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2021 DIGILAW 299 (GAU)

Dipak Tanti v. State Of Assam

2021-03-19

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT Suman Shyam, J. - Heard Ms. S. Kanungoe, learned Amicus Curiae appearing for the appellant. Also heard Mr. M. Phukan, learned APP, Assam, appearing for the State. None has appeared on behalf of the informant/respondent no. 2. 2. This appeal from jail has been preferred by the sole appellant Dipak Tanti assailing the judgement and order dated 24/07/2017 passed by the learned District & Sessions Judge, Sivasagar in Sessions case No. 27(S-S)/2014 convicting the appellant under Section 302 of the IPC for committing the murder of his wife Pinky Tanti and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs. 1,000/- with default stipulation. 3. The prosecution case, in a nutshell, is that on 19/11/2013, at around 11 a.m., accused Dipak Tanti had hacked his wife Pinky Tanti to death by dealing blows on her neck with a "dao" and thereafter, fled away with the "dao". 4. On 19/11/2013, Sri Ajanta Rajowar, who is the brother-in-law of the deceased, had lodged an ejahar with the Officer-in-Charge of Nazira Model Police Station reporting the incident. Based on the said ejahar, Nazira PS Case No. 199/2013 was registered under Section 302 of the IPC and the matter was taken up for investigation. The accused Dipak Tanti was arrested along with the "dao" on the date of the incident. Upon completion of investigation, the IO had submitted charge sheet, based on which, charge under Section 302 of the IPC was framed against the appellant/ accused. However, since the accused had pleaded innocence and claimed to be tried, the matter went up for trial. 5. In order to bring home the charge brought against the accused, the prosecution side had examined as many as 11 (eleven) witnesses, out of which, there was one eye witness(PW-3).The case of the accused was of total denial. The defense side, however, did not adduce any evidence. 6. Pw-1 Dr. Sadhan Borah was the Senior Medical and Health Officer on duty in the Sivasagar Civil Hospital, who had conducted the post mortem examination on the dead body of the deceased Pinky Tanti on 20/11/2013 and submitted post mortem report (Ext-1). As per the post mortem report (Ext-1), following injuries were found on the dead body :- "(1) Sharp cut injury over the right side of the neck (4" x muscle deep). As per the post mortem report (Ext-1), following injuries were found on the dead body :- "(1) Sharp cut injury over the right side of the neck (4" x muscle deep). (2) Sharp cut injury over the back of the neck (3" x muscle deep)". The doctor had opined that the cause of death was due to shock and haemorrhage as a result of injuries sustained by the deceased. 7. Pw-2 Smt. Rita Rajowar is the younger sister of the deceased and she has deposed that the incident took place in their house when her sister has visited them. The accused Dipak came to take her back. At that time, PW-2 had asked her sister to leave the house but her elder sister did not do so. While she was mopping the front plinth of the house, the accused took a "dao" (sharp weapon) available in the house saying that he would make a fence. The witness had asked the accused as to "who had asked him to make fence ?". After some time, her father-in-law Sri Om Prakash Rajowar (PW-3) raised hue and cry. Then she went to the rear part of the house and saw that the head of her elder sister (Pinky) was almost severed from the neck and her dead body was lying there. Her brother-in-law (accused) had fled the scene taking the "dao" with him. Later on, her husband informed the matter to the Police Station and the Police came and questioned her. PW-2 has also stated that a Magistrate had recorded her statement and she had put her thumb impression. During her cross examination, PW-2 had stated that there was a quarrel between the accused and the deceased regarding returning to their house but she did not know why her elder sister(deceased) had refused to go home. This witness has also stated that she did not know if her elder sister had abused her brother-in-law(accused) in filthy language nor did she see the accused dealing cut blows but she had rushed to the place upon hearing her father-inlaw's scream. 8. Pw-3 Sri Om Prakash Rajowar is the father of the informant. He is also the sole eye witness in this case. PW-3 has deposed that on the day of the incident, her daughter-in-law Rita (PW-2), Pinky and her husband Dipak were in the house. 