Sunday, March 31, 2024

Convict's death sentence converted to conviction under Section 304 Part -A, released: Justice Ashutosh Kumar

In Dilip Tanti v. State of Bihar, Patna High Court's division bench of Justices Ashutosh Kumar and Khatim Reza observed that "37. The appellant is stated to be in jail for more than ten years. The sentence of the appellant under Section 304 Part -A is reduced to the period of custody which he has already undergone. For his conviction under Section 324 IPC, we are of the considered view that the ends of justice would be met if that is also reduced to the period of custody which the appellant has already undergone. 38. While saying so, we have also taken note of the fact that the appellant was a person of young age at the time of occurrence and at the time of recording of his statement under Section 313 Cr.P.C., he was only 25 years of age and there is also no report about his bad conduct in jail all this while. 39. The appeal is thus partially allowed with the modification in the conviction and sentence of the appellant as afore-noted. 40. Since the appellant has already served for more than ten years in jail, he is directed to be released forthwith unless his detention is required in any other case. 41. Let a copy of this judgment be communicated to the Superintendent of concerned jail for record and compliance. 42. Let the records of this appeal be returned to the concerned Trial Court forthwith." The judgement in the criminal appeal was delivered on March 27, 2024. The case arose out of PS. Case No.-25 of 2014 in Simri Bahkhtiyarpur, Saharsa. 

Prior to this Dilip Tanti, the appellant was convicted for the offence under Sections 302 and 324 of the Indian Penal Code by judgment dated November 8, 2019 passed by the Presiding Officer, Fast Track Court, Saharsa in Sessions Trial No. 2320 of 2014.

Section 324 deals with "Voluntarily causing hurt by dangerous weapons or means". It reads: "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

The appellant was alleged to have killed Shambhu Tanti and Rasman Devi, the brother and the mother of the informant respectively and also injured Wakil Tanti and Neelam Tanti. By order dated November 16, 2019, he was sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5,000/- for the offence under Section 302 IPC and imprisonment for a term of one year for the offence under Section 324 IPC. Both the sentences was to run concurrently.

According to the First Information Report lodged by the mother of the appellant had died 15 days ago. On January 26, 2014, the date of the occurrence, the grandmother of one Manoj Tanti, a co-villager had also died. The appellant is said to have committed the offence when the persons participating in the cortege were coming back from the burning ghat after the cremation of the dead body. The cause of occurrence as stated in the F.I.R. is that there was some monetary dispute with respect to expenses incurred in the shradh ceremony of the mother of the appellant. The appellant was made to drink toddy in the house of one Suresh Tanti. He was exhorted by his other associates. Suresh Tanti is said to have handed him over one sickle used for tapping toddy to him and instigated him to kill the entire family of Ashok Tanti (PW6). On such exhortation, mindlessly, the appellant is said to have killed Shambhu Tanti, the younger brother of PW6 and his mother/Rasman. The anger had not abated by them. Wakil Tanti, another brother of PW6 tried to stop the appellant but was unsuccessful. He was also hurt in the occurrence. When Neelam Devi, wife of Wakil Tanti came to the rescue of her husband, she also was assaulted but she has received only simple injuries on her person. 

On the basis of the fardbeyan statement of Ashok Tanti  (PW6), a case was instituted on January 26, 2014 for investigation of the offence under Sections 147, 148, 149, 341, 323, 324, 307, 302, 504 and 120(B) of the Indian Penal Code. The police after investigation submitted chargesheet only against the appellant, who was put on trial. The Trial Court examined ten witnesses on behalf of the prosecution but none on behalf of the defense, convicted and sentenced the appellant. 

The High Court examined the records because the I.O. was not examined. Umesh Prasad (PW10) is the person who had submitted only the charge-sheet. Dr. Nand Kumar Sada (PW1) had conducted the postmortem on the bodies of ShambhuTanti and Rasman Devi. He opined that the death was because of shock and hemorrhage caused by the injuries suffered by them, which apparently was inflicted by sharp cutting weapon. The postmortem report and the evidence of PW1 confirmed that the two deaths were homicidal in nature. Notably, PW3 did not support the prosecution's case and was declared hostile. 

The appellant's counsel submitted that the motive for murder does not become clear from the deposition of PW6 who did not come out with any clear version regarding the actual dispute which goaded the appellant to kill his family members. The Court noted that it remains doubtful whether PW6 had seen the occurrence himself. Except for PW6, nobody has spoken about the appellant having been instigated by his co-villagers for killing the family members of PW6. The Court found that whatever may have happened the rage was not against the family members of PW6 but against PW6 in particular. The story of the dispute regarding expenses incurred in the shradh of the mother of the appellant was not confirmed by any one of the witnesses. The trigger point of the occurrence was not examined by the Investigator, who was not examined.

The Court has recorded that the sequence of events as narrated by the witnesses did not make it very clear that all these attacks were absolutely contemporaneous and executed one after the other. There would certainly have been some time lag, especially when many persons had assembled at the place of occurrence. It is the story of PW6 which was taken as sacrosanct evidence against the appellant of his having killed the deceased and injured Neelam Devi and her husband/ Wakil Tanti. 

he Court noted that the absence of the Investigator at the Trial caused great prejudice to the case of the appellant. If the appellant had acted under the influence of liquor and on exhortation of his associates, those persons were also responsible for the occurrence were not made accused in this case and only the appellant has been put on trial.

The Court concluded that the appellant did not harbour any enmity against the family of PW6 or the deceased and the injured persons; (2) the anger was only for a dispute with respect to expenses of money and its accounting ; (3) it remains unknown whether the family of PW6 had lent money or the appellant had expected PW6 to participate and help him financially in performing the shradh ceremony; (4) the target, if PW6 is to be believed, was PW6 himself and not his other brothers; (5) there was no premeditation or conspiracy for the reason that no evidence could be collected except for the bald statement of PW6 that a conspiracy was hatched where the appellant was provided with weapon of assault and was also deliberately befuddled by administering intoxicant to him.

The Court observed the fact that the appellant cannot take the advantage of exception of section 85 of the IPC because he knew that he was administered toddy/intoxicant and it was not against his will because he had volunteered to accept it for a drink.

The Court probed the question as to whether the appellant had the intention of causing the deaths of two persons and injuries to the injured as the core issue. It noted that there were no repetition of blows. There was no enmity existing from before. Appellant came from the same stock of family. PW6 and his other family members had also participated in the funeral and shradh of the mother of the appellant.

The Court inferred that the attack on Shambhu Tanti and Rasman Devi, who are dead is established. Although the appellant harboured the intention of causing the death of the two persons but he did have the intention to cause injuries to the deceased, which was likely to cause death. This makes him liable for the offences under Section 304 Part -A of the IPC. He also attacked Neelam Devi and Wakil Tanti with the intention to cause such bodily injuries to them which might have resulted in death.

304A deals with "Causing death by negligence". It reads: "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." This provision was inserted in 1870.

In the light of the facts on record, the Court converted the conviction of the appellant to one under Section 304 Part -A of the IPC. It maintained the conviction under Section 324 of IPC. The judgement was authored by Justice Ashutosh Kumar.

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