State of Assam vs Bhuban Tanti Bhuban Tanti Vs State of Assam

J. Sangma, J.—By judgment dated 14.9.92 passed in Sessions Case No. 18/91, the learned Sessions Judge, Silchar (Shri S.N. Bezabaruah) convicted Bhuban Tanti u/s 302 IPC for murder and sentenced him to death. He convicted him also u/s 448 IPC and sentenced to R.I. for six months and fine of Rs. 500/- in default, to R.I. for two months. The learned Sessions Judge made reference to this Court u/s 374 Code of Criminal Procedure for confirmation of the sentence of death. The convict Bhuban Tanti preferred Criminal Appeal No. 118(J)/92 from that judgment.

After hearing Mr. B.P. Bora, learned P.P. for the State of Assam and Mr. A.K. Goswami, the learned amicus curiae for the convict, we now dispose of the reference and the appeal by this common judgment.

In brief, the facts are as follows:- The convict was a tea labourer who resided with his wife Uma Tanti at Chanduwa Tea Estate. Rajkumar Tanti, who was Uma''s related uncle, was also a tea labourer and he resided with his wife Arati, and son Biswajit, at Chotto Jalenga Tea Estate. As there was quarrel Uma temporarily left husband''s house and had been taking shelter in the house of her uncle Rajkumar Tanti at Chotto Jalenga for one month. At. 7. P.M. of 17.7.89 while Rajkumar was away in market, the convict (Bhuban Tanti) came to Chotto Jalenga with dagger in hand, entered the house of Rajkumar and stabbed Uma on the chest. As Rajkumar''s wife Arati tried to save Uma, the convict stabbed her also on the abdomen. Uma died on the spot. PW 13 (Biswajit Tanti), a minor son of Rajkumar and Arati, was present in the house and saw both the occurrence When PW 5 (Braja Tanti).PW 7 (Smti. Sabitri Tanti) and PW 12 (Rajkumar Tanti) and other neighbours came Arati told them that the Appellant stabbed Uma with a dagger and then stabbed (sic) with the same dagger. PW 13 Biswajit Tanti) who saw both the occurrence also told the same thing to them. After a while Rajkumar Tanti produced his injured wife Arati before the police investigation centre, Duarbond at 10.30 P.M. i.e., just after three and half hour of the occurrence and orally reported the incident. The oral report of Rajkumar Tanti was recorded in G.D. as Entry No. 298 (Ext. 4). In short the Entry was this:

Now Rajkumar Tanti of Jalenga Tea Estate appears with his wife Arati and reports that at 7 P.M. Bhuhnn Tanti of Chanduwa Tea Estate entered his house in His absence and stabbed his own wife Uma with dagger on the belly in the house. As his wife Arati intervened, Bhuban stabbed her also with dagger, Uma died on the spot and Arati is now in critical condition.

On 18.7.89 Uma''s father, Gopesh Tanti (PW 1) gave a written FIR at this investigation centre and the investigation centre forwarded the FIR to Silchar P.S. Thus Silchar P.S. registered a case on 18.7.89 against the convict u/s 448/302 IPC for criminal trespass and murder of Uma and u/s 326 IPC for causing grievous injury to Arati. On that day Arati was admitted later in Silchar Medical Hospital; but she died there on 2.8.89. The doctor held post mortem examination of both the dead bodies. After investigation the I/O submitted charge sheet u/s 448/302 IPC against the convict for murder of Uma and Arati to a Magistrate of Silchar who committed the case (G.R. No. 1320/89) to Sessions Court, Silchar for trial.

On 13th August, 1991, the learned Sessions Judge, Silchar framed charge u/s 448/302 IPC; but the convict pleaded not guilty to it. The prosecution then examined 10 PWs. These PWs include the informant (PW 1), Dr. K.K. Chakravarty (PW 6) who did post mortem on the dead body of Uma on 18.7.89. Dr. H. Sarma (PW 17) who did post mortem on the dead body of Arati on 2.8.89, Arati''s son Biswajit Tanti (PW 13), who saw the occurrence, PW 12 (Rajkumar Tanti) and others of the village who came soon after the occurrence. At the close of prosecution, the trial court recorded the defence statement u/s 313 Code of Criminal Procedure which was only a simple denial. The convict did not examine witness for defence.

