Lalan Tanti vs State Of Bihar

Appellant, Lalan Tanti has been found guilty for an offence punishable under Section 304 Part-II of the IPC and sentenced to undergo

imprisonment for five years out of which one year be rigorous imprisonment and also to pay fine appertaining to Rs.1000/- in default thereof, to

undergo S.I. for one month with a further direction that the period having undergone during course of trial will be set off as provided under Section 428

of the Cr.P.C. vide judgment of conviction dated 18.11.2017 and sentence dated 23.11.2017 passed by Additional Sessions Judge, IInd, Munger in

Sessions Trial No.911/2007.

Nawal Kishore Mandal gave his fardbeyan on 23.01.2004 at about 05:30 AM disclosing therein that he along with Fudo Mandal and Niranjan

Mandal (deceased, brother-in-law) had gone to Madhuban where his Basa lie and was returning therefrom at an evening hour. They reached at

village-Harkunda at about 6-7 PM where, his brother-in-law Niranjan Mandal went to the kiosk of Kishundeo Tanti for a cigarette and during course

thereof, Kishundeo Tanti as well as his brother-in-law indulged in an altercation. He intervened and asked both of them why they were quarreling,

over which, Kishundeo Tanti gave lathi blow over his head as a result of which, he sustained injury. Blood oozen out. On account thereof, Fudo

Mandal took him to his house in an injured condition while his brother-in-law Niranjan Mandal was encircled by Lalan Tanti, Krishandeo Tanti, Sanjay

Tanti, wife of Krishandeo Tanti along with 4-5 unknown persons who began to assault and during course thereof, Krishandeo Tanti was provoking to

kill. They were armed with axe as well as lathi and danda. After coming to his house he had informed the police on telephone and after arrival of the

police to his house he is giving his fardbeyan.

After registration of Haweli Kharagpur P.S. Case No.09/2004, investigation was taken up and after completing the same, charge sheet was

submitted facilitating the trial, meeting with the ultimate result while acquitting the other accused persons, subject matter of instant appeal.

Defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete

denial. It has also been pleaded that the prosecution party who were intoxicated came at the house of the appellant where they misbehaved with his

mother whereupon, she raised alarm attracting the villagers who came and rescued her and during course thereof, might have assaulted in order to

save her prestige. So, no offence as alleged has been committed at the end of the appellant. Though no oral evidence has been adduced, charge sheet

of Kharagpur P.S. Case No.93/2008 has been made an exhibit by way of documentary evidence.

In order to substantiate its case, prosecution had examined altogether seven PWs who are PW.1-Kautki Devi, PW.2-Suman Marandi, PW.3-Nanki

Devi, PW.4-Fudo Mandal, PW.5-Nawal Mandal, PW.6-Shiv Prasad Singh, PW.7-Dr. Prithvi Raj as well as also exhibited, Signature of the informant

over fardbeyan Ext.1, case diary-Ext.2, Signature of Vishundeo Manda over fardbeyan-Ext.3, endorsement over fardbeyan-Ext.4, Formal FIR Ext.5,

postmortem report-Ext.6. Defence had also adduced and exhibited charge sheet of Kharagpur P.S. Case No.93/2008 as Ext.A.

While assailing the judgment of conviction and sentence recorded by the learned lower court, it has been submitted on behalf of learned counsel for

the appellant that the same happens to be inappropriate in the background of consistent evidence of the witnesses. There happen to be material

development in the evidence of witnesses suffers from embellishment and that being so, lost their reliability. Furthermore, while stressing upon the

issue, it has been submitted that main I.O. has not been examined whereupon, the interest of the accused is found duly prejudiced as, from the

fardbeyan it is evident that prosecution has kept mum with regard to the place where it was recorded. Although, at the upper part of the fardbeyan,

there happens to be some sort of anomaly on that very score. Furthermore, had there been examination of the I.O. the place where dead body of

deceased was found, house of the appellant, kiosk of the appellant would have been properly visualized and further, after proper consideration of the

location the court would have been in a position to weigh whether the defence version was probable or not.

