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2009 DIGILAW 106 (GAU)

Ram Pan Tanti v. State of Assam

2009-02-12

AFTAB H.SAIKIA, HRISHIKESH ROY

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. S.C. Koyal, the learned Amicus Curiae and Mr. Z. Kamar the learned PP Assam. 2. The conviction of the Appellant under Section 302, IPC for killing one J.S. Jain, the General Manager of the concerned tea garden (hereinafter referred to as 'the deceased') and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- in default rigorous imprisonment for another one year, have been assailed in this criminal appeal which was preferred from jail. 3. The impugned conviction and sentence was awarded by the learned 1st Addl. Sessions Judge (Adhoc) Sibsagar in his judgment and order dated 6.3.2003 in Sessions Case No. 112(S-S) 2001. 4. It was alleged in the FIR lodged by one Sundar Lai Sharma (PW1) on 16.3.2001 with Galakey Police Station that on the same day i.e. on 16.3.2001 at about 9.30 a.m. while their General Manager, the deceased was on his regular visit to the garden Section No. 7, the Appellant who was evicted from his house on the previous day i.e. on 15.3.2001 as per Court's order, suddenly appeared there with a dao and attacked the deceased causing serious injury on his head. Though he was immediately shifted to the Pragati Hospital, Sibsagar, deceased expired in the hospital. 5. The police on completion of the investigation having started terms of the above allegation made in the FIR, charge-sheeted the Appellant under Section 302, IPC. 6. Before the trial Court the prosecution examined as many as 16 witnesses including 6 eye-witnesses namely PW 1. Sundar lal Sarma, PW 2 Pradip Pradhan, PW 3 Dulal Nayak, PW 4, Tirtha Dutta, PW 11 Raju Pan Tanti, PW 12 Ranjit Kandha along with two official witnesses i.e. PW 8 Dr. Dilip Kr. Barua and PW 16 Iram Ahmed, Investigating Officer (for short, I.O.) Defence also examined two witnesses on behalf of the Appellant namely DW1 Tinku Tanti and DW 2 Nakul Prasad. The Appellant was also examined under Section 313, Code of Criminal Procedure. 7. The trial Court having closely appreciated the entire evidence on record including the medical evidence so adduced by PW 8 came to the finding that it was the Appellant who committed the crime charged and consequently convicted and sentenced him as indicated above. 8. Assailing the impugned conviction and sentence Mr. 7. The trial Court having closely appreciated the entire evidence on record including the medical evidence so adduced by PW 8 came to the finding that it was the Appellant who committed the crime charged and consequently convicted and sentenced him as indicated above. 8. Assailing the impugned conviction and sentence Mr. Kayal, the learned Amicus Curiae has forcefully submitted that on the face of the testimony of the evidence of the prosecution witnesses as well as defence witnesses itself it appear that it is not a case of 302, IPC and at best it may fall within the purview of Section 304 Part-I, IPC. To substantiate his such submission, Mr. Kayal has drawn our attention to the deposition of the eye-witnesses so examined by the prosecution witnesses i.e. PWs 1, 2, 3, 4, 11 and 12 as well as defence witnesses No. 1 and 2. According to the learned Amicus Curiae, all these witnesses particularly PW 3, PW 4 and PW 5 in their cross categorically deposed in unison that they saw cut bleeding injuries on the head of the Appellant. While the Appellant was in police station they saw injuries on his head and he was bleeding. More particularly the deposition of PWs 6 Rakibul Hussain and 7 Durga Prasad Agarwalla in their evidence deposed that they saw forehead of the accused being bandaged. It is also submitted by the learned Amicus Curiae on behalf of the Appellant that the entire episode was occurred on the spur of the moment out of sudden provocation as the deceased being the General Manager of a tea garden hit the Appellant on his head first with a metallic capped baton which he generally carried and kept in his hand and after such hitting by the deceased, the Appellant who was on previous evicted the land itself whatsoever the occurrence took place, was furious and provoked and he then gave a dao blow on the person of the deceased. Under such circumstances it is submitted that there was no intention to kill the deceased by the Appellant and the entire unfortunate incident happened because of initial provocation which came from the side of the deceased. 9. Per contra, Mr. Under such circumstances it is submitted that there was no intention to kill the deceased by the Appellant and the entire unfortunate incident happened because of initial provocation which came from the side of the deceased. 