The learned Sessions Judge elaborately discussed the evidence and found that while Rajkumar Tanti (PW 12) was away from home the convict trespassed to his house and stabbed Uma and Arati with dagger on 17.7.89 in the house. He found that Uma died of slab injury at the spot on 17.7.89 and Arati also afterwards died of stab injury in Silchar Medical College Hospital on 2.8.89. So he held that the convict was guilty u/s 448 for trespass and u/s 302 IPC for double murder. He found no extenuating circumstances and awarded sentence of death to him. Hence the Reference and the appeal.

Mr. B.P. Bora, the learned P.P. took us through the evidence particularly of PWs 5, 6, 9, 12, 13, 17 and 19. While performing post mortem PW 6 Dr. K.K. Chakravarty found penetrating wound on the chest of Uma and told that her death was due to shock and haemorrhage from injury to the heart which was ante mortem ind caused by sharp weapon. PW 17 (Dr. H. Sarmah) performed post mortem on Arati''s dead body on 2.8.89. He found 2 cm oval shaped wound on left side of abdomen and told that her death was due to exhaustion from emphyema thoracic associated with septic peritonitis. PW 13 (Biswajit Tanti) is the son of Arati. He was present in the house and saw both the occurrence. He told that when on Bhuhan''s asking, he opened the door, Bhuban came inside and stabbed Uma with Chaku and that as his mother hold Bhuban, he stabbed her also with with same Chaku on the abdomen. In cross examination defence could not break this evidence. PW 12 (Rajkumar (sic) is the husband of Arati and father of PW 13. Uma was his related niece. He told that on getting information of the occurrence he rushed home from market and saw Uma and his wife Arati with injuries and that Biswajit and Arati told him that Bhuban had assaulted them. He immediately took Arati to Duarbond Outpost from where police sent her to Medical Hospital. In cross examination he told that when he arrived home the people of the village also came. He also stated that after admission to Hospital Arati could not speak properly. PW 16 (MR. Laskar) is the officer-in-charge of Duarbond Investigation Centre. He told that at 10-30 P.M. of 17.7.89 Rajkumar Tanti appeared with his injured wife Arati and orally reported that at 7 P.M. Bhuban Assaulted Uma and Arati with dagger and Uma had died. He stated that the report was entered in G.D. as Entry No. 298 and exhibited the entry as Ext. 4. On that date he prepared inquest on the dead body of Uma. PW 4 (Smti. Suparna Tanti) is also a tea labourer at Chotto Jalenga Tea Estate. She told that on hearing hulla she went to the house of Rajkumar and saw Uma in unconscious state and Arati crying in pain. She also told that Biswajit the son of Rajkumar told that both were stabbed by Bhuban with dagger. In cross examination she denied the suggestion by defence that she never told police that Rajkumar''s son Biswajit told her that Bhuban Tanti stabbed Uma and Arati with dagger. PW 5 (Braja Tanti) is a tea labourer of the same place. He heard hue and cry of Arati and her son Biswajit and rushed to that place and saw Arati holding her injured stomach with hand. This witness said that on his asking, Arati told that Bhuban assaulted her and Uma with dagger while Rajkumar was away in the market. He then went to market and searched Rajkumar but people in the market told that Rajkumar had already left for home. In cross examination he also denied the defence suggestion that he did not loll the police about his going to market in search of Rajkumar. PW7 (Smti Sabitri Tanti) is also tea labourer of Chotto Jalenga Tea Estate. She said that at 7/7-30 P.M. She heard hullah from the children of Rajkumar Tanti and on going there, saw Bhuban''s wife Uma dead and Arati holding her belly with hand and that Biswajit and Arati told her that Bhuban Tanti stabbed the two. In cross examination she also denied the suggestion that she did not tell police that Biswajit told that Uma and his mother were assaulted by Bhuban with dagger. PW 9 (Panchanan Tanti) is a tea labourer of Chotto Jalenga Tea Estate. He said that he saw Arati with injury and bandage on her belly and that Arati told that she and Uma were stabbed by Bhuban. He went with Rajkumar and Arati to police investigation centre where Rajkumar verbally reported the matter. He also went to Silchar Medical College Hospital for admitting Arati. In cross examination he, denied that he never said that such thing to police.