It has also been submitted that admittedly the so alleged date of occurrence happens to be chilly winter season. In remote area, it is not expected

that there would be movement after sunset and in likewise manner, shop will remain opened. Furthermore, right from the fardbeyan, it is evident that

there happens to be absence of source of light and that being so, the witnesses would not have occasion for proper identification. The status of the

prosecution witnesses could not be accepted moreover, in the background of absence of injury over the person of the informant as, no injury report

has been brought up on record to suggest that he had sustained injury at the end of the Krishandeo Tanti that means to say, has got close proximity

justifying identification.

Apart from this, it has also been argued that if the initial version is accepted, then in that circumstance, none of the prosecution witnesses would

have been in a position to be an eye witness to occurrence as, they escaped from the place of occurrence before assault over the person of deceased.

That being so, the subsequent eventuality whereunder witnesses have claimed to be an eyewitness to occurrence, became improbable whereupon,

their status became unreliable.

It has further been pleaded that there happens to be disclosure that assault was made by means of axe as well as lathi but no injury caused by sharp

cutting weapon was ever found during course of postmortem that means to say there happens to be inconsistency amongst the ocular evidence as well

as medical evidence discrediting the prosecution version.

Then it has been submitted that from the prosecution evidence it is apparent that there is no animosity persisting since before amongst the parties

and the occurrence took place in spur of moment and further, neither there was intention nor knowledge that while inflicting blows, the deceased might

met with death. Whereupon, in worst case liable to be convicted under Section 323 of the IPC and for that, been sufficiently punished.

On the other hand, the learned Addl. P.P. while controverting the submission made on behalf of appellant has submitted that though State has not

preferred an appeal against the judgment impugned but the impugned judgment suggests that the learned lower court dealt it in most cryptic manner on

account thereof miscarriage of justice has occurred which, the High Court exercising its inherent power enshrined under Section 482 of the Cr.P.C

coupled with extraordinary jurisdiction under the guise of Article 226 of the Constitution of India, may took judicial notice in order to serve the cause of

justice and further submitted that it is a fit case wherein matter be remitted back to the learned lower court to hear the party afresh and pass judgment

in accordance with law.

From the lower court record, it is apparent that seven witnesses have been examined out of whom, PW.1, PW.2 and PW.3 have not supported

case of the prosecution. Even during course of cross-examination, the prosecution could not be able to explicit from their mouth any substantial

substance save and except that they had simply disclosed that occurrence is about four years ago. Furthermore, it is evident that PW.6 is the part I.O.

who had conducted supplementary investigation and had submitted charge sheet against accused Sanjay Tanti as well as Ram Dulari Devi. He had

simply exhibited the document including case diary and so, is not material witness with regard to prosecution case. So, the prosecution rest over the

shoulder of PW.4, PW.5 and PW.7.

PW.7 is the doctor who had conducted postmortem over the dead body of deceased Niranjan Mahto on 24.01.2002 at about 08:30 AM although

body was received at the mortuary on 23.01.2002 at about 08:25 PM. During course of postmortem he found following ante-mortem injuries:-

I. Lacerated wound 2â€​ x ½â€​ x bone deep left mandibular region.

II. Blackish spot 3â€​ x ¼â€​ on the left side of chest.

III. Blackish spot 2â€​ x ¼â€​ on left side of shoulder.

IV. Lacerated wound 1â€​ x ½â€​ x skin deep on left eyebrow.

On dissection: Internal haemorrhage found in thorax and abdominal region. Blood and blood clots in thorax and abdominal cavity. Fracture of different

ribs in the left side of chest. Death due to shock and haemorrage as a result above injury caused by severe traumatic in the body. Time elapsed in

death in between 24-36 house. During cross-examination nothing substantial has been procured save and except suggesting that in case a person

having consumed liquor would fell would cause similar kind of injuries.

PW.4 is the Fudo Mandal whose presence is in the fardbeyan as one of the person who along with deceased as well as informant had gone to the

basa of the informant. He had deposed that on 22.01.2004 at about 6-7 PM he along with Chotan Mandal was returning their field. When they came

at the shop of Krishnadeo Tanti, they indulged in an altercation over cigarette. Then, Krishnadeo, Lalan, Ramdulari, Sanjay began to assault with lathi.

