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2008 DIGILAW 421 (GAU)

Adil Tanti v. State of Assam

2008-06-10

AFTAB H.SAIKIA, HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. B.K. Singh, learned Amicus Curiae appearing on behalf of the appellant and Mr. K.C. Mahanta, learned Public Prosecutor, Assam, for the State respondent. 2. This appeal is filed to challenge the judgment and order dated 28.06.2002 in Sessions Case No. 86/01, rendered by the learned Sessions Judge, Golaghat, whereby the accused/appellant has been convicted under Section 302 IPC and has been sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to pay fine, to undergo further rigorous imprisonment for another 2 months. 3. The prosecution case as set out is that on the morning of 02.10.01, Sonatan Tanti, the husband of the deceased (Smt. Janmoti Tanti) had rebuked the son (Bhip Charan Tanti) for not performing domestic works in the house. The accused/appellant who was a neighbour protested Sonatan for rebuking his son and then left the house. Thereafter, at about noon time, the accused in a drunken condition returned to the house of Sonatan with a 'dao' in his hand and threatened to kill him. Seeing the accused with a 'dao', Sonatan Tanti left his house for informing others in the Tea Garden. In the meantime, the wife of Sonatan Tanti, Smti Janmoti Tanti (the deceased) came out from her kitchen and the accused/appellant (Adil Tanti) immediately assaulted her on the neck with the 'dao', causing her instant death. P.W. 5 (Bhip Charan Tanti), son of the deceased was another occupant of the house at that point of time and was the only eyewitness of the occurrence. Immediately, after the assault, the husband, Sonatan Tanti returned to the house and he was informed about the assault made by the accused on the deceased by the son of the deceased, Bhip Charan Tanti. The accused/appellant left the house soon after assault but later on he was apprehended by his neighbours. 4. An FIR was lodged on 02.10.01 by the Senior Assistant Manager of Behora Tea Estate with the Officer-in-Charge, Bokakhat Police Station. On the basis of which a case bearing No. 129/01 was registered under Section 447/302 IPC and investigation ensued. 5. The accused was charged under Section 302 IPC for the offence of killing the deceased and since the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Golaghat. 6. On the basis of which a case bearing No. 129/01 was registered under Section 447/302 IPC and investigation ensued. 5. The accused was charged under Section 302 IPC for the offence of killing the deceased and since the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Golaghat. 6. P.W. 1, the Manager of Behora Tea Estate was the informant of the case and in the FIR lodged on 02.10.01, simple information was lodged that Smt. Janmoti Tanti, wife of Sonatan Tanti, a tea garden worker has been killed by the accused, Adil Tanti at about 2:00 P.M. 7. P.W. 4, Sonatan Tanti, the husband of the deceased has stated that on the day of occurrence he had rebuked his son for not doing any household works. Thereafter, accused questioned him as to whether he rebuked his son to which PW 4 made an admission. Later at about 12 noon, the accused after getting drunk returned to the house of P.W. 4 with a 'dao' in his hand. The P.W. 4 left the house to inform the chowkidar of the Tea Estate about the appearance of the accused with a 'dao'. At that time, the son of P.W. 4, wife and other minor children were present in the house. P.W. 4 further stated in his evidence that when he came back, he found his wife in an injured state lying in the house and his son (PW.5) then informed him that the accused Adil Tanti had cut and injured the deceased. The victim succumbed to her injures in the spot. In his cross-examination, P.W. 4 stated that accused/appellant, Adil Tanti had come to his house in a drunken state. This witness denied the suggestion made by the defence that due to scuffle between his son, his wife and the accused, the deceased sustained 'dao' injuries on her neck. 8. P.W. 5 Bhip Charan Tanti is the son of the deceased and was the sole eyewitness of the incident. In his evidence, P.W. 5 stated that he saw with his own eyes Adil Tanti hacking his mother on her neck with a 'dao' while her mother was preparing 'roti' in the kitchen. He further stated that after assaulting his mother, the accused ran away. PW 5 also stated that his father (PW. In his evidence, P.W. 5 stated that he saw with his own eyes Adil Tanti hacking his mother on her neck with a 'dao' while her mother was preparing 'roti' in the kitchen. He further stated that after assaulting his mother, the accused ran away. PW 5 also stated that his father (PW. 4) arrived soon after the assault and P.W. 5 had immediately informed his father that it is Adil Tanti who killed his mother. In his cross-examination, P.W. 5 denied the suggestion of the defence that when Adil Tanti questioned his father about rebuking his son, there was a scuffle and then his mother sustained injury on her neck as a result of pulling the 'dao' which was in the deceased's hand. After denying the said suggestion of the defence, P.W. 5 denied the further suggestion that Adil Tanti had not cut her mother and he had not seen the occurrence. 9. P.W. 6 Lakhiram Tanti, a neighbour of the deceased stated that when he reached the place, of occurrence, he found the husband and the son of the deceased (PW. 4 and P.W. 5) and he was informed by P.W. 4 that it was Adil Tanti who had killed his wife. 10. P.W. 4, Dr. Mukul Sarmah, who conducted postmortem on the dead body of the deceased (Smt. Janmoti Tanti) found the following injuries: Injury 1) One sharp cutting wound on the right side of the neck measuring 3" × 2½" × 3" Excessive blood clot present. Abdomen Stomach -- healthy and contains undigested food particles. Intestine -- healthy and contain faecal matters. The Doctor opined that the cause of death was due to shock and heamorrhage as a result of the injuries sustained by the deceased. 