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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
(Appellate Side)
Present:
The Hon’ble Chief Justice Debasish Kar Gupta
And
The Hon’ble Justice Shampa Sarkar
CRA No. 210 Of 2006
With
CRA No. 300 Of 2006
With
CRA No. 297 Of 2010
Dilu Ghosh Ors.
-Vs-
The State of West Bengal
For Appellants Nos 3, 4,511 : Mr. Jayanta Narayan Chatterjee,
: Mr. Apalak Basu,
: Mr. Dwaipayan Biswas,
: Mr. Amit Biswas,
: Ms. Moumita Pandit,
: Mrs. Priyanka Ghosh Chowdhury,
: Mr. Tirthankar Dey,
: Mr. S. Naskar,
: Mr. Nazir Ahmed,
: Mr. A. Jha,
: Ms. Poulami Bhattacharya.
Appellant Nos. 1, 2 7-10 : Mr. Sudipto Moitra,
Ld. Sr. Advocate,
: Mr. Lalit Mondal,
: Mr. Kunal Ganguly,
: Mr. Vijay Verma.
For the State : Mr. Sanjay Banerjee,
: Mr. Seveni Banerjee.
Heard on : 10/08/2018, 14/08/2018, 16/08/2018, 17/08/2018, 20/08/2018, 21/08/2018,
23/08/2018, 27/08/2018, 03/09/2018, 04/09/2018, 06/09/2018, 18/09/2018,
19/09/2018, 14/11/2018, 20/11/2018, 28/11/2018, 30/11/2018, 03/12/2018.
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Judgment on : 20/12/2018
Shampa Sarkar, J. :
These appeals have been filed against the judgment and order dated
February 28, 2006 passed by the learned Additional Sessions Judge, First
Court, Nadia, at Krishnagar in S.C No. 11(8) 2000/S.T No.1 of January,
2001, convicting the appellants for offence committed under Section 302
and 34 of the Indian Penal Code and sentencing them to suffer
imprisonment for life and to pay fine of Rs. 5000/- each, in default to suffer
rigorous imprisonment for a further period of one year each.
2. The prosecution case in brief is that on December 27, 1997 at
16:50 hours, Biren Ghosh submitted a written complaint before the Officer-
in-Charge at Dhubulia Police Station against the appellants, alleging that
his brother, Sambhu Ghosh, was murdered on that date at about 3-3.30
p.m. by the appellants, while he was returning from Parmedia Mouza where
he had gone to observe the crops in his own land which was near the land of
Sushanta Ghosh of their Village-Mayakole. It was further alleged that
Sakshi Ghosh fired at the victim, that is, the brother of the defacto
complainant from a pipe gun on his right arm pit. The victim tried to flee
away, but failed and fell down on the ground, when Swapan Ghosh chopped
Sambhu Ghosh on his right hand with a ‘Ram dao’. Then, Arup, Bangshi
and Paritosh Ghosh chopped him on his leg and hands. Basudeb Ghosh
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shouted ‘khun kore fel, jane benche na thake’. It was also alleged that the
victim was returning with his son Sagar Ghosh, Sribash Ghosh (uncle’s son)
and Sachin Ghosh (victim’s uncle). Thereafter the incident was informed to
the defacto complainant by Sagar Ghosh and accordingly the defacto
complainant and other persons of their village went to the place of
occurrence and found that the body of Sambhu Ghosh was lying there.
Subsequently, the defacto complainant went to Dhubulia Police Station and
filed a written complaint on the basis of the information given to him by
Sagar Ghosh and Sribas Ghosh (uncle’s son).
3. Thereafter, Dhubulia Police Station Case No. 142 of 1997 dated
December 27, 1997 was started against the accused appellants and one
Badal Ghosh, for the offence punishable under Sections 302 and 34 of the
Indian Penal Code and Sections 25 and 27 of Arms Act and the investigation
was taken up.
4. After completion of the investigation, charge sheet was submitted
against all the accused appellants and Badal Ghosh. As the offence was
triable by the Court of Sessions the learned Sub-Divisional Judicial
Magistrate, Krishnagar committed the case of the accused appellants to the
Court of Sessions.
5. The learned Sessions Judge, Nadia in his turn transferred the case
to the First court of the learned Additional Sessions Judge, Nadia and who
upon receipt of the case record framed charge under Section 302 and 34 of
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the Indian Penal Code against 12 accused persons. The accused appellants
pleaded not guilty to the charges framed against them.
6. The defence case as appears from the trend of cross-examination of
the prosecution witnesses and examination of the accused persons under
Section 313 were that they were innocent and had been falsely implicated in
the case due to political rivalry and the accused Basudeb Ghosh was a
school teacher of Mayakole Primary School who on the relevant date and
time had attended the School, and as such his presence at the place of
occurrence was absolutely false. The accused Badal Ghosh was the son of
the accused Basudeb Ghosh who on the relevant date and time was being
coached by his private tutor along with others at Krishnagar from 2 to 5
p.m. and as such, his involvement in the incident was also false and
concocted.
7. At the trial 13 witnesses were examined on behalf of the
prosecution and some documents were exhibited marked as Exbt. 1 to 6.
Four witnesses were examined on behalf of the defence.
8. The learned Judge found the appellants guilty of the offence
punishable under Section 302/34 of the Indian Penal Code and sentenced
the appellants to suffer imprisonment for life and to pay fine of Rs. 5000/-
each, in default, to suffer rigorous imprisonment for a further period of one
year each. The learned Additional Sessions Judge further found the accused
Badal Ghosh not guilty of the offence punishable under sections 302 and 34
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of Indian Penal Code and passed an order of acquittal under section 235(1)
of Code of Criminal Procedure.