9. Per contra, Mr. Z. Kamar, learned PP has submitted that the learned Sessions Judge was absolutely correct and totally justified in passing the impugned conviction and sentence because all those eye-witnesses were very much categorical and specific in pointing their accusing finger towards the Appellant who was, according to them, the only person involved in killing the deceased and all those eye-witnesses testified that the Appellant struck dao blows by spade on the deceased and according to him it is a fit case not to disturb the impugned conviction and sentence. Learned PP has also referred to the motive on the Appellant stating that because of his eviction from the land on the previous day, with a criminal intention he came with full preparation to kill the deceased and accordingly killed him. Learned PP has also relied on the medical evidence so adduced by PW 8, Doctor Dilip Kr. Barua who having conducted the autopsy over the dead body of the deceased found two incised injuries which were sufficient to cause death to the deceased. 10. Carefully considered the submissions so advanced on behalf of the Appellant from jail as well as the learned Public Prosecutor. We have also meticulously analysed the entire evidence on record basically of those eye-witnesses already mentioned above including the defence witnesses. 11. From the evidence of Defence witnesses it could be gathered that on the previous day the Appellant, who was living with his father, was evicted from the house/land within the tea estate and on the date of occurrence when the land, earlier possessed by the Appellant, was ploughed by the order of the deceased then the 2(two) DWs along with the Appellant approached the deceased and requested him to hand over the same and on that moment the deceased hit the Appellant with his glazing lathi on the forehead of the Appellant. Although h£ tried to save from that strike, the Appellant got injured and fell down, then only he dealt a dao blow on the person of the deceased, the General Manager on his head. Although h£ tried to save from that strike, the Appellant got injured and fell down, then only he dealt a dao blow on the person of the deceased, the General Manager on his head. The version of the defence witnesses, according to us, corroborated with the testimony of other eye-witnesses namely PWs 1, 2, 3, 4, 11 and 12 who also disclosed in their evidence that they saw cut injuries and bleeding coming out from the head of the Appellant. It has come on the record that apparently the Appellant and his family members were evicted from the land in question on the previous day and on the day of occurrence when the Appellant went to his land which was put on ploughing on the order of the deceased, he approached the deceased and at that time, it appears to us from the evidence of record, that the deceased who was having a metallic baton in his hand gave blows on the person of the Appellant and that provoked the Appellant to retaliate by a dao blow on the head of the deceased. 12. The credibility of the Defence witnesses has been examined by the Apex Court in a case of Banti alias Guddu v. State of Madhya Pradesh reported in AIR 2004 SC 261 . Li paragraph 9 of the aforesaid judgment the Apex Court ruled thus: ...It is true, the evidence of defence witness is not to be ignored by the Courts. Like any other witnesses, his evidence has to be tested on the touchstone or reliability, credibility and trustworthiness particularly when he attempts to resile and speak against records and in derogation of his earlier conduct and behavior. If after doing so, the Court finds it to be untruthful, there is no legal bar in discarding it. In the instant case having gone through the entire evidence of the eye-witnesses i.e. PWs 1, 2, 3, 4, 11 and 12 as projected by the prosecution eye-witnesses as well as the testimony of defence witness No. 1 and Defence Witness No. 2, we have no hesitation to hold that the evidence of the defence witness appears to be reliable, credible and trustworthy and accordingly we do give due weightage to the evidence of DWs. 13. 13. Having considered the facts and circumstances of the case in its entirety, we are of the view that the Appellant committed culpable homicide not amounting to murder as we do not consider that action on the part of the Appellant was pre-meditated. However, we are of the clear view that the Appellant had the knowledge that causing of such injury would result in the death of the deceased. 14. In view of what has been discussed, observed and stated above, we agree to hold that it is not a case of Section 302, IPC and it should come within the purview of Section 304 Part-I, IPC and accordingly we are of the considered view that ends of justice would be satisfied if the conviction of the Appellant under Section 302 , IPC is set aside. It is ordered accordingly. We convict hold him guilty of the offence under Section 304 Part-I, IPC and accordingly sentence him to undergo imprisonment for a period of 8(eight) years. 15. In the result the appeal stands disposed of with the modification of the conviction and sentence as indicated above. 16. LCR be sent down immediately. 17. Before parting with the case at hand, we would like to put on record our appreciation to Mr. S.C. Koyal, learned Amicus Curiae for rendering his valuable assistance and help in arriving at the aforesaid decision and accordingly we order that he is entitled to get his professional fees which is quantified at Rs. 5000/-.