Calcutta High Court (Appellete Side)
Keshab Ghosh & Ors vs The State Of West Bengal on 22 August, 2022
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Criminal Miscellaneous Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
CRA 532 of 2006
Keshab Ghosh & Ors.
Vs.
The State of West Bengal
For the Appellants : Mr. Rajiv Lochan Chakraborty, Adv.
For the State : Mr. Partha Pratim Das, Adv.
Ms. Manasi Roy, Adv.
For the de facto Complainant : Mr. Pradyat Saha, Adv.
Heard on : July 22, July 29, August 10, August 11, 2022
Judgement on : August 22, 2022
DEBANGSU BASAK, J.:-
1.The appellants have assailed the judgement and order of conviction dated July 27, 2006 passed by the learned Additional Sessions Judge, Kalna, Burdwan in Sessions Trial No. 18 of 2003 arising out of Sessions Case No. 44 of 2001 convicting the appellants under sections 147/148, 326/149 and 302/149 of the Indian Penal Code, 1860.
2. The case of the prosecution is that, the prosecution witness (PW) No. 1 had lodged a complaint with the police on August 28, 2 1998 with regard to murder. In the police complaint, which was subsequently marked as Exhibit 1 at the trial, the PW No. 1, as the de facto complainant, had stated that, there was a dispute continuing over the years with his nephew Sambunath Ghosh and others with Kumaresh Ghosh of his village and his teammates on purchase and consequent exercising of rights over a mango garden. There had been an altercation on the previous evening involving scuffling. At about 6.30 am in the morning, Kumaresh Ghosh and his three sons namely Keshab, Prakash, and Bikash had hurled bombs at Sambhunath Ghosh while he was cutting grass at the agricultural land. A bomb had injured the head and body of Sambhunath Ghosh as a result of which he fell on the ground. Another nephew of the PW No. 1, the de facto complainant, rushed towards the field. On the way, five named persons along with others had surrounded his nephew and hacked him with battle axe. Mohan Ghosh had directed the mob. Thereafter, Dhananjay and three sons of Kumaresh had started hurling bombs aimed at his nephew Bibhuti Ghosh to kill him. His nephew had suffered serious injuries on his right hand and leg and fell down on the ground. Thinking that, his nephew had died, the accused had entered into the home of Montu Ghosh throwing 3 bombs randomly. They had started assaulting the ladies and went upstairs. They had snatched the licensed revolver of Montu Ghosh. They had tried to create nuisance by hurling bombs and left the village.
3. The police had received such complaint from the PW No. 1, being the de facto complainant, on August 28, 1998. The police had registered the complaint as a First Information Report being Manteswar Police Station Case No.47/98 dated August 28, 1998 under section 147/148/149/302/326/307/448/380 Indian Penal Code, 1860. Upon completion of investigations, the police have submitted charge sheet against the accused persons under sections 147/148/149/148/380/326/302 of the Indian Penal Code, 1860.
4. The trial court had framed charges under sections 147/148/149/48/380/326/ 302 of the Indian Penal Code, 1860. The accused had pleaded not guilty and claimed to be tried. At the trial, the appellants had been found guilty under sections 147/148/326/302/149 of the Indian Penal Code, 1860 by the impugned judgement of conviction and sentenced to imprisonment and fine as appearing from the impugned order of sentence. The 4 appellants had been acquitted of the charges under sections 448/380 of the Indian Penal Code, 1860.
5. It has been contended on behalf of the appellants that, the prosecution had failed to prove the charges beyond reasonable doubt. The appellants have sought to highlight the sequence of events that the prosecution claimed in respect of the incident. Post occurrence of the incident, according to the appellants, an inquest of the dead body of Sanbhu Nath Ghosh had been held between 9:15 AM and 11:15 AM on August 28, 1998. Such inquest had been done in connection with Monteswar Police Station Unnatural Death Case No. 14/1998. Such unnatural death case had been registered prior to the lodgement of the First Information Report. It has been pointed out that, the First Information Report in the present case was lodged at 16:05 hours on August 28, 1998 that is after seven hours from the start of the investigations by the police.
6. It has been contended on behalf of the appellant that, although, Sailen Ghosh (PW-7), and Madhu Ghosh (PW-4) had signed the inquest report of Sambhunath Ghosh they did not disclose the identity of the assailants, the nature of the assault and the manner in which Sambhunath Ghosh was put to death at the time of the inquest. Baneshwar Ghosh was another person 5 who had signed the inquest report was, however, not been examined at the trial.
