Patna High Court
Lalan Tanti vs The State Of Bihar on 26 June, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.82 of 2018
Arising Out of PS. Case No. -9 Year- 2004 Thana -KHARAGPUR District- MUNGER
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Lalan Tanti, son of Krishandeo Tanti, resident of Village - Harkunda,
P.S. Kharagpur, District- Munger.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
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Appearance:
For the Appellant/s : Mr. Ajit Kumar Singh, Adv.
For the Respondent/s : Mr. Z. Hoda, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 26-06-2018
Appellant, Lalan Tanti has been found guilty for an
offence punishable under Section 304 Part-II of the IPC and
sentenced to undergo imprisonment for five years out of which one
year be rigorous imprisonment and also to pay fine appertaining to
Rs.1000/- in default thereof, to undergo S.I. for one month with a
further direction that the period having undergone during course of
trial will be set off as provided under Section 428 of the Cr.P.C.
vide judgment of conviction dated 18.11.2017 and sentence dated
23.11.2017 passed by Additional Sessions Judge, IInd, Munger in
Sessions Trial No.911/2007.
2. Nawal Kishore Mandal gave his fardbeyan on
23.01.2004 at about 05:30 AM disclosing therein that he along
with Fudo Mandal and Niranjan Mandal (deceased, brother-in-law)
had gone to Madhuban where his Basa lie and was returning
therefrom at an evening hour. They reached at village-Harkunda at
about 6-7 PM where, his brother-in-law Niranjan Mandal went to
the kiosk of Kishundeo Tanti for a cigarette and during course
thereof, Kishundeo Tanti as well as his brother-in-law indulged in
Patna High Court CR. APP (SJ) No.82 of 2018 2
an altercation. He intervened and asked both of them why they
were quarreling, over which, Kishundeo Tanti gave lathi blow over
his head as a result of which, he sustained injury. Blood oozen
out. On account thereof, Fudo Mandal took him to his house in an
injured condition while his brother-in-law Niranjan Mandal was
encircled by Lalan Tanti, Krishandeo Tanti, Sanjay Tanti, wife of
Krishandeo Tanti along with 4-5 unknown persons who began to
assault and during course thereof, Krishandeo Tanti was provoking
to kill. They were armed with axe as well as lathi and danda. After
coming to his house he had informed the police on telephone and
after arrival of the police to his house he is giving his fardbeyan.
3. After registration of Haweli Kharagpur P.S. Case
No.09/2004, investigation was taken up and after completing the
same, charge sheet was submitted facilitating the trial, meeting
with the ultimate result while acquitting the other accused
persons, subject matter of instant appeal.
4. Defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313 of
the Cr.P.C. is that of complete denial. It has also been pleaded that
the prosecution party who were intoxicated came at the house of
the appellant where they misbehaved with his mother whereupon,
she raised alarm attracting the villagers who came and rescued her
and during course thereof, might have assaulted in order to save
her prestige. So, no offence as alleged has been committed at the
end of the appellant. Though no oral evidence has been adduced,
charge sheet of Kharagpur P.S. Case No.93/2008 has been made
an exhibit by way of documentary evidence.
Patna High Court CR. APP (SJ) No.82 of 2018 3
5. In order to substantiate its case, prosecution had
examined altogether seven PWs who are PW.1-Kautki De vi, PW.2-
Suman Marandi, PW.3-Nanki Devi, PW.4-Fudo Mandal, PW.5-
Nawal Mandal, PW.6-Shiv Prasad Singh, PW.7-Dr. Prithvi Raj as
well as also exhibited, Signature of the informant over fardbeyan
Ext.1, case diary-Ext.2, Signature of Vishundeo Manda over
fardbeyan-Ext.3, endorsement over fardbeyan-Ext.4, Formal FIR
Ext.5, postmortem report-Ext.6. Defence had also adduced and
exhibited charge sheet of Kharagpur P.S. Case No.93/2008 as
Ext.A.
6. While assailing the judgment of conviction and
sentence recorded by the learned lower court, it has been
submitted on behalf of learned counsel for the appellant that the
same happens to be inappropriate in the background of consistent
evidence of the witnesses. There happen to be material
development in the evidence of witnesses suffers from
embellishment and that being so, lost their reliability. Furthermore,
while stressing upon the issue, it has been submitted that main
I.O. has not been examined whereupon, the interest of the accused
is found duly prejudiced as, from the fardbeyan it is evident that
prosecution has kept mum with regard to the place where it was
recorded. Although, at the upper part of the fardbeyan, there
happens to be some sort of anomaly on that very score.