9. Being aggrieved by and dissatisfied with the aforesaid order of
conviction and sentence passed by the learned Additional Sessions Judge,
Nadia First Court at Krishnagar on 28.2.2006 in Sessions Trial No. 1 of
January, 2001 the appellants have preferred these appeals.
10. Mr. Jayanta Narayan Chatterjee appeared on the behalf of the
accused appellants No.4, 5 and 11 and as amicus curiae in respect of the
other accused appellants. He submitted that the entire prosecution case was
demolished by major contradictions in the evidence of the eye witnesses. He
submitted that the credibility of the witnesses had been shaken through
effective cross examination and there were major contradictions in the
evidences of the witnesses as also between the statements of the eye
witnesses and the first investigation officer. According to him, the hostile
witnesses had demolished the genesis of the prosecution case and the
defence could derive benefit from the evidence of the hostile witnesses. He
further submitted that the prosecution case had become weak as the
statements of prosecution witness no. 12 (first investigating officer) although
did not support the prosecution case had not been declared hostile. He
argued, that as the murder weapon was not seized, and the bullet was not
sent to the forensic Science Laboratory for ballistic report there was no proof
that a pipe gun was used as a murder weapon and as such the manner of
assault and the murder was thus not proved. He urged that the tendency of
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exaggeration by the witnesses while deposing in a parrot like manner made
their testimony unworthy of any credence and as such the prosecution failed
to prove their case beyond reasonable doubt. Mr. Chatterjee’s endeavour
was to establish the fact that the deceased was a man of questionable
character and had past antecedents including arrests in criminal cases. He
had many enemies specially Panu Banu and Ram Singh and the accused
appellants were falsely implicated in the case. In support of his contention
he drew our attention to the evidence of the prosecution witnesses. He
pointed out to the evidence of the PW2 and submitted, that it was not
possible for the said eye witness to see the incident admittedly from a
distance of 15 cubits. According to Mr. Chatterjee, the statement of the said
PW2 was also not trustworthy as admittedly the said witness had not
disclosed the facts to the investigating officer. Mr. Chatterjee further
submitted that the credibility of PW3 was doubtful in view of the
exaggeration in his statement regarding the alarm raised by those present at
the place of occurrence and the aspect of being chased, as these facts were
not mentioned before the first investigating officer. He further pointed out
that the several contradictions in the evidence of PW3, PW6 and PW5 with
regard to the chasing, and firing at Sribas, raised serious doubts. Moreover,
the name of PW5 was not mentioned by the other eye witnesses and PW5
was subsequently brought in to strengthen the prosecution case. PW5 did
not mention anything to the investigating officer although he deposed
elaborately before the court. The statements of PW6 were contradictory to
those of the investigating officer as regards the role of Basudeb Ghosh and
the attempt of Sakhi Ghosh to fire at him. According to the said witness he
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had mentioned this to the investigating officer but, the investigating officer
categorically denied the fact. Mr. Chatterjee’s next contention was that the
time of occurrence was not proved. He took us through evidence of PW10 in
order to establish that the son of the victim had stated that the incident took
place around 1.30 p.m. and not around 3.30 p.m. which was contrary to the
statements of the other witnesses as also the FIR. Mr. Chatterjee then
pointed out the doubt regarding the time of the occurrence. By placing the
evidence of PW2, PW3, PW4, PW7 and PW10 as to the place of occurrence he
stated that some of the witnesses had deposed that the place of occurrence
was the field of Panu Babu, some had deposed that it was on charer math,
others had deposed that it was sagungarir math and yet some others had
deposed that it was on a road, near the field of Ram Singh and Panu Babu.
Mr. Chatterjee vehemently argued that the statements of the defence
witnesses were not taken into consideration by the learned court below. Mr.
Chatterjee, referred to the following decisions, namely Radha Mohan Singh
@ Lal Saheeb vs. State of UP reported in (2006) 2 SCC 450, Mukhtiar
Ahmed Ansari vs. State (NCT of Delhi) reported in (2005) 5 SCC 258,
Balu Sonba Shinde vs. State of Maharastra reported in (2002) 7 SCC 543,
Kunju Muhammed @ Khumani and anr. vs. State of Kerala reported in
(2004) 9 SCC 193, Javed Massod Anr. vs. State of Rajasthan reported
in (2010) 3 SCC 538, Jainul Haque vs. State of Bihar reported in 1974
SCC (cri) 1, Raja Ram vs. State of Rajasthan reported in (2005) 5 SCC
272.
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11. Mr. Sudipto Maitra learned Senior Advocate appeared on the
behalf of the appellant no.1, 2 and 6 to 10 and submitted that the entire
prosecution case had been demolished in view of the delayed forwarding of
the FIR to the court, that is, as late as on January 4, 1998 although the
incident occured on December 27, 1997 and there was no explanation for
the delay. According to him the delay in forwarding the FIR to the court and
the absence of the number of the case in the inquest report clearly
established that the FIR was ante dated and the prosecution case did not
have any legs to stand on. He further stated that the signature on the FIR
was not proved by the second investigating officer PW13 as that portion in
the exhibit was torn. He also submitted that the FIR which was proved by
PW13 bore the number of Dhubulia Police Station Case no. 14 of 1997
instead of 142 of 1997 and as such the prosecution proceeded on a
completely different FIR. His next argument was that none of the eye
witnesses had signed the inquest report nor did the inquest report bear the
number of the case and such deficiencies weakened the prosecution case.
He further submitted that the inquest report was also doubtful in view of the
contradiction in the position of the body as shown in the sketch map and
the statement in the inquest report. He submitted that the inquest report
neither contained any history nor the names of the witnesses and as such
the prosecution case was fabricated.
12. Mr. Maitra vehemently argued that the prosecution failed to prove
their case beyond reasonable doubt. On the contrary according to him, the
entire case was fabricated in order to implicate the accused appellants.
