Calcutta High Court
Anil Ruidas vs The State on 13 January, 1988
Equivalent citations: 1988CRILJ1610
JUDGMENT Jyotirindra Nath Hore, J.
1. For committing murder of Sadhan Ruidas appellant Anil Ruidas was convicted by a learned Additional Sessions Judge, Burdwan under Section 302, Indian Penal Code and sentenced to imprisonment for life. The appellant seeks to assail the said order of conviction and sentence in this appeal.
2. Briefly stated, the prosecution case is as under:
Sadhan (the deceased), his elder brother Abala and younger brother Jatiram (P.W. 9) used to live with their families in the same homestead but in separate mess at village Chotobahar Kuli, P.S. Kalna, Dist. Burdwan. Appellant Anil, native of village Baruipara, P.S. Kalna is the son-in-lawof Jatiram(PW 9), younger brother of the deceased and at the material time he was living with his wife in the house of Jatiram whose wife was then dead.
3. On the night of 10-7-1983 between 10.00 P.M. and 11.00 P.M. Sadhan (the deceased), his wife, sons and daughter were sitting in the verandah of their room. Anil had an altercation with his father-in-law Jatiram in his room within the same compound. He used abusive and filthy language to which Sadhan objected saying that being a son-in-law he should not abuse his father-in-law in such a way. At this Anil stabbed Sadhan on his abdomen causing a serious bleeding injury. Sadhan fell down on the courtyard with a cry., Anil fled away. He was chased by Mantu (PW 1) and Nantu (PW 3), sons of Sadhan, but could not be apprehended.
4. Sadhan was immediately removed to Badla Primary Health Centre where he succumbed to his injury on the same night at 2.05 A.M.
5. Shortly after the occurrence, a complaint was written by Dipak Banerjee (PW 5) as per instructions of Sandhya Ruidas (PW 2), The written complaint was sent to the Kalna Police station through Chowkidar Rahindra Nath Santra. It was received at the police station on 11-7-83 at 8.05 A.M. A formal First Information Report was drawn up on the basis of the written complaint and a case under Section 326, Indian Penal Code was registered against the appellant. After receipt of the death report, police added Section 304, Indian Penal Code. PW 10 S.I. Probhas Chandra Dey took up investigation. He could not apprehend the appellant in spite of repeated attempts and the appellant ultimately surrendered in court on 29-8-83. After completion of investigation police submitted charge-sheet which in usual course ended in committal of the case to the court of Session.
6. In defence, the appellant pleaded innocence. The defence case was that both the appellant and the deceased were intoxicated and when the deceased attacked the appellant with a knife a scuffle ensued between them and during the scuffle the dagger which was in the hand of the deceased accidentally struck him on the abdomen causing the fatal injury.
7. There is overwhelming evidence to show that the deceased died of stab injury on the night between 10-7-83 and 11-7-85 at Badla Primary Health Centre where he was taken for treatment shortly after he received the stab injury at the hands of an assailant in the courtyard of his house at Chotabharkuli, PWs. 1,2 and 3 who witnessed the occurrence have deposed that Sadhan was stabbed with: a knife in the abdomen in the courtyard and he fell down with a serious injury. He was removed by these witnesses and PW 5 Dipak Banerjee to the local Badla Primary Health Centre where he succumbed to his injury at 2.05 A.M. PW 7 Dr. N.C. Paul, the then Medical Officer of Kalna Sub-Divisional Hospital who held the autopsy on the dead body of Sadhan Ruidas found the following injury:
Incised wound upper part left side of abdomen 3' X 2 with portrusion of small intestine. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of the above noted injury which was ante mortem and homicidal in nature. Clearly, therefore, it was a case of homicide.
8. The next question - and the crucial one - for our consideration is whether., appellant Anil Ruidas caused the death of the deceased by inflicting the said fatal injury.
