Gauhati High Court
Mohipal Tanti vs The State Of Assam on 24 March, 2011
Author: Madan B. Lokur
Bench: Madan B. Lokur, Ak Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
CRIMINAL APPEAL (J) NO.139 of 2005
APPELLANT:
Mohipal Tanti
By advocates : Mrs. S.D. Baruah,
Amicus Curiae
VERSUS
RESPONDENT
State of Assam By advocate : Mr Z Kamar, Ld. PP, Assam Date of hearing & judgment : 24-03-2011 Crl Appeal (J) No.139/2005 Page 1 of 8 BEFORE HON'BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON'BLE MR JUSTICE AK GOSWAMI JUDGMENT AND ORDER (MADAN B. LOKUR, CJ) The appellant has filed this appeal from jail challenging his conviction under Section 302 of the Indian Penal Code and the award of a sentence of life imprisonment. The appeal is directed against the judgment of the Addl. Sessions Judge, No.1, at Tinsukia in Sessions Case No.213 (T)/03 decided on 17.9.2005.
2. A First Information Report (FIR) was lodged on 10.7.2003 to the effect that around midnight of 9.7.2003/10.7.2003 the appellant caused grievous injuries to his employer Krishna Roy with a sharp cutting weapon. As a result of the injuries, the employer died on the spot and the appellant fled away from the place of occurrence after committing the crime.
3. The appellant was working as a Cook in the hotel of Krishna Roy and it appears that the hotel was rather a small one but it had three rooms, which were used for sleeping. On the fateful night, Krishna Roy, two prosecution witnesses PW-3 and PW-4 and some others were sleeping in one room. The appellant was sleeping in another room and the third room was occupied by PW-5.
Crl Appeal (J) No.139/2005 Page 2 of 84. Before narrating the facts of the case as they appear from the evidence on record, we may note that on completion of investigations a charge sheet was filed against the appellant in which he was accused of having committed an offence of murder punishable under Section 302 of the Indian Penal Code. The charge was explained to him by the Sessions Judge on 6.12.2003 and the appellant pleaded guilty. Notwithstanding the plea of guilt, the learned Judge decided to go ahead with the trial after appointing an advocate to defend the appellant.
5. The case of the prosecution as it unfolds from the evidence on record is that without any apparent provocation the appellant caused the death of Krishna Roy by giving him serious injuries through a sharp cutting weapon called a "bothi dao" which is used for cutting vegetables, fish, meat etc. The injuries inflicted by the appellant on the body of Krishna Roy are described by PW-1 Dr. B.C. Roy Medhi as follows:-
1) One sliced cut injury obliquely present on left cheek, 11cm x 4 cm x muscle deep,
2) One cut injury 8 x 3 cm x bone cut deep on left temple and also cutting the left ear,
3) One cut injury, 14 x 6,cms x 5th cervical vertebrae cut deep present on right side of neck at lower part. All soft tissues including vessels on right side cut,
4) One cut injury, 7 x 4 cm x 2nd cervical vertebrae cut on right side of the neck on upper part,
5) One cut injury, 12 x 5 cm x muscle deep on right shoulder on lateral aspect,
6) One cut injury, 7 x 5 cm x muscle deep on upper most part of left arm. Blood clots are firmly adherent in all over the wounds.Crl Appeal (J) No.139/2005 Page 3 of 8
The doctor opined that these injuries were caused by heavy a sharp cutting weapon and were homicidal in nature.
6. PW-2 Subash Singh was not an eyewitness to the occurrence but he was informed of it by Ram Chandra Roy who was also the person who lodged the FIR. However, for reasons which are not very clear, Ram Chandra Roy was not examined as a prosecution witness although he appears to be the brother of the victim.
7. PW-3 Rinku Mahatoo is a child of 12 years and was an eyewitness to the incident. He was sleeping in one of the rooms in the hotel along with his employer Krishna Roy and three other employees. He stated in his evidence that at about 1 A.M. he woke up from his sleep and saw the appellant carrying a dao with him with which he caused cut injuries on different parts of the body of Krishna Roy. The appellant apparently noticed this witness watching him and he threatened to kill him if he raised a noise. Thereafter, the appellant left the place of occurrence. The testimony of this witness is not shaken in the cross-examination. In reply to a question he stated that the room was dark, but there was no follow-up question put to him.
8. PW-4 Jitendra Mahatoo is also a child of 12 years of age and also an employee of Krishna Roy. He was sleeping in the same room with Krishna Roy and Rinku Mahatoo, but did not actually see the appellant causing injuries on the body of Krishna Roy. He did however see the appellant drop the dao and leave the hotel.
Crl Appeal (J) No.139/2005 Page 4 of 89. PW-5 Md. Samser Ali was sleeping in the second room of the hotel and therefore he had not seen the occurrence. This witness stated that he heard a sound and he saw the appellant going out of the hotel along with a "bothi dao" and he also saw Krishna Roy lying in an injured condition but he did not see the actual killing of Krishna Roy. In cross-examination, this witness stated that while he was sleeping in the second room of the hotel, the appellant had slept in the third room of the hotel.
