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2019 DIGILAW 824 (GAU)

Shankar Tanti S/o. Robi Tanti v. State of Assam

2019-07-15

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. B Baruah, learned Amicus Curiae for the appellant and also heard Ms. S Jahan, learned Additional Public Prosecutor for the State of Assam. 2. The office note of 26.09.2018 shows that notice had been served on respondent No.2/informant but inspite of such service, none appears. 3. An ejahar dated 22.08.2015 was lodged before the Officer-In-Charge of Mariani Police Station by one Suraj Kesri, inter-alia stating that on 22.08.2015, at about 8 am, when his father Sohanlal Kesri was attending his duty as a Chowkidar at Section-11/B of the garden, the accused Sankar Tanti, son of Rabi Tanti, who was also a resident of the same line all of a sudden had inflicted cut injuries on the head, face and hands of his father thereby causing serious injuries. Subsequently, while undergoing treatment at Jorhat Mission Hospital, the father of the informant died at around 2.20 pm. 4. The informant Suraj Kesri in his deposition as PW-1 stated that around 9.45 am on 22.08.2015, he had been to the State Bank of India, Mariani Branch, where he got a phone call from his wife Shuman Kesri and was informed that the accused Sankar Tanti had killed his father. On his way back from the Bank, he saw some person bringing his father to a hospital in an injured condition and he had also seen the injuries on the left side of the face and forehead from where blood was oozing out. The injured was initially taken to the Mariani P.S from where, as per the instruction of the Officer-in-Charge, he was taken to Mariani PHC. As the doctor was not available at Mariani PHC, the compounder present had given some dressing to the injuries and required the injured to be taken to Jorhat Medical College Hospital. Thereupon, the injured was taken to the Christian Missionary Hospital, Jorhat, where the doctor after providing preliminary treatment had given the opinion that he be taken to Dibrugarh. But as the condition of the injured had deteriorated, he was admitted to the ICU. Around 2 pm, PW-1 received the information that his father had died. 5. PW-1 also deposed that earlier he had asked his father at Mariani PHC as to who has assaulted him and his father had named the accused Sankar Tanti. But as the condition of the injured had deteriorated, he was admitted to the ICU. Around 2 pm, PW-1 received the information that his father had died. 5. PW-1 also deposed that earlier he had asked his father at Mariani PHC as to who has assaulted him and his father had named the accused Sankar Tanti. In cross, the witness stated to a suggestion that it is not a fact that he did not state before the police that his wife had informed him that accused Sankar Tanti had assaulted and killed his father. 6. PW-2, Mohan Tanti in his deposition stated that at around 8 am on the day of the occurrence, he was present in his house when Padum Kesri, son of Sohanlal Kesri came and informed that Sohanlal Kesri was assaulted by someone. Having heard about the assault, the witness proceeded to the place of occurrence in a bicycle and upon reaching the place, found that Sohanlal Kesri was lying in a pool of blood in the guard shed. Injuries were seen on the forehead, mouth and chest from where blood was oozing out. The witness stated that when he asked the injured as to how he had sustained the injuries, he was told that Sankar Tanti had assaulted him with a dao. In cross-examination, the witness to a suggestion stated that it is not a fact that Sohanlal Kesri had not told him that accused Sankar Tanti had assaulted him with a dao. 7. PW-3, Podum Kesri who is the son of Sohanlal Kesri in his deposition stated that around 8 am on the day of the occurrence, Arun Tanti came to their house and informed that one person had assaulted his father. Upon immediately going out towards the place of occurrence, he saw that the accused Sankar Tanti was running in from the opposite direction from inside the garden. When the witness reached the place of occurrence, he found that his father was lying in a drain near the guard’s room in a badly injured condition and had sustained injuries on his head, face and hand. As he was unable to come out from the drain, the witness helped him and took him out of the drain and then when he asked as to who had assaulted him, the injured replied that the accused Sankar Tanti had assaulted him and caused the injuries. 8. As he was unable to come out from the drain, the witness helped him and took him out of the drain and then when he asked as to who had assaulted him, the injured replied that the accused Sankar Tanti had assaulted him and caused the injuries. 8. PW-3 further stated in his deposition that he then informed PW-2, Mohan Tanti about the occurrence and after Mohan Tanti arrived at the place of occurrence within 10 minutes, he and Mohan Tanti took his father to the Mariani P.S on a bicycle and after intimating the police about the occurrence took the injured to the Mariani Civil Hospital from where he was referred to the Jorhat Mission Hospital. Subsequently, the injured died at about 2/3 pm. To a suggestion in cross, PW-3 stated that it is not a fact that he had stated falsely that on being asked, his father told him that the accused Sankar Tanti had assaulted him. 9. PW-4, Dr. Swaraj Phukan who had conducted the post-mortem report had stated the following injuries to have been present on the body of the deceased: Injuries:- i. Stitch wound of length 13 cm present over the forehead and Parieto- frontal region of scalp going backwards. On reflection of the scalp, contusion present over the frontal and parietal regions. Depressed communited fracture of frontal and left parietal bone present. Marginss of the wound are regular and clean