Furthermore, had there been examination of the I.O. the place
where dead body of deceased was found, house of the appellant,
kiosk of the appellant would have been properly visualized and
further, after proper consideration of the location the court would
Patna High Court CR. APP (SJ) No.82 of 2018 4
have been in a position to weigh whether the defence version was
probable or not.
7. It has also been submitted that admittedly the so
alleged date of occurrence happens to be chilly winter season. In
remote area, it is not expected that there would be movement after
sunset and in likewise manner, shop will remain opened.
Furthermore, right from the fardbeyan, it is evident that there
happens to be absence of source of light and that being so, the
witnesses would not have occasion for proper identification. The
status of the prosecution witnesses could not be accepted
moreover, in the background of absence of injury over the person of
the informant as, no injury report has been brought up on record
to suggest that he had sustained injury at the end of the
Krishandeo Tanti that means to say, has got close proximity
justifying identification.
8. Apart from this, it has also been argued that if the
initial version is accepted, then in that circumstance, none of the
prosecution witnesses would have been in a position to be an eye
witness to occurrence as, they escaped from the place of
occurrence before assault over the person of deceased. That being
so, the subsequent eventuality whereunder witnesses have claimed
to be an eyewitness to occurrence, became improbable whereupon,
their status became unreliable.
9. It has further been pleaded that there happens to be
disclosure that assault was made by means of axe as well as lathi
but no injury caused by sharp cutting weapon was ever found
during course of postmortem that means to say there happens to
Patna High Court CR. APP (SJ) No.82 of 2018 5
be inconsistency amongst the ocular evidence as well as medical
evidence discrediting the prosecution version.
10. Then it has been submitted that from the prosecution
evidence it is apparent that there is no animosity persisting since
before amongst the parties and the occurrence took place in spur
of moment and further, neither there was intention nor knowledge
that while inflicting blows, the deceased might met with death.
Whereupon, in worst case liable to be convicted under Section 323
of the IPC and for that, been sufficiently punished.
11. On the other hand, the learned Addl. P.P. while
controverting the submission made on behalf of appellant has
submitted that though State has not preferred an appeal against
the judgment impugned but the impugned judgment suggests that
the learned lower court dealt it in most cryptic manner on account
thereof miscarriage of justice has occurred which, the High Court
exercising its inherent power enshrined under Section 482 of the
Cr.P.C coupled with extraordinary jurisdiction under the guise of
Article 226 of the Constitution of India, may took judicial notice in
order to serve the cause of justice and further submitted that it is a
fit case wherein matter be remitted back to the learned lower court
to hear the party afresh and pass judgment in accordance with law.
12. From the lower court record, it is apparent that se ven
witnesses have been examined out of whom, PW.1, PW.2 and PW.3
have not supported case of the prosecution. Even during course of
cross-examination, the prosecution could not be able to explicit
from their mouth any substantial substance save and except that
they had simply disclosed that occurrence is about four years ago.
Patna High Court CR. APP (SJ) No.82 of 2018 6
Furthermore, it is evident that PW.6 is the part I.O. who had
conducted supplementary investigation and had submitted charge
sheet against accused Sanjay Tanti as well as Ram Dulari Devi. He
had simply exhibited the document including case diary and so, is
not material witness with regard to prosecution case. So, the
prosecution rest over the shoulder of PW.4, PW.5 and PW.7.
13. PW.7 is the doctor who had conducted postmortem
over the dead body of deceased Niranjan Mahto on 24.01.2002 at
about 08:30 AM although body was received at the mortuary on
23.01.2002at about 08:25 PM. During course of postmortem he found following ante-mortem injuries:-
I. Lacerated wound 2" x ½" x bone deep left mandibular region.
II. Blackish spot 3" x ¼" on the left side of chest.
III. Blackish spot 2" x ¼" on left side of shoulder.
IV. Lacerated wound 1" x ½" x skin deep on left eyebrow.
On dissection: Internal haemorrhage found in thorax and abdominal region. Blood and blood clots in thorax and abdominal cavity. Fracture of different ribs in the left side of chest. Death due to shock and haemorrage as a result above injury caused by severe traumatic in the body. Time elapsed in death in between 24-36 house. During cross-examination nothing substantial has been procured save and except suggesting that in case a person having consumed liquor would fell would cause similar kind of injuries.
