P. Alambari vs State

Ashim Kumar Banerjee, J.

BACKDROP

The accused appellant Alambari owned a piece of land that he was reluctant to give to his sons. Sons were staying separately by constructing their own houses on the land belonging to the appellant. However, there was one single toilet that was being used by all.

On the fateful day, the daughter-in-law of the appellant, the victim took her bath in the said toilet and immediately thereafter, the appellant protested for using of the said toilet on the ground, it was constructed by him and the victim used it without his permission. There was a scuffle. Ultimately, the appellant over-powered the victim and stabbed her ten times as we find from the autopsy report. There were three eye witnesses -two sons of the victim, who are also the grandsons of the appellant and other one is another daughter-in-law of the appellant.

The PW-1, the other daughter-in-law vividly narrated the incident that was duly corroborated by two sons of the victim, being the PW-5 and PW-6

The learned Sessions Judge, upon considering the ocular evidence as well as the post mortem report held the appellant guilty of the charge and convicted him under section 302 of the Indian Penal Code and sentenced him imprisonment for life. Being aggrieved, the appellant filed the instant appeal that we heard on the above mentioned date.

The fact would also reveal, the appellant had discord with his wife to whom PW-7 and PW-19 were born. He again married another lady. The first wife was not staying with him, however, would occasionally visit the premises in question.

EVIDENCE

PW-1 Neelaveni deposed, on June 10, 2010, her mother-in-law came to the house of Dilleshwar Rao. On June 11, 2010, PW-1 talked to her mother-in-law and others in that house. It was about 10 mtrs away from that house. On that day, about 3.30 pm, when she was feeding her child, she found, the victim was going to the bath room to take bath. There was one common toilet for all the three houses being the house of the PW-1, house of Dilleshwar Rao and the house of the accused. She saw the victim coming out from the bath room after taking bath. After about 2-3 minutes, she heard the noise and she came out of her room and found, the accused and the victim were facing each other. The accused was holding a knife in his hand and the victim was trying to resist him and her neck was already under the clutches of the accused. She requested the accused to leave her when she was threatened under dire consequences, she started raising cry. The victim also shouted for help. The accused pushed the victim down on the ground and by sitting on her body started inflicting multiple stabbing blows with the knife on his hand and on the person of the victim. She wanted to save her. But, the accused pushed her away. At that time, younger son of the victim, Laxmn Rao and the elder son Manoj Kumar came out from their house. When the accused left the victim she examined the victim, however, could not find any movement. She made a telephone call to her husband and narrated the entire incident. She saw the accused entering inside the house. He changed his cloth and went outside after keeping the house under lock and key. Manoj also informed his father over telephone. He also informed the police. In the cross-examination, she identified her signature in the FIR on the last page. From the trend of cross-examination, we find that the witnesses could not be shaken.

PW-2, Laxman Rao, son of the victim was a minor. He was a student of Class VI. He was found to be mentally alert and he was in a position to depose. He corraborated PW-1. He also could not be shaken in cross-examination.

PW-3 was the Police Constable. He was in the dog squad. He deposed, weapon could be recovered with blood stain with the help of the Dog. He identified the weapon.

PW-4 was also a Police Constable. He was a seizure witness. In his presence, the Dog could help the police to recover the weapon. He also identified the weapon.

PW-5, Manoj Kumar was the elder son of the victim. He was also a minor. He was working as Auto Mechanic. He also corroborated the other two eye witnesses.

PW-6 was a neighbour. He was also a seizure witness, who identified the material exhibit. PW-7, Dilleshwar Rao, was working as a Driver in the State Transport Services. He was the husband of the victim and son of the accused. He was not present when the incident took place. Manoj informed him. He immediately rushed to the house. Police examined the dead-body, prepared inquest in his presence. He was also a seizure witness.

PW-8, Santosh Kumar was also a Police Constable. He received a telephone call from the Lady Sub Inspector who asked him to go to the place of occurrence. Accordingly, he was posted at the place of occurrence after the incident.

PW-9, Mukund Rao, deposed, he did not know about the incident. PW-10 was the Head Constable, who recorded the statement of PW-1. PW-11, Martin Beck, was a neighbour, when he was coming back from the work, he saw the gathering and came to know of the death of the victim. The photographer took the photographs of the dead body in his presence. He identified his signature in Exhibit-2.

PW-12 was the Lady Police Officer. She rushed to the place of occurrence after the incident and recorded the statement. She also identified the Fardbayan. She also witnessed the arrest of the accused.

PW-13, Naidu was the Head Constable who recorded the First Information Report. PW-14, Saroja was the first wife of the accused. She deposed, she was staying with his sister when her husband abandoned her about 30-35 years ago. She started residing at mainland in Andhra Pradesh. Her mother took her back to Andhra Pradesh as the accused was inflicting torture upon her. She also filed a case against her husband to get maintenance. She used to stay at Haddo in her sister's house that caused annoyance to her husband. On the fateful day, she was in the house of her sister when she got the news of the death of the victim.

PW-15 another constable, took the photographs. He identified the photographs. PW-16, Ramzan Ali was the former councilor of the locality. Upon receiving the information, he took his motor cycle and rushed to the place of occurrence. He also corroborated the seizure done by the police. He also signed the seizure and identified the said seizure list. PW-17 was the Truck Driver. He carried the dead body from the mortuary after post-mortem that was handed over to her husband in his presence. PW-18, Jogga Rao was also a neighbor. He also narrated the incident when the police carried on investigation and arrested the accused.