cut. Ante-mortem blood clot found adherent which resist washing with running water. ii. Stich wound of size 4 cm present over the right arm, anterior- laterally 6 cm above the elbow joint. On opening the stitches, would found to be soft tissue depth. Margins of the wound found to be regular and clean cut. Ante- moretem blood clot adherent which resists washing with running water. iii. Abrasion with contusion of size 10 cm x 4 cm and 8 cm x 4 cam present over the right side of the back. iv. Laceration of size 3 cm x 1 cm x soft tissue depth present over the right side of face over the mandible. Membrane: Margins congested. Subdural Haemorrahge present over both the hemispheres of brain subarachnoid haemorrhage present over both the hemispheres of brain. iv. Laceration of size 3 cm x 1 cm x soft tissue depth present over the right side of face over the mandible. Membrane: Margins congested. Subdural Haemorrahge present over both the hemispheres of brain subarachnoid haemorrhage present over both the hemispheres of brain. PW-4 expressed the opinion that the death was caused due to coma as a result of the injury sustained in head and that all the injuries were post-mortem and homicidal in nature and that injuries Nos. 1 and 2 were caused by a sharp cutting weapon which was moderate to heavy. The witness also stated in his deposition that the injuries on the head were fatal in nature and can cause instantaneous death in the ordinary course of nature. The doctor conducting the post-mortem also stated that when he saw the deceased, he found some stitches over the injured portion. 10. PW-5, Dharmil Tanti in his deposition stated that on the day of the occurrence, his niece Suman Keshri came to their house and informed that her father-in-law had been assaulted by the accused person nearby the garden. On receipt of the information, PW-5 immediately went out of the house in his bicycle and went towards the place of occurrence. When he proceeded towards the place of occurrence, he saw that the injured Sohanlal Keshri was taken in a bicycle by his nephew and others. The witness also saw blood oozing out of the wound spreading over whole of the body of the injured. PW-5 also stated in his deposition that the injured was conscious at that time and he was in a position to speak. He also deposed that the injured had disclosed before him that he was assaulted by the accused. In cross, the witness reiterated that Babul and Jogen took the injured Sohan Lal in a bicycle. 11. The other prosecution witnesses who had been examined, namely, PWs 6, 7, 8 and 9 are all hearsay witnesses. But at the same time, we also take note that PWs 7, 8 and 9 are witnesses to the seizure of the dao used in the commission of the offence from the house of the accused as well as the bamboo stick from the place of occurence. 12. But at the same time, we also take note that PWs 7, 8 and 9 are witnesses to the seizure of the dao used in the commission of the offence from the house of the accused as well as the bamboo stick from the place of occurence. 12. PW-7, Smti Munmi Tanti in her deposition stated that the police had seized one kalam dao and one bamboo stick but the witness had not seen the seized articles. 13. PW-8, Deepak Tanti had stated that the police had seized the articles and Exhibit-3 is the seizure list by which the kalam dao was seized and Exhibt-4 is the seizure list by which the bamboo stick was seized. In cross, PW-8 stated that the police recovered the seized articles from the house of the accused. 14. PW-9, Smti Bhanu Tanti stated that police seized one kalam dao from the house of the accused but she did not see the seized articles. 15. PW-10, Syed Tayyebur Rahman, the investigating officer stated that upon receipt of the FIR and recording of the statements of the informant and other witnesses, he went to the place of occurrence and from there seized one lathi. He deposed that he had also seized one kalam dao as stated by the accused in his statement. Exhibit-3 seizure list shows that one knife was seized from the house of the accused Sankar Tanti which was about 14 inches long with a handle of 7 inches. Exhibit-4 seizure list shows the seizure of one bamboo stick from the place of occurrence. 16. When we look into the injuries sustained by the deceased and also take into consideration the medical opinion of the doctor conducting the post-mortem examination, we take note of that the injuries Nos. 1 and 2 were caused by a sharp cutting weapon whereas the injuries Nos. 3 and 4 were caused by a blunt weapon. Two weapons have been recovered in course of the investigation, one being the kalam dao or a knife which is more or less similar to each other and the other being a bamboo lathi. We also take note of that the bamboo lathi was in fact seized from the place of occurrence whereas the dao or the knife was seized from the house of the accused. We also take note of that the bamboo lathi was in fact seized from the place of occurrence whereas the dao or the knife was seized from the house of the accused. We further take note of that the accused was also sent for a medical examination where the opinion rendered was that no clinically significant injuries were found on the body of the accused which again shows that at least some injuries must have been there on the accused so as to require his medical examination. The aspect that the accused was also injured to some extent requiring medical examination along with the seizure of the bamboo lathi from the place of occurrence gives us an indication that there was a prior scuffle between the accused and the deceased before the fatal blows were inflicted resulting in injuries Nos. 1 and 2. 