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2019 DIGILAW 579 (GAU)

Ramesh Tanti v. State of Assam

2019-05-10

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. U. Choudhury, learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. By the order dated 30.04.2019 it was accepted that the informant respondent No.2 had died in the meantime and therefore, he be deleted from the array of respondents in the appeal. 3. An ejahar dated 09.05.2011 was lodged before the Officer-in-Charge of Rangapara Police Station by Puitu Kalandi inter alia alleging that on 06.05.2011 at about 6/6.30 p.m., the accused Ramesh Tanti had assaulted his youngest son Sibdas Kalandi and also his second son Dhiraj @ Jagu Kalandi and had caused grievous injuries on them, and that later on, at about 5.00 am, on 09.05.2011, his younger son died while undertaking treatment. Upon investigation, the accused appellant was charged of causing voluntary hurt to Dhiraj @ Jagu Kalandi thereby causing an offence punishable under Section 323 IPC and also causing the murder of Sibdas Kalandi hereby committing the offence under Section 302 IPC. 4. PW-1 the informant in his deposition stated that on the given day, his son Sibdas Kalandi had gone for tuition and while he was returning back he heard some hue and cry and upon going to the place of occurrence found that his son Sibdas Kalandi was lying there and he was senseless. When his other son Dhiraj @ Jagu Kalandi went to the place of occurrence and asked the accused Ramesh Tanti as to why he assaulted his younger brother, then Ramesh Tanti gave a blow on the back side of his head by a lathi for which he sustained injury on his head. In cross, PW-1 in response to a suggestion stated that he does not know if the accused Ramesh Tanti had obstructed his son from meeting the daughter of the accused and for this reason his son had an altercation with the accused. He also stated in cross that his eldest son Jagu and the accused Ramesh Tanti took his injured son to the hospital. 5. PW-2, Dhiraj @ Jagu Kalandi the other brother of the deceased who was also assaulted by the accused in his deposition stated that the accused Ramesh Tanti took his brother to his courtyard and there he assaulted him and having heard the commotion, he went there. 5. PW-2, Dhiraj @ Jagu Kalandi the other brother of the deceased who was also assaulted by the accused in his deposition stated that the accused Ramesh Tanti took his brother to his courtyard and there he assaulted him and having heard the commotion, he went there. He further deposed that the place of occurrence was at a distance of 200 meters from his house and he had heard the commotion while he was present in his house. Upon going to the place of occurrence when he asked the accused Ramesh Tanti as to why he had assaulted his brother Sibdas Kalandi, Ramesh Tanti gave a blow on his head from the back side with a fire wood. In cross examination, PW-2 stated that Ramesh Tanti was standing at the place of occurrence and when he arrived there, he saw that his brother was lying there. Although in cross, he stated that he saw about 20/25 persons being present there, but he also stated that none of the other people were armed with any lathi, although he saw that the accused Ramesh Tanti was armed with a lathi. He further stated that when he had asked Ramesh Tanti as to why he assaulted his brother, a quarrel broke out between them. 6. The medical evidence reveals that the injured PW-2 Dhiraj @ Jagu Kalandi had the following injuries:- "1. One oblique about to heal stitched wound on the scalp over the frontal area of the skull measuring about 1" length" 7. As regards the injuries on the deceased, the post mortem report shows the following injuries:- "III-THORAX 1. Walis ribs and Crtilages : Fracture of left 7th rib in mid clavicular line 2. Pleurae: Left pleural cavity is full of blood clot 3. Laryax and trach ere: Healthy 4. Right lung: Healthy 5. Left lung: Lacerated injury of left lower lobe of lung of 2 cm X 1 c.m x 1 cm 6. Pericar (dium): Healthy 7. Heart: Healthy 8. Vessels: Healthy" Apart from the injuries mentioned above, post mortem report does not indicate any other injury on the body of the deceased. 8. The evidence of the other prosecution witnesses for the present purpose are not found to be relevant, in a circumstance where PW- 5 to 8 were declared to be hostile. 9. Heart: Healthy 8. Vessels: Healthy" Apart from the injuries mentioned above, post mortem report does not indicate any other injury on the body of the deceased. 8. The evidence of the other prosecution witnesses for the present purpose are not found to be relevant, in a circumstance where PW- 5 to 8 were declared to be hostile. 