7. It has been contended on behalf of the appellant that, in cross-examination, Madhusudan Ghosh (PW-4) claimed that, he lodged the written complaint with the police. However, he could not recall as to what he had stated in the complaint. According to the appellants, it remains undisclosed as to when Madhusudan Ghosh (PW-4) had lodged the complaint and whether any of the appellants had been named in such complaint or not. It has also remained unexplained as to why the complaint lodged by PW-4 was not treated as the First Information Report and that the complaint of the PW-1 was subsequently registered as the First Information Report.
8. Relying upon 2011 Volume 1 CCLR (Cal) 687 (Mobarak Sk. @ Mobarak Hossain and others Vs. State of West Bengal), 1994 Volume 5 Supreme Court Cases 188 (Meharaj Singh vs. State of Uttar Pradesh) and 2002 Volume 1 Supreme Court Cases 487 (Thanedar Singh vs. State of Madhya Pradesh) it has been contended that, the conduct of witnesses in not disclosing about the assault or identity of the assailants renders their subsequent testimonies suspect.
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9. Relying upon 2009 Volume 1 Supreme Court Cases (Criminal) 212 = 2007 Volume 13 SCC 501 (Ramesh Baburao Devaskar And Others vs. State of Maharashtra) it has been contended on behalf of the appellant that, First Information Report cannot be lodged in a murder case after inquest had been held. Referring to the death of Bibhuti Ghosh it has been contended on behalf of the appellant that, an inquest was conducted by Sudir Majumder (Assistant Sub-Inspector of Police) on October 6, 1998, that is forty days after the registration of the First Information Report. Ramkrishan Ghosh had signed such inquest. It has been contended that such inquest was not conducted in reference to the First Information Report but in connection with another unnatural death case.
10. Referring to the inquest report of Bibhuti Ghosh, it has been contended on behalf of the appellant that, prosecution witness No. 3 has stated that the appellant No. 6 and Panchanan had hurled the bombs as a result of which Bibhuti Ghosh suffered injuries on his person and succumbed 40 days later.
11. It has been contended on behalf of the appellant that neither the Assistant Sub-Inspector of Police Sudhir Majumder who had conducted the inquest of Bibhuti Ghosh nor the two other inquest 7 witnesses namely Baneshwar Ghosh and Jibananda Ghosh were examined. The evidence of PW No. 3 had been contrasted with the statement recorded in the inquest report of Bibhuti Ghosh. It has been contended that, an unnatural death case was lodged prior to the lodging of the First Information Report. The person who had informed the police has not been disclosed. The prosecution had suppressed the genesis of the occurrence of the incident.
12. It has been contended on behalf of the appellant that, prosecution had failed to establish the situs of the assault. In this regard, the appellants have relied upon AIR 1976 Supreme Court 2263 (Lakshmi Singh Vs. State of Bihar).
13. It has been contended on behalf of the appellant, referring to the oral testimony of the prosecution witnesses that, the claim that the first incident occurred at 6:30 AM in the morning and that the second incident occurred between 8 AM and 8:30 AM remains unestablished. Even going by such timeline, the delay in the lodgement of the First Information Report has not been explained by the prosecution.
14. Referring to the oral testimony of prosecution witness No. 3, it has been submitted on behalf of the appellant that, such prosecution witness had improved upon what was stated in the 8 First Information Report as also the inquest report. Such improvements are such that they lead to an inference that the prosecution has tried to implicate the appellants falsely.
15. It has been contended on behalf of the appellant that, the testimonies of the PW 4, 6 and 7 are unreliable. Although such prosecution witnesses have claimed themselves to be eyewitnesses, their testimonies differ. PW 4 did not state to the police at the first available opportunity about the incident and the persons involved in the incident. In his cross-examination, he had stated that, he heard about the assault from the villages and his father. PW 6 who had claimed himself to be another eyewitness, differs in his description of the incident on the assault on Bibhuti Ghosh. Similarly, testimony of PW 7 cannot be relied upon as he did not witness the assault on Sambhunath Ghosh. PW 11 had claimed to have seen the assault on Bibhuti Ghosh by the appellant No. 7 with a sharp weapon. However, the post mortem Doctor being PW 16 did not support such claim. The post mortem report of Bibhuti Ghosh and the testimony of PW 16 have established that, there was no injury mark on Bibhuti Ghosh by a sharp weapon as claimed by PW 11.
