Calcutta High Court (Appellete Side)
) Kalachand Gorai And Others vs The State Of West Bengal on 14 May, 2014
Author: Shib Sadhan Sadhu
Bench: Subhro Kamal Mukherjee, Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 123 of 2003
1) Kalachand Gorai and others
Versus
The State of West Bengal ... Respondent
For the Appellants : Mr. Debasish Roy,
Mr. Kaushik Gupta,
Mr.Joydeep Biswas,
Mr. Arijit Bhushan Bagchi,
Mr.Soumyadeep Das
For the State : Mr.Manjit Singh,
Mr.Kallol Mondal.
Heard on : 10.04.2014
Judgment on : May 14, 2014.
Shib Sadhan Sadhu, J.
1) The appellants have laid a challenge to their conviction and sentence passed by the Learned Sessions Judge, Purulia in Sessions Trial No.4 of 2003 ( Sessions Case No.24 of 1989) decided on 27th March, 2003 whereby they have been sentenced to undergo Rigorous Imprisonment for life each for commission of offence under Section 302 of the Indian Penal Code read with Section 34 IPC and in addition, appellant Ghanu @ Kalachand Gorai has also been sentenced to suffer Rigorous Imprisonment for 2 years for commission of offence under Section 324 of the Indian Penal Code. However, the sentences of the said convict Kalachand Gorai would run consecutively.
2) Factual matrix giving rise to the prosecution case is that on the Sankranti Day (last day of the month) of the month of Sravan the accused Ghanu @ Kalachand Gorai disclosed that he had been influenced by the Goddess "Ma Manasa" and he declared himself as "Ma Manasa". Kalachand asked the villagers to sing 'Jant' (song of 'Ma Manasa') but they refused to sing 'Jant' on that day. However, they assured that they would sing 'Jant' on 1st Bhadra to which Kalachand agreed. Accordingly, 'Jant' was sung in the night of 1st Bhadra. On 2nd Bhadra Kalachand called the villagers and asked the father of the de-facto complainant Shaktipada Gorai to become 'Malik'. Shaktipada's father refused to become 'Malik' and suggested to select Sasthi Gorai as the 'Malik'. At that Kalachand threatened giving out that he was the Goddess 'Ma Manasa' and he cursed the father of the de-facto complainant who then agreed to be 'Malik'. Then Shaktipada's father asked Kalachand to show "Bahan" of 'Ma Manasa' and Kalachand told that he would show the "Bahan" on the next day but he failed. Thereafter, on the following Sunday Kalachand performed 'Mansa Puja' in the house of Jiten Gorai. Thereafter, on 23.08.1983 which was Tuesday 'Manasa Puja' was arranged by Kalachand in the house of Sasthi Gorai. He had purchased Portraits of different Gods and Goddesses, Puja articles and musical instruments and kept those articles in that room. From 7 P.M. he began to perform "Manasa Puja" and called the villagers stating that he would show the power of "Manasa". The de-facto complainant Shaktipada Gorai, his parents, his elder brother Biswanath and his brothers' wives went to that place. Villagers Kanai Gorai, Binata Gorai, Paltan Gorai and others also went to that place. One lantern and one lamp were burning on the floor and one burning lamp was affixed on the wall. With such lights everything of the room was visible. Kalachand, Jiten, Sankar, Sasthi, Arun and his wife, Falu Gorai, Dolu Gorai, Pagal Gorai, Mihir Gorai, Anil Gorai, Lalit Gorai, Subhash Gorai, Bishnu Gorai, Dhanapati Gorai, Bijoy Gorai and Shakti Gorai were there. Some persons were taking the puja articles inside the room and were going outside. Song of "Ma Manasa" was going on. At that time Kalachand called Kamala and informed her that she had been influenced by the witch and began to assault her with fist and blows. Mother of Shaktipada raised protest. Kalachand treated her in the same fashion like Kamala