Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 145 (GAU)

Sada tanti v. State of Assam

2003-04-01

P.P.NAOLEKAR, RANJAN GOGOI

body2003
JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 20.12.96 passed by the learned Addl. Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 48(S)/95 convicting the accused-Appellant under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for 4 months. 2. The case of the prosecution, in short, is that at about 12 P.M. in the night of 16.2.94, P.W.2, Smti Sumatipan Tanti, verbally lodged an information in Sootea Police Station that at about 5 P.M. of the same day, one, Sada Tanti, a resident of Ghiladhari Tea Estate, Line No. 1 came to the house of the informant's father Jogipan Tanti with a Khukri in his hand and caused the death of Jogipan Tanti by inflicting cut blows on the neck and head of Jogipan Tanti. On the basis of the aforesaid information, G.D. Entry No. 377 dated 16.2.94 of Sootea Police Station was recorded immediately after the aforesaid information was received, P.W. 8 Purnenda Baruah, Sub-Inspector of Police on being instructed by Officer-in-Charge of Sootea Police Station, left for the place of occurrence. From the place of occurrence, the Investigating Officer proceeded to the Majuligarh Tea Estate to which place the victim, had in the meantime been taken, for treatment. According to the prosecution, the victim Jogipan Tanti had died even before being taken to the hospital. On the next day, P.W. 1, Shri Badal Tanti lodged a written ejahar in the police station in respect of the incident in question, on the basis whereof, Sootea Police Station Case No. 16/ 94 was registered. According to the prosecution, P.W. 8 visited the place of occurrence again on the next day and held inquest on the dead-body of Jogipan Tanti in the hospital. In course of investigation of the case, the police seized a Khukri (Mat Ext. 1) as produced by Smt. Sumatipan Tanti, P.W. 2 vide Ext. 1, the Seizure list and recorded the statements of a large number of persons. On the same day, according to the prosecution, the accused-Appellant presented himself at Sootea Police Station and confessed to having killed Jogipan Tanti. 1) as produced by Smt. Sumatipan Tanti, P.W. 2 vide Ext. 1, the Seizure list and recorded the statements of a large number of persons. On the same day, according to the prosecution, the accused-Appellant presented himself at Sootea Police Station and confessed to having killed Jogipan Tanti. On being transferred, P.W. 8 handed over charge of the investigation of the case to P.W. 6 Shri Kunjalal Pator who submitted the charge sheet against the accused. The learned Chief Judicial Magistrate, Sonitpur by order dated 6.6.95 committed the case for trial to the Court of the learned Sessions Judge, Sonitpur, Tezpur. In the Court of Sessions, a charge under Section 302 of the Indian Penal Code was framed against the accused-Appellant who pleaded not guilty to the said charge and claimed to be tried. In the course of the trial, 8(eight) witnesses were examined by the prosecution in support of its case whereas the defence examined one witness. At the conclusion of the trial, the learned Sessions Judge by judgment and order dated 20.12.96 convicted and sentenced the accused- Appellant as aforesaid giving rise to the present appeal. 3. We have heard Mr. S.C. Biswas, learned Counsel appearing for the accused-Appellant and Mr. Z. Kamar, learned Additional Public Prosecutor for the State of Assam. Mr. Biswas, learned Counsel for the accused-Appellant has very elaborately taken us through the evidence of the prosecution witnesses examined in the case as well as other materials on record. A security of the evidence adduced by the prosecution witnesses would go to show that the prosecution relied on the evidence of P.Ws 1, 2, 3 and 4 in proving the alleged incident. A brief recital of the evidence of the aforesaid four witnesses may be set out at this stage. P.W. 1 is the son-in-law of the deceased. In his evidence, he has stated that his house is at some distance from the place of occurrence and on hearing a hue and cry being raised in the evening, he came to the place of occurrence and learnt that the accused-Appellant had assaulted the deceased with a Khukri. According to this witness, he along with some Ors., had taken the injured to the hospital in a pushcart. But the injured succumbed to the injuries on the way. On the next day, this witness lodged the ejahar in the police station. According to this witness, he along with some Ors., had taken the injured to the hospital in a pushcart. But the injured succumbed to the injuries on the way. On the next day, this witness lodged the ejahar in the police station. According to this witness, P.W. 2 