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According to him although three bullets were fired, two were not recovered
and the one handed over by the doctor to the constable after the post
mortem was not sent for ballistic report and these lapses in the investigation
demolished the prosecution case. The manner of the murder and the murder
weapon were thus not proved. According to him, neither the blood stained
earth nor the weapons namely pipe gun and sharp cutting knife were seized.
13. Mr. Sudipto Maitra further submitted that there were
discrepancies as regards the place of occurrence. According to him PW10
stated that they had assembled in the field and his father had fallen on the
ground. PW5 stated that the body was on sagungari field on a road, PW7
stated that the body was near the land of Panu Babu. PW6 stated that 10
to11 persons were standing on the field of Susanto Ghosh. More over
according to him, no particular place was mentioned in the FIR. He urged
that the eye witnesses PW2, PW3, PW6, PW8 and PW10 gave parrot like
statements about the entire incident although most of the statements of the
witnesses were not made before the investigation officer (PW12) and as such
there was no credibility in the evidence of these witnesses. Mr. Maitra raised
a further contention regarding the conduct of the witnesses. According to
him PW10 the son of the victim instead of resisting and raising an alarm
and trying to fight the miscreants ran away from the place to the house of
his uncle without even seeking for medical help. The other eye witnesses
also ran away without trying to take the victim to a nearby hospital for some
medical help. The conducts of the witnesses were unusual and raised a
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doubt as to the veracity of the statements and the truthfulness of the
incident.
14. Mr. Maitra referred to the following decisions Thanedar Singh vs.
State of M.P reported in (2002) 1 SCC 487, State of Punjub vs. Tarlok
Singh reported in 1973 SCC (Cri) 90, Shivlal Anr. vs State of
Chattishgarh reported in AIR 2012 SC 280, Mehraj Singh (L/NK.) vs.
State of U.P reported in 1994 SCC (Cri) 1390, Sukhwant Singh vs. State
of Punjab reported in 1995 SCC (Cri) 524, Balaka Singh and Others vs.
The State of Punjab reported in 1975 SCC (Cri) 601, Abdul Razak Ors.
vs. The State of Karnataka Rep. By SHO, Hutti P.S. reported in JT 2015
(5) SC 620, State of Rajasthan vs. Mangi Ram reported in (2001) 9 SCC
589, Harbeer Singh vs. Sheeshpal Others reported in (2016) 16 SCC
418, Pankaj vs. State of Rajasthan reported in JT 2016 (9) SC 93,
Bechara Kora Modi Ors vs. State of West Bengal reported in 2006 (1)
All India Criminal Law Reporter (SC) 698, Gurdeep Singh vs. State of
Punjab Others reported in (2011) 12 SCC 408, Vimal Suresh Kamble
vs. Chaluverapinakeapal S.P and Others reported in (2003) 3 SCC 175,
Tarun Alias Gautam Mukherjee vs. State of West Bengal reported in
2003 SCC (Cri) 1052, Anil Prakash Shukla vs. Arvind Shukla reported in
(2007) 3 SCC (Cri) 159, Kalyan Others vs. State of U.P reported in
2002 SCC (Cri) 780, Raja Ram vs. State of Rajasthan reported in (2005)
5 SCC 272, Mobarak S.K. @ Mobarak Hossain vs. The State of West
Bengal reported in (2011) 1 C Cr. LR (Cal) 687, Surajit Sarkar vs. State of
West Bengal reported in 2013 Cri. L.J. 1137, Padmanabhan Vijay Kumar
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alias Vijayan Others vs. State of Kerala reported in 1993 Cri. L.J.
3682, Lakshmi Singh and Others vs. State of Bihar reported in 1976 SCC
(Cri) 671, State of M.P vs. Supra reported in JT 2001 (3) SC 309, Hori Lal
Anr. vs. State of U.P. reported in (2007) 2 SCC (Cri) 581, Ananda
Poojary vs. State of Karnataka reported in (2015) 1 SCC 235, Sukhdev
Singh vs State of Punjab reported in 1992 SCC (Cri) 829, State of
Haryana vs. Ram Singh reported in (2002)2 SCC 426, Asraf Biswas vs.
The State of West Bengal. In Re CRA 840 of 2013.
15. Mr. Sanjay Banerjee appeared on behalf of the state and
submitted that the sequence of events would clearly show that the FIR was
not ante dated and the delayed dispatch to the court would not demolish the
case of prosecution. He submitted that the evidence of PW2, PW3, PW5,
PW6, PW8, PW10 and PW11 corroborated the time, place and nature and
manner of assault and murder of the victim.
16. Mr. Banerjee submitted that the time and place of occurrence was
corroborated by the witnesses namely PW1, PW2, PW3, PW5, PW8, PW10
and the same also tallied with the statements made in the FIR and in the
inquest report. The manner of assault as stated by the PW2, PW3, PW5,
PW6, PW8 and PW10 also tallied with the version of the PW11, the doctor
and also with the contents of the post mortem report. According to him, if
the prosecution had proved their case on the basis of the evidence of the eye
witnesses and the same were consistent with the FIR, inquest report and
the post mortem report, a faulty investigation would not be fatal to the
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prosecution case. He urged that the alibi of Basudeb Ghosh was not
acceptable. The evidence of DW1, DW2 and DW3 did not have any
credibility. The involvement of Basudeb Ghosh was proved by the evidence
of PW2 and PW6.
