Hemanta Tanti vs The State Of Assam
2021 Latest Caselaw 533 Gua

                                                                          Page No.# 1/12

GAHC010270412018




                               THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/100/2018

            HEMANTA TANTI
            S/O. SRI GAKUL TANTI, VILL. KHELMATI, P.S. CHARIDUAR, DIST.
            SONITPUR,


            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.

Advocate for the Petitioner    : MR. B. PRASAD, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT AND ORDER (Oral) Date : 17-02-2021

(Suman Shyam, J)

Heard Mr. B. Prasad, learned Amicus Curiae appearing for the appellant. Also

heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam, appearing for the

State. None has appeared for the informant/ respondent No.2.

2. This appeal from Jail is directed against the judgment and order dated Page No.# 2/12

26.07.2018 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur, in

Sessions Case No.311/2016 convicting the appellant under section 302 of the IPC for

committing murder of deceased Ganesh Kumar and sentenced him to undergo

rigorous imprisonment for life and also to pay fine of Rs.10,000/- and in default, to

undergo S.I. for 2(two) months.

3. The prosecution case, in a nutshell, is that on 18.09.2016 at around 7.30 p.m.

the accused had caused grievous injuries upon the deceased Ganesh Kumar by

striking him in his abdomen with a dagger in front of the house of Gokul Tanti of the

same village. Later on, the injured had succumbed to his injuries on his way to

hospital.

4. On receipt of the ejahar lodged by one Sri Sukhlal Kumar (PW-3), Chariduar

Police Station Case No.147/2016 was registered under Section 302 IPC whereupon,

the police took up the matter for investigation. On completion of investigation, the

Investigating Officer (I.O.) had submitted charge-sheet, based on which charge was

framed under Section 302 of the IPC against the appellant to which, he had pleaded

not guilty. Accordingly, the matter was sent for trial.

5. The prosecution case is based on the testimony of three eye-witnesses, one of

whom, had however, turned hostile. In order to establish the charge, the prosecution

side had examined as many as nine witnesses but the defence side did not adduce

any evidence.

6. PW-1, Dr. Mridu Rupam Gogoi, had conducted pos-mortem on the dead body

of the deceased. The post-mortem report mentions the presence of two cut injuries, Page No.# 3/12

which are as follows :-

"A cut injury present over epigastric region (2 x 3 x6) cm. C large intestine is out. Blood (illegible) abdominal cavity. Another cut injury present over Rt. Anterior chest wall in 6 Ics. (3 x 1 x 6) cm C cut injury over Rt. (illegible) of liver."

The doctor had opined that the deceased had died due to stiff injury that caused

heamopavituers and liver injury leading to heapatic shock caused by sharp

instruments.

7. PW-2, Sunil Sahani, is one of the eye-witnesses in this case and had deposed

before the Court that on 18.09.2016 at about 7.30 p.m. accused Hemanta Tanti had

killed Ganesh Kumar by inflicting two stab injuries one on the chest and the other

near the liver of the deceased. On seeing the incident, 108 ambulance was

immediately called and the injured was taken to Kanaklata Civil Hospital. However,

on his way to hospital, the injured Ganesh Kumar had breathed his last. Later on, the

police conducted inquest over the dead body in his presence and he had also put

his signature on the inquest report Ext-2. Ext-2(1) is his signature.

8. During his cross-examination, PW-2 had stated that on the day of occurrence

at about 7.30 p.m. it was dark and that he had seen the incident within 10 ft.

distance. PW-2 had also deposed that at the time of the incident, he was returning

home from his hotel when he saw deceased Ganesh, who had come alone. When

he reached the place of occurrence he had noticed that both Ganesh and

accused Hemanta were creating nuisance on the road. He had asked them to stop

creating nuisance. At that time, Biren Turi (PW-7) was also present with him. Two other Page No.# 4/12

persons were present with accused Hemanta whom he did not know. When he asked

deceased Ganesh and accused Hemanta to stop the nuisance at that time,

Hemanta had stabbed on the person of Ganesh with a dagger as a result of which,

blood started coming out from the body of the deceased. The witness has also

mentioned during his cross-examination that he had not seen the weapon but he

suspected that it was either a "dagger" or "dao" and the injury inflicted on the chest

of the deceased was by a dagger.