and also started assaulting her. When Durjodhanh Gorai, father of Shaktipada raised protest, Jiten had supplied one Axe to Kalachand and Kalachand had struck on the head of Durjodhanh with that axe causing bleeding injuries. Bharat Gorai, Satrughna Gorai and Kalebar Gorai lifted the injured Durjodhanh and took him to the house of Bharat Gorai. Accused Kalachand and Jiten continued assault on Fulmani, mother of Shaktipada and Kamala. At about 11 P.M. Shaktipada's elder sister Mini took him out from that room. Within 15 minutes therefrom Kanai, Binata, Paltan had reported to them that the accused Kalachand, Jiten, Falu and Dolu had caused murder of Dharani @ Haren, Biswanath, Fulmoni and Kamala by assaulting them with Tangis and swords and the remaining accused namely Sankar, Sasthi, Pagal, Mihir, Anil, Lalit, Subhas, Bistu, Dhanapati, Bijoy, Arun and Shakti had assisted the aforesaid accused persons in committing murder of the aforesaid four persons. Then the de facto complainant Shaktipada Karmakar made an attempt to enter into the room of puja but the accused persons closed the door of that room as well as the main entrance door of the compound preventing entry of any person into that compound.
3) Upon such occurrence the de facto complainant Shaktipada Gorai lodged a written complaint before the Officer-in-Charge, Purulia Muffassil Police Station where upon Purulia Muffassil P.S. Case No.20 dated 24.08.1983 under Sections 326/307/302/34 IPC was started. That case was investigated into and charge sheet was submitted. Thereafter, the case was placed for trial before the Learned Sessions Judge, Purulia who framed charge under Sections 341/302/34 of the Indian Penal Code against all the accused and in addition under Section 324 IPC against accused Dhanu @ Kalachand Gorai and after conclusion of the trial he held the appellants guilty and convicted them as has already been stated.
4) In order to prove the charge the prosecution examined altogether 25 witnesses. Out of those witnesses, P.W.4 Nirmal Pandey, P.W.6 Shaktipada Gorai (son of Kalipada Gorai), P.W.9 Smt Mukta Gorai, P.W.12 Netai Sarkar, P.W.15 Dhiren Gorai, P.W.16 Bharat Gorai, P.W.18 Prathami Gorai, P.W.19 Tubhu Bala Gorai, P.W.20 Upasi Gorai, P.W.22 Lakshmi Bala Gorai and P.W.23 Bholanath Majhi were merely tendered by the prosecution for cross-examination and their cross-examinations were declined by the defence. P.W.2 Binata Gorai, P.W.14 Kanai Gorai witnessed the whole incident, while P.W.1 Shaktipada Gorai (son of Durjodhan Gorai), P.W.8 Sitaram Gorai, P.W.11 Durjodhan Gorai and P.W.17 Satrughna Gorai witnessed the incident in part. P.W.3 Pathari Pandey is an inquest witness, P.W.5 Patiram Ray and P.W.10 Arun Shaw are the seizure witnesses, P.W.7 Mini Gorai is the daughter of Durjodhan Gorai who heard from her father that Kalachand assaulted him causing bleeding injury on his head, P.W.13 is Dr. Amal Kumar Nath who examined Durjodhan Gorai on 24.08.1983 in Purulia Sadar Hospital, P.W.21 is Dr. K.B.Sinha who was the then C.M.O.H. attached to Sadar Hospital, Purulia. He deposed that on 25.08.1983 Dr. Sukumar Chatterjee the then D.M.O. conducted the post mortem examination over the dead bodies of the deceased Fulmoni Gorai, Dharani @ Haru Gorai, Kamala Gorai and Biswanath Gorai and he proved the post mortem reports, P.W.24 is Inspector of police Sukhendu Chandra Deb who was posted as O.C., Purulia Muffassil Police Station. on 24.08.1983 and seized some articles under a seizure list from the place of occurrence in presence of witnesses and P.W.25 is the retired S.I. of police, Phanibhusan Panda who conducted the investigation and submitted charge sheet.