had informed him that the accused had caused the injuries on the deceased. P.W. 2 Smt. Sumatipan Tanti is the daughter of the deceased. According to P.W. 2, on the date of occurrence, in the evening, while she was busy cooking, her father, the deceased, was sitting in the verandah when the accused came to their house. According to this witness, the accused asked the deceased for some tobacco and at that time, the accused inflicted cut injuries on the deceased with a Khukri. Hearing the alarm raised by the deceased, this witness claims to have come out of the kitchen and found the accused-Appellant cutting the deceased with a Khukri. According to P.W. 2, she snatched the Khukri from the hands of the accused- Appellant and found the deceased injured in the neck as well as in the hand. According to this witness, the deceased fell down in a pool of blood. P.W. 2 in her deposition, has further claimed that she informed P.W. 3 Joykrishna Tanti, a neighbour about the incident and that the accused fled away from the place of occurrence. Thereafter, according to this witness, P.W. 4 Sushil Bowsi arrived at the place of occurrence and P.W. 2 informed P.W. 4 about the details of the occurrence. P.W. 2 has further deposed that, thereafter, the three of them took the injured to the Garden Hospital from where he was sent to Majuligarh Hospital. This witness has further deposed that on the day of occurrence itself, she had lodged a verbal information with regard to the occurrence in Sootea Police Station and that in the next morning, when the police came to their house, she had handed over the Khukri which she had snatched from the accused- Appellant to the police. This was done in the presence of P. Ws 3 and 4. This was done in the presence of P. Ws 3 and 4. In cross- examination, P.W. 2 had denied that in her statement made to the police she had not reported that P. Ws 3 and 4 had come to the place of occurrence; she further denied that she did not tell the police that she had seen the accused hacking the deceased with a Khukri. P.W. 3 is a neighbour who lived in Anr. part o f the same house where the deceased was staying. According to this witness, on the day of occurrence at about 6.30 P.M. while he was having his meal in his house, he heard the accused-Appellant asking the deceased for tobacco in the latter's house. P.W. 3 stated that a little later, he heard P.W. 2 Sumatipan Tanti shouting and on coming out, he could see the accused-Appellant and P.W. 2 pulling at each other's hands. This witness has further deposed that the accused-Appellant had a Khukri in his hand which was snatched away by P.W. 2. This witness has deposed that he saw the deceased lying in a pool of blood at the edge of the verandah of his house and hue and cry having been raised. P.W. 4 along with many Ors., came to the place of occurrence. The witness has further deposed that after the Khukri was snatched away by P.W. 2 from the accused-Appellant, the same was kept in his house and on the next day, on being asked by the police, P.W. 3 has produced it. P.W. 4 Sushil Bowsi, Anr. neighbour of the deceased, had stated in his deposition that at about 6 O' Clock on the day of occurrence, while he was proceeding from his house to the shop, he heard hue and cry in the house of P.W. 2 and on coming there, he could see the accused Appellant coming out from the house of the deceased. According to this witness, the accused-Appellant was running and the deceased was found in a pool of blood at the edge of the verandah. On reaching the place of occurrence, this witness was told by P.W. 2 that the accused Appellant had assaulted the deceased with a Khukri. This witness has further stated that thereafter, they took the deceased to the hospital in a pushcart but the deceased was already dead by that time. P.W. 5 Dr. On reaching the place of occurrence, this witness was told by P.W. 2 that the accused Appellant had assaulted the deceased with a Khukri. This witness has further stated that thereafter, they took the deceased to the hospital in a pushcart but the deceased was already dead by that time. P.W. 5 Dr. P.K. Barman conducted the postmortem on the dead-body of the deceased Jogipan Tanti. In his deposition, he has stated that in the course of postmortem examination, lie found the following injuries on the deceased: External Appearance: Wounds: 1. One incised wound on the right side of the cheek extending upto the neck. Cutting the muscles, vessels and nerves of the neck. Mandible on the right side cut, size of the wound-6"x1/2.,"x 1". 