Nawal was assaulted by Krishnadeo Tanti. Niranjan was assaulted by all the three on account of which, he died at the spot. During cross-examination

at para-2 he had stated that they reached at the shop of Krishnadeo at about 6-7 PM. At that very time, only Krishnadeo was at his shop. Dayanand,

Lalan were present nearby. But at the shop, only Krishnadeo was present. In para-3, he had stated that Nawal Mandal had sustained single lathi blow.

Niranjan was assaulted with lathi, axe, indiscriminately. He is unable to disclose the exact numbers of blows, might be 10-20 blows. Two axe blows

were given one over head and the other over back portion of shoulder. In para-4, he had stated that at the time of assault, Niranjan was standing

having southern front while assailant was standing having northern front. Niranjan was assaulted from front side. He was not assaulted by any of the

accused. In para-6, he had stated that they have got no animosity with the accused since before. They were identifying the accused since before. His

village lies at a distance of one kilometer. In para-7, he had stated that he left the place leaving the deceased. He had not gone to the P.O.

subsequently. He made statement before the police in the same night. In para-9, he had stated that dispute arose on account of cigarette. The shop

does not belong to the him. Lalan Tanti had assaulted. Shopkeeper had not gave cigarette on demand whereupon, altercation took place. Then had

denied the suggestion that shop was closed whereupon, they intruded inside the house, misbehaved with the wife of Krishnadeo whereupon, villagers

came in rescue who assaulted them as a result of which, deceased died. He had further denied the suggestion that none had assaulted the Niranjan

with axe. In para-11, he had stated that deceased Niranjan was assaulted all over his body. First of all he was assaulted by axe whereupon, fell down

and then, he was repeatedly assaulted. In para-12 though he was not at all consistent but stated that blood had oozen out from the injury cause to the

deceased having over the cloth as well as over ground. In para-14, he had shown boundary of the P.O. East-Dayanand Tanti, West-Sanjay Tanti,

North-Shop of Krishnadeo, South-House of Krishnadeo. Niranjan was assaulted near kiosk. He escaped therefrom leaving him at the same village. In

para-15, he had stated that he had not stated before the police that Krishnadeo Tanti had assaulted Nawal with axe. Sanjay was at the P.O. he was

empty hand. He had not participated during the occurrence. Then had admitted that he had admitted before the police that Niranjan was assaulted by

Krishnadeo and Dulary Devi with axe. At that very time, Lalan and Krishnadeo were armed with axe. RamDulari was armed with Bamboo. At para-

17, he had stated that it is not a fact that blood was not found at the place of occurrence on account thereof, he had stated that blood had fallen over

cloth only. Then had denied the suggestion that he happens to be professional witness, whose present has been procured after fifteen days of the

occurrence.

PW.5 is the informant. He had stated that deceased Niranjan was his brother-in-law (Bahnoi). Occurrence is about 2-3 years ago. They have

gone to his Basa which lies at village - Madhubani. Fudo and Niranjan accompanied him. While they were returning, and reached at village-

Bharkhunda at about 6-7 PM, Niranjan Mandal gone to the shop of Krishnadeo Tanti to purchase cigarette and during course thereof, they both

indulged in an altercation. He intervened during course thereof, Krishandeo Tanti hurled a lathi blow over his head causing injury thereupon. During

midst thereof, Lalan Tanti, son of Krishnadeo Tanti and wife of Krishnadeo Tanti arrived out of whom, Lalan was armed with axe and began to

assault his brother-in-law Niranjan. Anyhow they ran away and then informed the police that. Niranjan died on account of assault by axe. Police came

before whom he had given his fardbeyan (exhibited) inquest report was prepared in his presence (exhibited) his further statement was also recorded

by the police. Identified the accused. During course of cross-examination at para-4 he had stated that he had not visited Bharkhunda after falling of

Niranjan Mandal. He had further stated that he had got no occasion to go to the house of Dayanand Tanti on 22.01.2004. He had further stated that

he had signed over inquest request report at his house. Then had stated that inquest report was prepared at the P.S. as, dead body was there. He had

given his statement before the police at the police station. In para-5, he had stated that on 23.01.2004 he had gone at village Harkhunda along with

police. He had gone to police station at about 4-4:30 AM. Where he met with the police. He along with Fudo Mandal, his father and others have gone

to the police station. Then had stated that he had given his statement before the police which was scribed by him. In para-7 he had stated that he was

assaulted. Blood oozen out from the injury as a result of which his cloth drench therewith. Blood had also fallen over the ground. He had shown the

place to the police. He is unable to say whether I.O. had seized the blood stain earth. In para-8 he had stated that he was not assaulted by an axe.