17. The other relevant evidence that we notice is that there is a oral dying declaration before the PW-2 and 3 by the deceased stating that it was the accused appellant who had assaulted him. We also take note of that the deceased was taken in a by-cycle by PW-2 and 3 in an injured state to the hospital meaning thereby that at the relevant point of time the deceased was in a physical state to be taken in a bicycle. The said aspect of the matter had also been corroborated by PW-5 who had stated in his deposition that when he went towards the place of occurrence he had seen that the accused was being taken in a by-cycle in an injured condition to the hospital. PW-5 also deposed that at that point of time the deceased was conscious and was in a state to speak and further when he asked the deceased as to who had assaulted him, it was replied that it was the accused who had assaulted the deceased. 18. PW-5 also deposed that at that point of time the deceased was conscious and was in a state to speak and further when he asked the deceased as to who had assaulted him, it was replied that it was the accused who had assaulted the deceased. 18. The law as regards dying declaration had been settled by the Supreme Court in Paniben (Smt) vs. State of Gujarat reported in (1992) 2 SCC 474 wherein, in paragraph-18, ten principles were summed up as regards the acceptability of dying declaration which are as follows:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar). (iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor) (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu). (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Surajdeo Oza v. State of Bihar). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.) (x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. v. Madan Mohan) 19. Upon going through the ten principles as summed up by the Supreme Court, we find from the evidence in the case at hand that there is nothing for us to arrive at a conclusion that the oral dying declaration made by the deceased before PW-2 and 3 are not to be accepted. No materials are present to indicate that the dying declaration is suspicious so that it has to be corroborated by other evidences, nor there is any indication that such dying declaration is a result of tutoring, prompting or imagination. 20. Mr. B. Baruah, learned Amicus Curiae has raised a contention that PW-3 is the son of the deceased and therefore, he is an interested witness. We do not accept the said contention for the reason that PW-3 being the son of the deceased may be a related witness but in the absence of any further material in evidence to show that he is interested in any manner to implicate the accused appellant, he cannot be said to be an interested witness. The aspect as regards related witness and interested witness had been explained by the Supreme Court in State of Rajasthan vs. Kalki reported in (1981) 2 SCC 752 in paragraph 7 wherein, it has been held as under:- “Related is not equivalent to interested. A witness may be called interested only when he or she derives some benefit from the result of a litigation in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be interested.” 21. A witness may be called interested only when he or she derives some benefit from the result of a litigation in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be interested.” 21. By following the aforesaid proposition in the instant case and in the absence of any further material, we are unable to accept that PW-3 being the son of the deceased can be categorized to be an interested witness for the purpose of implicating the accused appellant to be the assailant of his father. 22. By accepting the dying declaration of the deceased made before PW-2 and 3 which remains unconfronted by the defence, we accept that it is the accused appellant who had assaulted the deceased causing the injuries that were found on his body. 23. Having said so, we are also conscious of the fact as narrated hereinbefore that the injuries No-3 and 4 were caused by blunt weapon, secondly there were some injuries even on the body of the accused appellant and thirdly a lathi was also seized from the place of occurrence. The three circumstance leads to a conclusion that there was a prior scuffle between the accused and the deceased before the fatal injuries Nos. 1 and 2 were inflicted on the deceased. It being so, we consider the same to be a mitigating circumstance to bring the accused appellant within Exception 4 to Section 302 of the IPC and accordingly, arrive at a conclusion that it was a case of culpable homicide not amounting to murder. But at the same time by taking into consideration the nature of the injuries found on the deceased i.e. the incised wounds on the forehead as well as the incised wound on the right arm caused by a medium to heavy sharp cutting weapon, we are of the view that there was an intention on the part of the accused appellant to cause death to the deceased. Accordingly, we convict the accused appellant under Section 304 Part-I IPC. Accordingly, we convict the accused appellant under Section 304 Part-I IPC. Having convicted the accused appellant under Section 304 Part-II IPC, we accordingly sentence him to rigorous imprisonment of 8 (eight) years and also reduce the fine to Rs.5,000/-considering the background of the accused appellant that he is a person belonging to the tea labour community and in default thereof to undergo a further rigorous imprisonment for 2 (two) months. In calculating the period of imprisonment the authorities shall also take into account the period of imprisonment already undergone by the accused as provided under Section 428 Cr.P.C. 24. The judgment dated 05.01.2018 of the learned Sessions Judge, Jorhat in Sessions Case No.201(J-T)/2015 stands modified accordingly. The appeal stands partly allowed as indicated above. 25. Before parting with the record, we appreciate the valuable service rendered by Mr. B. Baruah, 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. 26. Send back the LCR.