11. P.W. 8, the Investigating Officer of the case, stated in his evidence that the accused was apprehended by the co-workers in the Tea Garden soon after the assault made by accused on the deceased. The accused was also assaulted by the labourers of the Garden and a separate police case was registered in this regard on the basis of complaint lodged by the wife of the accused. In his cross-examination, he admitted that wife of the accused (Adil Tanti) had informed him about the assault made on her husband on the day of occurrence when he went to investigate the case. 12. Mr. In his cross-examination, he admitted that wife of the accused (Adil Tanti) had informed him about the assault made on her husband on the day of occurrence when he went to investigate the case. 12. Mr. B.K. Singh, learned Amicus Curiae submits that in the instant case only a solitary 'dao' blow was given on the deceased by the accused and it could not be said that the accused had any intention to make deadly assault on the deceased. The learned Counsel further submits that perhaps death of Smt. Janmoti Tanti resulted on account of a scuffle which took place between P.W. 5, the victim and the accused. Accordingly, it is contended that the conviction of the accused/appellant under Section 302 IPC may not be justified in the instant case. 13. Mr. K.C. Mahanta, learned Public Prosecutor, Assam, on the other hand submits that although a single 'dao' blow was dealt by the accused upon the deceased, but considering the position of injury which was struck on the neck of the victim, it could not be said that death was not intended by dealing such a blow on the body of the deceased. Accordingly, it is submitted that the conviction of the accused/appellant for murder is justified. 14. On overall scrutiny of the evidence adduced in this case, we find that on that morning of the day of occurrence, the accused/appellant had confronted the P.W. 4 as to why P.W. 4 had rebuked his son, Bhip Charan Tanti for not doing any household work. Thereafter, the accused went away and came back to the house of P W. 4 in a drunken state with a 'dao' in his hand. P.W. 4, immediately left the house to inform the same to others and in the meantime, the assault on the wife of P.W. 4 took place. Immediately, thereafter, the accused ran away from the place of occurrence but soon after that coworkers of the Garden have managed to apprehend the accused. 15. Now, we have to consider as to whether the accused had intended to kill the deceased. It is found from the evidence of P.W. 5 that the accused had confrontation with P.W. 4 on the morning of the incident about rebuking of his son. However, no altercation is shown to have occurred between the accused and the deceased. 15. Now, we have to consider as to whether the accused had intended to kill the deceased. It is found from the evidence of P.W. 5 that the accused had confrontation with P.W. 4 on the morning of the incident about rebuking of his son. However, no altercation is shown to have occurred between the accused and the deceased. Even the evidence of P.W. 5 being the sole eyewitness, does not indicate that any altercation took place between the accused and the deceased. Therefore, it appears to us that the accused had come to the house of P.W. 4 with the intention of confronting the P.W. 4 a second time on the rebuking of the son, but this time fortified with a 'dao' in his hand and alcohol in its belly. But when P W. 4, instead of facing up to the accused went out of the house to call others, the accused gave a single blow with the 'dao' on the deceased who was the wife of P.W. 4, which led to her death. Nowhere from the evidence on record, it could be seen that the accused had any motive to make assault on the victim nor there is any evidence to show about any confrontation between the accused and the deceased. Under such circumstances, we feel that perhaps the accused did not have any intention to kill the deceased and all that he-wanted was to confront with P.W. 4 for second time, on the rebuking of P.W. 4's son by the P.W. 4. 16. We find that there was no intention on the part of the accused/appellant to cause the injury which in normal course would have resulted in death of the deceased. Therefore in the absence of intention, we are of the view that it would be appropriate to alter the conviction of the accused/appellant to Section 304 Part-II IPC from Section 302 IPC. Accordingly, in lieu of the sentence of life imprisonment imposed upon the accused/appellant, we feel that ends of justice would be met if the said sentence of life imprisonment and further sentence of fine is converted to the period already spent in jail custody by the accused/appellant as it is submitted that by this time, the appellant has undergone about 6 years 9 months imprisonment. It is ordered accordingly. 17. It is ordered accordingly. 17. In the result, this appeal stands partly allowed to the extent of modification of conviction and sentence of the accused/appellant (Adil Tanti). Send down the LCR immediately. 18. The appellants be set at liberty forthwith if he is not required in any other case. Before parting with the records, we would like to put on record our appreciation for Mr. B.K. Singh, for his valuable assistance rendered as Amicus Curiae in arriving at the aforesaid decision. Accordingly, we order that he is entitled to professional fees, which is quantified at Rs.5000/-.