Mohan Tanti vs State of Assam

P.C. Phukan, J.—This appeal has been preferred by the accused-Appellant from jail against the judgment and order dated 12.6.1995 convicting the Appellant u/s 302 IPC and sentencing him thereunder to simple imprisonment for life and to pay a fine of Rs. 2,000/- in default, to further Rigorous Imprisonment for six months in Session Case No. 64/92 passed by the Sessions Judge, Golaghat.

The aforesaid case arose out of an FIR dated 5.6.92 lodged by the father of the victim Kartik Ch. Sarmah (since deceased) to the effect that his son Atul Sarmah (deceased) had been running a cloth shop in a rented room in the house of the accused Suren Saikia. On 4.6.92 his son took meal at his Uncle''s house and came to sleep in the shop. Next morning at about 6 AM the accused Mohan, servant of Suren Saikia came to his house and enquired about his another son Padda. On being asked as to why he wanted Padda accused Mohan did not reply and ran away. His son Padda followed him and after a while he came back and informed that his son Atul Sannah had been lying dead with cut injury in the neck at cowpath behind the house of Suren Saikia. After receipt of the said FIR Police registered a case u/s 302 IPC and during investigation the blood stained dao was recovered from the room of Suren Saikia and the same was seized by the Police in presence of witnesses.

On completion of investigating, Police charge sheeted the accused-Appellant Mohan Tanti u/s 302 IPC. Learned Magistrate committed the case to the Court of Sessions under the said section of law for trial.

In the Court of Sessions the charge u/s 302 IPC was read over and explained to the accused-Appellant Mohan Tanti to which he pleaded not guilty and claimed to be tried. After recording the evidence of four witnesses and after perusal of the same the Sessions Judge arrayed Suren Saikia also as an accused u/s 319 Code of Criminal Procedure Charge u/s 302 IPC was framed, read over and explained to accused Suren Saikia, to which he pleaded not guilty and claimed to be tried. Prosecution examined 10 witnesses. Statements of accused persons were recorded and they pleaded innocence and declined to adduce any evidence. Defence case is one of total denial. On consideration of the evidence on record and after hearing the prosecution and defence, learned Sessions Judge convicted the accused-Appellant Mohan Tanti as stated above. Hence this appeal.

We have considered the materials on record and heard Mr. M.K. Mazumdar, Amicus Curiae for the accused-Appellant and Mr. D. Goswami, Public Prosecutor, Assam for Respondent.

Learned Sessions Judge acquitted the accused Suren Saikia. No appeal has been preferred against such acquittal. Hence the question now falls for consideration in this appeal is whether the evidence on record is sufficient to sustain the conviction of the accused-Appellant Mohan Tanti u/s 302 IPC.

P.W.-2 Prahlad Nath, performed the post-mortem examination on the dead body of the deceased Atul Sarmah. He found incised wound on the back of the neck at the level of 4th cervical spine with fracture of 4th cervical vertebrae, one incised wound back at the level of thoracic and vertebra 6"x 1 1/2"x2, margin clear cut with fracture of thoracic and vertebra and one incised wound right side of the neck at the middle part with division of great vessels of neck and muscle. According to the Doctor the cause of death was due to shock and haemorrhage as a result of the injuries sustained by the deceased by the weapon like dao. Defence, however, did not cross examine the Doctor regarding the injuries caused except on the point of age of injuries. The evidence of Doctor in respect of the nature of injuries caused and coupled with other evidence on record goes to show that the accused has been murdered.

Now the point for consideration is whether the accused-Appellant has committed the murder.

None of the prosecution witnesses saw the accused-Appellant committing the murder nor any circumstantial evidence being proved against the accused Appellant. The prosecution case rests, first, on the alleged extra judicial confession of the accused-Appellant before some members of the public and secondly, the conduct of the accused leading to the police to the house of other accused Suren Saikia and pointing the dao. So far as the alleged Extra Judicial Confession if concerned, P.W.-3 stated in his evidence that the accused-Appellant brought out a dao from the house of Sureh Saikia and told that he had cut Atul''s neck with that dao. In cross-examination he stated that the accused made the confession at the time of seizure of the dao by the Police one week after the occurrence. P.W.-4 simply stated that Mohan admitted before them to have hacked the deceased to death. He further stated that the accused-Appellant brought out the dao from inside the house of Suren Saikia and admitted before the public and police that he had killed the deceased with that dao. But this witness stood contradicted when in the cross-examination stated that the accused did not state before him that he had killed the deceased with the seized dao. None of these witnesses has in their evidence stated the exact words used by the accused-Appellant in making the alleged Extra Judicial Confession. What is worse, one of them i.e. P.W.-7 in cross examination categorically stated that the accused-Appellant did not make any such confession. Moreover, admittedly the alleged Extra Judicial Confession was made in the presence of the police at the time of seizure of the dao from the residence of another accused Suren Saikia. Under the circumstances, we are not inclined to rely on this Extra Judicial Confession alleged to have been made by the accused-Appellant.

P.W.-10, the Investigating Officer, in his cross-examination categorically stated that he did not record any statement of the accused leading to discovery of the alleged weapon of offence i.e. the dao. Hence, Section 27 of the Evidence Act is not attracted in this case.

Mr. Goswami, learned Public Prosecutor, on the other hand, submits that even in that case the conduct of the accused-Appellant leading to the police to the house of other accused Suren Saikia and pointing out the dao there is admissible u/s 8 of the Evidence Act. Be that as it may, in the absence of any corroborative evidence reliance cannot be placed on the conduct of the accused-Appellant. P.W.-1, Kartik Ch. Sarma, father of the deceased was examined but he died before he could be cross-examined by the defence. Hence, obviously his evidence cannot be used against any of the accused persons. In any case, it transpires from the examination-in-chief of P W-1 that the accusing finger has been pointed out towards the other accused Suren Saikia and as a matter of fact, we have seen an affidavit filed by the P.W.-1 before the District and Sessions Judge, Golaghat, where he wondered "how the innocent servant can kill an innocent tenant without personal grudge of his master''s house". We have taken into account of the conduct of the accused-Appellant that on the next morning he came to the house of the deceased''s father and enquired about Padda, brother of the deceased, and obviously this cannot be said to be a circumstance against him. In any case, a reasonable doubt is cast to the prosecution case and benefit thereof must be given to the accused-Appellant. In our opinion, the materials on record are not sufficient to sustain the conviction of the accused-Appellant u/s 302 IPC. The prosecution miserably failed to prove beyond shadow of doubt that the Appellant committed the offence of murder of Atul Sarmah.

In view of the above discussions, the conviction and sentence are set aside. The accused is now in jail and shall be set at liberty forthwith, if not required in any other case and the amount of fine, if already realised, shall be refunded to him.

Before parting with the records, we appreciate the services rendered by Mr. M.K. Mazumdar, as Amicus Curiae.

In the result, the appeal is allowed.