9. PW-3, Sukhlal Kumar, is the informant in this case. PW-3 has deposed that the

accused Hemanta and deceased Ganesh were both known to him and that on the

day of the incident the accused had killed Ganesh Kumar with a knife whereafter, he

fled away. PW-3 had also stated that he had lodged ejahar (Ext-3) and that Ext-3(1)

was his signature.

10. During his cross-examination PW-3 had stated that the ejahar was written by

someone else and he did not know the name of the scribe. PW-3 had also mentioned

that the ejahar was written as per direction of the public in the village in presence of

police. It was also stated by PW-3 that Gakul was the father of the accused and the

incident took place in front of Gakul's house.

11. The wife of the deceased Smti. Basanti Kumar was examined as PW-4, who

had deposed that her husband was a Gaonburah. Accused Hemanta had killed her

husband. PW-4 had also stated that there was altercation between her husband and

the accused whereafter, her husband came back home and the accused went to

his house. After that, her husband had come out again from his house when the Page No.# 5/12

accused gave dagger blow to her husband in front of the house of the accused.

Hearing hue and cry she rushed to the place of occurrence and found her husband

lying on the road in a pool of blood.

12. During her cross-examination, PW-4 had stated that the accused and her

husband were good friends and they used to drink sometimes together. On the day

of the incident accused Hemanta came to their house at about 4.00 p.m. when

there was an altercation between her husband and the accused which, however,

was resolved. Thereafter, at about 7.00 p.m. her husband again went out of their

house.

13. PW-5, Sri Sukumar Das, was the VDP Secretary and he also owns a shop at the

local Khelmati Adabari market. In his testimony, the PW-5 had deposed that on the

day of the incident Biren Turi (PW-7) and Sunil Sahani (PW-2) came to his shop and

informed him that accused Hemanta had attacked the Gaonburah with a knife and

thereafter fled away from the place of occurrence. Immediately on receipt of such

information PW-5 had informed the matter to the police and called the ambulance.

In his cross-examination, PW-5 had stated that he had not seen the incident.

14. PW-6, Limbu Lal Mala, is also a resident of the locality, who was present in the

'hat bazar' on the day of the incident. Hearing hue and cry that the accused had

assaulted and murdered the gaonburah Ganesh Kumar, he came to the" Khelmati

market" and saw that the gaonburah was taken to the hospital. This witness was

declared hostile by the prosecution. During his cross-examination by the prosecution,

PW-6 has denied of having made any statement before the police that on 18.09.2016 Page No.# 6/12

the accused Hemanta had stabbed gaonburah Ganesh Kumar with a dao and

murdered him.

15. PW-7, Biren Turi, is another eye-witness to the incident and is also an important

witness in this case. PW-7 had deposed that he knew Hemanta Tanti and on the day

of the incident, at around 6.00 O'clock, he went to the residence of his friend Sunil

whose house is in front of the house of accused Hemanta, he saw the accused

Hemanta and deceased gaonburah were quarreling over some matter while he was

going. At that time Sunil (PW-2), Atul (PW-8) and he himself had set both of them

apart after pacifying them, whereafter, both of them went away. While coming

back, the deceased gaonburah was seen to have been scolding Hemanta in front of

the house of the accused. At that time Hemanta had pushed and hit the gaonburah

Ganesh and the latter fell down. PW-7 had, however, stated that he did not know

with what Hemanta had hit the gaonburah Ganesh but he had stated that the

accused Hemanta had fled the scene after hitting Ganesh. PW-7 had also stated

that seeing the incident, he had asked Sunil (PW-2) to tie a "Gamosa" (traditional

towel) around the wound of Ganesh since he was bleeding a lot. PW-7 had also

asked the VDP Secretary Sukumar Das (PW-5) to call the 108 ambulance and the

police. After some time many people gathered there and the police came and took

Ganesh away in a vehicle. PW-7 had also deposed that accused Hemanta had hit

the gaonburah Ganesh with a weapon like a knife and at that time he was at the

gateway of Hemanta's house. PW-7 had also stated that Hemanta had pushed him

too, as a result of which, middle finger of his right hand had got injured. He had a

torch in his pocket and as soon as the accused hit Ganesh he had lit the torch and Page No.# 7/12

saw that blood was coming out of Ganesh's body. During his cross-examination PW-7

had stated that he did not know whether the deceased was drunk while the

altercation was going on and that he had sustained injury in his hand.

