Gauhati High Court
Arjun Tanti vs State Of Assam on 6 September, 2002
Equivalent citations: (2003)3GLR184
Author: B. Lamare
Bench: B. Lamare
JUDGMENT B. Lamare, J.
1. Heard Mr. P K Barman, amicus curiae for the accused/appellant and Mr. P. Bora, learned public Prosecutor for the State.
2. The prosecution case in brief is that on 13.12.1993 an FIR was lodged at Biswanath Charali Police Station to the effect that on the night of 12-12-1993 at about 9 P.M. one Babulal Tanti was inside his house and at that time his son Arjun Tanti, accused/appellant herein inflicted severe injuries on him with an axe.
3. The case was originally registered under Section 326 IPC being the case No. 204/93 at Biswanath Chariali Police Station. Subsequently the injured Babulal Tanti succumbed to the injuries and Section 326 IPC was added to the case. A charge sheet was submitted and the case was committed to the court of Sessions for trial. On completion of the trial, statement of accused/appellant under Section 313 Cr.P.C. was recorded and the learned Additional Sessions Judge, Sonitpur by the impugned judgment dated 30.1.1997 in Sessions Case No. 23(S)96, under Section 326 IPC (corresponding to G.R. Case No. 596/93 convicted the accused/appellant under Section 326 IPC and sentenced him with imprisonment for life and also a fine of Rs. 2000/-, in default another 2 months rigorous imprisonment. Aggrieved by the said sentence and conviction, the accused/appellant preferred this appeal before this court.
4. The PW1 Shri Sanjib Tanti is the son of the deceased and the younger brother of the accused/appellant. According to this witness, on the day of occurrence at about 7 P.M., he was sleeping with his elder sister Sumitra Tanti in the front room whereas his parents were sleeping in the inner room. At that time his elder brother, accused Arjun Tanti came home and knocked at the door from outside. His elder sister opened the door and served food to the accused. After having his meal the accused went out to wash his hands and returned with an axe. He dealt cut blows on this father and when he woke up on hearing cry of his sister he saw his elder brother Arjun Tanti was holding the axe in his hand and at that time accused Arjun Tanti threw away the axe ran away. He saw the injuries in the head of his father. The axe was exhibited as Exbt.1.
5. P.W.2 Shri Mangra Bhuyan stated he knew accused Arjun Tanti and the deceased Babulal Tanti as their houses were adjacent. On the day of occurrence at about 7.30 P.M. he was sleeping at his house and all of a sudden he heard a hullah raised by accused's sister that father is hit, Arjun has done it'. He immediately rushed to the house of Babulal and reaching there he saw Babulal was lying on the bed with blood. Arjun's sister told him that Arjun had dealt the cut blow/injury to his own father.
6. P.W. 3 Dukho Sona stated that he knew the accused Arjun Tanti and also his father Babulal as their houses were opposite to each other. This witness stated that when he was sleeping at night he heard the hullah raised by the Babulal's daughter and immediately he rushed towards the house of Babulal and on reaching their he saw Babulal was smeared with blood and his daughter told him that accused Arjun has dealt the cut blow with an axe.
7. P.W. 4 is the Gaonura of Sakomata Village. In his evidence he stated that he knew deceased Babulal Tanti and on the following day of the occurrence he was informed that the accused Arjun Tanti has cut his father. On hearing the news he proceeded to the house of Babulal and on reaching there he found that they were making preparation to take Babulal for his treatment. Arjun's sister Sumitra told him that last night accused Arjun has dealt a cut blow on his father with an axe.
8. P.W. 5 Shri Haresh Ch. Borah who was the S.I. of Police and posted to the Sadar P.S. Tezpur. He held the inquest over the dead body of the deceased who was identified by his relatives. He proved Exbt. 3, the inquest report.
9. P.W. 6 Dr. N. Mirdha, at the relevant time was the Medical and Health Officer-I at the Tezpur Civil Hospital. He performed the post mortem on the dead body of the deceased and his finding is a follows :-
"There was a sharp cutting injury over the right side of the neck and temproal region.
Size - 3" x 2" x 2"
No other injuries were found. All other organs were healthy. In my opinion, the death was due to shock and Haemorrhage due to sharp-cut injury over the neck by sharp weapon. The injurues were ante-mortem. The injury extended from neck to temporal region."
10. P.W. 7 Sumitra Tanti is the elder sister of accused Arjun Tanti. In her evidence she stated that on the day of occurrence at 7 P.M. her father Babulal and mother were sleeping. She and her younger brother Sanjib Tanti (PW1) were sleeping in a separate room. At about 9 P.M. accused Arjun Tanti came and pushed the door. She opened the door and served him with meal. Immediately after he had his meal, she heard her father shouting and saw that her father was injured and blood coming out of his head. Accused Arjund was also there.