17. I have heard the submissions made on the behalf of the respective
parties. As regards the delayed dispatch of the FIR, we find that the incident
happened at 3-3:30 p.m. (15:00-15:30 hours) on December 27, 1997 the
complaint was lodged on December 27, 1997 by PW1 at 16:50 hours and
Dhubulia Police Station Case no. 142 of 1997 was started under Section 302
and 34 of the Indian Penal Code and Section 25, 27 of the Arms Act on
December 27, 1997. The inquest report was prepared on the same date at
17:35 hours. The statements in the FIR and those in the inquest report were
not contradictory but consistent. Although, the number of the case was not
mentioned in the inquest report but the heading of the case and sections
were mentioned. Also, in the rough sketch map attached to the inquest
report Dhubulai Police Station case no. 142 of 1997 was mentioned. From
the post mortem report dated December 28, 1997, we find that the date of
dispatch of the body was on December 27, 1997 at 18:00 hours and the
same was received at the District Hospital, Nadia on December 28, 1997 at
14:00 hours and the examination was done at 14:10 hours. The sequence of
events from the complaint upto the stage of post mortem does not support
the contentions of the appellants that the FIR was ante dated. Moreover, the
inquest report was prepared immediately after the FIR was lodged and
thereafter the body was sent along with the necessary paper to Saktinagar
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Police Morgue through Sasuaka Police Morgue. The inquest report contained
the details of the incident as narrated in the FIR. We also do not find any
discrepancy as to the nature of the injury and the nature of murder weapon
from the statements of the eye witnesses and the post mortem report. The
chronology of the events as mentioned hereinabove and the contents of the
inquest report, the FIR and the evidence of the witnesses are consistent and
as such the delay in forwarding the FIR to the court does not indicate that
the FIR was ante dated or ante timed.
18. I am conscious of the fact that a FIR in a criminal case and
particularly in a murder case is a valuable piece of evidence. The object of
insisting upon prompt lodging of the FIR was to obtain at the earliest
instance the circumstances including the manner of the crime and the
identity of the actual culprits, the weapons used as also the names of the
eye witnesses. In this case not only was the FIR lodged promptly, the FIR
also contained all the details of the incident including the names of the eye
witnesses. Moreover, it is seen from the inquest report that the body along
with the other reports were forwarded to the morgue for post mortem and in
the post mortem report Dhubulia Police Station Case No. 142 of 1997 was
mentioned with a further mention to the inquest report. In this case, delayed
dispatch of the FIR to the court is not fatal to the prosecution case. The
decision of Thanedar Singh (supra) does not help the appellants inasmuch
as, in that case there was no evidence of the date of sending of the copy of
the FIR to the Magistrate’s Court nor was the original record of the Police
Station relating to the receipt or dispatch of the FIR produced before the
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learned Sessions Judge. No FIR No. was found in the inquest report or in
the requisition for post-mortem. There was also no evidence as to the
correctness of the FIR specially the date and time of recording and that was
why the conviction was set aside. The facts are completely distinguishable
from this case. The decision of Tarlok Singh (supra) is distinguishable on
facts as in that case although, the FIR was lodged at 3:45 p.m. and was sent
by a special messenger to the Magistrate at Dasuya at a very close distance,
the same was not received until the next morning at about 3 a.m. As such,
there was a doubt as to the time of lodging the FIR. The decision of Shivlal
Anr.(supra) is also distinguishable on facts inasmuch as, in that case no
formal FIR was lodged but on the basis of an oral information the police
registered a complaint and no formal FIR was thus forwarded to the
Magistrate as required under S. 157(1) of CrPC.
19. The decision of Meharaj Singh (supra) will not help the appellants
inasmuch as, in that case, the Apex Court found on the facts and evidence
of the case that it was a blind murder and none of the eye witnesses were
present on the scene. Most of the eye witnesses were not examined unlike
the instant case where five eye witnesses were examined and their
depositions corroborated with the version of PW1 in the complaint, as also
with the inquest report and the medical report.
20. The facts of the case in Sukhwant Singh (supra) are different
inasmuch as, the prosecution case fell in the absence of examination of the
two vital witnesses who were mentioned in the “Rukka” (exhibit 5) inasmuch
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as, they were the persons who had taken the dead body to the hospital and
their evidence was necessary to prove the incident in view of the inordinate
delay in dispatching the record to the Magistrate.
21. In Balaka Singh Ors (supra) the appellants were acquitted as
the names of the accused was neither mentioned in inquest report nor in the
FIR and the court on the evidence of the eye witnesses found that
prosecution case was totally mixed up.
22. It is a settled proposition that if a prosecution case is fully
established by direct eye witness and corroborated by medical evidence
failure of the investigating officer cannot render the prosecution unworthy of
belief. We refer to the decision of Amar Singh vs. Balwinder Singh and
Others reported in (2003) 2 SCC 518. The relevant portion is quoted
below:-
“12. The High Court has also held that the details about the
occurrence were not mentioned in the inquest report which showed
that the investigating officer was not sure of the facts when the
inquest report was prepared and this feature of the case carried
weight in favour of the accused. We are unable to accept this
reasoning of the High Court. The provision for holding of an inquest
and preparing an inquest report is contained in Section 174 Cr.P.C.
The heading of the Section is “Police to enquire and report on suicide,
etc.” Sub-section (1) of this Section provides that when the officer in
charge of a police station or some other police officer specially
empowered by the State Government in that behalf receives
information that a person has committed suicide, or has been killed
by another or by an animal or by machinery or by an accident, or
has died under circumstances raising a reasonable suspicion that
some other person has committed an offence, he shall immediately
give information to the nearest Executive Magistrate and shall
proceed to the place where the body of such deceased person is, and
there, in the presence of two or more respectable inhabitants of the
neighbourhood, shall make an investigation, and draw up a report of
the apparent cause of death describing such wounds, fractures,
16bruises, and other marks of injury as may be found on the body and
stating in what manner, or by what weapon or instrument (if any),
such marks appear to have been inflicted. The requirement of the
section is that the police officer shall record the apparent cause of
death describing the wounds as may be found on the body and also
the weapon or instrument by which they appear to have been
inflicted and this has to be done in the presence of two or more
respectable inhabitants of the neighbourhood. The Section does not
contemplate that the manner in which the incident took place or the
names of the accused should be mentioned in the inquest report. The
basic purpose of holding an inquest is to report regarding the
apparent cause of death, namely whether it is suicidal, homicidal,
accidental or by some machinery, etc. The scope and purpose
of Section 174Cr.P.C. was explained by this Court in Podda
Narayana Ors. v. State of Andhra Pradesh AIR 1975 SC 1252 and
it will be useful to reproduce the same.