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16. It has been pointed out on behalf of the appellant that the post-mortem report of Bibhuti Ghosh has not been marked as an exhibit although relied upon at the trial. In fact, questions have been put on the basis of the post-mortem report of Bibhuti Ghosh.
17. Relying upon 1951 SCR 729 (Tara Singh versus State) and 2007 Volume 12 Supreme Court Cases 341 (Ajay Singh versus State of Maharashtra) it has been contended on behalf of the appellant that, non-placement of the report of the forensic science laboratory at the trial, has vitiated the trial.
18. It has been contended on behalf of the appellant that, PW 21 who was the investigating officer, admitted in cross-examination that the inquest was conducted at 9:15 AM prior to the First Information Report being lodged and at that time, no complaint was made against anyone in the inquest report. In such circumstances, it has been contended on behalf of the appellants that, the appellants be acquitted in view of the prosecution having failed to prove the charges beyond reasonable doubt.
19. Learned advocate appearing for the state has submitted that, the prosecution had proved the charges against the appellants beyond all reasonable doubt. He has pointed out that the prosecution had examined 21 witnesses to prove the charges. He 10 has referred to the testimony of each of the witnesses at the trial. He has contended that, no contradictions whatsoever had been elicited by the defence. He has contended that, the evidence of prosecution witness No. 1, 3 6, 16 and 21 read together establishes that appellant No. 2, 4 and 5 had hurled bombs on Sambhunath Ghosh who died due to the injuries suffered from the blast of bombs hurled towards him. He has submitted that PW 8 and 21 had corroborated the testimony of PW 1, 3, 6, 16. He has referred to Exhibit 6 which is a seiure list establishing that burnt materials of bomb had been seized from the land of Nadu Pal.
20. With regard to the death of Bibhuti Ghosh, learned advocate appearing for the state has submitted that, PW 4 and 7 had sustained injuries when they reached the second place of occurrence in order to rescue Bibhuti Ghosh. They had deposed that they saw the appellant Nos. 3, 6, 7, 9 and others to assault Bibhuti Ghosh. They had described the roles that the appellants had played with regard to the assault on Bibhuti Ghosh. They had suffered injuries themselves. Therefore, their evidence has to be assessed on the basis of them being injured witnesses. He has contended that PW 10 and PW 11 have corroborated the evidence of PW 4 and 7.
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21. Learned advocate appearing for the state has relied upon 1964 volume 8 Supreme Court Reports 133 (Masalti Munga Ram versus State of Uttar Pradesh) in support of the contention that, if one of the members of the assembly committed the offence in furtherance of the common objective, then the members of such assembly commits the offence in furtherance of common object and all the members of the assembly will be equally liable for the commission of that offence. He has therefore contended that, the impugned judgement of conviction and the order of sentence should be upheld.
22. Learned advocate appearing for the de facto complainant has supported the judgement of conviction and the order of sentence. He has adopted the contentions of the state. He has referred to the evidence on record and contended that, the prosecution has been able to establish the charges against the accused beyond all reasonable doubt. He has contended that, the judgement of conviction and the order of sentence should be upheld.
23. In order to establish the guilt of the appellants in the murder of the 2 victims, the prosecution had examined 21 witnesses and relied upon 17 documents as exhibits. After conclusion of the evidence on behalf of the prosecution, the accused persons had 12 been examined under section 313 of the Criminal Procedure Code, 1973 and their statements recorded. The accused persons however did not lead any evidence at the trial.
24. The de facto complainant had been examined as PW 1. In his evidence, PW 1 had ascribed individual role to each of the appellants in his deposition. He had stated as follows :-
"I am the defacto complainant of this case. The incident took place on 11th Falgoon about five years on the ail of Nadu Pal's land in the morning (I cannot recollect the hour and time). My nephew Sambhu Ghosh was standing on the ail of Nadu Pal's land and at that time three sons of Kumaresh Ghosh, Keshab, Prakash and Bikash hurled bombs at the person of my above nephew at the command of kumaresh Ghosh. Shambhu was severely injured on his head mainly. He died instaneously at the spot. Thereafter, Kumaresh and his three sons left the place for village. I followed them crying out all through the way on hearing my hue and cry my another nephew Bibhuti followed me and then he was gharoed by Dhanamadas, Sadananda, Banu and Haradhan. They also assaulted my nephew Bibhuti by Tangi. Bibhuti suffered injury on his waist, hand back portion, right side. Then kuma resh and his three sons again hurled bombs on Bibhuti. Bibhuti suffered for attacks of bombs. Then all these accused persons entered into the house of Mantu Ghosh and snatched away one gun of Mantu Ghosh from his house."13
25. The evidence of prosecution witness No. 2 is not that important as he had testified with regard to his signature appearing in two seizure lists.