5) Mr. Debasish Roy, Learned Counsel appearing for the appellants contended that there was no motive for commission of murder by the appellants nor there was any land dispute between the parties. He, further, contended that there was no premeditation or intention to kill the victims by the appellant/ accused. Had it not been so, the villagers of the entire village would not have been invited to witness the murder. It is very likely that the accused became temporarily insane and lost self- control and judgment. The injuries inflicted upon the deceased as is revealed from the post mortem examination reports are an expression of improper mental condition of the accused. He, therefore, urged that the offence if any, is under Section 304 Part II of the Indian Penal Code and accordingly the appellants should be directed to be released now as they have undergone more than 10 years of imprisonment.
6) Mr. Manjit Singh, Learned Public Prosecutor, on the contrary, submitted that the nature of injuries inflicted upon the deceased is a factor for deciding whether Section 302 of the IPC is applicable or whether it is Section 304 of the IPC which is applicable. He submitted further that in the present case it is the appellant Kalachand Gorai who organized the 'Manasa Puja' and called the villagers on the pretext of showing power of Goddess 'Manasa" and mercilessly assaulted the innocent victims, amongst whom two are aged women, by sword and tangi causing spontaneous death. Since there are multiple assault and fatal injuries sustained by the deceased persons the inference to be drawn is only that what is applicable is Section 302 of IPC.
7) We have gone through the impugned judgment and the entire record and proceedings in the context of the rival submissions.
8) Now coming to the prosecution case we find that P.W.1 Shaktipada Gorai, son of Durjodhan Gorai has stated that on the day of Sravan Sankranti, the appellant Kalachand Gorai had declared that he was influenced by 'Ma Manasa' and he asked the villagers to sing 'Jant' (song of Goddess Manasa') on 1st Bhadra, there was performance of 'jant'. On 2nd Bhadra Kalachand asked P.W.1's father Durjodhan Gorai to be the 'Malik' of the village but he did not agree and he suggested the name of Sasthi Gorai. At that Kalachand had threatened to curse him and then Durjodhan agreed. When Durjodhan asked Kalachand to show 'Bahan' of 'Ma Manasa' then Kalachand replied that he would show the 'Bahan' on the next day. On 4th Bhadra there was performance of 'Manasa Puja' in the house of Jiten Gorai. On 5th Bhadra Kalachand performed 'Manasa Puja' in the house of Sasthi Gorai. He further deposed that Kalachand purchased the pictures of Gods and Goddesses and placed those in the house of Sasthi Gorai and he also assembled the instruments for performance of 'Kirtan'. Kalachand told the villagers that he would show the power of Gods and Goddess. P.W.1 along with his parents, brothers and two sisters-in-laws (Boudi) went to the worship room in the house of Sasthi Gorai. His maternal uncle Kanai and aunt Binata (P.W.2) also went there. It was about 7/7.30 p.m. One lantern, one kerosene oil lamp and one Pradip were burning in that worship room. Besides Kalachand, there were Jiten, Sankar, Sasthi, Arun, Dalu, Falu and Pagal and P.W.1, Dharani, Biswanath, Durjodhan, Prathami, Tubhu, Kanai, Binata, Paltan and Laxmi were also present while P.W.1's mother Fulmoni, Durjodhan and Kamala were standing on the threshold of the said room. Accused Kalachand, Jiten, Sasthi, Sankar, Arun, Falu, Dalu and Pagal were inside the said room while Mihir, Sankar, Lalit, Anil, Dhanapati, Bijoy, Bistu and Shakti of village Mankiary were present there and they were frequently visiting the worship room with Puja materials/articles. All the persons inside the worship room were singing the 'Jant' and Kalachand was officiating as the priest.