2. One incised would on the occipital region of the scalp. Occipital bone cut Size 5"x1/2"x1/2". Brain matter exposed. Scalp, Skull, Vertebrae: Scalp: One incised wound on the occipital region of the scalp. Size 5x1/2”x1/2" Skull: Occipital bone cut. Brain matter exposed. Brain: Brain matter exposed through the cut wound in the occipital region of the Scalp. Other organs are found healthy. Injuries are antemortem in nature. In my opinion the cause of death is comma as a result of the head injury sustained by the deceased. xxx xxx xxx cross examination. Injuries may be caused by a single wound. The post mortem report was however, not exhibited by the prosecution in the course of the trial before the Court below. However, the said report in original was in the record of the proceedings and, therefore, we thought it proper to invoke the power under Section 391 of the Code of Criminal Procedure for recording additional evidence before us. P.W. 5, the doctor who performed the postmortem examination, appeared in Court on 13.3.2003 and he was examined by the learned Public Prosecutor in the course of which examination, P.W.5 has proved the postmortem report as Ext.7. The said witness has been cross examined on behalf of the accused Appellant. P.W. 8 is the Sub-Inspector of Police who had in the main conducted the investigation of the case. In his cross-examination, he had stated that P.W. 2 Sumatipan Tanti did not tell him that P. Ws 3 and 4 had come to the place of occurrence and that she had seen the accused-Appellant in the act of commission of the crime. In his cross-examination, he had stated that P.W. 2 Sumatipan Tanti did not tell him that P. Ws 3 and 4 had come to the place of occurrence and that she had seen the accused-Appellant in the act of commission of the crime. P.W. 8 in his cross-examination has further stated that P. W.3 did not tell him that he had seen the accused and P.W. 2 pulling at each other's hands. P.W. 7 has further stated in cross examination that P.W. 4 did not tell him that he had seen the accused-Appellant coming out of the house of the deceased. 4. Mr. Biswas, learned Counsel for the accused-Appellant, on the basis of the evidence as noticed above, has argued that in the instant case, the accused-Appellant has been implicated. With the incident in question on the basis of the recognition of his voice made by the prosecution witnesses and though P.W. 3 had mentioned about a lamp burning in the verandah of the deceased's house. P.W. 8 has admitted in his deposition that no lamp was seized by him. According to the learned Counsel, P.W. 2 in her deposition, has stated that at the time of occurrence it was dark. On the aforesaid basis, it is contended by the learned Counsel for the accused-Appellant that the recognition of the accused -Appellant by the prosecution witnesses is highly doubtful. Mr. Biswas has further argued that there are certain vital omissions, amounting to contradictions in the evidence of the lone eyewitness i.e., P.W. 2 as well as in the evidence of P. Ws 3 and 4 and further that such contradictions going to the root of the matter stands fully proved by the evidence of P.W. 8 the investigating Officer. According to the learned Counsel, it is clear from the evidence of P.W. 2 read with the evidence of P.W. 8 that the aforesaid witness i.e., P.W. 2 has contradicted herself on two very vital issues i.e., regarding P. Ws 3 and 4 coming to the house of the deceased immediately after the occurrence and also P.W. 2 witnessing the accused being involved in the commission of the crime. Similarly, it is argued that P.W. 3 had contradicted himself with regard to witnessing the accused and PW. Similarly, it is argued that P.W. 3 had contradicted himself with regard to witnessing the accused and PW. 2 pulling at each other's hands inasmuch as the evidence of P.W. 8 would go to show that P.W. 3 had not made the aforesaid statement before the police. Further, according to the learned Counsel, the evidence of P.W. 8 makes it clear that P.W. 4 did not tell the Investigating Officer that he had seen the accused coming out of the house of the deceased, a version which the witness had narrated in Court. All these omissions amounting to contradictions, according to the learned Counsel, stands fully proved. P. Ws 2, 3 and 4 are, therefore, highly unreliable and, the evidence tendered by the aforesaid witness ought not to be relied upon in deciding the culpability of the accused- Appellant, it is argued. 5. The submissions advanced on behalf of the accused-Appellant have been duly considered by us. The accused Appellant is the Sardar of Line No. 1 of Ghiladhari Tea Estate in which line, the house of the deceased as well as P. Ws 2, 3, and 4 are located. Evidently, the accused-Appellant was well known to P. Ws 2, 3, and 4. Recognition of the accused by the aforesaid witnesses and the role ascribed to him by the said witnesses is not on the basis of the recognition by voice. The persons concerned being known to each other and being the residents of the same labour line of the tea estate, it is our considered view that the failure of the Investigating authority to seize the lamp which was stated to be burning at the time of occurrence, would have a little consequence in so far as the recognition of the accused-Appellant is concerned. 