26. Prosecution witness No. 3 is another eyewitness who had described the roles played by the accused in the incidents. He had deposed as follows: -
"The incident took place on 11th Falgoon, 1405 B.S. in the morning at about 6 to 6-30 a.m. One Shambhu Nath Ghosh of our village was murdered at 'Hedor Math' over the field of Nadu Pal. Shambhu was then cutting grass. When Kumaresh Ghosh and his three sons Keshab, Prakash and Bikash hurled bombs on the person of Shambhu Ghosh. The bomb was hurled mainly by Prakash Ghosh. The bomb struck Shambhu on his head and he succumbed to his injuries. Thereafter, they entered the village when Bibhuti Ghosh was getting milk from cow in the house of Mantu Ghosh. He went out hearing the sounds of bombs, then the accused persons Kumaresh and his three sons, Dhananjoy Monkdal, Sadananda Mondal and Baneswar Mondal assaulted Bibhuti by tangi and bombs. Bibhuti fell down. He was taken up by local people. Then the accused persons snatched away the gun from within the house of Mantu Ghosh and fled away."
27. PW 4 is an injured eyewitness who had deposed at the trial as follows: -
"The incident took place about five years ago from today on 11th Shravan at 6/6-30 a.m. on the field of 14 Nadu Pal. Kumaresh Ghosh and his three sons, Keshab Ghosh, Bikash Ghosh and Prakash Ghosh hurled bombs on the head of Shambhu. Shambhu died at once. My father jcried out seeing the incident. On hearing his hue and cry, myself and Sailen Ghosh rushed towards the spot and on way we found Chandu Ghosh, Dhananjoy Mondal, Haradhan Ghosh, Sadananda Mondal and others gheroed Bibhuti. They had tangi, lithi etc. in their hands. Chandu Mondal assaulted Bibhuti on his head by tangi (pointed out). Keshab and others hurled bombs on the person of Bibhuti and he fell down on earth with severe injury on leg. I was also injured on head and left head by the splinters of bombs. Bibhuti and myself were taken to hospital. I was at Monteswar B.P.H.C. for one day and thereafter was taken to Burdwan hospital and Bibhuti was sent to Burdwan hospital on the date of injury. I was released from Burdwan hospital after two days."
28. In cross examination he had stated that, he had lodged a complaint with the police station. He had also claimed that, there was an incident between the two groups on the previous night of the incident.
29. PW 5 had been examined as a seizure list witness. In his cross-examination, he had stated that, he saw the dead body of Sambhunath Ghosh lying on the field on Nadu Pal.
30. PW 6 is an eyewitness who had stated as follows: -
"Myself and my brother Sambhu went to the field. My brother (Sambhu) was engaged in cutting grass on the 15 ail of Nadu Pal's land. Keshab, Bikash, Prakash then threw bombs on the person of Sambhu. My brother got injury on head and fell down. I then called out local villagers. Sambhu died in the meantime at the spot. My another elder brother, Bibhuti was engaged in milking at Mantu Ghosh's house. He came out and went to nearby bamboo bush. Thereafter he was restrained there by the accused persons namely, Dhana, Banu, Sada mondal and others. Chandu Mondal assaulted him by tangi on his hand and Dhana turew bomb on his leg and hand. I came backward crying. The accused persons then went into the house of Mantu Ghosh and hurled bombs and came out with a gun as I saw from a distance. They took away the licensed gun of Mantu Ghosh with them. I then list my senses. One of the local woman poured water on my head and saved me. The villagers took the two bodies of my brothers. Sambhu died at the spot and Bibhuti was shifted to Burdwan hospital. I know all the accused persons because they are my relatives (identified)."