8. Pw-3 Sri Om Prakash Rajowar is the father of the informant. He is also the sole eye witness in this case. PW-3 has deposed that on the day of the incident, her daughter-in-law Rita (PW-2), Pinky and her husband Dipak were in the house. The incident took place at about 11 a.m. when Dipak was inside the house. He was playing fun games with his grand child behind the house and Pinky (deceased) was sitting beside him. At that time, Dipak went away with a "dao" in his hand to cut bamboo and instead of cutting bamboos, he had dealt two blows on the neck of Pinky. PW-3 has stated that he has witnessed the incident from a short distance. Thereafter, Dipak had fled the scene with the "dao". He had raised hue and cry. When the incident took place, Rita was mopping in the front side of the house. Rita came there but she did not see the cut blows being dealt. She saw Pinky lying there. Some VDP member had informed the Police about the incident. Police had later arrested the accused at Mekipur. PW-3 has identified his signature in the inquest report Ext. 2 and has also stated that the Magistrate had recorded his statement, which was Ext. 3. During his cross examination, PW-3 had state that Dipak and Pinky did not come to his house together. Pinky came on Saturday and Dipak came on Sunday. The incident took place on Tuesday. Both of them were scheduled to leave his house on Monday but they did not do so as Pinky said she would not leave. PW-3 has, however, denied having knowledge about any quarrel between Pinky and Dipak. He has also denied that Dipak had cut Pinky as she had made him angry. 9. Pw-4 Sri Ajanta Rajuwar is the brother- in- law of the deceased and the informant in this case. He did not see the incident but this witness has deposed that on the date of the incident, after returning home from work, he came to know that Dipak had cut Pinky in his house. Then he lodged ejahar (Ext-4) and Ext.4(1) was his signature. During his cross examination, this witness has stated that Dipak and Pinky had come to his house four days prior to the incident and they picked up a quarrel. Then he lodged ejahar (Ext-4) and Ext.4(1) was his signature. During his cross examination, this witness has stated that Dipak and Pinky had come to his house four days prior to the incident and they picked up a quarrel. Dipak asked Pinky to return home with him but she refused to go. Except for that, there was no other quarrel between them. PW-4 has, however, denied that there was any altercation between Pinky and Dipak, which made the latter angry. 10. Pw-5 Sri Salim Shah is the father of Maina Begum(PW-6) and he has deposed that on the day of the incident, some people had chased the accused and then he entered the house of his daughter Maina with a "dao" in his hand. Later, Police arrived there, brought him out of Maina's house and then apprehended him and also seized the "dao" which was in his hand. Ext. 5 was the seizure list of the "dao" and Ext. 5(1) was his signature. This witness had also identified the "dao" seized by Ext. 5 which was shown to him in the Court. PW-5 had, however, denied having any knowledge about the place from where the people had chased the accused. 11. Pw-6 Maina Begum is the daughter of PW-5. She has stated that the accused, on being chased by the villagers, had entered her house in an attempt to hide himself. This witness has categorically deposed that when the accused entered her house from behind, she had raised hue and cry. Then people from the neighbourhood gathered. Accused was inside her house for about half an hour. The "dao" was later seized from the accused vide seizure list Ext. 5 and Ext. 5(2) was her signature. During her cross examination, PW-6 has stated that she did not witness the incident nor did she see the accused being chased by some people. This witness has, however, confirmed that the accused was taken away from her house and she had seen the seized "dao" in the Court. 12. Pw-7 Sri Om Prakash Chik is the owner of a shop located at Mekipur and he has deposed that on the day of the incident, he had seen a person entering the house of Maina (Pw-6) with a dao in his hand. Thereafter, there was commotion. 12. Pw-7 Sri Om Prakash Chik is the owner of a shop located at Mekipur and he has deposed that on the day of the incident, he had seen a person entering the house of Maina (Pw-6) with a dao in his hand. Thereafter, there was commotion. Later on, Police seized one "dao" in his presence and that the accused is the person he had seen on that day. During his cross examination, this witness had stated that he saw the "dao" in the hand of the accused but he did not know as to whom, the "dao" belonged to. This witness has also stated that he saw the accused running with a "dao" in his hands and a lot of people followed him. 13. Pw-8 Sri Rameswar Rajuwar is the VDP Secretary who had initially informed the Police about the incident. In his deposition, PW-8 had stated that his house is near the house of the informant. On the day of the incident, upon hearing commotion, when he came out of his house, he saw the accused fleeing from Ajanta's house with a "dao" in his hand. He has also seen the wife of the accused i.e. Pinky Tanti's dead body lying in Ajanta's house. 