16. PW-8, Atul Tanti, is another eye-witness to the incident who was later declared

as a hostile witness. In his testimony, the PW-8 had deposed that at the time of the

incident, he along with a friend had gone to the house of a person residing in front of

the house of accused Hemanta as they were in need of a bicycle. At that time, he

saw an altercation between Ganesh and accused Hemanta. He also saw Hemanta

pressing Ganesh's abdomen with something and pushed him. Thereafter, Hemanta,

after pushing Ganesh with something, had fled the scene. After that he had called

the VDP Secretary and the police. He saw that Ganesh was bleeding from his

abdomen. Later on, gaonburah Ganesh was brought to the civil hospital where he

succumbed to his injuries. In his cross-examination by the prosecution, PW-8 had

stated that he did not tell the police that accused Hemanta had killed the

gaonburah by hacking him with a dagger.

17. PW-9, Md. Abdul Kadir, was the I.O. who had deposed that after registration of

the police case, investigation of the incident was entrusted upon him. Accordingly,

he went to the place of occurrence and recorded the statement of the witnesses. He

arrested the accused at Hahsora Bagan (tea garden). PW-9 had also stated that he

had seen the dead body of the deceased in the morgue at Tezpur Civil Hospital and

on 19.06.2016, got the inquest done upon the dead body in presence of witnesses

whereafter, the body was sent for post mortem examination. PW-9 had also stated Page No.# 8/12

that he had submitted charge-sheet against the accused Hemanta Tanti under

section 302 of the IPC.

18. Taking note of the evidence brought on record, the learned Additional

Sessions Judge was of the view that the charge brought against the accused under

section 302 of the IPC had been established beyond all reasonable doubt and

accordingly convicted the appellant and sentenced him to inter-alia undergo

rigorous imprisonment for life.

19. By referring to the evidence available on record, Mr. Prasad, learned Amicus

Curiae, submits that none of the witnesses had seen the weapon used by the

accused nor had such weapon been seized by the police. Under such

circumstances, there is no evidence to conclude that the accused had inflicted

grievous injury upon the deceased with a sharp weapon. Alternately, it is also the

submission of Mr. Prasad that the evidence available on record clearly indicates the

existence of heated altercation between the accused and the deceased not only

during the earlier part of the day but also immediately before the incident. From the

evidence on record, submits Mr. Prasad, it is clear that the appellant had acted

under grave and sudden provocation having lost self control and therefore, the

instant case would come within the ambit of Exception 4 of Section 300 of the IPC.

20. Mr. M. Phukan, learned Additional Public Prosecutor, Assam, on the other

hand, submits that in view of the evidence available on record including the

testimony of the eye-witnesses as well as the post mortem report it is clear that it is

none other than the accused who had inflicted grievous injury upon the victim Page No.# 9/12

leading to his death. The learned Addl. P.P. has, however, fairly submitted that the

accused/appellant might have acted in a hit of the moment, having lost his self-

control, being provoked by the deceased.

21. We have considered the arguments advanced by the learned counsel for the

parties and have also meticulously gone through the materials available on record.

22. From the injuries mentioned in the post mortem report, there can hardly be

any doubt about the fact that the deceased Ganesh Kumar had suffered a

homicidal death due to cut injuries inflicted on his body by a sharp weapon.

23. The two eye-witnesses, viz., PWs-2 and 7 have stated that on the day of the

incident, the accused Hemanta and deceased Ganesh Kumar were engaged in an

altercation and it was at that stage the appellant had pushed the deceased into the

ground by using some weapon or object which had caused bleedings in the body of

the victim. Immediately thereafter, the appellant had fled the scene. The testimony of

the eye-witnesses appear to be consistent, free from any contradiction.

24. Although, PW-8 was declared hostile witness, yet we find that the said witness

had by and large supported the prosecution case. There is no contradiction in the

testimony of this witness. Rather, the testimony of PW-8 finds due corroboration from

the evidence of Pws 2 and 7 who are the other two eye witnesses. The evidence of

PWs-2, 7 and 8, therefore, proves beyond all doubt that it was the appellant who

had inflicted grievous injuries upon the victim leading to his homicidal death.