31. PW 7 is another eyewitness who had stated as follows: -
"In the morning. Sambhu Ghosh went to the field for cutting grass on the ail of Narayan Pal's land. At that time Bikash Ghosh hurled bombs bring some bombs in a 'balti'. That bomb bursted on the head of Shambhu and he fied instantaneously because of severe head injury. In heard from Brindaban Ghosh about the death of Shambhu in the village. Kumaresh Ghosh and his sons and Chandu ghosh, Chandu Mondal caught hold of Bibhuti Ghosh and Gheroaed him. Keshab hurled bomb on the left hand of Bibhuti causing injuries on his hand and legs. We went to the spot then for helping Bibhuti Ghosh. Chandu Mondal assaulted 16 Bibhuti on his neck by an tangi. I also suffered injuries because of splinters of bombs. They were taken to hospital at Monteswar first and from there to thana. From thana Bibhuti was sent to Burdwan hospital and Shambhu was sent to Kalna S.D.Hospital for post mortem examination. This is my signature on the inquest report (ext-7 we had talks with police in thana and not in village."
32. PW 8 is a post occurrence witness who had deposed as follows:-
"The incident took place on 11 Bhadda, 1406 B.S at about 6/630 a.m. On that day and time I did not get up from bed. Thereafter, we heard sound of bombing. People went towards field and I followed them and there on the field I found Shambhu nath Ghosh on the Ail of Nadu Pal. The body was taken from the field and was hospitalized."
33. The scribe of the complaint lodged by PW 1 with the police had been examined as PW 9.
34. PW 10 is an eyewitness who had stated as follows: -
"Before 5 ½ years the incident occurred in the early morning (sunrise). I was then in my room. The accused Dhanai, Chandu Mondal, Sadananda, Keshab Ghosh, Kuraresh Ghosh assaulted behind our house in the bamboo bush. I saw these from the western side window of my room in the first floor. They used Tangi, bombs etc. Madhu Sailen went to their rescue and were assaulted, and were assaulted. Bibhuti had his body totally injured."17
35. PW 11 is another eyewitness who had seen the incident with PW 10. She had stated as follows :-
"The incident took place before five years three months on 11th Bhadra. We heard sound of bombing in the morning. I along with my 'ja' Ashalata went to the first floor of our house. We saw Bibhuti Ghosh to go towards the field on hearing the news of assault of his brother, Shambhu, behind our house. The accused persons caught hold of Bibhuti on his way to the spot. Accused Chandu assaulted him with tangi. Dhana Mondfal came to our house and snatched away the gun and went out. We the two sisters-in-law were crying and Dhana pushed us aside and left the place with gun. Later on co-villagers arrived at our house. Police came during breakfast time. Brindaban Ghoshu accompanied police personnel. Police came, wrote down and left the place. I narrated the incident police in presence of my sister-in-law Ashalata. Sons of Kumaresh hurled bombs on Bibhuti at the time of assault as we saw. Sailen and Madhu also suffered injuries while rescuing Bibhuti."
36. PW 12, 13 and 14 are police personnel who had deposed at the trial. Nothing much turns on their testimony. PW 15 had been discharged as a witness at the trial.
37. The doctor who had initially treated Bibhuti Ghosh was examined as PW 16. He had identified his report which was marked as Exhibit 8. He had also identified the 2 medical reports in respect of the injured eyewitnesses being PW Nos. 4 and 6. In 18 cross examination, he had stated that, he did not find any splinter injury.
38. Not much turns on the evidence of prosecution witness No. 17 and 18 from their testimonies recorded at the trial.
39. The post-mortem doctor conducting the post-mortem of the dead body of Sambhunath Ghosh had deposed as PW 19. He had stated that, the post-mortem had been conducted in respect of Monteswar Police Station Unnatural Death Case No. 14/98 dated August 28, 1998. He had stated that the dead body was brought in identified by a police constable. He had identified the injury marks that he saw on the dead body. He has stated that the death was due to severe bleeding following the injuries suffered which led to haemorrhage and he has also stated that, the wounds indicate a homicidal intent. He had tendered his report which was marked as exhibit 1. In cross examination, he had stated that, half digested rice and some colourless liquid was found in the stomach of the deceased which indicated that the deceased took meal within 3 hours before his death.
40. A police constable had been examined as prosecution witness No. 20. Nothing such turns on his deposition.
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41. The investigating officer had been examined as PW 21 at the trial. He had stated that, he received the written complaint at 13:45 hours from PW 1 and forwarded the same to the officer in charge of the police station for starting a case. In absence of the officer in charge he had already taken over the investigation. He had identified and tendered the formal First Information Report as Exhibit 12.