9. The prosecution case primarily rests on the direct evidence of 3 alleged eye witnesses - PW 1 Mantu Ruidas, son of the deceased PW 2 Sandhya ruidas, daughter of the deceased; and PW 3 Nantu Ruidas, another son of the deceased.
10. Let us advert to their ocular testimony.
11. The evidence of PW 1 is that on the night of occurrence between 10.00 P.M. and 11.00 P.M. Sadhan along with his wife, sons Mantu (PW 1), Nantu (PW 3) and Subal and daughter Sandhya (PW 2) were sitting in the varandah of their room. Appellant Anil had a quarrel with his wife and father-in-law Jatiram (PW 9) and abused his father-in-law in filthy language. Sadhan protested against the abusive language used by Anil saying that a son-in-law should not have uttered such objectionable words against his father-in-law. At this, Anil stabbed Sadhan on the abdomen in the courtyard, in front of the Verandah of the house of Sadhan. Sadhan cried out 'Babago' (Oh, father) and fell down sustaining bleeding injury in the abdomen. Anil fled away. The witness and others tried to catch Anil but without success. Sadhan was removed to local Badla Primary Health Centre where he succumed to his injury on that very night.
12. In cross-examination Mantu has stated that there was the festival of Goddess Jagat Gouri in their village on the night of the incident. The Puja of the deity continued throughout the night in the Thakurtalaof the village and many villagers attended Puja festival on that night. He also went to see the puja. On the date of the Puja of Jagat Gouri, the para people were in an intoxicated state. Anil prepared the wine. Sadhan, Jatiram and Anil were in an intoxicated state on the night of the Puja. He did not take wine. He denied the suggestion that the deceased attacked Anil with a dagger under the influence of liquor and in course of a scuffle between him and Anil, the dagger which was in the hand of the deceased accidentally struck him on the abdomen.
13. The above testimony of Mantu was substantially corroborated in material particulars by his sister Sandhya Ruidas (PW 2) and brother Nantu Ruidas (PW 3) both of whom claimed to have witnessed the occurrence from the verandah.
14. Let us consider if the evidence of these 3 witnesses can be accepted as reliable and true. All of them were the most natural and probable witnesses. They have no grudge against appellant Anil who is a close relation. Their evidence is straightforward and has not been shaken in the least in the cross-examination. There is no cogent reason to disbelieve their testimony.
15. The testimony of the 3 eye-witnesses receives corroboration from PW 5 Dipak Banerjee who is an absolutely disinterested and independent witness. The evidence of PW 5 shows that on receipt of the information from some villagers he came to the house of the deceased at or about 11.00 P.M. and saw Sadhan in injured conditioa He wrote out the complaint according to the instructions of PW2 Sandhya Ruidas. The written complaint is Ext. 1/2 which has been treated as the First Information Report in this case. The version of the occurrence as given by PW 2 Sandhya in court is substantially the same as in Ext. 1/2. PW 2 reported the incident to PW 5 immediately after the occurrence and Ext. 1/2 was written even before the death of the deceased. There was no time or scope for embellishments.
16. Mr. Dutta, learned Counsel for the appellant has drawn our attention to the statement of PW 2 Sandhya in her cross-examination to the effect that after her father was stabbed she called her brothers who came one after another and contended that this statement clearly shows that PWs 1 and 3 did not see the incident. We are unable to accept this contention. The evidence of all the 3 witnesses is that all of them were sitting in the verandah and they saw the incident of stabbing from verandah. The occurrence took place in the courtyard in front of the verandah. The statement of PW 2 referred to above really means in the context that PW 2 first rushed to her father after he was stabbed and her brothers then rushed to the spot being called by her. Nowhere in her evidence she has stated that PWs 1 and 3 were not present in the house at the time of the occurrence and that they came from outside being attracted by her shouts. Mr. Dutta has also referred to the statement of PW 1 in the last part of his cross-examination to the effect that his sister rushed to his father and on hearing her shouts he then went to his father who was then injured and has argued that PW 1 did not actually see the assault. The statement of PW 1 does not really mean that he did not actually see the occurrence. This statement really shows that PW 2 first rushed to her father after he was stabbed and then P W 1 went there being called by PW 2. Mr. Dutta has referred to the statement of PW 9 Jatiram Ruidas in the cross-examination to the effect that at the time of the incident his nephews Mantu and Nantu (PW 3) were at Thakurtala and that they came much later. PW 9 who is the father-in-law of the appellant was declared hostile. He was interested in saving his son-in-law. Moreover, in the examination-in-Chief he has specifically stated that at the time of the occurrence the sons and daughter of Sadhan were present near Sadhan. We are not, therefore, inclined to attach any importance to this statement of PW 9.