P.W.1 deposed yet further that Kalachand in the midst of puja asked Kamala to go ahead in the front side on the pretext that she had to be relieved of the evil 'Daini' and he pulled the hairs of Kamala and asked her to be seated there. Kalachand then began to blow fists and blows upon Kamala. When P.W.1's mother Fulmoni asked Kalachand not to do so, he also asked her to come forward on the same ground and Kalachand began to inflict blows and fists upon P.W.1's mother Fulmoni also. P.W.1's father Durjodhan asked Kalachand not to do so. At that moment Jiten supplied one small axe in the hand of Kalachand and Kalachand then hit on the head of Durjodhan with that axe causing bleeding injury and Durjodhan fell down. Then Bharat, Satrughna and Kalebar removed Durjodhan therefrom. P.W.1 was told by Kanai and Binata after about 15/20 minutes that four persons murdered other four persons.
9) P.W.2 Binata Gorai deposed that on 6th Bhadra she, Durjodhan Gorai, Haren Gorai, Shakti Gorai, Biswanath Gorai, Fulmoni Gorai, Kamala, Tubhu, Prathami went to the worship room of Kalachand. Her husband and Paltan also went there. In the worship room one lamp, one lantern and one pradip made up of stone were burning. Arun, Sasthi, Sankar, Dalu, Falu, Mihir were sitting there. Kalachand occupied the seat of priest. Her nephew Haren was beating the 'Khole' and Jiten Gorai was playing a Harmonium. All the persons were carrying the articles of puja. The women members of the family of Sasthi and other families were present at that place and time when the puja performance was going on. The Puja continued for 2/3 hours. After that Kalachand called Kamala by addressing her 'Didi' and said that Kamala was influenced by the evil spirit (Daini). Kamala went ahead towards Kalachand when he pulled her hairs and threw her down upon the ground and he began to beat Kamala by fists and blows and also by the instrument called "Kartal'. Kalachand also inserted fire caused by burning cow-dung cake inside the mouth of Kamala. Fulmoni asked Kalachand not to do so and charged Kalachand as to why he was assaulting Kamala. Kalachand then told Fulmoni that she was too influenced by the evil spirit and he would try to get rid of that evil spirit. Durjodhan also protested the assault of those two ladies. Kalachand cast his eyes towards Jiten and Jiten supplied axe in the hands of Kalachand and Kalachand assaulted Durjodhan with that axe on his head and he fell down. Satrughna and Bharat then took Durjodhan to their house.
P.W.2 further deposed that Kalachand and Jiten each picked up two swords from the said room. From outside Sankar and Mihir supplied Tangis to each of Dalu and Falu who then came out of the said room and both of them closed leaves of the said door. She, Kamala, Fulmoni, Lakhibala, Jiten, Kalachand, Dalu and Falu, Haren, Biswanath and P.W.2's husband Kanai and Paltan Gorai were still then present in the room where Puja was going on. Jiten, Kalachand, Dalu and Falu were assaulting Haren, Biswanath, Fulmoni and Kamala with Tangis and Swords and they died there. Her husband protested when those four accused attempted to assault him. P.W.2 with folded hands requested them not to assault her husband and she offered her life instead of her husband. The accused then forced her to swear by the name of Goddess 'Manasa' not to tell anybody and then said that the murder was over. Thereafter, they opened the leaves the door of the room. Then P.W.2, her husband, Lakhibala and Paltan went to the house of Bharat and disclosed the commission of the aforesaid murder.