42. At the trial, the prosecution witnesses had described 3 incidents. First there had been an assault on Sambhunath Ghosh followed by the second incident of assault on Bibhuti Ghosh, and thirdly the snatching of firearms of Mantu Ghosh. The testimony of the post-mortem doctor being PW 19 and the post-mortem report of Sambhunath Ghosh being Exhibit 1 had established that, Sambunath Ghosh had been murdered. His body had borne 9 marks of injuries. According to the doctor who had conducted the post mortem and also deposed as PW 19 and his report being Exhibit 1, the death was due to severe bleeding following the injuries sustained which led to haemorrhage and shock. PW 19 being the post-mortem doctor and Exhibit 1 had stated that, the wounds on the body of Sambunath Ghosh indicate a homicidal intent.
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43. The post-mortem report of Bibhuti Ghosh had been marked as Exhibit 10/1 by order No. 46 dated March 4, 2006 passed by the learned trial judge. The contentions of the appellants and that of the de facto complainant that, the post-mortem report of Bibhuti Ghosh had not been marked as an exhibit is belied from the order dated March 4, 2006 passed by the learned trial judge.
44. PW No. 1, 3 and 4 had stated in their testimony before the trial judge that Kumaresh Ghosh and appellant Nos. 2, 4 and 5 had hurled the bombs towards Sambhunath Ghosh. PW6 has stated that appellant No. 2, 4, and 5 had hurled the bombs while prosecution No. 7 had stated that, appellant No. 5 had hurled the bombs at Sambhunath Ghosh. PW 4 and PW 7 had been injured in the incidents. Sambhunath Ghosh had died out of wounds inflicted by bombs.
45. It has been contended on behalf of the appellants that, the prosecution witnesses had named different persons as the assailants with regard to the death of Sambhunath Ghosh. There has been no variance with regard to the appellants who had thrown the bombs at Sambhunath Ghosh in the testimonies of PW 1, 3 and 4. There are variation with regard to the appellants who had thrown the bombs in the testimonies of PW 6 and 7. While PW 21 6 had stated that, the appellant No.s 2, 4 and 5 had thrown the bombs, PW 7 had stated that, appellant No. 5 had thrown the bomb.
46. All the prosecution witnesses being PW 1, 3, 4, 6 and 7 who had implicated Kumaresh Ghosh and the appellants Nos. 1, 2, 4, and 5 did not witness the incidents from one particular place. They had been dispersed at different locations from where they had witnessed the incident. The variations spoken of on behalf of the appellants is inherent to the location at which such prosecution witness was located at the time of the developing situation. Therefore, the involvement of Kumaresh Ghosh and the appellant Nos. 2, 4 and 5 in the murder of Sambhunath Ghosh had been established by the prosecution.
47. So far as the death of Bibhuti Ghosh is concerned, PW 1 had stated that, appellant No. 3, 8 and 9 had assaulted Bibhuti with a sharp weapon while Kumaresh Ghosh and appellant Nos. 2, 4 and 5 had hurled bombs at him. PW 3 had stated that, appellant Nos. 2, 3, 4, 5, 8 and 10 had used sharp weapons and bombs while attacking Bibhuti Ghosh. PW 4 had stated that, appellant Nos. 3, 9, 10 and 11 along with others had been involved in the assault on Bibhuti Ghosh and that appellant No. 7 had assaulted him with a 22 sharp weapon and appellant No. 2 and others had hurled bombs at him. PW 6 had stated that, appellant No. 3, 6 and 8 and others were involved. He had identified appellant No. 7 as the person using the sharp weapon while he had ascribed the role of throwing bombs to one Dhana. PW 7 had stated that Kumaresh Ghosh and the appellant Nos. 2, 4 and 5 along with appellant No. 7 and 11 had held Bibhuti Ghosh while appellant No. 7 had used the sharp weapon and appellant No. 2 had hurled the bombs. Again all the prosecution witnesses were not standing at the same place while witnessing the incident of assault on Bibhuti Ghosh.