10. PW-6 is the Investigating Officer and he confirmed the events narrated by the witnesses who had preceded him.
11. In his statement under Section 313 of the Code of Criminal Procedure, the appellant once again admitted to having hacked Krishna Roy with a "bothi dao". He also stated that Rinku Mahatoo and Jitendra Mahatoo might have seen the incident because they were present in the hotel at that point of time. When he was asked whether he had anything to say, the appellant replied as follows:-
"I had been working as a chef in Krishna Roy‟s hotel at Chirapatti in Tinsukia for a long time. I had owed him Rs.7500/- for my work [apparently an incorrect translation]. But although I had been asking him my money repeatedly, he had not paid me my due since he had not paid me my due, I lodged a written complaint with the Tinsukia thana in that regard. Then Krishna Roy‟s brother called me and asked me to withdraw the case. He told me that he would persuade Krishna Roy to pay me my due. I had had altercation with Krishna Roy for not giving me my due. On the night of the occurrence, two employees of the hotel told me that Krishna Roy would kill me that day. I had altercation with Krishna Roy on the night of the Crl Appeal (J) No.139/2005 Page 5 of 8 occurrence also. At the time of the occurrence, Krishna Roy was watching TV in his room. His brother and two other persons were with him. They were taking liquor. After watching TV for a while in his room, I went to bed in a separate room at around 12/12.30 a.m. Then, Krishna Roy called me to his room. When I went there he punched me on my face, asking me as to why I had filed the case. I too punched him on his face. When Krishna Roy assaulted me, his brother and the other two persons were not there in the room. As soon as I punched Krishna Roy, he picked up a „Bothi dao‟ lying near by and tried to deal cut blow on me whereupon I dealt another 2/3 punches on Krishna Roy. Just at that moment the „Both dao‟ fell down from his hand which I picked up and anticipating that he might kill me. I dealt him before hand 2/3 cut blows and dropping the dao there, I left for my house that night itself. Later, news of the killing appeared in newspaper but my name was not mentioned therein. But thinking that police might harass my family and children, I surrendered to Jaipur thana and from there, police of Tinsukia than arrested me and brought me along. Since Krishna Roy attempted to kill me, I injured him in self defence."
A perusal of the aforesaid statement would show that the appellant once again admitted to having killed Krishna Roy.
12. However, in his statement under Section 313 of the Code of Criminal Procedure, the appellant also stated that some money was due to him towards his wages and that was not paid. Since Krishna Roy and he had an altercation on that account, during which Krishna Roy picked up a "bothi dao" to attack him, the appellant killed him in self defence.
Crl Appeal (J) No.139/2005 Page 6 of 813. We may mention here that we have also gone through the statement given by the appellant under Section 161 of the Code of Criminal Procedure. In that statement, he did not mention anything about an altercation with Krishna Roy. We are not inclined to accept that part of the statement of the appellant under Section 313 of the Code of Criminal Procedure referring to the altercation with Krishna Roy. There are two reasons for this. Firstly, the hotel is not a large hotel and if the altercation did take place, the witnesses especially PW-3 and PW-4 who were sharing the room with Krishna Roy would have heard the altercation and referred to it in their testimony. Secondly, this defence has been put up by the appellant for the first time and is clearly an afterthought.
14. While is seems to us that that no altercation took place between Krishna Roy and the appellant, it does appear that Krishna Roy did not pay the wages to the appellant as stated by him. The killing of Krishna Roy on this ground can hardly be justified as a mitigating factor. On the contrary, it provides a motive for the crime, however thin it might be.
15. Taking all factors into consideration, including the nature and number of injuries as well as the repeated admissions made by the appellant, we are of the opinion that the killing of Krishna Roy by the appellant was intentional and that the appellant had no remorse or qualms about what he had done.
16. We also have no reason to disbelieve the two eyewitnesses that is Rinku Mahatoo and Jitendra Mahatoo. The evidence of Rinku Mahatoo has not been shaken in cross examination and it is quite clear that he Crl Appeal (J) No.139/2005 Page 7 of 8 saw the appellant dealing several blows on the body of Krishna Roy, which resulted in the latter‟s death. This is also confirmed by the medical evidence on record.
17. In the circumstances, we have no option but to uphold the conviction of the appellant for the murder of Krishna Roy and we do so accordingly. There is no merit in this appeal and it is dismissed.
18. A free copy of this order be supplied to the convict.
19. The Trial Court records be sent back immediately.
20. For the services rendered by learned Amicus Curiae, the Assam State Legal Services Authority is directed to remunerate her to the extent of `1500/-.
JUDGE CHIEF JUSTICE
Choudhury/
Crl Appeal (J) No.139/2005 Page 8 of 8