Gauhati High Court
Sri Bidya Tanti vs The State Of Assam on 8 October, 2013
Author: Pk Saikia
Bench: P.K.Saikia
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Criminal Appeal (J) No.91 of 2010
Sri Bidya Tanti
S/O Late Shankar Tanti
R/O Harwal Tea Estate,
PS- Mariani,Dist-Jorhat,
Assam
.......Appellant
-Versus-
The State of Assam
......Respondents
BEFORE
HON'BLE MR.JUSTICE B D AGARWAL
AND
HON'BLE MR. JUSTICE P.K.SAIKIA
For the Appellant ... Sri SK Ghosh, learned Amicus Curiae
For the Respondents ... Sri BJ Dutta, learned Addl.Public Prosecutor
Date of Hearing ... 08.10.2013
Date of judgment ... 08.10.2013
JUDGMENT AND ORDER (ORAL)
( PK Saikia, J) This appeal is directed against the judgment dated 7.7.2010 passed by the Sessions Judge ,Jorhat in Sessions Case No. 53(JJ) of 2007, convicting the appellant of offence u/s 302 IPC and sentencing Crl.App(J) NO.91(J) of 2010 Page 1 of 11 to Imprisonment for Life and to pay fine of Rs.5000/-(Five Thousand) in default rigorous imprisonment for another two months for the offence aforesaid.
2. Being aggrieved by the aforesaid judgment the appellant has preferred this jail appeal citing several infirmities in this judgment under challenge.
3. The brief facts necessary for disposal of the present proceedings are that on the fateful evening i.e. on 7.12.2005 at about 6.30 pm ,there was quarrel between the accused/appellant and one Mantu Karmakar, son of deceased Asharam . When Asharam , the deceased tried to intervene the quarreling boys, the accused inflicted lati blows on him for which he sustained injuries on his person more particularly on his head .Being so assaulted, he fell down into a nearby drain. He was immediately retrieved from such drain and was taken to the hospital. However, he succumbed to the injuries same day.
4. An FIR to that effect on being lodged by the one Badal Ojha, with Officer-in-charge, Mariani PS, he registered a Case vide Mariani PS Case No.133 of 2005 u/s 302 IPC and ordered investigation. During the course of investigation, the I.O. visited the place of occurrence, seized the weapon of assault allegedly used in committing the offence aforesaid, arrested the accused person, had his confessional statement recorded by the Magistrate in accordance with Crl.App(J) NO.91(J) of 2010 Page 2 of 11 164 Cr.P.C. and on completion of investigation, I.O. submitted charge sheet u/s 302 IPC against the accused person and sent the accused to the Court to stand his trial.
5. Since his offence u/s 302 IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the court of Sessions at Jorhat for disposal in accordance with law. The learned Sessions Judge after the commitment of the case and on hearing the parties, framed charge u/s 302 IPC and charge, so framed, on being read over, explained to the accused person, he pleaded not guilty and claimed to be tried.
6. During the trial the prosecution has examined as many as 11 witnesses to establish the charge brought against the accused person. The accused was examined u/s 313 Cr.P.C. . In his examination u/s 313 Cr.P.C. the accused denied having assaulted the deceased resulting his death and pleaded that he is innocent. Thereafter, on conclusion of the trial , the learned trial court convicted the accused u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assaulted in the present case.
7. Learned Amicus Curiae Mr.SK Ghosh appearing for the accused/appellant has submitted that the judgment, rendered by the trial court which is impugned in this appeal is not sustainable in law since such a judgment is not founded evidence. The further case of the Crl.App(J) NO.91(J) of 2010 Page 3 of 11 appellant are that the confessional statement recorded by the Magistrate is not tenable in law since the same was rendered in gross violation of statutory direction and requirement qua recording of judicial confession .Therefore, the learned Amicus Curiae has urged this court to set aside the judgment and to acquit the appellant of the offence for which he is convicted and punished.
8. Controverting such submission, advanced from the side of the Amicus Curiae ,the learned Addl.P.P. Mr. BJ Dutta has submitted that there is copious but indisputable evidence on record to conclude that the accused was the author of the crime in question and in that regard , he has submitted that the confessional statement recorded by the Magistrate during the course of investigation is free from any infirmity, whatsoever.
9. It is also his case that the oral testimonies rendered by PWs more particularly, PW-6 and 11 very firmly shows that on the fateful evening the accused and none else had assaulted the victim at the p.o. which later occasioned his death same day. Therefore, the learned trial court had committed no wrong in convicting the accused person of offence u/s 302 IPC and in sentencing him to punishment as aforesaid.
10. We have heard the arguments advanced from the side of the parties having regard to the evidence on record having regard to the Crl.App(J) NO.91(J) of 2010 Page 4 of 11 evidence on record as well as the judgment under challenge. On the perusal of the evidence we have found that the victim died a homicidal death on or around 7.12.2005. The evidence of doctor (PW-10 Dr.Buddadeb Dutta) who conducted autopsy as well as the oral testimony of non-official witnesses makes such position clear. This projection was however disputed by the defense.
11. So situated let us consider the evidence of other prosecution witnesses. Evidently Mantu Karmakar (PW-11) and Smti Saniaro Karmakar (PW-6) are most important witnesses from the side of prosecution. According to PW-11 Mantu Karmakar on the day in question the accused quarreled with him in front of his house for which he went to the police station to report such matter. However, when his father came there, his father was assaulted by accused person for which he succumbed to the injuries same night.