14. Pw-9 Sri Bijanta Rajuwar is the brother of the informant, who had come to the place of occurrence on being told by someone about the incident and saw the dead body of Pinky Tanti lying behind the house of his elder brother Ajanta Rajuwar. This witness has also stated that the head of the deceased was almost severed from the neck and that the accused had run away. In his cross examination, PW-9 has stated that he saw his father Om Prakash Rajuwar(PW-3) and also the dead body of Pinky lying there. 15. Pw-10 Sri Dipu Kumar Deka is the Executive Magistrate, who has conducted the inquest on the dead body and submitted inquest report (Ext-2). Ext. 2(4) was his signature. 16. The I.O. who had conducted the investigation in this case i.e. Sri Nidul Gogoi was examined by the prosecution as PW-11. The I.O has categorically deposed that upon receipt of information from the VDP Secretary Rameswar Rajuwar i.e. PW-8 regarding the murder of Pinky Tanti by her husband Dipak Tanti, Nazira P.S. GD Entry No. 472 dated 19/11/2013 was made and he was asked to go to the place for investigation. The I.O has categorically deposed that upon receipt of information from the VDP Secretary Rameswar Rajuwar i.e. PW-8 regarding the murder of Pinky Tanti by her husband Dipak Tanti, Nazira P.S. GD Entry No. 472 dated 19/11/2013 was made and he was asked to go to the place for investigation. Accordingly, he had arrived at the place of occurrence, drawn a sketch map and found that the dead body of Pinky was lying on the back side courtyard of the house of Sri Ajanta Rajuwar. He then informed the matter to the Executive Magistrate, who came and conducted the inquest on the dead body. PW-11 has stated that he had immediately rushed to Mekipur village and apprehended the accused Dipak Tanti along with one blood stained "dao". He had seized the "dao" vide Ext. 5. PW-11 has also stated that after completing the investigation, he had submitted charge sheet against the accused. 17. On being summoned by the Court, Sri Jayanta Kumar Das, ASI had appeared.This witness was examined as CW-1. This witness had confirmed that GD Entry No. 472 was made on 19/11/2013 at 11-30 a.m. and the GD entry was also exhibited by him. 18. After going through the materials available on record, the learned Sessions Judge, Sivasagar has held that the murder charge brought against the accused was proved beyond reasonable doubt. Accordingly, the appellant was convicted under section 302 of IPC and inter-alia sentenced to undergo rigorous imprisonment for life. 19. Referring to the materials available on record, Ms. Kanungoe has argued that even if the testimony of the eye witness (PW-3) is to be believed, then also, there is evidence on record to indicate that a quarrel took place between the deceased and the accused immediately prior to the incident. As such,submits Ms Kanungoe, the assault made by the accused was on a heat of passion, having lost his sense of self -control and there was no intention to kill the deceased. As such, the appellant would be entitled to a lesser punishment under Section 304 Part-II. The learned Amicus Curiae has also submitted that the appellant has three children and therefore, considering the plight of the children, this court may consider imposing a lesser punishment upon the appellant. 20. Mr. M. Phukan, learned APP, Assam, on the other hand, has opposed the submissions made by the learned amicus curiae. The learned Amicus Curiae has also submitted that the appellant has three children and therefore, considering the plight of the children, this court may consider imposing a lesser punishment upon the appellant. 20. Mr. M. Phukan, learned APP, Assam, on the other hand, has opposed the submissions made by the learned amicus curiae. While supporting the impugned judgement and order dated 24/07/2017 passed by the learned Sessions Judge, he has argued that there is no evidence of grave and sudden provocation in this case. It is also the submission of Mr. Phukan that the youngest son of the appellant is more than 11 years old and the other two children are grown up. As such,there is no justification to lessen the punishment of the appellant on the grounds urged by the amicus curiae. 