Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 1323 (GAU)

Chotolal Tanti v. State Of Assam

2019-12-04

MIR ALFAZ ALI, S.HUKATO SWU

body2019
JUDGMENT : Mir Alfaz Ali, J. Heard learned senior counsel, Mr. A.M.Bora for the appellants and learned Addl. P.P., Ms. S. Jahan for the State-respondent. 2. This appeal is directed against the judgment and order passed by the learned Addl. Sessions Judge (FTC), Silchar in Sessions Case No.90/2014, whereby, the learned Addl. Sessions Judge convicted the appellants under section 302 IPC read with Section 34 IPC and sentenced them to imprisonment for life and fine of Rs.10,000/- each with default stipulation. 3. According to prosecution on 10-08-2009 at about 10 pm, when the deceased Prafulla Tanti and his sister Protima Tanti (PW-8) were watching T.V. in the house of Pradip Tanti (PW2), all the appellants attacked Prafulla Tanti and inflicted injury by hitting him with 'dao', lathi etc. The village people informed the police, whereupon police came and on 11-8-2019 at about 4.30 am, they accompanied the police to search the victim and found him lying unconscious in front of the house of the appellant Chotolal Tanti. The victim was shifted to the hospital for treatment, where he succumbed to the injuries. PW-2, Pradip Tanti lodged the FIR (Ext.-2), on the basis of which, police registered Udharbond PS Case No. 109/2009 and commenced investigation. In course of investigation, police recorded the statement of the witnesses, got the inquest done and the post mortem examination on the body of the deceased was conducted by Dr. Gunojit Das (PW-9). 4. The autopsy doctor, who conducted post mortem examination on the body of the victim found the following injuries :- 1. Incised injury of size 8 cm x 3 cm x with bevelling of left temporal scalp reflected from superior to inferior side exposing underlying bone. 2. Contusion of scalp in the left temporal and parietal scalp found on reflection. 3. Contusion of scalp in the right side occipital scalp. 4. Contusion of soft tissues of chest wall left side anteriorly. 5. The doctor opined that the death was caused due to haemorrhage and shock resulting from the injuries, which were ante-mortem and homicidal in nature. The doctor further stated that the injuries were caused by blunt object. 6. On completion of investigation charge-sheet was laid against all the four appellants u/s 147/148/149/302 IPC and eventually all of them stood trial. 7. In course of trial, charges were framed u/s 147/148/149/302 IPC, to which the appellants pleaded not guilty. The doctor further stated that the injuries were caused by blunt object. 6. On completion of investigation charge-sheet was laid against all the four appellants u/s 147/148/149/302 IPC and eventually all of them stood trial. 7. In course of trial, charges were framed u/s 147/148/149/302 IPC, to which the appellants pleaded not guilty. In order to establish the charges, prosecution examined ten witnesses including the doctor. On completion of the prosecution evidence, the accused persons were examined u/s 313 CrPC, wherein they took the plea of innocence and examined two witnesses in their defence. 8. On our assessment of the evidence, we find that out of eight ocular witnesses, PW-3, PW-4 and PW-5 were the eye witnesses. Though, the PW-8, daughter of the victim was accompanying the victim and was an eye witness, she turned hostile. PW-3 testified that at about 9 O'clock, the deceased Prafulla along with his daughter Protima came to their house to watch T.V. and all of them were sitting in the verandah after having dinner. All of a sudden, the appellant Chotolal Tanti, Santanu Tanti and Swapan Tanti came to their verandah and assaulted Prafulla with a lathi on his head and other parts of his body. As a result of the assault, the deceased sustained injuries on his head. Thereafter, the accused persons dragged him towards their house. However, during cross-examination, he stated that he did not see that the deceased was dragged by the appellants to their house. PW-4 also stated in the same tune, that when the deceased Prafulla and his daughter Protima (PW-8) were in their house for watching T.V., the appellants being armed with dao, lathi etc. came there and assaulted Prafulla Tanti and thereby inflicted injury on his head. 9. Pw-5, Vikash Shil deposed that hearing hue and cry he woke up and saw that accused persons were assaulting the deceased Prafulla in the courtyard of Nirmal Shil. Immediately he rushed to the place of occurrence and raised protest, but they did not pay any heed. Thereafter, the accused persons dragged the victim from the house of Nirmal Shil towards the road. 10. Pw-8, the daughter of the deceased, who was accompanying him to the house of PW3 and PW-4, deposed, that while they were watching T.V., there was power failure and at that time, some people came there and started quarrelling with her father and physically assaulted him. 10. Pw-8, the daughter of the deceased, who was accompanying him to the house of PW3 and PW-4, deposed, that while they were watching T.V., there was power failure and at that time, some people came there and started quarrelling with her father and physically assaulted him. However, she did not implicate the appellants. Therefore, the prosecution declared the PW-8 hostile. 