The proceedings under Section 174 have a very limited scope.
The object of the proceedings is merely to ascertain whether a person
has died under suspicious circumstances or an unnatural death and
if so what is the apparent cause of the death. The question regarding
the details as to how the deceased was assaulted or who assaulted
him or under what circumstances he was assaulted is foreign to the
ambit and scope of the proceedings under Section 174. Neither in
practice nor in law was it necessary for the police to mention those
details in the inquest report.
It is therefore not necessary to enter all the details of the overt
acts in the inquest report. Their omission is not sufficient to put the
prosecution out of Court.
13. In Khujji alias Surendra Tiwari v. State of Madhya
Pradesh AIR 1991 SC 1853 (para 8), this Court, after placing reliance
upon the above quoted decision, rejected the contention raised on
behalf of the accused that the evidence of eye-witnesses could not be
relied upon as their names did not figure in the inquest report
prepared at the earliest point of time. In Shakila Khadar v. Nausher
Gama Anr. AIR 1975 SC 1324 (para 5), it was held that an inquest
under Section 174 Cr.P.C. is concerned with establishing the cause of
the death only. The High Court was, therefore, clearly in error in
holding that as the facts about the occurrence were not mentioned in
the inquest report, it would show that at least by the time the report
was prepared the investigating officer was not sure of the facts of the
case.”
23. With regard to the place of occurrence, the prosecution witnesses,
some of whom were also eye witnesses namely PW2, PW3, PW4 (before he
was declared hostile), PW5, PW6, PW8 and PW10 have categorically stated
that Sambhu Ghosh was murdered and his body was lying on a road near
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Sagungari field (math). Only PW7 said that the body was lying between the
land of Ram Singh and Panu Babu. PW 7 was declared as a hostile witness.
24. With regard to the manner of the murder we find that the version
of the defacto complainant PW1, Biren Ghosh, matched with the statements
of the eye witnesses. The inquest report mentioned the nature of injury. The
post mortem report corroborated that there was bullet injury with one entry
and one exit point and there were multiple sharp cut wounds on the lower
leg, wrist, ankle, thumb, hand (dorsum) and the little finger was almost
amputated. The details of the injuries stated in the post mortem report
corroborated the prosecution case as also the testimony of the eye
witnesses. With regard to the manner of the murder and the murder
weapon, PW2, PW3, PW6, PW8 and PW10 who were all eye witnesses gave
an identical version. All of them stated that Sakshi Ghosh fired at Sambhu
Ghosh and when Sambhu Ghosh fell down on the ground, the other accused
persons Swapan Ghosh, Chandu Ghosh, Hola Ghosh, Badan @ Swarup
Ghosh, Paritosh Ghosh and Kapil Ghosh assaulted the victim and started
chopping his arms and legs with a ‘Ram dao’.
25. With regard to the time of occurrence, all the eye witnesses and
PW5 deposed that the murder took place at about 3:00-3:30 p.m. In his
testimony, PW10 stated that at about 1:00-1:30 p.m., he along with his
father went to the field and when they were returning after observing the
crops in the field the incident happened. His statement does not contradict
the time of occurrence as stated by the other witnesses because he
mentioned the time when they had gone to the field after lunch.
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26. From the post mortem report we find that the stomach of the
victim contained half digested rice and yellow dal. This finding corroborated
the version of PW10 that after lunch at about 1:00-1:30 p.m., he and the
victim went to the field to see the crops and on their way back the incident
happened. The doctor PW11 deposed that the victim had eaten his meal 2 to
4 hours before his death. The death occurred between 3:00-3:30 p.m. as per
the evidence on record. We thus, come to a finding that the place, time and
manner of the murder has been proved beyond reasonable doubt by the
prosecution.
27. In the decision of Pankaj (supra), the nature of injury could not be
connected to the weapons used as per the statement of the witnesses. The
possibility of the injury having been caused by the weapon as alleged could
not be proved. That case rested upon the sole testimony of PW8 which got
corroboration from the statement of PW5 but, the presence of PW5 at the
place of occurrence and the reason assigned for such presence was
suspicious and disbelieved by the court .Whereas, in this case there was no
reason to suspect the truthfulness regarding the presence of the eye
witnesses at the place of occurrence.
28. With regard to the decision of Bechara Kora Mudi Ors. (supra)
we are of the view that the said judgment does not apply in this case as in
this case there was sufficient evidence on record to prove that Sakshi Ghosh
fired at Sambhu Ghosh and the other accused persons instigated each other
and started chopping the victim with a ‘Ram dao’.Their common intention
was proved.
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29. Reliance is placed on the decision of Anwarul Haque vs. State of
U.P. reported in (2005) 10 SC 1 581, where it has been held by the Apex
Court that the description of the murder weapon by the eye witnesses and
the wounds noticed by the doctor throw considerable light on the manner of
assault and the opinion of the doctor could not be totally wiped out only
because the weapons of the offence were not recovered.
30. The depositions of the eye witnesses clearly indicate the multiple
sharp cuts injuries and also bullet injury. The doctor also testified that the
victim had taken his meal 2-4 hours before his death which corroborated
with the testimony of the witnesses as to the time of the murder.