10) P.W.8 deposed that on 6th Bhadra Kalachand told the villagers in his presence that he would perform 'Manasa Puja' and show incarnation of 'Goddess Manasa'. In the evening he along with other villagers had been to the room in the Southern side from the house of Kalachand where the Puja was going on. During Puja Kalachand called Kamala and told her that she should be relieved of the evil influence of witch. He assaulted Kamala and put fire in her mouth and body and pulled her hairs. Durjodhan protested. Kalachand hit Durjodhan with an axe and he fell down and he was lifted by Bharat, Satrughna and Kalebar. Jiten and Kalachand thereafter took out two swords from that room. Out of fear P.W.8 fled away therefrom. Later on he heard from Kanai Gorai that the two sons of Durjodhan namely Dharani and Biswanath, Fulmoni (wife of Durjodhan) and Kamala were murdered by Kalachand and his associates Falu, Dalu, Sankar, Jiten, Mihir, Pagal, Sasthi, Dharani, Anil and many others.
11) P.W.11 Durjodhan Gorai deposed that on the day of Sravan Sankranti, 11 years ago, Kalachand asked him to perform 'Mansa Puja' but he did not agree. Kalachand asked the villagers to perform 'Jant' song but they did not agree. However, the villagers sang 'Jant' song on 1st Bhadra in front of the house of Kalachand. Kalachand asked the villagers to repeat the same performance on 2nd Bhadra in front of his house. On 2nd Bhadra the villagers assembled and Kalachand asked P.W.11 to be a 'Malik' of the said 'Manasa Puja' but he did not agree. But Kalachand threatened him to curse. Then P.W.11 agreed to the proposal provided Kalachand was able to show 'Ma Manasa' with her 'Bahan' (carrier) and Kalachand told that he would display the same on the next day. On 3rd Bhadra, Kalachand did not display the same. On 4th Bhadra Kalachand performed 'Jant Mongal' in the house of Jiten and such performance took place in P.W.11's house on 5th Bhadra. The next 'Jant Mongal' performance was performed in the house of Kalachand. Kalachand collected some photos and musical instruments like 'Dhol', 'Karotal' etc. P.W.11 Fulmoni, Biswanath, Kamala, Shakti, Tubhu, Prathami, Mini, Dharani, Kanai, Binata and Paltan Gorai went there and entered into the room of Kalachand. He occupied the seat of priest. He lit fire upon the cow-dung cake and 'Dhuna' was poured upon the same and the incense sticks were also lighted. One lantern, one lamp and one Pradip were burning inside the room. To the left side of Kalachand, Falu, Dalu and Mihir were standing while on the right side Sasthi, Sankar and Arun were sitting. 'Jant Mangal' was going on. After sometime Kalachand called Kamala saying that she was attacked with the evil spirit and she should get rid of that. Kalachand pulled her hairs and threw her on the ground and assaulted her with fists and blows and her face was smashed with one piece of 'Karatal'. He saw Kalachand taking out fire from the Dhunichi and inserting the same into the mouth of Kamala. P.W.11's wife Fulmoni protested. Kalachand then said that Fulmoni too was attacked with evil spirit and she should also get rid of that 'Dan' and she was also assaulted by Kalachand. P.W.11 protested. At that Kalachand cast his eyes upon Jiten when Jiten took out an axe from hidden place and supplied the same to Kalachand and he assaulted P.W.11 on his head with that axe and he fell down. Bharat, Satrughna and Kalebar picked him up from the floor and took him to the house of Bharat. After some time Binata, Kanai, Paltan and Lakhi came to the house of Bharat from the house of Kalachand and reported to P.W.11 that Dharani, Biswanath, Fulmoni and Kamala were cut and finished by Kalachand, Jiten, Dalu and Falu with the help of Tangi and sword respectively.
12) P.W.14 Kanai Gorai, husband of P.W.2 fully corroborated P.W.1, P.W.2, P.W.8 and P.W.11 and he deposed to the entire incident from the assembly of the villagers including the P.W.s. and the accused at the place of occurrence and the incident of murderous assault upon the victims. He deposed further that Kalachand and Jiten took out two swords from inside the room when Mihir and Sankar supplied two tangis to Dalu and Falu and thereafter, Sankar and Mihir went out of the room and bolted the room from outside. Then and there Kalachand, Jiten, Dalu and Falu struck haphazardly by sword and tangi to Haren, Biswanath, Kamala and Fulmoni. When he tried to rescue them, the acused attacked him with sword and tangi and P.W.2 resisted offering her life instead of killing P.W.14. Then Kalachand, Jiten, Falu and Dalu threatened them not to disclose the incident to anybody and made them swear in the name of Goddess 'Ma Manasa' and 'Kali' and thereafter, they were allowed to come out of the room.