21. We have considered the submissions made by the learned counsel for both the parties and have also gone through the materials available on record. 22. Analysis of the evidence available on record broadly suggests that the deceased Pinky Tanti had come to the house of her younger sister Rita Rajuwar(PW-2) and a day later, she was joined by her husband i.e. the accused. The accused wanted Pinky to return back home with him but Pinky refused to do so. The resistance offered by the deceased to return home, in all probability had, resulted into a quarrel between the husband and the wife, which in turn might have enraged the accused.This quarrel between the husband and the wife had ultimately led to the unfortunate incident. 23. Pw-3 had seen the occurrence. His testimony remained un-shaken during his cross- examination. From the testimony of PW-3 it is clearly established that the accused had dealt two "dao" blows on the neck of the deceased as a result of which she had sustained cut injuries. The said fact also finds due corroboration from the post-mortem report (Ext-1). 24. Pw-2 had seen the accused take a "dao" and proceed towards the back yard of their house where the deceased was sitting with the PW-3. This version of PW-2 is corroborated by the evidence of PW-3. 25. It is also apparent from the testimonies of PWs- 5,6,7 and 11 that soon after inflicting injuries upon his wife, the accused had fled the scene and was later arrested by the Police along with the blood stained "dao" in his hand. This version of PW-2 is corroborated by the evidence of PW-3. 25. It is also apparent from the testimonies of PWs- 5,6,7 and 11 that soon after inflicting injuries upon his wife, the accused had fled the scene and was later arrested by the Police along with the blood stained "dao" in his hand. The bulk of evidence adduced by the prosecution proves beyond reasonable doubt that it was none other than the appellant who had fatally assaulted his wife Pinky with a "dao" leading to her death. 26. Having held as above, let us now consider, whether the accused in this case had acted under grave and sudden provocation and if so, whether the present case would come under Exception IV of Section 300 of the IPC. It may be noted here-in that the said plea of the defense counsel was also considered by the learned Trial Court and rejected by making the following observations :- "28. From the evidence as discussed above, it is clear that both the accused and his wife have stayed at the residence of the informant for two days and merely for some disputes or for refusal to go with the accused to her matrimonial home, same cannot be treated as a sudden provocation or a justified ground to cause death of his wife. The barbaric nature of the offence i.e. giving successive dao blows causing deep cut injuries on the neck of the deceased clearly shows that it was a preplanned action on the part of the accused to kill his wife. Taking of Dao from inside the house of the informant on the plea of doing some bamboo works, in spite of resistance by P.W.2 for not to go for such work, shows that accused has planned to kill his wife. There is nothing in the evidence on record that at the time of incident, while deceased was sitting with P.W. 3 there was any altercation between the deceased Pinki Tanti and the accused to get the accused provoked. Under above facts, I am not convinced with the argument of learned State defence counsel. Case Law relied by defence cannot be applied in this case." 27. It is no doubt correct that the testimonies of PWs 2 and 4 suggests that there was some quarrel between the accused and the deceased on the issue of returning home. Under above facts, I am not convinced with the argument of learned State defence counsel. Case Law relied by defence cannot be applied in this case." 27. It is no doubt correct that the testimonies of PWs 2 and 4 suggests that there was some quarrel between the accused and the deceased on the issue of returning home. It also appears from the materials on record that such quarrel was going on since atleast two days prior to the occurrence. However, there is no evidence to show that there was an altercation between the accused and the deceased immediately before the occurrence.In fact the PW-3, who was sitting with the deceased just before the occurrence had denied such a suggestion made by the defense counsel. 