Gauhati High Court
Sri Rajen Tanti vs The State Of Assam on 8 August, 2012
Author: Chief Justice
Bench: Chief Justice
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM
AND ARUNACHAL PRADESH)
Criminal Appeal (J). 166 of 2007
Sri Rajen Tanti,
Lahophiya Tea Estate,
Jorhat ...................Appellant
‐ Versus -
State of Assam ............. Respondents
Criminal Appeal (J). 167 of 2007 Sri Simolu Telenga, Lahpohiya Tea Estate, Dist‐ Jorhat .....................Appellant ‐ Versus -
State of Assam ................ Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Date of hearing : 31.07.2012
Date of Judgment : 08.08.2012
JUDGMENT & ORDER
By judgment and order dated 16.07.2007, passed in Sessions Case No. 26(JJ) 06, the learned Sessions Judge, Jorhat, the appellants were convicted under Section 341 IPC and Section 302 read with Section 34 IPC and sentenced to suffer rigorous imprisonment for 1 month for the conviction under Section 341 IPC and to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default, further rigorous imprisonment for 6 months, for the conviction under Section 302/34 IPC.
2. Aggrieved by their conviction and the sentence passed against him, the appellants have preferred Criminal Appeal No. 166/07 and Criminal Appeal 2 No.167/07. Both the appeals arising out of same judgment have been heard together and are being disposed of by this common judgment.
3. The prosecution case in brief is that on 03.08.2001 at around 10.30 PM while Hari Prasad Tanti was proceeding towards his house, the accused Simolu Telenga and Rajen Tanti wrongfully restrained him and assaulted him. Injured Hari Prasad Tanti was removed to Civil Hospital. FIR being lodged, Officer-in- Charge of Pulibor PS registered a case under Section 341/324/34 IPC. The injured Hari Prasad Tanti was shifted to Assam Medical College at Dibrugarh and while he was undergoing treatment, after 28 days, he succumbed to his injuries. On completion of investigation, a charge-sheet was laid under Section 341/302/34 IPC against both the accused.
4. The accused persons pleaded not guilty to the charges and claimed to be tried. In support of its case, the prosecution examined as many as 9 witnesses. The accused persons, in their statement recorded under section 313 Cr. PC, denied the allegations levelled against them. The accused Simolu Telenga stated that he being night Chawkidar, did not allow the victim Hari Prasad to pick up fire woods from the forest and due to grudge he was falsely implicated. The defence case is that of total denial. No evidence was adduced by the defence. On conclusion of trial, the learned trial Court found both the accused guilty under Section 341/302/34 IPC and convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by his conviction and sentence, the accused Rajen Tanti and Simolu Telenga have preferred this appeal.
5. Heard Ms. R.D. Mazumdar, learned Amicus Curiae and Mr. Z. Kamar learned Public Prosecutor.
6. Ms. R. D. Mazumdar has submitted that the doctor, who performed the post mortem examination on the dead body of the deceased, was not examined and the post mortem examination report was also not exhibited. The 3 prosecution failed to prove that the death of the deceased was homicidal in nature. The deceased died after 28 days of the alleged incident.
7. Per contra, learned Public Prosecutor urged that the doctor, who examined the victim after the incident, was examined as PW-3 and his evidence cannot be discarded.
8. PW-3, Dr. Dulal Bora was the then Sub-Divisional Medical and Health Officer at Civil Hospital, Jorhat. He examined the victim Hari Prasad on 04.08.2001 and his findings are as follows:
"Stab injury Rt. Lower chest on the back about 2.5 m x 1.5 m C. Retropenitoned haematoma. Patent later developed faecal fistula Nature of injury:-
Sharp penetrating injury Large gut(colon) injury Injury in fresh."
9. In the opinion of doctor the wound was dangerous, caused by sharp object. The doctor was not cross-examined. The injury caused to the victim, nature of injuries and weapon of assault are, thus, proved by the medical evidence.
10. PW-2 Jyotimoni is the solitary witness, who claimed that she witnessed the occurrence. She is the daughter of the victim and she was accompanying her father when the incident took place. According to her, Simolu Telenga called her father. Accused Jiten Tanti caught hold of Hari Bakti (victim) whereupon Simolu Telenga inflicted dao blow on Hari Bakta. PW- 7, Jilu Bowri hearing commotion, came to the place of occurrence. He saw the accused persons and the victim. Victim Hari Pasad Bakti told him that he was assaulted by the accused Simolu.
11. The trial Court observed that the prosecution has established beyond reasonable doubt that the two accused stabbed the victim in a pre-planned 4 manner, which resulted death of the victim at Assam Medical College. PW2 took up the weapon of assault from that place of occurrence, which she produced before the Investigation Officer. The assault on victim by the accused persons is well proved by the evidence of PW-2. There is no dispute that the victim sustained grievous injuries for which he was shifted to Assam Medical College and Hospital. The doctor, who performed the autopsy on the dead body of the victim, was not examined by the prosecution. The post mortem report was also not exhibited.
12. Learned Public Prosecutor has submitted that the post mortem report, under Section 293 Cr. P. C., may be used as evidence in any enquiry or trial. It appears from the post mortem report that the death of the victim was due to infection. Since the learned counsel for the accused has no objection to post mortem report being looked into even without being formally exhibited, we have taken into account the said report we do not express any opinion on admissibility of such a report without formal proof.
13. The finding of the doctor and the opinion given in the post mortem report clearly show that the death of Hari Prasad Bakti was not directly due to injury caused by the accused person or other material but due to infection. There is no opinion or other material to the effect that the injury itself resulted in death or was sufficient to cause death in ordinary course. It is thus the infection which developed subsequent to the causing of the injuries, which has resulted in the death of the deceased, after prolonged treatment. In such circumstances, the injury by itself cannot be said to have caused the death of the deceased.
14. To convict the accused under Section 302 IPC the injury caused to victim must be homicidal. Even to attract the conviction of a person under Section 304 IPC the accused must have knowledge that the injury was likely to cause death. In the present case, in the light of medical evidence, death was as a 5 result of infection developed from the injury. Therefore, the accused persons could not have been convicted under Section 302 or 304 IPC in absence of evidence of death directly being result of the injury.
15. In the facts and circumstances of the present case, the accused persons ought to have been convicted under Section 326 IPC. The accused caused grievous hurt by dangerous weapon. Therefore, the conviction of the accused persons under Section 302 IPC is set aside. However, the conviction of accused persons under Section 341 IPC is maintained. The accused persons are convicted under Section 341 and 326 IPC read with Section 34 IPC.
16. It is submitted by the learned counsel that the accused-appellant has suffered imprisonment since 2001. Therefore, the sentence for the convection is reduced to the period already undergone by the accused persons.
17. The victim herein is dead. As per Section 357A, the State Government, in co-ordination with the Central Government is required to prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who has suffered loss or injury as a result of the crime and who require rehabilitation. Till any such scheme is prepared by the State Government, the State Government is directed to deposit an interim amount of Rs. 50,000/- with the District Legal Service Authority, Jorhat.
18. The District Legal Service Authority is directed to decide the quantum of compensation to be awarded to the dependents of the victim, after due enquiry by completing the enquiry within two months w.e.f. receipt of copy of this Judgment. Upon such enquires, if it is found that the dependents(S), if any, need rehabilitation then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. If the District Legal Service Authority finds that no compensation 6 is required to be paid to the dependents for their rehabilitation, the amount already deposited by the State Government, shall be refunded.
19. With the above notification and direction, this appeal is disposed of.
20. Send back the LCR.
JUDGE JUDGE
Rakhi
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