11. PW 8 Shri Nandeswar Das was the A.S.I. attached to Biswanath Chariali P.S. He was the investigating officer of the case. On the endorsement made by the O.C. he proceeded towards the place of occurrence and on reaching there he found the injured in his house. The injured was sent to Biswanath Charilai Hospital immediately. He inspected the place of occurrence and Sanjib Tanti (PW1) showed him the axe which the accused used. He seized the axe as per seizure list Exbt. 2. The axe was exhibited as material exhibit.
12. PW 9 Shri C. R. Sharma was the S.D.J.M. Biswanath Chariali at the relevant time. He recorded the statement of the accused under Section 164 Cr.P.C. and also proved the same as Exbt. 5.
13. PW 10 is the S.I. who completed the remaining part of the investigation and submitted the charge sheet.
14. From the evidence of the witnesses it shows that the injury to the deceased Babulal was caused by the accused Arjun Tanti with one stroke of the axe and there is no other injury caused to the victim. The question, therefore, to be seen as to whether there is any intention of the accused while dealing the blow with an axe on his father.
15. In the case of Sarup Singh, Appellant v. State of Haryana, Respondent reported in AIR 1955 SC 2452, in the facts and circumstances of the case in paragraph 4 of the judgment the Apex Court has held as follows :
"4. According to the evidence of PW 11. Dr. S K Sharma of the Maulana Azad Medical College, who conducted the post-mortem examination on the dead body of the deceased who died on 25-1-1989 about 4 months after the occurrence, the cause of death was hydrocephalus and septicimia. According to Dr. Gupta, PW 2, who had operated upon the deceased on 15-9-1988, during the operation he had found a fracture of bone of right temporo-parietal region. Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion, that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer, on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304, part II, IPC. We accordingly hold him guilty of the said offence and convict him accordingly."
16. In the case of K Ramakrishnan Unnithan, Appelant v. State of Kerala, Respondent, reported in AIR 1999 SC 1428, in paragraph 6 of the judgment the Apex Court has held thus :
"....Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however, crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW-1. The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under Section 326 but under Part II of Section 304, IPC. We accordingly, set aside the conviction of the appellant under Section 326, IPC and instead convict him under Section 304,Part II."
17. In the case of Mahesh Balmiki alias Munna, Appellant v. State of Madhya Pradesh, Respondent, reported in AIR 1999 SC 3338, in paragraph 9 of the judgment (corresponding to (2000) 1 SCC 319), the Apex Court held as follows :
"9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow Section 326, I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 326, I.P.C., in some cases under Section 304, I.P.C. and in some other cases under Section 326, I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of the case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention of knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associate of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
18. In the case in hand the evidence of the witnesses shows that there is no intention on the part of the accused to cause the death of his own father. None of the witnesses has stated about the intention of the accused to cause the injury resulting on the death of the deceased. On the other hand, the statement of the accused under Section 164 Cr. P.C. shows that the accused returned home at about 8 P.M. after having drinks at different places in the village. On reaching home his younger sister (PW 7) served him meal and after he had taken his meal lie had a quarrel with his father under intoxication of drinks. He dealt a stroke on the head of his father with the weapon he found nearby. Later on he realised that the weapon was an axe. After he dealth the blow, people came there and out of fear he ran away to the house of Dikho Sona (PW3), his elder brother. This confessional statement of the accused was never retracted by him immediately. He retracted the same only when a question was put to him in his examination under Section 313 Cr. P.C. it is a settled law that when confession is not immediately retracted at the first instance by the accused, the same can be relied upon and be used against him.
19. Taking this statement of the accused under Section 164 Cr.P.C. and the evidence of the witnesses, it shows that the case of the accused/ appellant herein is covered by the decision of the Apex Court in the case Sarup Singh v. State of Haryana (Supra) and also the K Ramakrishnan Unnithan v. State of Kerala (Supra). The case of Mahesh Balmiki v. State of M. P. (Supra) is different from the case in hand, inasmuch as in the said case the accused was assisted by his associates to commit the offence and the deceased was prevented by the associates of the accused from resisting the further blow on him.
20. In view of the above position, we are of the view that there is no intention on the part of the accused/appellant to cause death of his own father and to warrant his conviction and sentence under Section 326, I.P.C. we, accordingly, convert the sentence and conviction under Section 326, I.P.C. and convict him under Section 304 Part - II I.P.C. and sentence him to rigorous imprisonment for 10 years with a fine of Rs. 2,000/- in default of payment thereof further rigorous imprisonment for 3 months.
This appeal is accordingly disposed of.