14. PW.4 is the Fudo Mandal whose presence is in the fardbeyan as one of the person who along with deceased as well as informant had gone to the basa of the informant. He had deposed Patna High Court CR. APP (SJ) No.82 of 2018 7 that on 22.01.2004 at about 6-7 PM he along with Chotan Mandal was returning their field. When they came at the shop of Krishnadeo Tanti, they indulged in an altercation over cigarette.
Then, Krishnadeo, Lalan, Ramdulari, Sanjay began to assault with lathi. Nawal was assaulted by Krishnadeo Tanti. Niranjan was assaulted by all the three on account of which, he died at the spot. During cross-examination at para-2 he had stated that they reached at the shop of Krishnadeo at about 6-7 PM. At that very time, only Krishnadeo was at his shop. Dayanand, Lalan were present nearby. But at the shop, only Krishnadeo was present. In para-3, he had stated that Nawal Mandal had sustained single lathi blow. Niranjan was assaulted with lathi, axe, indiscriminately. He is unable to disclose the exact numbers of blows, might be 10-20 blows. Two axe blows were given one over head and the other over back portion of shoulder. In para-4, he had stated that at the time of assault, Niranjan was standing having southern front while assailant was standing having northern front. Niranjan was assaulted from front side. He was not assaulted by any of the accused. In para-6, he had stated that they have got no animosity with the accused since before. They were identifying the accused since before. His village lies at a distance of one kilometer. In para- 7, he had stated that he left the place leaving the deceased. He had not gone to the P.O. subsequently. He made statement before the police in the same night. In para-9, he had stated that dispute arose on account of cigarette. The shop does not belong to the him. Lalan Tanti had assaulted. Shopkeeper had not gave cigarette on demand whereupon, altercation took place. Then had denied the suggestion that shop was closed whereupon, they intruded inside Patna High Court CR. APP (SJ) No.82 of 2018 8 the house, misbehaved with the wife of Krishnadeo whereupon, villagers came in rescue who assaulted them as a result of which, deceased died. He had further denied the suggestion that none had assaulted the Niranjan with axe. In para-11, he had stated that deceased Niranjan was assaulted all over his body. First of all he was assaulted by axe whereupon, fell down and then, he was repeatedly assaulted. In para-12 though he was not at all consistent but stated that blood had oozen out from the injury cause to the deceased having over the cloth as well as over ground. In para-14, he had shown boundary of the P.O. East-Dayanand Tanti, West-Sanjay Tanti, North-Shop of Krishnadeo, South-House of Krishnadeo. Niranjan was assaulted near kiosk. He escaped therefrom leaving him at the same village. In para-15, he had stated that he had not stated before the police that Krishnadeo Tanti had assaulted Nawal with axe. Sanjay was at the P.O. he was empty hand. He had not participated during the occurrence. Then had admitted that he had admitted before the police that Niranjan was assaulted by Krishnadeo and Dulary Devi with axe. At that very time, Lalan and Krishnadeo were armed with axe. RamDulari was armed with Bamboo. At para-17, he had stated that it is not a fact that blood was not found at the place of occurrence on account thereof, he had stated that blood had fallen over cloth only. Then had denied the suggestion that he happens to be professional witness, whose present has been procured after fifteen days of the occurrence.