17. On a careful scrutiny of the testimony of these 3 witnesses we have no hesitation in accepting their evidence as entirely true and reliable. It has been clearly established by the prosecution that appellant Anil caused the death of Sadhan by inflicting the stab injury.
18. In view of the evidence of the eyewitnesses, the defence version of the occurrence must be discharged as false. The defence case also appears to be highly improbable. The medical evidence does not show that the fatal injury could be caused in the manner suggested by the defence. No suggestion was put to the doctor to the effect that the fatal injury could be caused accidentally in course of a scuffle. In his examination under Section 313, Criminal Procedure Code appellant Anil has not put forward such a plea. It appears that the defence case as suggested to PW 1 was subsequently abandoned.
19. The next question for our consideration is what offence was committed by the appellant. There was only one blow inflicted by the appellant on the spur of the moment. Mr. Dutta has contended that in the circumstances of the case the appellant could not be convicted for an offence of murder under Section 302, Indian Penal Code and that he could at best be convicted under Section 304, Part II Indian Penal Code, In support of his contention he has referred to the decision of the Supreme Court in Tholan v. State of Tamil Nadu . In that case, the accused started remonstrations using filthy language against certain organiser of a Chit fund who had no connection with the deceased in front of the house of the deceased and the deceased came out of his house and asked the accused to go away. The accused on the spur of the moment gave only one blow with knife to the deceased and pushed him to some distance. The accused had no quarrel or dispute with the deceased. The accused did not entertain any malice against the deceased. The incident occurred on the spur of the moment. The house of the deceased was somewhere near the house in which the organisers or at least one of them was residing. The accused abused the organiser of the chit and the deceased had no connection with the chit. Altercation with the deceased was on the spur of the moment. Even the meeting was accidental. There arose a situation in which the accused-appellant probably misguided by his own egocentric nature objected as to why the deceased should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased which proved fatal. The Supreme Court has held that in these circumstances Part-I or Part-III of Section 300, Indian Penal Code was not attracted. In these circumstances the requisite intention cannot be attributed to the accused-appellant but as he wielded a weapon like knife he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an offence under Section 304, Part-II of the IndianPenal Code. The facts of [he present case are more or less the same. The appellant had no malice against the deceased. There was a quarrel between the appellant and his father-in-law (PW 9) in which the appellant used abusive and filthy language. The deceased who was the uncle in law of the appellant protested and asked the appellant not to hurl such abuses at his father-in-law in presence of women-folk. Probably misguided by his own egocentric nature the appellant flew into a rage at this interference, gave one blow with a knife which landed on the left side of the abdomen on the spur of the moment and fled away. In these Circumstances, it cannot be said that the appellant had intention to cause death of the deceased or that he had intention to cause that particular injury found on the body of the deceased which ultimately proved fatal. In other words, Parts I and III of Section 300, Indian Penal Code are not attracted in the facts of the present case. The appellant wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an offence under Section 304, Part II of the Indian Penal Code.
20. For the foregoing reasons, we allow the appeal in part and set aside the order of conviction and sentence under Section 302, Indian Penal Code. The appellant is instead convicted under Section 304, Part II, Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years.
Sankar Bhattacharyya, J.
21. I agree.