So from the evidence of the above named witnesses, it is clear that the convict Bhutan stabbed Uma and Arati at 7 P.M. on 17-7-89 in the house of Arati at Chotto Jalenga tea (sic, estate) and that both the victims died due to injuries sustained.

Mr. A.K. Goswami, learned amicus curiae for the convict, argued that PW 13 being a child of 9/10 years and in view of the fact that there were discrepancies in his evidence the conviction is unsustainable. But we find that those discrepancies are minor and do not impair the substance of his evidence. It was held in Prakash and another Vs. State of Madhya Pradesh, that in murder case the evidence of victim''s younger brother aged 14 years who gave proper account of the incident witnessed by him could not be discarded. We find that PW 13 not only gave proper account of the incident which he saw but his evidence has been amply substantiated by the evidence of PWs 4, 5, 7, 9 and 12 who came to that house immediately after the occurrence. We therefore agree with the finding recorded by the learned Sessions Judge and hold that the convict Bhubah had committed murder of Uma and Arati on 17.7.89 in the house of PW 12 at Chotto Jalenga.

Mr. Goswami then advanced alternative argument. He submitted that as his wife Uma left him and took shelter in another man''s house the convict might have doubted her chestity and stabbed her. He therefore submitted that the conviction could not be held u/s 302, IPC. We cannot accepted this submission also because there is no denial by the defence that only because of quarrel Uma left him and temporarily came to PW 12 who was her related maternal uncle and had his wife and children. Not only that but the convict had also stabbed Arati with whom he could not find fault. Therefore we do not seen any ground to hold that there was some element of provocation. We therefore maintain the conviction u/s 302 IPC.

As regards the sentence the learned P.P. stated that he would leave the question to us for determination. The learned amicus curiae said that the convict is aged only 25 years and had languished in condemned cell for more than two years. He submitted that this is a fit case for commuting the sentence.

Article 21 of the Constitution provides thus.

Protection of life and personal liberty-No person shall be deprived of his life or personal liberty except according to procedure established by law.

In Ediga Anamma Vs. State of Andhra Pradesh, Krishna Iyer and Sarkaria, JJ. observed that:

that the ''brooding horror of hanging the prisoner in her condemned cell for over 2 years had an ameliorative impact" and was" a factor of human significance in the sentencing context.

In Furman v. State of Georgia (1972) 408 U.S. 238 Justice Brennan observed:

The prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.

In Vasanta Vs. State of Maharashtra, (2) the court observed the following:

It seems to us but a short step, but a step in the right direction, to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.

It was then held that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death; and that the cause of delay was immaterial when the sentence is death. But this was subsequently overruled in Sher Singh and Others Vs. State of Punjab, wherein the court held that no hard and fast rules can be laid down to the period and, therefore, the court must find out why delay was caused and who was responsible for it and said that if after the sentence of death was passed, the convict, by taking resort, to frivolous proceedings, was alone responsible for the delay the Rule of 2 years would not apply.

In view of the above decisions we now hold that the High Court must decide the question of confirmation and the appeal without undue delay and that if for no fault of the convict, delay took place for 2 years or more after the passing of sentence of death by Sessions Judge, its confirmation would be violative of Article 21 of the Constitution and the convict would be entitled to get commutation of the sentence of death.

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In the present case the learned Sessions Judge passed the sentence of death (sic).

Before parting with the case we take note of(sic).

Punishment for murder (sic) with death or imprisonment for life, and (sic).

In our opinion where a sentence of death is passed the sentence of fine is inappropriate. In Guruswamy v. State of Tamil Nadu 1979 SCC 879 the sentence of death which was passed without fine was commuted by the Supreme Court to a sentence of imprisonment for life with fine of Rs. 10,000/-, In Sher Singh and Others Vs. State of Punjab, also the accused Sher Singh and two others are convicted u/s 302/34 IPC and sentenced to death without fine by the learned Sessions Judge, Sangrur; but the High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment and imposed fine of Rs. 5000/-. In fact we so far have not come across with imposing of a fine to a convict Who has been sentenced to death.

We are therefore clearly of the view that where a sentence of death is passed against accused, a sentence of fine in addition to it is wholly inappropriate. In the context we express our view that there was slight mistake in the drafting of section 302 and say that what the section intended was:

302 Punishment for murder. - Whoever commits murder shall be punished with death; or imprisonment for life in which case he shall also be liable to fine.