15. PW.5 is the informant. He had stated that deceased Niranjan was his brother-in-law (Bahnoi). Occurrence is about 2-3 Patna High Court CR. APP (SJ) No.82 of 2018 9 years ago. They have gone to his Basa which lies at village - Madhubani. Fudo and Niranjan accompanied him. While they were returning, and reached at village-Bharkhunda at about 6-7 PM, Niranjan Mandal gone to the shop of Krishnadeo Tanti to purchase cigarette and during course thereof, they both indulged in an altercation. He intervened during course thereof, Krishandeo Tanti hurled a lathi blow over his head causing injury thereupon. During midst thereof, Lalan Tanti, son of Krishnadeo Tanti and wife of Krishnadeo Tanti arrived out of whom, Lalan was armed with axe and began to assault his brother-in-law Niranjan. Anyhow they ran away and then informed the police that. Niranjan died on account of assault by axe. Police came before whom he had given his fardbeyan (exhibited) inquest report was prepared in his presence (exhibited) his further statement was also recorded by the police. Identified the accused. During course of cross-examination at para- 4 he had stated that he had not visited Bharkhunda after falling of Niranjan Mandal. He had further stated that he had got no occasion to go to the house of Dayanand Tanti on 22.01.2004. He had further stated that he had signed over inquest request report at his house. Then had stated that inquest report was prepared at the P.S. as, dead body was there. He had given his statement before the police at the police station. In para-5, he had stated that on 23.01.2004 he had gone at village Harkhunda along with police. He had gone to police station at about 4-4:30 AM. Where he met with the police. He along with Fudo Mandal, his father and others have gone to the police station. Then had stated that he had given his statement before the police which was scribed by him. In para- 7 he had stated that he was assaulted. Blood oozen out from the Patna High Court CR. APP (SJ) No.82 of 2018 10 injury as a result of which his cloth drench therewith. Blood had also fallen over the ground. He had shown the place to the police. He is unable to say whether I.O. had seized the blood stain earth. In para-8 he had stated that he was not assaulted by an axe. Lalan had assaulted. Then had denied the suggestion that he had stated before the police that Lalan had assaulted him with lathi. Then had stated that after sustaining injury he rushed therefrom having trail of blood. In para-9, he had stated that no second blow was given over him. Then had denied the suggestion that he was not assaulted by the lathi. In para-10 he had stated that Niranjan was assaulted adjacent to the kiosk. At the time of assault accused persons had encircled the Niranjan. He is unable to say how many lathi blows Niranjan had sustained. In likewise manner, he is unable to disclose how many axe blows Niranjan had sustained. Lathi and axe were simultaneously hurled. In para-11 he had stated that the place where Niranjan fell down there was copious blood which was shown to the police but he is unable to say whether the police had seized the blood stain earth. Niranjan fell down after sustaining axe blow. Then had denied the suggestion under para-13 that at the time of occurrence, they were heavy drunk. In spite of the fact that shop was closed, they insisted for cigarette and on denial, they misbehaved with the wife of Krishnadeo whereupon she raised alarm attracting the villagers who assaulted in order to save prestige of Ramdulari and during course thereof, accidentally Niranjan died. It has also been suggested that he was assaulted by the lathi. He had also stated in para-14 that both the parties were not on inimical term since Patna High Court CR. APP (SJ) No.82 of 2018 11 before the police.
16. From the evidence of the doctor, it is evident that injury no.1 a lacerated wound 2"x1/2"x bone deep over left mandibular region, apart from others was found. It is needless to say that any weapon having blunt age would cause the lacerated wound which the Modi in his authoratial book "Modi Medical Jurisprudence and Toxicology" had opined. However, is evident from the evidence of the doctor that prosecution failed to draw his attention on that very score but the fact remains.
17. It is evident from the fardbeyan that informant PW.5 as well as PW.4 have shown their presence up till the stage during course of which PW.5 was assaulted with lathi and was rescued by PW.4 to his house on the other hand, the accused persons encircled deceased Niranjan. However, during course of cross- examination, attention of the informant PW.5 was not drawn towards the same. Furthermore, from the suggestion having given to the PW.4 and PW.5, it is apparent that the appellants have not challenged presence of prosecution party including deceased at their place nor they challenged assault over the person of informant as well as deceased Niranjan however, for that they suggested that they were heavily drunk and during course thereof, they were insisting upon to have a cigarette which was declined and in the aforesaid background, Ramdulari was misbehaved on whose hue and cry villagers came and assaulted in order to save prestige of the Ramdulari. The aforesaid event should have been properly substantiated but as is evident, save and except admitting presence of prosecution party at their place, injuries having been Patna High Court CR. APP (SJ) No.82 of 2018 12 sustained by them with an explanation and that explanation remained wrapped without being substantiated by way of examining any witness. The best part at the end of the accused would have been to avail the opportunity under Section 315 of the Cr.P.C. whereunder Ramdulari ought to have stood as one of the DW. Apart from this, although, the doctor was cross-examined whereupon he had deposed that if a person being intoxicated would fall then in that circumstance, the injuries might have been but, the doctor was not at all cross-examined on the score that during course of conduction of postmortem whether he had found the deceased to have consumed alcohol or not before his death. Moreover, the PM report as well as the evidence of the doctor completely ruled out the same. Furthermore, as is evident informant PW.5 was not at all cross-examined whether he had gone to hospital for treatment of the injury lost its force in the background of suggestion.
18. The non-examination of the Investigating Officer is not found fatal in the facts and circumstances of the case as, apart from absence of material contradiction, on account of admission at the end of the accused, P.O. is also found not under controversy nor, relating to genesis of the occurrence.