31. With regard to the statement of PW12, that is, the first
investigating officer, we find that although PW4 Bablu Ghosh was declared
hostile, the said witness had mentioned the entire incident to the
investigating officer. PW12 has also testified about the lodging of the FIR,
preparation of the inquest report and sending the body to the morgue. He
further testified that he had arrested the accused persons and had also
examined the witnesses. His testimony to the effect that the eye witnesses
did not mention certain facts about the incident to him during interrogation
cannot diminish the credibility of the witnesses.
32. The decision in Gurdeep Singh (supra) does not help the
appellants’ because in that case the police officer deposed that the
statements were recorded by him as per the dictation of the witnesses who
disowned the statements before the court. This raised doubt in the
credibility of the witnesses. The decision in Vimal Suresh (supra) is
20
distinguishable on facts inasmuch as, the records did not support the case
of the prosecutrix who had also not mentioned the incident to the
investigating officer thus, her testimony was disbelieved. This is not so in
this case.
33. With regard to the conduct of witnesses in not making an attempt
to save the victim or take him to a nearby hospital, we find from the
testimony of the witnesses PW3, PW5, PW8 and PW10 that they started
weeping when they saw the incident and when they tried to raise an alarm,
they were threatened to be killed and Sakshi Ghosh also fired at Sribas
Ghosh but missed. Therefore, we do not find much substance in the
argument made by the accused appellants regarding the doubtful conduct of
the son who was approximately 12 years old at that point of time and also
the conduct of the other witnesses who were present at the place of
occurrence because we find from the evidence as mentioned herein above
that they could not make an attempt to help the victim due to the life
threats given by the assailants and the consequent firing at Sribas which
scared them and they fled away.
34. The decision in Abdul Razak Ors. (supra) does not help the
appellants inasmuch as, in that case although the mother and brother of
the victim were present when chilli powder was being thrown on the victim
whose hands were tied and the other assailants were assaulting him with
sticks and stones, the mother dissuaded the brother from going to help the
victim. The father went to the place of occurrence and left the injured victim
with his hands tied without trying to save him. These facts raised serious
21
doubts as to the conduct of the victim. The facts of Mangni Ram (supra) is
also distinguishable from the instant case inasmuch as, when the sole
assailant was advancing towards the 70 years old grandmother with an axe
in one hand and a ‘jayee’ in another the grandson did not try to save her.
In that case the evidence of the grandson was in conflict with the medical
evidence. On such grounds, the accused was acquitted. In the instant case,
unlike the previous two cases, from the testimony of the eye witnesses we
find that there were around 10-11 persons who had encircled the victim and
had deadly weapons in their hand. When there was an attempt to resist,
Sakshi Ghosh fired a shot at Sribas Ghosh and they threatened to kill those
present. It was human instinct for them to get scared and to run away, for
help from the village, the police and family. The victim succumbed to the
injury immediately.
34. Although, non- collection of the ballistic expert’s report may be a
defect in the investigation, but this defect cannot result in acquittal of
accused appellants against whom enough evidence were available.
35. I further hold that failure to recover the weapon of offence cannot
be fatal to the prosecution case when the case has been proved by
independent eye witnesses. Reliance is placed on the decision of Bakhshish
Singh vs State of Punjab reported in (2013) 12 SCC 187 (27). The relevant
portion is quoted below:-
“27. It was further urged that the dagger which was produced in
the court could not have been used as an instrument for the crime
because the dagger was not shown to the doctor during post-mortem
examination and the doctor has only stated that the injuries could
have been caused through the sharp-edged weapon given in the
22court. We find from the testimony of the doctor that he deposed that
the injuries were caused by a sharp-edged weapon, which is quite
consistent with the use of dagger for the offence.
28. It was further submitted that the prosecution case is
suspicious because there was a delay in sending clothes and dagger
to the forensic science laboratory and that even otherwise the report
of the forensic science laboratory shows that the dagger contained
human blood but without referring to any blood group. Upon perusal
of the record, we find that submission that the blood group was not
ascertained and therefore it was not the blood of the deceased, was
not made before the courts below. In any case, this does not cast any
doubt on the prosecution case which has been proved from the
evidence and the findings of the courts below.”
36. Failure on the part of the investigating officer to send the seized
bullet for obtaining a report from the forensic laboratory has not destroyed
the genesis of the case as the case has been established by the direct
testimony of the eye witnesses and corroborated by medical evidence. The
prosecution witnesses including the eye witnesses were not interested
witnesses apart from PW3, PW6 and PW10.
37. In the decision of Surojit Sarkar (supra), it has been held that if
the investigation resulted in the real culprit of an offence not being identified
then the defence would be fully entitled to take advantage of the lacuna but,
as has been held in the decision of Sheo Shankar Singh vs. State of
Jharkhand reported in (2011) 3 SCC 567 deficiencies in investigation by
way of omission and lapses on part of investigating agencies cannot in
themselves justify a total rejection of the prosecution case. In the decision of
Amar Singh (supra) it has been held that failure of the investigating officer
in sending the fire arm to the forensic science laboratory would not
completely throw out the prosecution case. The relevant portion is quoted
below:-
23
“15. Coming to the last point regarding certain omissions in DDR,
it has come in evidence that on the basis of the statement of PW 4
Amar Singh, which was recorded by PW14 Sardara Singh, SI in the
hospital, a formal FIR was recorded at the police station at 9:20 p.m.