6. Coming to the principal argument advanced by the learned Counsel on behalf of the accused-Appellant, what we find, is that certain statements made in the course of the deposition of P. Ws 2, 3 and 4 are contended to be the contradict ions within the meaning of Section 145 of the Indian Evidence Act so as to impeach the credibility of the said witnesses. Such contradictions, according to the learned Counsel for the accused-Appellant, is on account of the fact that statements made by the aforesaid witnesses in Court implicating the accused-Appellant were not made by the said witnesses before the Investigating Officer thereby seriously affecting the credibility of the said witnesses. That an omission may amount to a contradiction within the meaning of Section 145 of the Evidence Act has been statutorily recognized by the Explanation to Section 162 of Code of Criminal Procedure thereby bringing to an end the conflicting judicial views in the matter'. However, a contradiction or an omission amounting to a contradiction must be proved in accordance with the provisions of Section145 of the Evidence Act which requires the defence to draw the attention of the witness to that part of his previous statement in writing with reference to which the witness is intended to be contradicted and thereafter such part of the previous statement must be proved. The manner in which a contradiction or an omission amounting to contradiction is required to be proved under Section 145of the Indian Evidence Act has been elaborately dealt with by this Court in atleast two reported cases i.e., the State of Assam v. Md. Misir All reported in AIR 1963 Assam 15/ and in the case of Md. Badaruddin Ahmed v. State of Assam reported in 1989 Cri. L.J. 1876. The aforesaid aspect of the matter, therefore, need not detain us. The law laid down by this Court in the aforesaid two judgments has to be scrupulously followed by all the subordinate Courts in so far as the Criminal trials are concerned. In the instant case, the materials on record do not reveal that the attention of P. Ws 2, 3 and 4 were drawn to that part of the previous statement with reference to which the said witnesses were sought to be contradicted. No such previous statement was proved as required under Section 145 of the Indian Evidence Act. Instead, the contradictions have been sought to be established on the basis of the testimony of P.W. 7, the Investing Officer of the case. To hold that a contradiction can be proved through the evidence of the Investigating officer would be to virtually allow the diary statements to be constructed as substantive evidence which is clearly impermissible in law. Instead, the contradictions have been sought to be established on the basis of the testimony of P.W. 7, the Investing Officer of the case. To hold that a contradiction can be proved through the evidence of the Investigating officer would be to virtually allow the diary statements to be constructed as substantive evidence which is clearly impermissible in law. For the purpose of the present case, on the basis of the above discussions, it would be appropriate to hold that the argument advanced on behalf of the accused-Appellant that P. Ws. 2, 3 and 4 are not reliable witnesses because of the contradictions in their deposition made in Court and their earlier statements must be negative. 7. We have considered the evidence of P. Ws 2, 3 and 4 examined on behalf of the accused-Appellant in their entirety and we incline to hold that except some certain minor discrepancies which are but natural, the evidence of the aforesaid prosecution witnesses are consistent and inspire confidence of the Court. We have also considered the testimony of the defence witness. The evidence of the said defence witness would seem to suggest a plea of alibi on behalf of the defence. Proof of such a plea of alibi would require a much higher degree of positive evidence which is not forthcoming. A mere statement of the defence witness that the accused Appellant was with him at the time of occurrence, would hardly be adequate to decide in favour of the defence. 8. For the aforesaid reasons, we find no merit in this appeal. It is accordingly, dismissed and the judgment and order dated 20.12.96 passed by the learned Addl. Sessions judge, Sonitpur at Tezpur in Sessions Case No. 48(S) 95 stands hereby affirmed. Appeal dismissed.