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2015 DIGILAW 1332 (GAU)

Suren Tanti v. State of Assam

2015-10-13

INDIRA SHAH, P.K.SAIKIA

body2015
JUDGMENT P.K.Saikia, J. 1. This appeal is directed against the judgment dated 01.10.2011, rendered by learned Sessions Judge, Sivasagar in Sessions Case No. 1 (S-S)/2008 convicting one Suren Tanti, appellant herein, of offence u/s 302 IPC and sentencing him to imprisonment for life and also to pay a fine of Rs. 5,000/-, in default, RI for another 6 (six) months for the offence aforesaid and was sentenced to suffer SI for 6 (six) months for offence u/s 323 IPC. 2. Being aggrieved by and dissatisfied with the judgment aforesaid, the appellant Suren Tanti (hereinafter referred to as the accused person) has preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. I.H. Saikia, learned Amicus Curiae for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State. 4. The case, projected by prosecution, during investigation and trial, in short, is that on 28.04.2007 at about 8.30 pm, accused Suren Tanti, accompanied by two other boys, killed Puran Karmakar, since deceased, who was the brother of Suren Karmakar, the informant in Halwating P.S. Case No. 16/2007 and also caused injury to Moheswar Kharia and Nanku Karmakar. 5. It has been alleged that accused had inflicted injuries on those persons by a dao. An FIR to that effect, on being lodged with OC, Halwating Police Station, OC, Halwating Police Station registered a case vide Halwating PS Case No. 16/2007 and OC himself took up the investigation. During the course of investigation, the IO visited the PO, arrested the accused person and sent the dead body to hospital for post mortem examination 6. As the investigation progressed from stage to stage, he also examined the witnesses, also sent the victims of the alleged incident to hospital for necessary medical examination, did other things needful and on conclusion of investigation, he submitted charge-sheet u/s 302/323 IPC against the accused person and forwarded him to the Court to stand trial. 7. The Magistrate, before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. 7. The Magistrate, before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. The learned Sessions Judge, Sivasagar on receipt of the case on commitment and on hearing the learned counsel for the parties, framed charges u/s 302/323 IPC against the accused person and charges, so framed, on being read over and explained to the accused person, he pleaded guilty . But such plea of guilt was not accepted by the court and the accused was put on trial. 8. During trial, the prosecution had examined as many as 16 (sixteen) witnesses including informant, Medical Officer (in short, ‘MO’), who conducted autopsy on the dead body and the Investigating Officer (in short, ‘I/O’) of the case. The statement of accused person was recorded u/s 313 CrPC. While he was examined u/s 313 CrPC, the accused denied the allegations, levelled against him. However, on being required, he declined to adduce any evidence in his defence. 9. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict the accused of offences u/s 302/323 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 10. Mr. I.H. Saikia, learned Amicus Curiae appearing for the appellant submits that the judgment under challenge cannot be sustained for reasons more than one. In that connection, it has been stated that though the prosecution has examined as many as 4 (four) witnesses, who claimed to be the eye witnesses to the incident, under consideration, yet, their evidence cannot be relied upon since such evidence suffers from serious infirmities. 11. It has also been stated that the evidence which the PWs rendered before the court during trial stood contradicted in view of statements they rendered before the Magistrate and the IO during the course of investigation. In fact, those witnesses made serious attempt to improve the prosecution story with the progress of the case. 12. 11. It has also been stated that the evidence which the PWs rendered before the court during trial stood contradicted in view of statements they rendered before the Magistrate and the IO during the course of investigation. In fact, those witnesses made serious attempt to improve the prosecution story with the progress of the case. 12. It is also the case of the appellant that the evidence rendered by the victims of the alleged incident, they being PW 4, Nanku Karmakar and PW 6, Moheswar Kharia, is unreliable since their evidence that they too sustained injuries in connection with aforementioned incident was not supported by the Doctor who examined them soon after such incident. 13. The learned Amicus Curiae further contends that principal prosecution witnesses gave descriptions of the incident under consideration which are fundamentally different and such varied versions regarding the incident in question raises a serious doubt about the authenticity of the entire prosecution case. 14. According to learned Amicus Curiae, the evidence of PW 5 and PW 9, who claimed to be the eye witnesses, cannot be believed since the FIR also reveals that those two boys were involved in committing the aforesaid crime in one way or other which makes their evidence wholly unsafe for reliance. 15. On all those counts, the learned Amicus Curiae urges this Court to set aside the judgment under challenge and to acquit the acquit the accused/ appellant of the offences he was charged with, convicted of and sentenced to punishment as aforesaid. 