9. After considering the deposition of PW-2, it is discernible that there is no eye witness to the act as to how the injuries were caused on the decased Sibdas Kalandi. But circumstantially we find that the accused Ramesh Tanti had taken the deceased inside his courtyard which was seen by the PW-2 and thereafter when PW-2 reached the place of occurrence, he had seen the accused Ramesh Tanti standing near the body of deceased, although he was in an injured stated at that point of time and upon being asked as to why he had assaulted the deceased, the accused without giving any further explanation had given one blow on the back of the head of the PW-2 with a lathi. The said circumstance brings the accused appellant within the requirement of Section 106 of the Indian Evidence Act for giving an acceptable and reasonable explanation of the circumstance. But when we go to the statement of the accused appellant under Section 313 Cr.P.C., apart from a general denial, no explanation is forthcoming. 10. From the above, we are of the view that the chain of events leading to the circumstance is complete and it can be safely accepted that it is the accsued Ramesh Tanti who had caused the injuries upon the deceased. 11. But at the same time, when we examine the nature of the injuries, we find that death was caused due to puncture being caused to the lungs by the broken ribs resulting in a bleeding in the lungs and further the opinion of the Doctor is that such injuries can also be caused upon a fall on a hard surface. In the circumstance, it cannot ruled out that the injuries resulting in the death may have been caused also by hard push that may be given to the deceased or it could have been caused by the lathi blow. Further there was no external injury on the deceased except for some lacerated injury on his elbow. 12. In the circumstance, it cannot ruled out that the injuries resulting in the death may have been caused also by hard push that may be given to the deceased or it could have been caused by the lathi blow. Further there was no external injury on the deceased except for some lacerated injury on his elbow. 12. In the circumstance, we are of the view that even if the act had been committed by the accused in the matter as indicated above, no intention of causing death or any intention of causing such injury as is likely to cause death or that the accused acted with the knowledge by such act he is likely to cause death is found in the instant case. 13. Accordingly, we are of the view that the act of the accused in causing death of the deceased cannot be brought within the concept of culpable homicide. If it is accepted that the act of the accused is not culpable homicide, the evidence on record would indicate it to be an act of causing grievous injury. But again seeing the manner in which injuries were inflicted and also considering that the only suggestion was that the accused may have been carrying lathi, we are of the view that the grievous hurt so caused was not by dangerous weapon. Accordingly, the accused appellant can be held to have committed an offence punishable under Section 325 of the IPC as regards the injuries being caused to the deceased Sibdas Kalandi, which may otherwise have lead to his death. As regard the charge against Dhiraj @ Jagu Kalandi, we find that the conviction of the accused for causing an offence punishable under Section 323 requires no interference. The evidence of PW-2 that the blow with a lathi was given in his head did not stand demolished. 14. We have been informed that the accused appellant has been in custody since 18.05.2011. It being so, he is already served imprisonment for more than seven years. We find the maximum punishment under Section 325 is seven years and as the accused has already undergone imprisonment for more than the maximum punishment, we deem it that the accused cannot be kept in custody any further. It being so, he is already served imprisonment for more than seven years. We find the maximum punishment under Section 325 is seven years and as the accused has already undergone imprisonment for more than the maximum punishment, we deem it that the accused cannot be kept in custody any further. Accordingly, the judgment and order dated 15.07.2015 of the learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No.173/2011 also convicting the accused appellant under Section 302 IPC and sentencing him to rigorous imprisonment for life with a fine of Rs.1,000/- to be paid in default whereof a further rigorous imprisonment for 2(two) months is accordingly set aside. 15. Accordingly, the accused appellant is convicted for an offence under Section 325 for causing the injuries upon Sibdas Kalandi which may otherwise have lead to his death and also uphold the conviction under Section 323 IPC in respect of the injuries caused to Dhiraj @Jagu Kalandi. The accused appeallant is set at liberty forthwith subject to not being required for any other offence. 16. LCR be sent back. 17. Before parting with the record, we appreciate the valuable service rendered by Mr. U. Choudhury, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order.