Lalan had assaulted. Then had denied the suggestion that he had stated before the police that Lalan had assaulted him with lathi. Then had stated that

after sustaining injury he rushed therefrom having trail of blood. In para-9, he had stated that no second blow was given over him. Then had denied the

suggestion that he was not assaulted by the lathi. In para-10 he had stated that Niranjan was assaulted adjacent to the kiosk. At the time of assault

accused persons had encircled the Niranjan. He is unable to say how many lathi blows Niranjan had sustained. In likewise manner, he is unable to

disclose how many axe blows Niranjan had sustained. Lathi and axe were simultaneously hurled. In para-11 he had stated that the place where

Niranjan fell down there was copious blood which was shown to the police but he is unable to say whether the police had seized the blood stain earth.

Niranjan fell down after sustaining axe blow. Then had denied the suggestion under para-13 that at the time of occurrence, they were heavy drunk. In

spite of the fact that shop was closed, they insisted for cigarette and on denial, they misbehaved with the wife of Krishnadeo whereupon she raised

alarm attracting the villagers who assaulted in order to save prestige of Ramdulari and during course thereof, accidentally Niranjan died. It has also

been suggested that he was assaulted by the lathi. He had also stated in para-14 that both the parties were not on inimical term since before the

police.

From the evidence of the doctor, it is evident that injury no.1 a lacerated wound 2â€x1/2â€x bone deep over left mandibular region, apart from

others was found. It is needless to say that any weapon having blunt age would cause the lacerated wound which the Modi in his authoratial book

“Modi Medical Jurisprudence and Toxicology†had opined. However, is evident from the evidence of the doctor that prosecution failed to draw

his attention on that very score but the fact remains.

It is evident from the fardbeyan that informant PW.5 as well as PW.4 have shown their presence up till the stage during course of which PW.5

was assaulted with lathi and was rescued by PW.4 to his house on the other hand, the accused persons encircled deceased Niranjan. However, during

course of cross-examination, attention of the informant PW.5 was not drawn towards the same. Furthermore, from the suggestion having given to the

PW.4 and PW.5, it is apparent that the appellants have not challenged presence of prosecution party including deceased at their place nor they

challenged assault over the person of informant as well as deceased Niranjan however, for that they suggested that they were heavily drunk and

during course thereof, they were insisting upon to have a cigarette which was declined and in the aforesaid background, Ramdulari was misbehaved

on whose hue and cry villagers came and assaulted in order to save prestige of the Ramdulari. The aforesaid event should have been properly

substantiated but as is evident, save and except admitting presence of prosecution party at their place, injuries having been sustained by them with an

explanation and that explanation remained wrapped without being substantiated by way of examining any witness. The best part at the end of the

accused would have been to avail the opportunity under Section 315 of the Cr.P.C. whereunder Ramdulari ought to have stood as one of the DW.

Apart from this, although, the doctor was cross-examined whereupon he had deposed that if a person being intoxicated would fall then in that

circumstance, the injuries might have been but, the doctor was not at all cross-examined on the score that during course of conduction of postmortem

whether he had found the deceased to have consumed alcohol or not before his death. Moreover, the PM report as well as the evidence of the doctor

completely ruled out the same. Furthermore, as is evident informant PW.5 was not at all cross-examined whether he had gone to hospital for

treatment of the injury lost its force in the background of suggestion.

The non-examination of the Investigating Officer is not found fatal in the facts and circumstances of the case as, apart from absence of material

contradiction, on account of admission at the end of the accused, P.O. is also found not under controversy nor, relating to genesis of the occurrence.

However, from the evidence available on the record, it is apparent that witnesses have admitted that they were not carrying animosity amongst

each other since before the occurrence.

It is also an admitted fact that spur of moment, the aforesaid event took place more particularly over demand of cigarette.