13) P.W.17 Satrughna Gorai also deposed about the incident in full corroboration with the other eye witnesses reference of which has already been made.
14) Since Dr. Sukumar Chatterjee, who conducted the Post Mortem Examination over the dead bodies of the deceased persons, had died the prosecution called P.W.21 Dr. K.B.Sinha, who was then attached as Chief Medical Officer of Health, Sadar Hospital, Purulia, to prove those post mortem reports. He deposed about the injuries on perusal of the post mortem reports. The injuries found on the dead body of Fulmoni Gorai were as follows:-
i) Incised wound over left forearm near elbow joint measuring ¾" x ¼" by radius ulna cut.
ii) Incised wound over left cheek 2" x ¼" x manbale cut.
iii) Incised wound over right eye brow region 1 ½" x ¼" x bone deep.
iv) Incised wound over the bridge of nose ½" x ¼" x nasal bone cut.
v) Incised wound over back (left) of chest scapula region measuring 3" x ½" x muscle deep.
vi) Lacerated wound over back of head 2" x ½" x bone deep occipital bone cut. Intervanial haemorrhage seen membrane injured.
The injuries in respect of the deceased Dharani @ Haren Gorai were as follows:-
i) Incised wound over left side of face measuring 3" x1/4" x bone deep maxillary bone cut.
ii) Incised wound over right side of head 2" x ¼" x right parietal bone deep (right parietal bone cut membrane and brain injured).
iii) Incised multiple wound over ventral and pummer aspect of right hand.
iv) Incised wound over middle ventral aspect of neck 3 ½" x 1/4" x third survical vertica deep carodi vessels and muscle cut, spinal chord cut.
v) Incised wound over right arm (middle) 3" x ¼" x bone humerus cut.
The injuries in respect of the deceased Kamala Gorai were as follows:-
i) Incised wound over left side of head from nose to left ear measuring 4" x ¼" x bone deep, rigor mortis bone cut.
ii) Three incised wound over back of head adjacent to each other measuring 3" x ½" x bone deep, 2 ½ x ¼" bone deep and 1 ½" x ¼" x skin deep. On dissection occipital bone found cut.
iii) Incised wound over right arm (middle on dorsal) spect 2 ½" x ¼" x muscle deep.
iv) Incised deep over ventral aspect of left eye at junction of lower 1/3rd and upper 2/3rd 3" x ¼" x muscle deep.
v) Cut wound ( incised) over middle of upper lip.
The injuries in respect of the deceased Biswanath Gorai were as follows:-
i) Incised would over right side of face from right eye-brow to right cheek measuring 3½" x ½" x bone deep. On dissection, he found right side frontal and right zygometic bone cut. Right eye injured.
ii) Incised wound over back of head 3" x ¼" x bone deep over occipital bone cut membrane and brain injured.
iii) Incised wound over forehead 2" x ¼" x bone deep, frontal bone cut membrane and brain injured.
iv) Incised wound over right side of head 3 ½ x ¼" x bone deep. Right parietal bone cut, membrane and brain injured.
v) Incised wound over chin 1" x ¼" x skin deep.
vi) Incised wound over the right side upper lip.
vii) Three incised wounds ( on the back of neck adjacent to
each other measuring 3" x ¼" x bone deep, 2" x ¼" x bone deep and 1" x ¼" x skin deep. On dissection he found 4th and 5th survical vertiba cut (torn).
viii) Incised wound over right scapula region (back chest) 2" x ¼" x skin deep.
ix) Incised wound over deltoid region of left arm 2" x 1/4" x muscle deep.
x) Three incised wounds over right arm adjacent to each other 2" x ¼" x muscle deep, 2 ½" x ¼" x muscle deep and 1" x ¼" x skin deep.
xi) Incised wound over ventral aspect of left theigh 3" x ¼" x muscle deep (middle).