16. On the other hand, Ms. S. Jahan, learned Addl. Public Prosecutor submits that there is indisputable evidence in the form of testimonies of PW 4, PW 5, PW 6 and PW 9, who are found to be witnesses to the incident in question, to show that on the eventful evening, the accused had planted several blows with a kukri on the person of the victim Puran Karmakar which caused his instantaneous death. 17. What is equally important is that on that evening, PW 4, Nanku Karmakar and PW 6, Maheswar Kharia were also assaulted by the accused person for which they were required to be treated by Doctors. According to the learned Addl. Public Prosecutor, the evidence which PW 4 and PW 6 rendered before the court during trial finds full support from their statements they rendered before the Magistrate during investigation. 18. According to the learned Addl. Public Prosecutor, the evidence which PW 4 and PW 6 rendered before the court during trial finds full support from their statements they rendered before the Magistrate during investigation. 18. Regarding other infirmities in the prosecution case, the learned Addl. PP claims that there are some inconsistencies between the evidence rendered by PW 4 and PW 6 on one side and the evidence rendered by the Doctor who examined the dead body of Puran Karmakar on 29.04.2007 on other side. But when one reads those discrepancies in between the lines, he would find that such inconsistencies are quite insignificant in nature and can no way cause any harm to the prosecution case. 19. According to the learned Addl. PP, the evidence of Dr. Budhua Saikia (PW 10), reveals that the victim sustained injuries caused by sharp and pointed object which occasioned his instantaneous death. Such evidence seems to be totally in the line of the evidence rendered by other ocular witnesses which, in turn, lends more and more credence to the testimonies rendered by the eye witnesses, PW 4, PW 5, PW 6 and PW 9. 20. That apart, other witnesses claim that they came to know about the incident under consideration from PW 4, PW 5, PW 6 and PW 9 and they learnt from them that is was the accused who had inflicted several blows on the body of the victim which occasioned his death then and there. Such evidence again places the prosecution case on more and more firm footing. 21. Referring to the plea of guilt, made by the accused person while charges levelled against him were read out to him, it has been stated that such plea of guilt, in the facts and circumstances of the present case, requires the Court to believe that the prosecution has proved charges against the accused person to the hilt. In view of above, the learned Addl. P.P. urges this Court to dismiss the appeal on affirming the judgment under challenge. 22. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. However, before we proceed further, we find it necessary to have a look at the evidence of the Doctor who conducted autopsy on the dead body. He is Dr. Budhua Saikia and was examined as PW 10. 23. 22. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. However, before we proceed further, we find it necessary to have a look at the evidence of the Doctor who conducted autopsy on the dead body. He is Dr. Budhua Saikia and was examined as PW 10. 23. According to him, on 29.04.2007, he was posted at the Sivasagar Civil Hospital. On that day, he conducted autopsy on the body of one Puran Karmakar and found the following :- External Appearances : Average built male dead body. Rigor mortis present. Face and neck are covered by clotted blood. Injuries : 1) Four number of incised wound over the left parietal and occipital bones, one penetrating wound in the epigastrium and one penetrating wound in the left hypochandrium and one penetrating wound in the umbilical region. Cranium and Spinal Canal : Membrane, brain and spinal cord – healthy. Torax :- Walls, ribs and cartilages, pleurae, larynx, trachea, lungs and pericardium and heart are healthy. Abdomen :- Mouth, Pharynx and esophagus are healthy. Stomach – Food particulars are found in the abdomen cavity. Small intestine and large intestine are ruptured. Liver, spleen, kidneys, bladder and organs of generation are healthy. Muscles, Bones and Joints :- Vessels –healthy; Injury – as per report in column No. 1; Diseases and deformity – as per column No. 1 in External Appearance. Three number of entry wounds in the abdomen. All the injuries were ante-mortem in nature. Opinion :- In the opinion of the doctor, the cause of death of the deceased was due to shock and haemorrhage as a result of the injuries, sustained by the deceased. 24. The evidence of the Doctor clearly reveals that the victim died on sustaining ante mortem injuries inflicted on him by sharp and pointed object. In order words, the death of the victim was homicidal in nature. 25. It is in this backdrop, let us consider the testimony of PW 6, Sri Moheswar Kharia. According to him, on the fateful evening, while he was coming from bazaar, he met the accused at the PO. The deceased was also at such place. He saw the accused kicking the deceased. 25. It is in this backdrop, let us consider the testimony of PW 6, Sri Moheswar Kharia. According to him, on the fateful evening, while he was coming from bazaar, he met the accused at the PO. The deceased was also at such place. He saw the accused kicking the deceased. When he enquired the accused as to why he assaulted him, the accused planted a blow on his neck and thereafter, he planted another blow on his head for which PW 6 quickly left the PO and rushed to the house of one Shiva, VDP Secretary and reported the matter to the family members of the aforesaid VDP Secretary. 