19. However, from the evidence available on the record, it is apparent that witnesses have admitted that they were not carrying animosity amongst each other since before the occurrence. It is also an admitted fact that spur of moment, the aforesaid event took place more particularly over demand of cigarette.
20. In Surain Singh Versus State Of Punjab (2017) 5 Patna High Court CR. APP (SJ) No.82 of 2018 13 SCC 796, the Hon'ble Apex Court scrutinized the legal event after parallel scrutiny of the relevant section and then held as follows:-
12. The appellant-accused, at the relevant time, was wearing Kirpan and he took out the same and gave 3 or 4 blows on the left side of the chest of Bhajan Singh. When the other side came to his rescue, the appellant-accused gave a blow on the back side of the waist of Mander Singh. The appellant-accused was further found to have given a blow on the backside of the left shoulder of Amrik Singh-the complainant and also two blows each using Kirpan on the right flank of Sukhchain Singh and Harbans Singh.
13. In view of the above, it is relevant to quote the statement of Dr. Sarabjit Singh Sandhu (PW-
4), who conducted the autopsy on the body of Harbans Singh, which is as under:-
"On the same day, at 4.50 p.m. I also conducted the post mortem examination on the dead body of Harbans Singh S/o Mandir Singh R/o Pakhi Khurd 27 years age, male brought by ASI Sukhdev Singh and HC Parson Singh No. 1432 of P.S. City Faridkot. Body was identified by Bohar Singh S/o Ajmer Singh and Tej Singh S/o Kartar Singh. Length of the body was 5'9".
It was dead body of moderately built and moderately nourished young man wearing Sweater, Shirt, Jarsi, Paint, Kachha, Turban, Short Kirpan with black thread, White metallic kara in right forearm. P.M. staining as present series of marked patches at the back of trunk and lower limbs. Rigor mortis was present in the neck muscles and upper limbs. Absent in lower limbs (developing stage) clothes were blood stained and corresponding holes were present with clothes. I found the following injuries on his person:-
1. An onlique stab wound 3 x 0.5 cm was present on the lateral side of right side of chest in mid Axiliary line 22 cm below the Axillary apax. C.B.P. it was bone deep.
2. A transverse stab wound 2.0 x 5 cm was presentation the right side back of abdomen, 8 cms below and lateral of injury no. 1 on exploring, it was going medially and in words cutting subcutaneous tissue, muscles, right kidney. Peritoneum and large intestine. Peritoneum cavity Patna High Court CR. APP (SJ) No.82 of 2018 14 contained above 1000 C.C. of fluid and clotted blood. Stomach contained about 150 C.C. of semi digested food. All other organs were healthy.
All the injuries were anti mortem in nature.
The cause of death in this case in my
opinion was due to right kidney
(hemorrhage and shock) and large
intestine, as a result of injury no. 2 which was sufficient to cause death in ordinary course of nature."
14. In the instant case, it is evident from the materials on record that there was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions. It is also proved from the material on record that the attack was not premeditated and preplanned. Both the parties were present in the Court of Executive Magistrate, Faridkot at the relevant time with regard to the proceedings under Section 107/151 of the Code. When the appellant-accused objected the presence of a member of the opposite side, the scuffle started between the parties which resulted into death of two persons. The conduct of the appellant-
accused that he at once took out his Kirpan and started giving blows to the opposite party proves that the attack was not premeditated and it was because of the spur of the moment and without any intention to cause death. The occasion for sudden fight must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset.
15. The weapon used in the fight between the parties is `Kirpan' which is used by `Amritdhari Sikhs' as a spiritual tool. In the present case, the Kirpan used by the appellant-accused was a small Kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the Doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the appellant-accused inflicted injuries using Kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the Patna High Court CR. APP (SJ) No.82 of 2018 15 injuries caused were the result of blow with a small Kirpan and it cannot be presumed that the accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
16. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 of the IPC.
17. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit.
18. Thus, considering the factual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the appellant-accused would be under Section 304 Part II IPC instead of Section 302 IPC. Hence, the sentence of imprisonment for 10 years would meet the ends of justice."
Patna High Court CR. APP (SJ) No.82 of 2018 16
21. That being so, the judgment of conviction and sentence recorded by the learned lower court needs no interference. Consequent thereupon, same is concurred. As such, appeal is dismissed. Appellant is under custody which he will remain till saturation of the sentence.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 08.05.2018
Uploading Date 26-06-2018
Transmission 26-06-2018
Date