SC 2186) wherein it has been held a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial Court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

In State of Madhya Pradesh v. Dal Singh and Others: (2013)14 SCC 159: (AIR 2013 SC 2059), a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.

Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable."

[29] In the case of Bhagwan v. State of Maharashtra reported in (2019) 8 SCC 95: (AIR 2019 SC 4170), the Apex Court has reiterated the analogies drawn in Vijay Pal (supra), where it said that the accident of burn injuries going beyond 92% even to 100% would not, by itself led to a conclusion that victim of such burn injuries may not be in a position to make statement.

[30] Recently, in the case of Purshottam Chopra v. State (Govt. of Delhi) reported in AIR 2020 SC 476, the Apex Court after taking into account the dying declaring of the deceased (Sher Singh) who suffered 100% burn injuries has maintained the conviction and sentence returned by the trial court as well as High Court. On the basis of the dying declaration of the deceased (Sher Singh), the Apex Court dismissed the appeal filed by the appellant (Purshottam Chopra). As such, we are inclined to repeal the submission of the learned counsel that a patient having suffered 90% burn injuries is incapacitated to give any dying declaration before any person.

[31] There cannot be any universally accepted rule that a person even with 100% burn injury will not be able to speak. It will depend upon the reliability of the evidence of the witness couched with other probable circumstances. There is no hard and fast rule a dying declaration must be before a doctor or to be recorded by the doctor. Even the absence of certification in the body of the recorded dying declaration will not vitiate such dying declaring, if it is otherwise found to be reliable. [Emphasis supplied]

[32] To reiterate, on close scrutiny of the evidence of PWs-2, 3, 4, 5, 6, 7 and 8, who are adjacent neighbours of the appellant, we find no reason to disbelieve the trustworthiness of their statements made before the Court or to the police officers during investigation under Section-161 of Cr. P.C, for the reason they were the most natural witnesses having no enmity with the accused-appellant. They rushed to the scene of occurrence immediately after the incident when the victim was shouting "bachao bachao "etc. The fact which the deceased had narrated to these witnesses only pointed out towards the husband to the cause of her death as those statements tantamount to oral dying declaration of the victim which are admissible in evidence under Section-32 of the Indian Evidence Act. Further, the statements of these witnesses being the evidence of res gestae are also admissible in evidence under Section-6 of the Evidence Act. The victim made all those statements regarding her cause of death with all spontaneities. The dying declaration though is in indirect form but, the circumstances least to draw only inference that the victim held her husband i.e. the appellant herein, responsible for setting her ablaze.

[33] Another striking feature to be discussed in the instant case is that there was none other than the convict-appellant and his first wife at the courtyard of the house of the father of the appellant. Their presence in the courtyard at the relevant point of time is established beyond reasonable doubt. It was, for that matter, in our considered view, the burden was shifted upon the accused to explain under what circumstance his wife was set on fire, but, in his examination under Section-313 of Cr. P.C. when he was noticed about the incriminating evidences against him as surfaced by the evidences of PWs-2, 3, 4, 5, 6, 7 and 8, his only reply was that those are "false". He was given opportunity under question No.49, whether he would like to say anything in connection with the case. But, the appellant only replied "I am innocent". Thus, he failed to come out with a plausible explanation under which circumstance his wife was set on fire. Failure of such reasonable explanation on the part of the accused-appellant, influences us to draw the only hypothesis and i.e. the hypothesis of the guilt of the accused, it was none else but the accused himself, who has committed the offence and set his wife ablaze on the relevant date and time, consequent to which, she succumbed to her burn injuries at the hospital. These facts and circumstances were within the special knowledge of the accused-appellant as contemplated under Section- 106 of the Evidence Act.

[34] On overall assessment of all the material aspects, we do not find any merit in any of the pleas raised by the learned counsel appearing for the appellant to assail the impugned judgment. As such, the appeal stands dismissed and thus, disposed of.

Send down the LCRs.