11. Pw-1 was not an eye witness of the occurrence. According to him, he only heard about the quarrel between Chotolal Tanti and the deceased. PW-2 also stated, that he did not see the occurrence. PW-6 was also not an eye witness and he came to know about the occurrence later on. 12. Pw-7, who happened to be a pharmacist, deposed, that he attended the deceased after the occurrence. 13. Relying on the above evidence, learned Sessions Judge convicted the appellants u/s 302 read with Section 34 IPC and awarded sentence as indicated above. 14. Learned senior counsel, Mr. A.M. Bora has not contested the findings of the learned Sessions Judge, that the death of the deceased was caused as a result of the injury inflicted by the appellants. However, the contention of the learned senior counsel, Mr. Bora is that there was no intention on the part of the appellants to cause death and the injury was inflicted in course of quarrel and that only a single injury was caused by a blunt object like lathi and as such, the appellants could not be convicted u/s 302 IPC in absence of intention to cause death. At best the conviction, u/s 304 Part-II IPC for culpable homicide not amounting to murder could be recorded, submits Mr. Bora. Learned Addl. Public Prosecutor, Ms. S. Jahan also fairly conceded to the submission of the learned counsel for the appellants. However, according to her, the conviction should be u/s 304 Part-I IPC. 15. On scrutiny of evidence of all the witnesses, we notice that the appellants hit the deceased with lathi and only a single fatal injury was caused on the head of the deceased. It is also in the evidence of PW-8, that there was quarrel between the victim and the assailants and pursuant to such quarrel, the deceased was assaulted. Although PW-8 was declared hostile, her testimony need not be discarded in lock, stock and barrel. It is also in the evidence of PW-8, that there was quarrel between the victim and the assailants and pursuant to such quarrel, the deceased was assaulted. Although PW-8 was declared hostile, her testimony need not be discarded in lock, stock and barrel. It is the settled position of law, that the testimony of the hostile witness does not get washed off the record, merely because of he/she being declared hostile or his/her testimony disowned by the prosecution. The extent of the evidence of the hostile witness found to be consistent with the other prosecution evidence can be taken into consideration. The evidence of the PW-8, that a quarrel took place between the deceased and the assailants also finds support from the testimony of other witnesses, more particularly PW-1 as well as the DWs examined by the appellants in their defence. 16. Apparently there were four assailants. Had they harboured any intention to cause death of the deceased, obviously they would not have left the deceased after giving one blow on his head that too with a blunt object like lathi (stick). Therefore, the conduct of the appellants giving only a single blow, that too, with a blunt object like lathi, in course of quarrel, speaks loud and clear that the intention of the appellants to cause death was totally absent. However, in our considered view, it is difficult to say that there was no intention to cause such bodily as is likely to cause death. Thus, having regard to the fact that there was no intention to cause death and also the attending facts and circumstances, we are of the considered opinion that the conviction of the appellants could not be under Section 302 IPC for commission of murder. Accordingly, we set aside the conviction of the appellants under Section 302 IPC, instead, convict them under Section 304 Pt.-I IPC. 17. Keeping in mind the totality of the evidence and the facts and circumstances of the case, under which the occurrence took place, we are of the view, that sentence for a period of 7 (seven) years would meet the ends of justice. Accordingly, we sentence the appellants to imprisonment for 7 (seven) years. However, we do not interfere with the quantum of fine and the sentence of imprisonment in default awarded by the learned Sessions Judge. 18. Accordingly, we sentence the appellants to imprisonment for 7 (seven) years. However, we do not interfere with the quantum of fine and the sentence of imprisonment in default awarded by the learned Sessions Judge. 18. We take note of the fact, that the learned Sessions Judge has not passed any order for compensation u/s 357-A CrPC, having come to a conclusion that he did not consider it to be a just case for awarding compensation. But no reason is found to have been given by the learned Sessions Judge for arriving at such a conclusion. Therefore, we direct that a copy of the judgment be placed before the Legal Service Authority to examine the necessity of providing any compensation to the dependant/dependants of the deceased, if any. 19. The appeal stands partly allowed. 20. Send back the LCR.