48. The post-mortem report of Bibhuti which had been marked as Exhibit 10/1 by the order dated March 4, 2006 states that the death was due to the effects of injuries necessitating amputation as noted in the post-mortem report, ante mortem in nature. Therefore the testimonies of the prosecution witnesses read with the contents of Exhibit 10/1 being the post-mortem report establishes that, Bibhuti Ghosh had been murdered and that, Kumaresh Ghosh the other appellants were involved therein.
49. Meharaj Singh (supra) has noted the importance of prompt lodgement of the First Information Report in a criminal case and particularly in a murder case. It has observed that, the late lodging 23 of the First Information Report often results in embellishment, which is a creature of an afterthought. On account of delay, the First Information Report not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story.
50. Thanedar Singh (supra) has held that, where the prosecution failed to clear the doubt regarding the date and time of recording of the First Information Report, adverse inference can be drawn. It has observed that, in the inquest report, gist of the First Information Report or cause of death is narrated by witnesses is usually noted.
51. Mobarak Sk (supra) has also dealt with the delay in lodgement of the First Information Report.
52. Ramesh Baburao Devaskar (supra) has observed that First Information Report cannot be lodged in a murder case after inquest was held. In the facts of that case, an inquest was held and an inquest report had been prepared. The details of the incident had been narrated by PW 11 who was not an eye witness on the basis where of First Information Report was lodged on the spot. In such circumstances, it had been held that, first 24 information report cannot be lodged in a murder case after inquest was held.
53. Unexplained delay, if there be any, in the lodgement of the FIR, is of vital importance in any criminal case, more so, in a case of murder. Whether or not there has been any explained delay would no doubt depend upon the facts and circumstances of each case.
54. In the facts of the present case, from the testimony of the Investigating Officer we have found that, the former first information report was filled up by another police personnel. The first information report had been marked as Exhibit 12 at the trial. It appears from Exhibit 12 that, the police had left the police station by making a general diary reference entry number 1014 at 0910 hours in the morning of August 28, 1998. The investigating officer had been provided with the information by a sub- inspector of police that there was an incident of hurling of bombs between two groups. Pursuant to such information, the investigating officer had left the police station by making such general diary.
55. From Exhibit 12, it appears that, the incident had occurred on August 28, 1998 from 0630 hours to 0830 hours. Inquest report of Sambhunath Ghosh being Exhibit 7 has the noting that, 25 the inquest investigation commenced at 0915 hours and closed at 11:15 hours. The report has noted that, a First Information Report being Monteswar Police Station Case No. 47/98 dated August 28, 1998 had been registered. The inquest had been performed in respect of Monteswar Police Station Unnatural Death Case No. 14/98 dated August 28, 1998.
56. PW 21 who was the investigating officer had stated in cross examination, at the trial that, he started the investigation at the place of occurrence at about 12:45 hours. The written First Information Report was forwarded to him at 13:45 hours. He had stated that, the investigations began before the FIR was lodged. He had stated that, the inquest was done in connection with the cognizable offence. He had denied the suggestion that he had suppressed any earlier FIR and that he had given rise to the present police case on the basis of a manufactured First Information Report.
57. In the facts of the present case, there is no delay in the lodgement of the First Information Report. In his testimony, PW1 had stated that, after Sambhunath Ghosh and Bibhuti Ghosh had been referred to the hospital, a police officer had come to the village. Such police officer had told him to write down the written 26 complaint. At his instance, the PW 9 had written down the written complaint which was subsequently treated as the First Information Report. The investigating officer in his cross examination had stated that the written complaint had been forwarded to him at about 13:45 hours. Such fact will appear from the body of Exhibit 1 being the written complaint where, the investigating officer had noted that he had received the written complaint at 13:45 hours. The inquest report being Exhibit 7 records the FIR number on the body of the report.
58. The incidents of assault and snatching of firearm had occurred between 0600 hours to 0830 hours of August 18, 1998. Sambhunath Ghosh and Bibhuti Ghosh been removed to hospital. The police had arrived at the place of occurrence after 0910 hours. The police had thereafter told PW1 to lodge a written complaint which he did. The inquest of Sambhunath Ghosh which was completed at 1115 hours bears the FIR number. The investigating officer had commenced the investigations at 1245 hours and he was forwarded the complaint at 1345 hours by the police. There is no material on record to arrive at a finding that, the written complaint had been lodged after the inquest.