In accordance with Section 155 CrPC the contents of the FIR were
also entered in DDR, which contained the names of the witnesses,
weapons of offence and place of occurrence and it was not very
necessary to mention them separately all over again. It is not the
case of the defence that the names of the accused were not
mentioned in DDR. We fail to understand as to how it was necessary
for the investigation officer to take in his possession the wire gauze
of the window from where A-1 is alleged to have fired. The wire
gauze had absolutely no bearing on the prosecution case and the
investigating officer was not supposed to cut and take out the same
from the window where it was fixed. It would have been certainly
better if the investigating agency had sent the firearms and the
empties to the Forensic Science Laboratory for comparison. However,
the report of the ballistic expert would in any case be in the nature of
an expert opinion and the same is not conclusive. The failure of the
investigating officer in sending the firearms and the empties for
comparison cannot completely throw out the prosecution case when
the same is fully established from the testimony of eyewitnesses
whose presence on the spot cannot be doubted as they all received
gunshot injuries in the incident. In Karnel Singh v. State of M.P. it
was held that in cases of defective investigation the court has to be
circumspect in evaluating the evidence but it would not be right in
acquitting an accused person solely on account of the defect and to
do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective. In
Paras Yadav v. State of Bihar while commenting upon certain
omissions of the investigating agency, it was held that it may be that
such lapse is committed designedly or because of negligence and
hence the prosecution evidence is required to be examined dehors
such omissions to find out whether the said evidence is reliable or
not. Similar view was taken in Ram Bihari Yadav v. State of Bihar
when this Court observed that in such cases the story of the
prosecution will have to be examined dehors such omissions and
contaminated conduct of the officials, otherwise, the mischief which
was deliberately done would be perpetuated and justice would be
denied to the complainant party and this would obviously shake the
confidence of the people not merely in the law-enforcing agency but
also in the administration of justice. In our opinion the circumstances
relied upon by the High Court in holding that the investigation was
tainted are not of any substance on which such an inference could be
drawn and in a case like the present one where the prosecution case
is fully established by the direct testimony of the eyewitnesses,
which is corroborated by the medical evidence, any failure or
omission of the investigation officer cannot render the prosecution
case doubtful or unworthy of belief.”
38. In the decision of Surpa (supra), it was held that not sending the
bullet to the ballistic expert was an infirmity but, in this case the hands and
24
legs were chopped by a ‘ram dao’ also and the victim succumbed not only to
the bullet injury but also to the injuries caused by the ‘ram dao’. The
medical evidence of the doctor corroborated this and as such the lapse on
the part of the investigating officer is not fatal to the prosecution case.
39. With regard to the allegation of discrepancies in the testimony of
the witnesses, I find that none of the witnesses namely PW2, PW3, PW5,
PW6, PW8 and PW10 (all eye witnesses) were shaken in the cross
examination. Their testimony was consistent and not contradictory. Their
testimony also matched with the medical report, and testimony of the doctor
with regard to the nature of injury and the murder weapon used. The
statement of PW6, Sribas Ghosh that Sakshi Ghosh fired at him has also
been corroborated by PW3, PW6, PW8 and PW10.
40. I find that the evidence of PW11, that is, the medical officer, who
had conducted the post mortem corroborated with the testimony of the eye
witnesses. The FIR (exhibit 1) disclosed that the incident happened at 15:30
hours on December 27, 1997, which was reported to the police at about
16:50 hours. The FIR disclosed the names of all the accused persons and
the same was corroborated by the prosecution witnesses. The place of
occurrence as the road near Sagungarir math was recorded in the inquest
report (exhibit2/1) and was also corroborated by the statements of the
witnesses and as such there is nothing before us which would persuade us
to disbelieve the witnesses. Reliance is placed on the relevant paragraphs of
the decision of Bakhsish Singh (supra) which are quoted below:-
25
“31. This Court in several cases observed that minor
inconsistent versions/discrepancies do not necessarily demolish the
entire prosecution story, if it is otherwise found to be creditworthy. In
Sampath Kumar v. Inspector of Police this Court after scrutinising
several earlier judgments relied upon the observations in Narayan
Chetanram Chaudhary v. State of Maharashtra to following effect:
’21…..42. Only such omissions which amount to contradiction in
material particulars can be used to discredit the testimony of the
witness. The omission in the police statement by itself would not
necessarily render the testimony of witness unreliable. When the
version given by the witness in the court is different in material
particulars from the disclosed in his earlier statements, the case of
the prosecution becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the statements of truthful
witnesses as memory sometimes plays false and the sense of
observation differ from the person to person’.
32. In Sunil Kumar Sambhudayal Gupta v. State of
Maharashtra this Court observed as follows:-
’30. While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of
such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements on
trivial matters without effecting the core of the prosecution case
should not be made a ground to reject the evidence in its entirety.
The trial court, after going through the entire evidence, must form an
opinion about the credibility of the witnesses and the appellate court
in normal course would not be justified in reviewing the same again
without justifiable reasons.’
33. The embellishments in the statements of Narinder
Banwait referred to above, in our view do not constitute such
contradictions which destroy the core of the prosecution case as this
Court in Raj Kumar Singh v. State of Rajasthan has observed as
under:-
’43…… It is a settled legal proposition that, while appreciating the
evidence of a witness, minor discrepancies on trivial matters, which
do not affect the core of the case of the prosecution, must not prompt
the court to reject the evidence thus provided, in its entirety. The
irrelevant details which do not in any way corrode the credibility of a
witness, cannot be labelled as omissions or contradictions. Therefore,
the courts must be cautious and very particular in their exercise of
appreciating evidence. The approach to be adopted is, if the evidence
of a witness is read in its entirety, and the same appears to have in
it, a ring of truth, then it may become necessary for the court to
scrutinise the evidence more particularly, keeping in mind the
deficiencies, drawbacks and infirmities pointed out in the said
evidence as a whole, and evaluate them separately, to determine
whether the same are completely against the nature of the evidence
provided by the witnesses, and whether the validity of such evidence
is shaken by virtue of such evaluation, rendering it unworthy of
belief’.”