25. Having held as above, let us now examine the arguments advanced by the

learned Amicus Curiae that the appellant had acted under grave and sudden Page No.# 10/12

provocation.

26. From the testimony of PW-4 i.e. the wife of the deceased, it has come out that

the accused and the deceased were good friends and sometimes they used to drink

together. It has also come out from her testimony that on the day of the incident

accused Hemanta had come to their house at 4.00 p.m. when her husband was

alone. At that time there was an altercation between the accused and the

deceased which was resolved. Later on, at about 7.00 p.m. the deceased had gone

out of his house never to return again.

27. The evidence adduced by PWs-2, 7 and 8 clearly goes to show that the

incident took place on the road in front of the house of the accused and from the

testimony of PW-7 it has also come out that at that time, the deceased was scolding

the accused in front of his house. Although the evidence on record is not sufficient to

arrive at a conclusion as to whether the deceased and the accused were in an

inebriated condition when the incident had taken place, yet, the possibility of both

the accused and the deceased being drunk cannot also be altogether ruled out.

28. From a careful analysis of the testimonies of PWs-2,4, 7 and 8 we find that initially

there was an altercation between the appellant and the deceased at around 4.00

p.m. in the house of the deceased but the same was resolved. However, later in the

evening at around 7.00 p.m. it was the deceased who went back to the house of the

appellant and started abusing the appellant. Such conduct of the deceased that

too in front of his house, must have sufficiently provoked the appellant. It was under

such provocation, the appellant might have lost his self control and had acted in a Page No.# 11/12

heat of passion thereby assaulting the deceased with a sharp weapon. Although the

deceased was unarmed but the incident took place in front of the house of the

appellant where the deceased had himself gone and abused the appellant. We are

therefore, of the view that there was no pre-meditation on the part of the appellant

to cause homicidal death of the deceased. Rather, it appears that the outbreak of a

sudden quarrel between the appellant and the deceased had led to the assault

made by the appellant upon the deceased in a heat of passion resulting into his

death.

29. In the case of Budhi Singh Vs. State of Himachal Pradesh reported in (2012) 13

SCC 663 the Supreme Court has observed that the doctrine of grave and sudden

provocation is incapable of rigid construction laying down any principle of universal

application. This will always have to depend on the facts and circumstances of each

case. While applying the principle of grave and sudden provocation the primary

obligation of the Court would be to examine from the point of view of a person of

reasonable prudence, if there was such grave and sudden provocation so as to

reasonably conclude whether the offence committed was culpable homicide

amounting to murder or not. It was further observed that an offence resulting from

grave and sudden provocation would normally mean that a person placed in such

circumstances could lose self-control but only temporarily and that too, in proximity to

the time of provocation.

30. Applying the principles laid down in the aforesaid decision to the facts of this

case, we find that the evidence available on record does indicate any previous Page No.# 12/12

animosity between the accused and the victim nor is there anything to indicate

premeditation on the part of the accused to show that the accused had the

intention to kill the deceased. Evidence available on record goes to show that the

deceased and the appellant were friends and they used to drink together quite

often. Moreover, it is deceased who went to the house of the appellant in the

evening and abused him. This leaves us with the unhesitant view that there was no

animosity, premeditation or intention to kill in this case. Rather, the appellant had

acted in a heat of passion due to grave and sudden provocation. Therefore, this

case, in our opinion, would fall within the exception No.4 of Section 300 of the Indian

Penal Code inviting a milder punishment for the appellant.

31. For the reasons stated herein above, we set aside the conviction of the

appellant under Section 302 of the IPC and instead, convict him under Section 304

Part-I of the IPC. Consequently, the Jail sentence of the appellant is hereby reduced

to rigorous imprisonment for a period of 7 (seven) years. The fine imposed by the

learned Sessions Court would, however, remain unaltered.

Before parting with the record, we wish to place on record our appreciation for

the services rendered by Mr. B. Prasad, learned Amicus Curiae by rendering his

assistance to the Court for disposal of the appeal and direct the Registry to make

available to him, just remuneration, as per the notified rate.

The appeal stands disposed of accordingly.

                                 JUDGE                           JUDGE

Comparing Assistant