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59. The inquest report of that there was delay in the lodgement of the FIR. Sambhunath Ghosh being Exhibit 7 contains the opinion of the witnesses as also the opinion of the police officer. PW 4 and 7 were witnesses to the inquest of Sambhunath Ghosh being Exhibit 7. They had stated that, in their opinion, Sambhunath Ghosh had succumbed to death due to bomb blast. Similar opinion had been expressed by the police officer. The column 10 in exhibit 7 being the inquest report of Sambhunath Ghosh has recorded the FIR number of the police case. Therefore, the contention on behalf of the appellants that, the inquest witnesses did not identify the assailants, the nature of the assault and the manner in which the deceased was put to death, at the time of the inquest, is unacceptable.
60. The prosecution witnesses at the trial, had described that, Sambhunath Ghosh had been assaulted on the land of Nadu Pal. PW 1, 3, 4, 6 and 7 had stated that Sambhunath Ghosh had been assaulted on the field of Nadu Pal. PW 7 had stated that Sambhunath Ghosh had been assaulted on the land of Narayan Pal. The sketch map of the place of occurrence being Exhibit 16 had placed the assault on Sambhunath Ghosh at the field of Nadu 28 Pal. Nothing has been placed on record that the fields of Nadu Pal and Narayan Pal are different or that they are different persons.
61. Bibhuti Ghosh had been assaulted at the bamboo bush. PW 1 did not describe the place of assault on Bibhuti Ghosh. PW 3 had placed the assault on Bibhuti Ghosh at a place outside the house of Mantu Ghosh. Such description considered with Exhibit 16 does not rule out the bamboo bush shown as the second place of occurrence in Exhibit 16. Similarly deposition of PW 4, 6 and 7 also does not rule out the bamboo bush. PW 10 had pointed out the bamboo bush in her deposition. Her presence as an eye witness had been corroborated by the PW 11 in her deposition.
62. We have not found any material discrepancies in the description of the places of occurrence so as to sustain the contention of the appellants that, the prosecution had failed to establish the situs of the places of occurrence.
63. Bibhuti Ghosh had expired on October 5, 1998. The investigation report under section 174 of Bibhuti Ghosh over his dead body had been prepared on October 6, 1998. The post- mortem report of Bibhuti Ghosh had been prepared on October 6, 1998. The cause of death as well as the persons involved in murdering Bibhuti Ghosh had been established by the prosecution 29 as discussed above. Non-examination of the witnesses present at the time of preparation of the report under section 174 of the Criminal Procedure Code, 1973 in respect of Bibhuti Ghosh is not material as the prosecution had established the cause of death as well as the persons involved by cogent evidence.
64. Lakshmi Singh (supra) has observed that, where the prosecution fails to explain the injuries on the accused, two results follows: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilies the pleas taken by the appellants. In the facts of the present case, no evidence has been placed to suggest that any of the appellants had suffered any injuries.
65. Masalti (supra) has held that, the crucial question to determine in a situation involving unlawful assembly is whether the assembly consisted of five or more persons and whether such persons entertain one or more of the common objects as specified by section 141 of the Indian Penal Code, 1860 or not. While determining such question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle 30 curiosity without intending to entertain the common object of the assembly or not.
66. In the facts of the present case, the prosecution witnesses had established that Kumaresh Ghosh and the other appellants had assaulted Bibhuti Ghosh at the second place of occurrence as described in exhibit 12 and that they were more than 5 in number. The appellants, more than 5 in number, had assembled at the three places of occurrence. They had caused grievous hurt to Bibhuti who subsequently succumbed to his injuries. Kuraresh Ghosh and his three sons had murdered Sambhunath Ghosh and that there was common object of assaulting the deceased and that none of them were passive onlookers.
67. Kumaresh Ghosh who was the first appellant had died during the pendency of the appeal. By an order dated July 29, 2022 the abatement of his appeal consequent to his death had been recorded. Department had been directed to record such abatement.
68. In view of the discussions above, we have found no ground to interfere with the judgement of conviction and the order of sentence passed by the learned trial judge. We affirm the same against all the appellants except Kumaresh Ghosh in view of the 31 abatement of his appeal as recorded by the order dated July 29, 2022.
69. Trial court records along with a copy of this judgement be transmitted to the appropriate court forthwith.
70. CRA No. 532 of 2006 is dismissed. All pending applications are disposed of.
71. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
[DEBANGSU BASAK, J.]
72. I agree.
[BIBHAS RANJAN DE, J.]