26
41. With regard to the contention regarding PW4, PW7 and PW13
turning hostile and thereby demolishing the prosecution case I hold that
merely because the witness turned hostile that by itself, would not negate
the prosecution case. In this connection reliance is placed on the decisions
of Ramappa Halappa Pujar vs. State of Karnataka reported in (2012) 4
SCC 559 (13). The relevant portion is quoted below:-
“20. The investigation started without any delay. Statements
of a large number of witnesses were recorded on 13-12-1994 itself.
Witnesses turned hostile. The same by itself would not negate the
prosecution case. The very fact that the villagers in a case of this
nature had turned hostile would, on the other hand, show that there
was a ring of truth in the prosecution case.
21. It is in the aforementioned backdrop, the High Court
opined:-
38. It is no doubt true that except PWs 25 to 28, all other
eyewitnesses have turned hostile. But that by itself is no reason to
discard the evidence of PWs 25 to 28. On the other hand, it would
show that no independent witness from the village is prepared to
come forward to depose against the accused persons. If the other
witnesses were not eyewitnesses to the incident, why should the
investigating officer record their statement falsely if they have not
stated so. Be that as it may. Merely because the other eyewitnesses
examined by the prosecution have turned hostile and did not support
the prosecution version for the reason best known to them, that by
itself does not corrode vitality of the prosecution version particularly
when the witnesses who have supported the prosecution version viz.
PWs 25 to 28 have withstood the incisive cross-examination and
pointed out the accused as the perpetrators of the crime. There is
nothing unusual in a criminal trial that many a times independent
witnesses who do not want to incur the wrath of the accused will
turn hostile at the trial. It is the tendency on the part of the persons
to play safe by remaining neutral.”
42. The decision in Radha Mohan Singh (supra), does not apply in
this case inasmuch as, the judgment rather helps the prosecution case.
Moreover, in the said judgment it has been held that evidence of a
prosecution witness could not be rejected in toto merely because the
prosecution chose to treat him as a hostile witness and cross examined him.
27
The evidence of such a witness could not be treated as effaced or washed off
the record but the same could be accepted to the extent the version was
found to be dependable. With reference to the decision of Mukhtiar Ahmed
Ansari (supra) the accused was acquitted by giving him the benefit of the
doubt because there was no independent corroboration of the prosecution
case and not on the ground that the evidence of the hostile witness had
destroyed the very genesis of the prosecution case. With regard to the
decisions of the Balu Sonba Shinde (supra), Kunju Muhammed (supra) and
Javed Masud (supra) we find that those decisions have been delivered on
different sets of facts and even if the appellants took advantage of the
statements of the hostile witnesses, yet the testimony of PW4, PW7 and
PW13 who were hostile witnesses in this case would not demolish the
prosecution case. We find that the mention of Dhubulia Police Station Case
no. 14 of 1997 instead of 142 of 1997 in the deposition of PW13 could be a
printing mistake and a minor discrepancy. In all other documents the police
station case has been correctly mentioned as 142 of 1997. The presence of
all the accused appellants were at the place of occurrence and their
participation in the incident has been proved beyond reasonable doubt.
43. I do not find any exaggeration in the deposition of the witnesses.
The decision in Jainul Haque does not apply. Insofar as, the evidence of
PW12 is concerned, we are of the opinion that apart from his testimony that
the eye witnesses had not mentioned to him what was mentioned before the
court, there were other statements in his testimony which corroborated the
time, place and manner of the murder as also the presence and the identity
28
of the accused persons. With regard to the deposition of defence witnesses,
we find that DW5 and DW6 did not testify in support of defence case. From
the testimony of DW1, DW2, DW3 and DW4, we do not find anything that
would substantiate the contentions of the accused appellants. The alleged
letter of Debabrata Tarapdar was never produced either by prosecution or by
the defence. DW3 and DW4 adduced evidence on behalf of Badal Ghosh.
Badal Ghosh has been acquitted. DW1 and DW2 testified on behalf of
Basudeb Ghosh but, DW1 said that at around 1:30 p.m. he left school with
Basudeb Ghosh, had tea at Bholadas’s stall and went home whereas,
Basudeb went to Krishnagar market. This testimony does not rule out the
presence of Basudeb Ghosh at the place of occurrence. The testimony of
DW2 does not reflect that Basudeb Ghosh was not present at the site on the
relevant date, at the relevant point of time. Thus, on the basis of the
statements of eye witnesses which are corroborated by evidence of the
doctor who conducted the post mortem, the contents of the post mortem
report, the statements in the FIR which are all consistent, I come to a
finding that the prosecution has been able to prove their case beyond
reasonable doubt.
44. The appeals are dismissed. The judgment and order of conviction
and sentences passed by the learned court below are upheld.
45. The appellant No.6 Sanyashi Ghosh has since expired. Appellant
accused no. 1 Dilu Ghosh, appellant accused no. 2 Chandu Ghosh,
appellant accused no. 7 Hola Ghosh, appellant accused No. 8 Kapil Ghosh
and appellant accused no. 10 Badan @ Swarup Ghosh are on bail. The bail
29
bonds of the accused appellant mentioned hereinabove stand cancelled. The
said accused persons are directed to surrender before the learned Additional
Sessions Judge, Nadia, First Court at Krishnagar, within a month and to
undergo the remaining period of sentence. If they do not surrender, the
learned court below is directed to take appropriate action in the matter in
accordance with law.
46. Copy of this judgment along with the lower Court records be sent
down to the trial court immediately.
47. Urgent Photostat certified copy of this judgment, if applied for be
given to the parties on priority basis.
I agree,
(Debasish Kar Gupta, CJ.) (Shampa Sarkar, J.)