In Surain Singh Versus State Of Punjab (2017) 5 SCC 796, the Hon’ble Apex Court scrutinized the legal event after parallel scrutiny of the

relevant section and then held as follows:-

The appellant-accused, at the relevant time, was wearing Kirpan and he took out the same and gave 3 or 4 blows on the left side of the chest of

Bhajan Singh. When the other side came to his rescue, the appellant-accused gave a blow on the back side of the waist of Mander Singh. The

appellant-accused was further found to have given a blow on the backside of the left shoulder of Amrik Singh-the complainant and also two blows

each using Kirpan on the right flank of Sukhchain Singh and Harbans Singh.

In view of the above, it is relevant to quote the statement of Dr. Sarabjit Singh Sandhu (PW-4), who conducted the autopsy on the body of

Harbans Singh, which is as under:-

On the same day, at 4.50 p.m. I also conducted the post mortem examination on the dead body of Harbans Singh S/o Mandir Singh R/o Pakhi Khurd

27 years age, male brought by ASI Sukhdev Singh and HC Parson Singh No. 1432 of P.S. City Faridkot. Body was identified by Bohar Singh S/o

Ajmer Singh and Tej Singh S/o Kartar Singh. Length of the body was 5'9"". It was dead body of moderately built and moderately nourished young man

wearing Sweater, Shirt, Jarsi, Paint, Kachha, Turban, Short Kirpan with black thread, White metallic kara in right forearm. P.M. staining as present

series of marked patches at the back of trunk and lower limbs. Rigor mortis was present in the neck muscles and upper limbs. Absent in lower limbs

(developing stage) clothes were blood stained and corresponding holes were present with clothes. I found the following injuries on his person:-

An onlique stab wound 3 x 0.5 cm was present on the lateral side of right side of chest in mid Axiliary line 22 cm below the Axillary apax. C.B.P. it

was bone deep.

A transverse stab wound 2.0 x 5 cm was presentation the right side back of abdomen, 8 cms below and lateral of injury no. 1 on exploring, it was

going medially and in words cutting subcutaneous tissue, muscles, right kidney. Peritoneum and largeintestine.Peritoneumcavity contained above 1000

C.C. of fluid and clotted blood. Stomach contained about 150 C.C. of semi digested food. All other organs were healthy.

All the injuries were anti mortem in nature. The cause of death in this case in my opinion was due to right kidney (hemorrhage and shock) and large

intestine, as a result of injury no. 2 which was sufficient to cause death in ordinary course of nature.

In the instant case, it is evident from the materials on record that there was bitter hostility between the warring factions to which the accused and

the deceased belonged. Criminal litigation was going on between these factions. It is also proved from the material on record that the attack was not

premeditated and preplanned. Both the parties were present in the Court of Executive Magistrate, Faridkot at the relevant time with regard to the

proceedings under Section 107/151 of the Code. When the appellant-accused objected the presence of a member of the opposite side, the scuffle

started between the parties which resulted into death of two persons. The conduct of the appellant-accused that he at once took out his Kirpan and

started giving blows to the opposite party proves that the attack was not premeditated and it was because of the spur of the moment and without any

intention to cause death. The occasion for sudden fight must not only be sudden but the party assaulted must be on an equal footing in point of

defence, at least at the onset.

The weapon used in the fight between the parties is `Kirpan' which is used by `Amritdhari Sikhs' as a spiritual tool. In the present case, the Kirpan

used by the appellant-accused was a small Kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its

nature, it is clear from the deposition of the Doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right

side of the chest and of the back of abdomen which implies that in the spur of the moment, the appellant-accused inflicted injuries using Kirpan though

not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the accused and actually

inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and

circumstances. In the instant case, the injuries caused were the result of blow with a small Kirpan and it cannot be presumed that the accused had

intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the

occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have

taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of

the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the

heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this

Exception provided he has not acted cruelly.

Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention

to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances

of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in

question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 of

the IPC.

Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid

down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the

accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300

Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception

4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit.

Thus, considering the factual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the

appellant-accused would be under Section 304 Part II IPC instead of Section 302 IPC. Hence, the sentence of imprisonment for

10 years would meet the ends of justice.â€​

That being so, the judgment of conviction and sentence recorded by the learned lower court needs no interference. Consequent thereupon, same is

concurred. As such, appeal is dismissed. Appellant is under custody which he will remain till saturation of the sentence.