MITHUN KARMAKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been filed by the sole appellant against the judgment of conviction and order of sentence dated 27.01.1999 passed by 1st Additional Sessions Judge, Jamshedpur, whereby and whereunder he convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life.

(2.) THE case of prosecution in short as per the fardbeyan of Viveka Nand Giri (P.W. 2) is that on 11.02.1993 in the night at 10 p.m. his brother Sudhansu Giri (deceased) had gone to the house of appellant after taking meal. It is further stated that the deceased and appellant (Mithun Karmakar) were friends and they used to work together as labour. It is further stated that Makra Karmakar (P.W. 4) heard some hue and cry in the house of Mithun Karmakar, whereupon he went there and asked as to why they were making noise. It is further alleged that on the asking of Makra Karmakar, deceased Sudhansu Giri requested him to open the door and stated that Mithun Karmakar had given a tangi blow on him. It is further stated that thereafter Makra Karmakar came to the house of informant and disclosed him about the incident. Thereafter informant along with his cousin brother, namely, Jhagar Giri and Kalu Giri went to the house of Mithun Karmakar and found that his house was closed from out side. He further states that at that time the deceased was raising hul a from inside the house and saying that Mithun Karmakar had fled away after inflicting Tangi wound upon him. It is then stated that thereafter the informant had broken open the door with the help of iron rod and found that his brother was lying in a pool of blood. He had also seen injury on the abdomen, chest and on both the legs of the deceased. It is further slated that the deceased had disclosed that he had some quarrel with Mithun Karmakar in connection with wages and because of that Mithun Karmakar had inflicted injury upon him by Kulhari. It is stated that thereafter the informant had gone for informing the chowkidar, keeping his cousin brother near the deceased. It is also stated that the deceased could not be taken to hospital due to night and after sometime he died.

(3.) SRI P.K. Bhowmik, learned Counsel appearing for the appellant has submitted that in the instant case there is no independent witness of the occurrence and the entire prosecution case based on circumstantial evidence. It is submitted that the circumstances relied upon by the learned court below are not such from which it can be presumed that the crime was committed by the accused and none else. It is submitted that the alleged dying declaration of the deceased cannot be relied upon because the injury found on the body of deceased can cause instantaneous death, thus under the aforesaid circumstance, it is not possible for the deceased to make any statement regarding the cause of his death. It is further submitted that it has come in evidence that on the date of occurrence the appellant was not present in his house and he has gone to his sasural after giving the key to the deceased, therefore only because the dead body of deceased was found in the house of appellant it cannot be said that this appellant had committed the murder of deceased. It is further submitted that non production of blood stained axe and blood stained earth, seized from the house of this appellant, is a lapse on the part of prosecution, which cast a serious doubt on the case of prosecution. It is further submitted that the appellant has been falsely implicated in this case merely on suspicion because he had strain relation with the deceased on account of quarrel with regard to wages. Accordingly, it is submitted that the judgment of the court below cannot be sustained in this appeal.