According to the opinion of Dr. Sukumar Chatterjee recorded in the post mortem reports, cause of death was due to shock and haemorrhage as a result of aforesaid injuries which were ante mortem and homicidal in nature. It was further opined that those injuries might be caused by sharp cutting weapons like tangi and sword and that those are sufficient to cause death in the ordinary course of nature.
15) Combind effect of the evidence of all the above witnesses is that the accused appellants inflicted murderous attack upon the victims and caused fatal injuries on their person resulting in their instant death. There is no doubt whatsoever that the assault was premeditated and calculated. The weapons used by the accused appellants are lethal weapons. All the acts of the accused were pre-planned and intentional, which, considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The fact that all the four deceased victims belonged to the family of the survived injured P.W.11 Durjodhan Gorai fortifies such conclusion. It has come out from the evidence of the aforesaid P.W.s. that P.W.11 refused to be the 'Malik' of the 'Manasa Puja' and that they challenged the authority of the appellant Kalachand Gorai which might have been the motive behind such murder of the deceased persons. Be that as it may, it is well-established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case is wholly reliable and see no reason to discard it. The submission, therefore, that the appellants had no motive for the commission of offence is not of any significance.
16) There is no evidence on record to prove that the accused appellants at the relevant time were incapable of knowing the nature of the act and that what they were doing was either wrong or contrary to law. There is also no evidence to prove that the accused Kalachand was not in a proper state of mind at the time of causing death of the deceased persons. Admittedly, the accused has not taken defence of insanity under Section 84 of the Indian Penal Code. The burden of proving that the mental condition of the accused was not proper at the time when the offence was committed, lies on the accused in view of Section 105 of the Indian Evidence Act. Therefore, there is no substance in the argument of Mr. Roy, Learned Advocate appearing for the appellants, that the accused was not in a proper frame of mind to know as to what he was doing was wrong.
17) The only question now remains to be seen is whether the offence committed by the accused appellants is of murder or of culpable homicide not amounting to murder. In the case of Karu Marik Vs. State of Bihar reported in (2001) 5 SCC 284/AIR 2001 SC 2266 the Supreme Court of India has observed that the intention to cause such bodily injury as the accused knew to be likely to cause the death of the person to whom harm is caused may be inferred not merely from the actual consequences of his act, but from the act itself also. Hence, the manner of causing injuries, the nature of the injuries caused, the parts of the body where they were inflicted, the weapon of assault employed in the commission of the offence and conduct of the accused are relevant factors in determining whether the offence committed is one of murder or culpable homicide not amounting to murder. In the present case, it is proved beyond doubt that accused appellants in furtherance of the common intention of all, intentionally caused bodily injuries to the deceased victims which bodily injuries were sufficient in the ordinary course of nature to cause death. Looking to the nature of the injuries caused to the deceased victims, it can be easily understood that the accused appellants had brutally assaulted the deceased victims by inflicting on them the injuries which they knew to be so imminently dangerous that they would in all probability cause the death. The accused appellants committed the said act without any excuse for incurring the risk of causing death. The offence committed by the accused appellants, therefore, clearly falls under Section 302 of Indian Penal Code.
18) The impugned judgment, order and sentence is, therefore, in accordance with the settled principles of criminal jurisprudence, based on correct appreciation of evidence on record and no interference is, therefore, called for.
19) Hence, the appeal is dismissed.
The office is directed to send down Lower Court Records at once.
(Shib Sadhan Sadhu, J.) Subhro Kamal Mukherjee, J I agree, (Subhro Kamal Mukherjee, J)