28. The evidence on record is also insufficient to indicate as to what was the form and intensity of the quarrel and whether the deceased had used any abusive language so as to insult the appellant. There is also nothing to indicate the existence of any provocation which was so grave and sudden so as to make the appellant momentarily lose his self- control and strike at the deceased. On the contrary, we find from the testimony of PW-2 that the accused came to the front side of the house, picked up a dao by saying that he would make a fence. At that time, PW-2 had asked him as to who had asked the accused to make a fence but there was no proper reply from the accused to such querry. 29. The PW-3 has also categorically stated that the accused went away with a "dao" in his hand to cut bamboo but he dealt two blows in the neck of Pinky instead of cutting bamboos. 30. The post mortem report (Ext. 1) clearly mentions of double wounds in the vital part of the body of the deceased inflicted with a "dao" which also goes to show that there was a clear intention to kill. 31. The evidence available on record eloquently suggests that on the day of the incident, the appellant came to the front side of the house, picked up a "dao" by saying that he was going to cut bamboo for erecting a fencing. 31. The evidence available on record eloquently suggests that on the day of the incident, the appellant came to the front side of the house, picked up a "dao" by saying that he was going to cut bamboo for erecting a fencing. Thereafter, he went to the back side of the courtyard and instead of cutting baboos, had inflicted two fatal blows on the neck of the deceased without any provocation. The series of action on the part of the accused in picking up the "dao" and moving towards the backside of the house with a view to inflict blows upon his wife, without there being any provocation, clearly demonstrates pre-meditation on the part of the accused. From the natrue of injuries inflicted on the deceased, the intent to kill the deceased is also well established. 32. In the case of Budhi Singh Vs. State of Himachal Pradesh, (2012) 13 SCC 663, the Hon'ble Supreme Court, while interpreting Section 302 and section 304 of the IPC, has observed that pre-meditation and intention to kill are two vital circumstances amongst others, which are to be considered by the Court before holding the accused guilty of an offence. It was also observed that although, doctrine of grave and sudden provocation will be incapable of a rigid construction, yet, while applying this principle, it would be the duty of the Court to ascertain from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence which was not culpable homicide amounting to murder. In the said decision, it was also emphasized that the provocation could be an act or series of act done by the deceased to the accused which would make a person in normal circumstances to lose self control that too, in proximity to the time of provocation, resulted into inflicting of such injury. 33. Applying the ratio laid down in the case of Budhi Singh (Supra) to the facts of this case, we are of the view that although there was some quarrel between the accused and the deceased, the same was going on for a few days before the incident. 33. Applying the ratio laid down in the case of Budhi Singh (Supra) to the facts of this case, we are of the view that although there was some quarrel between the accused and the deceased, the same was going on for a few days before the incident. There is, however, absolutely no evidence to suggest presence of any provocation by the deceased, in proximity to the occurrence, which could be considered by a person of reasonable prudence, to be sufficient for the accused to lose his self-control and fatally assault the victim. The accused had also not said so in his statement recorded under section 313 of the Cr.P.C. We, therefore, find ourselves in agreement with the views expressed by the learned trial court on the above point. As such, the submission of Ms. Kanungoe for award of milder sentence to the appellant, in our considered view, does not merit acceptance. 34. The other ground, viz. interest of the children of the accused also does not deserve consideration by this Court as we find from the record that out of the three children of the accused, the elder one is aged about 20 years and is already married. The second child who is about 15 years old is employed somewhere and the youngest son, who is about 11 year old, is living with his Aunt. 35. For the reasons stated herein before, this appeal is held to be devoid of any merit. The same is accordingly dismissed. 36. Before parting with the record, we would like to place on record our appreciation for the services rendered by Ms. S. Kanungoe, learned Amicus Curiae and direct the Registry to make available to her, just remuneration, as per the notified rate.