12. On the other hand, PW-6 has stated that on the fateful day in the evening there was a quarrel between her son and the accused which occurred at a place not far from their house. On being so assaulted, her son went to the police station informing them that he was proceeding to the police station to lodge a case against the accused person. When her husband came out of their house and questioned the accused as to why he assaulted his son, he also assaulted her husband.
Crl.App(J) NO.91(J) of 2010 Page 5 of 11
13. Having assaulted her husband the accused kept on shouting 'I have assaulted the old man, come out and see'. In the meantime PW-6 saw her husband falling down in a drain .With the help of his daughter she had taken her husband to the hospital. But the doctor at the garden hospital has asked her to remove him to Jorhat Civil Hospital immediately. However, on the same day, her husband succumbed to his injury.
14. Though PW-6 and PW-11 were cross-examined by the accused person at length nothing did emerge therefrom to conclude that the evidence of aforesaid witnesses should not be believed for any reason whatsoever. Therefore, the evidence of these two witnesses very clearly demonstrates that on the fateful evening the accused assaulted the husband of PW-6 near their house for which he died same night. The other non-official witnesses are witness to the inquest, seizure and some others are reported witnesses.
15. It is in those backdrop let us to consider the evidence of Mr. MK Sharma, the learned Judicial Magistrate who was examined as PW-9. According to him, on on 09.12.2005, the accused was brought to him to have his confessional statement recorded. On the production of the accused before him, he informed him that he was not bound to make any confessional statement and if he make such confession same would be used against him. He also posted him with all other statutory warnings.
Crl.App(J) NO.91(J) of 2010 Page 6 of 11
16. Thereafter he was sent to judicial custody for reflection. Since 10th and 11th December, 2012 was a holiday, the authority concerned was asked to produce the accused before him once again on 12.12.2005. When on 12.12.2005 the accused was produced before him, he repeated the warnings already given to the accused person. As he still desired to make a confession, he recorded the confession of the accused person observing all the formality PW-9 which was proved as Exhibit-3.
17. We have considered the oral testimonies rendered by the PWs, more particularly, PWs-6 and 11 as well as the I.O. of the case. Such evidence, as stated above, has clearly demonstrated that on 7.12.2005, the accused had assaulted the husband of PW-6 near his house for which he died same night after being brought to hospital.
18. We have also found that prosecution case is founded on confessional statement as well. On perusing the materials on record, more particularly, the confessional statement of the accused person, we have found that the confession of the accused was recorded observing all the statutory directions and formalities made in that regard. Therefore there is absolute nothing on record to doubt the confessional statement either on the count of voluntariness in making the confession or on the count of truthfulness of the same.Such confession, therefore, clearly establishes that accused was the author of the crime in question.
Crl.App(J) NO.91(J) of 2010 Page 7 of 11
19. Situation being such, we have no hesitation in coming to the conclusion that it is the accused and none else inflicted lati blows on Asharam, the deceased, at the place of occurrence on the evening of 7.12.2005 which occasioned his death after being brought to the hospital.
20. Now, the question is whether for such killing, the deceased, the accused can be held guilty of offence u/s 302 IPC as has been done by the trial court. On considering the evidence on record more particularly, the evidence of the doctor, we have found that there is only one fatal blow which occasioned the death of the deceased. We have also found that the incident in question occurred in the midst of quarrel when the deceased tried to intervene the quarreling boys one of which was his son.
21. On considering the materials on record in their entirety, we are of the opinion that on the basis of materials on record, it cannot be said that prosecution has proved the charge u/s 302 IPC. But on such materials, one can safely conclude that such materials make out the offence u/s 304 PT-II IPC. Accordingly, we set aside the judgment appeal against and convict the accused of offence u/s 304PT-II of the IPC.
22. The conviction rendered by the trial court, thus stands modified from 302 to 304 PT-II IPC.
Crl.App(J) NO.91(J) of 2010 Page 8 of 11
23. Considering all the materials on record including the age of the accused at the time of incident in question, we are of the opinion that sentence of 5 years rigorous imprisonment with fine of Rs.5000/-(Five Thousand) in default sentence of two months rigorous imprisonment will meet the ends of justice.
24. Accordingly, the accused is sentenced to suffer rigorous imprisonment for 5 years and fine of Rs.5000/- in default rigorous imprisonment for two months for offence u/s 304 PT-II . The period already under gone by the accused is to be set of.
25. The learned Sessions Judge, Jorhat is directed to issue modified custody warrant.
Crl.App(J) NO.91(J) of 2010 Page 9 of 11
26. We hereby award a sum of Rs.1,00,000/-/-(One Lakh) as compensation to the family members of the deceased in view of Section 357-A of the Code of Criminal Procedure, 1973. The Government of Assam is directed to pay compensation amount of Rs.1,00,000/-/-(One Lakh) only to the wife of the victim. The Government shall deposit the compensation amount in the Office of the learned Sessions Judge, Jorhat within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the wife of the deceased on proper identification and after obtaining proper receipt.
27. We also ordered that the learned Amicus Curiae shall be entitled to one day's hearing fees.
JUDGE JUDGE Crl.App(J) NO.91(J) of 2010 Page 10 of 11 Crl.App(J) NO.91(J) of 2010 Page 11 of 11