26. In the meantime, the victim was given first aid. PW 6 later learnt that the victim died on sustaining injuries. In regard to the incident aforesaid, he (PW 6) rendered statement before the Magistrate which he proved as Ext. 6. Nanku Karmakar (PW 4) is another eye witness and he too is found giving evidence which is very similar to the evidence rendered by PW 6 before the court during trial. 27. PW 9 is one Sitaram Bowri is a boy of about 16 years of age. According to him, on the fateful evening at about 8 pm, he along with Debram Tanti (PW 5 ) and one Jaduwa @ Madhuwa Rajuwar were returning from bazaar. They met accused Suren Tanti at the fish market. Suren Tanti, accused/ appellant herein ordered them to take fish to his house. When they refused to do so, he threatened them to kill with a dao in his hand. Out of fear, they took fish to the house of the accused/appellant. 28. On their return, they saw the accused kicking and punching the victim Puran Karmakar, Moheswar Kharia and Nanku Karmakar. They also saw the accused taking the deceased as well as Moheswar Kharia and Nanku Karmakar towards the house of VDP Secretary. The other two injured persons, namely, Moheswar Kharia and Nanku Karmakar, however , rushed to the house of the VDP Secretary. Finding them at the PO at such a time, the accused ordered them to follow him. Out of fear, they did what the accused asked them to do. 29. But on way, the accused attacked the victim on his abdomen and head with a kukri for which the victim fell down on the ground and died then and there. Finding them at the PO at such a time, the accused ordered them to follow him. Out of fear, they did what the accused asked them to do. 29. But on way, the accused attacked the victim on his abdomen and head with a kukri for which the victim fell down on the ground and died then and there. Soon thereafter, the accused ordered them to take the dead body to the field nearby and ordered them to throw it into the drain nearby. Thereafter, the accused asked them to help him in killing Moheswar Kharia since, according to the accused person, if Moheswar was not killed, he would lick out all to police. But they somehow succeeded in freeing themselves from the clutches of the accused person and fled the PO. 30. It is worth noting here that the prosecution places heavy reliance on the testimonies of the Debi Ram Tanti ( PW 5) since he was also with the PW9 and one one Jaduwa @ Madhuwa Rajuwar when the incident in question was in progress. The evidence of PW 5 appears to be similar with the testimony on the PW 9 on the main although on some peripheral aspects they differ. But then, such infirmities, by no stretch of imagination, can be considered as too big to overthrow the testimonies of those witnesses. 31. On reading the evidence of PW4, PW5, PW6 and PW9 together, we have found that on the eventful evening, the accused had assaulted PW 4, Nanku Karmar and PW 6, Moheswar Kharia and also planted several blows with a khukri on the person of the victim which caused his instantaneous death. Such evidence of PWs finds support from the evidence of the Doctor, who in no uncertain term, claims that the victim died on sustaining ante mortem wounds inflicted by sharp and pointed object. 32. On reading the evidence of The evidence of other witnesses, viz, Suren Karmakar, (PW1) , Mithun Kandha ( PW 2) , Sunil Tanti (PW3 ) and PW 11, Pradip Dutta, more and more, we have also found that those witnesses came to know about the incident in question soon thereafter and learnt that it was the accused who inflicted kukri blows on the victim which occasioned his death then and there. They also came to know that the accused persons had also assaulted PW 4 and PW 6 as well. In our considered opinion, such evidence is relevant as res geste evidence. 33. On reading the evidence on record in entirety, we have found that it was the accused who actually caused the death of the deceased on the eventful evening having planted several kukri blows on his person. We have also found that on the night aforesaid, he also assaulted PW 4 and PW 6. Therefore, the evidence on record makes out the allegations against the accused person beyond any shadow of doubt. 34. It may be noted here that the accused had admitted his guilt while the learned Trial Court was pleased to explain the charges framed against him. Such plea of guilt, in the facts and circumstances of the case, lends more and more credence to the prosecution case that it was the accused who actually killed the deceased on the eventful afternoon. 35. Above being the position, we have found that prosecution has successfully proved the charge against the accused person beyond all reasonable doubt and as such, the learned Trial Court has rightly convicted the accused person under the aforesaid provision of law and sentenced him to adequate punishment. 36. In the result, the appeal, being found devoid of merit, is dismissed. 37. We deeply appreciate the valuable assistance rendered by Mr. I.H. Saikia, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State Legal Service Authority to pay him Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only as being his professional fees within a period of 3 (three) months from the date of receipt of a certified copy of this judgment. 38. Return the LCR.