PW-19, Tusli Rao was the son of the accused. According to him, the accused gave land to the victim, PW-1 and also to him. They were residing there. However, the victim asked for money from his pension and demanded further land. Arising out of that, the victim committed suicide to implicate his father falsely. However, in a reply to query made by the Sessions Court, he deposed, at the time of occurrence, he was in the mainland with his family. He would presume that something like suicide took place.

PW-20 was the Investigating Officer. He gave a detailed narration of the investigation that would have corroboration from the other witnesses. In the cross-examination, he would depose, there were disputes between the accused and his son Dilleshwar Rao over partition of lands. However, he could not say, if there was any dispute between the victim and the accused over the partition of land.

PW-21 was the Autopsy Surgeon, who found 10 numbers of injuries caused by fatal blow by stabbing with the help of a sharp weapon.

The accused, in reply to his examination under section 313 of the Code of Criminal Procedure, pleaded innocence. He did not throw any light as to what had happened on that day as we find from his examination. In reply to question No. 124, he deposed, he had one goat, dog chased the goat and he went to save the goat and after coming home, he found the victim murdered by someone and the murderer fled away. He was implicated falsely.

JUDGMENT AND ORDER OF SENTENCE

The learned Sessions Judge, by his painstaking judgment, considered each and every piece of evidence and ultimately, convicted the victim and imposed the punishment of imprisonment for life. Hence, the appeal filed by the appellant that we heard on the above mentioned date.

CONTENTIONS

Mr. Gopala Binnu Kumar, learned counsel, argued on behalf of the appellant-accused. According to him, there had been material discrepancy in the deposition. Moreover, recovery was not in terms of section 27 of the Evidence Act. The offending weapon was described by the witnesses as knife whereas the PW-5 described it as "ballam", that material discrepancy would lead to a suspicion that the prosecution failed to remove. He would also submit, there was link between recovery and seizure that the learned Judge ignored while convicting the accused. As and by way of alternative submission, Mr. Kumar would submit, in case this Court was not satisfied with his argument, and would give credence to the prosecution story, it could at best lead to conviction under section 304 part II of the Indian Penal Code that would attract lesser punishment. He would pray for setting aside the judgment and order of conviction, in the alternative, reduction of the quantum of punishment.

Per contra, Mr. S.K. Mandal, learned Public Prosecutor would contend, the nature of injury that was consistently deposed through the ocular evidence and corroborated by the report of the Autopsy Surgeon would lead to an unimpeccable conclusion that the learned Sessions Judge relied upon while convicting the accused. He would refer to the evidence to contend, the eye witnesses consistently deposed to support the prosecution case. The two of the ocular witnesses mainly PW-5 and PW-6 were minor. They vividly described the incident that would inspire the confidence of the Court. Mr. Mandal would submit, the present case could not come within the scope of section 304 part II of the Indian Penal Code. He would pray for dismissal of the appeal.

OUR VIEW

We have examined the evidences closely. Three witnesses, being PW-1, PW-2 and PW-5 corroborated each other and described the offending weapon as knife whereas the PW-5 described it as "ballam". Pertinent to note, the seizure witness consistently described it as knife. The FSL report would describe it as knife (ballam type). It is a rusty metal knife with a wooden handle having a rusty metal band measuring about 30 cm in length. Generally, a knife is having length of less than 30 c.m. It was quite big knife. According to his perception; the PW-5 described it as "ballam". The panchanama would describe it as knife (ballam type). This minor discrepancy could not brush aside the ocular evidence of PW-1,PW-2 and PW-5. Mr. Kumar would suggest, they were all interested witnesses. PW-2 was 12 years old whereas PW-5 was 7 years old. They say, their mother was murdered in their presence. Their evidence would inspire confidence on us. We cannot ignore the same.

The nature of injury would suggest, the victim suffered ten blows through a sharp weapon. Mr. Kumar would suggest, none of them was fatal. We wish to differ. The injury below the rib and the lower abdomen were sufficient enough to cause death of the victim. Tulsi suggested, it was a case of suicide. He was not at all reliable. In reply to Court's enquiry, he stated, he was in mainland residing with his family. He would also say, it was his presumption, the victim committed suicide. Even if we give full credence, what he said, we fail to appreciate how the victim could inflict herself as many as ten blows through the sharp knife at different region of the body. Some of the injuries, in our view, could not be inflicted by the victim herself.

On the question of reduction of sentence, we are of the view, some total of the evidence would preclude us from converting it into section 304 part II.

Section 304 has two limbs, that inter alia, provides, whoever commits culpable homicide not amounting to murder, shall be punished, if the act by which the death is caused, is done with the intention of causing death, or causing such bodily injury as is likely to cause death. The other limb of the section would provide, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Mr. Kumar would harp on the second limb. There, the punishment is lesser. In the instant case, the intention to cause death was clear as we gather from the evidence. The nature of injury would clearly suggest, it would cause death, atleast injury Nos. 1, 5, and 7 would say so. We are unable to accept Mr. Kumar's contention on section 304 Part II of the Indian Penal Code.

Hence, the conviction, in our view, was accurate that would deserve no interference.

The learned Sessions Judge rightly convicted him under section 302 of the Indian Penal Code that would attract sentence of imprisonment for life. We find the conviction and the sentence accurate that would deserve no interference at our end.

The appeal fails and is, accordingly, dismissed.

Let the lower court records be sent down at once. Copy of the judgment be sent to the correctional home for information and a copy be given to the convict.

Tapash Mookherjee, J.

I agree.