Calcutta High Court (Appellete Side)
Prahlad Ghosh vs State Of West Bengal on 20 November, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No.300
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Suvra Ghosh
CRA 611 of 2016
Prahlad Ghosh
Vs.
State of West Bengal
With
CRA 357 of 2018
Manik Chandra Gope
Vs.
The State of West Bengal & Ors.
For the Appellant/Convict : Mr. Malay Bhattacharyya,
(CRA 611 of 2016) Mr. Subhrojyoti Ghosh,
Mr. Dibakar Sardar
For the Appellant/Victim : Mr. Amajit De,
(CRA 357 of 2018) Mr. A. Mitra
For the State : Mr. Bibaswan Bhattacharya
Heard on : 20.11.2019
Judgment on : 20.11.2019
Joymalya Bagchi, J. :-
Judgment and order dated 24.08.2016 and 29.08.2016 passed by the
learned Additional Sessions Judge, Durgapur in Sessions Trial No. 18 of 2012
arising out of Sessions Case No.10 of 2012 convicting Prahlad Ghosh (appellant
in CRA 611 of 2016), for commission of offence punishable under Sections 302
of the Indian Penal Code and sentencing him to suffer imprisonment for life and
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to pay fine of Rs.10,000/-, in default, to suffer imprisonment for one year more
and acquitting Laxman Ghosh and Dilip Ghosh @ Alladh (respondent Nos. 2
and 3 in CRA 357 of 2018) is the subject matter of challenge in these appeals being CRA 611 of 2016 preferred by convict Prahlad Ghosh against his conviction and CRA 357 of 2018 preferred by defacto complainant Manik Chandra Gope against the acquittal of Laxman Ghosh and Dilip Ghosh @ Alladh.
The prosecution case, as alleged against the accused persons is to the effect that on 01.01.2009 at about 7.30 p.m. deceased Rup Chand Gope @ Gaju son of Manik Chandra Gope (PW 1) was sitting on a water pipe near a Durga Temple. At that time Manik Chandra Gope (PW 1) and his wife Parul (PW 2) was watching television in their house; suddenly hearing cries of help from their son they rushed to the spot. They found Laxman Ghosh and his son Dilip Ghosh @ Alladh had caught hold of his son's hand and Prahlad struck him with a Ram da on the back of his neck. Parul (PW 2) embraced her son, while PW 1 tried to resist Prahlad and suffered injury on his left hand. Local people including former panchayet member (PW 6) rushed to the spot. PW 6 informed police over phone and the latter came to the spot. On the written complaint of Manik Chandra Gope (PW 1) Faridpur Police Station Case No.01/2009 dated 02.01.2009 under Sections 302/324/34 of the Indian Penal Code was registered against the accused persons.
In the course of investigation, the weapon of offence i.e. Ram da was recovered pursuant to the leading statement of Prahlad. In conclusion of investigation charge sheet was filed against the accused persons and charge was framed under Sections 302/34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. In the course of trial prosecution 3 examined 11 witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial the learned Judge by the judgment and order dated 24.08.2016 and 29.08.2016 convicted Prahlad Ghosh for committing murder of Rup Chand Gope @ Gaju and acquitted other two accused persons, namely, Laxman Ghosh and Dilip Ghosh @ Alladh.
Mr. Bhattacharyya appearing for the appellant/convict Prahlad Ghosh argued that the prosecution case based on the evidence of PW1 and PW2 suffers from various improbabilities, contradictions and inconsistencies. There is delay in lodging first information report improbabilising the prosecution case. Information diarised by Investigating Officer (PW10) at the police station with regard to the incident was not produced in court. In view of the prior information received by the police relating to the murder, subsequent complaint of PW1 is hit by Section 162 of the Criminal Procedure Code and cannot be treated as FIR. Incident occurred in a chilly night and there is no evidence of light at the spot. Hence, identification of the accused persons by the eye witnesses, PW1 and PW2 is highly improbable. Evidence of PW 8 does not support the manner of assault suffered by PW 1.Presence of PW4 at the place of occurrence is doubtful as he resides in a different village. Role of PW6 a former Panchayet member who claims to have initially informed the police with regard to the incident is also questionable. Recovery of Ram da from an abandoned barn does not inspire confidence and there are inconsistencies in the evidence of the prosecution witnesses with regard to the said recovery. Evidence of PW5 and PW6 regarding the extra judicial confession made by Prahlad Ghosh over mobile phone is clearly an afterthought and is not corroborated by seizure of call details record of the mobile phone over which such alleged conversation took place. No 4 forensic report was produced in Court with regard to blood stains on the seized weapon. Hence, prosecution case against Prahlad Ghosh has not been proved. As version of prosecution witnesses with regard to the role of other co-accused persons was disbelieved by the learned trial judge, hence selfsame evidence ought not to be relied on to come to a finding of guilt against Prahlad Ghosh. Accordingly, he prayed for acquittal of the appellant.
On the other hand, Mr. Bhattacharya for the State submitted that evidence of P.W. 1 and P.W. 2 are clear and convincing with regard to roles of the accused persons including acquitted ones in the assault on the deceased Rup Chand Gope. While Laxman and his son Dilip held the victim, Prahlad assaulted him on the neck with sharp cutting Ram da. Ocular version of P.W. 1 and P.W. 2 is corroborated by medical evidence of P.W. 7 post mortem doctor who found deep cut injuries on the shoulder and neck of the victim resulting in death. P.W. 8 found injury on the left hand of P.W. 1 probabilising his presence at the place of assault as an injured eyewitness. P.W. 1 and P.W. 2 had witnessed the brutal end of their son and some delay in lodging first information report under such distressing circumstances is clearly understandable. Prior cryptic telephonic communication cannot be a ground to discard the written complaint by the injured eyewitness P.W. 1 as first information report. Bloodstained earth and slipper of the deceased was recovered from the spot and the subsequent recovery of Ram da at the behest of Prahlad clearly establishes the prosecution case. Hence, the appeal by the convict ought to be dismissed and that of the de facto complainant be allowed.
Learned lawyer for the de facto complainant submitted that the learned Judge erred in coming to a finding that the role ascribed to respondent nos. 2 and 3 namely, Laxman and his son Dilip in the assault of the deceased is an 5 afterthought as their roles had been specifically narrated in the first information report itself. There is nothing on record to show that the assault took place when the victim was sitting on the pipe and therefore reasoning of the trial Judge is based on a misappreciation of the evidence on record. Accordingly, acquittal of Laxman and Dilip be set aside and the said accused persons along with Prahlad be convicted for committing offence punishable under section 302/34 of the I.P.C.
In reply, learned lawyer for the respondent nos. 2 and 3 submitted that evidence on record does not establish that the said accused persons shared common intention with Prahlad to murder the victim. Hence, their acquittal ought not be disturbed in the facts of the case.
I have given anxious considerations to the rival submissions made on behalf of the parties.
Prosecution case essentially hinges on the eyewitness version of the parents of the deceased namely, P.W. 1 and P.W. 2. P.W. 1 is also an injured witness. P.W. 1 deposed on 01.01.2009 at 7.30 p.m. while he along with his wife was watching television they heard cries of their son, Rup. On hearing the cries, they went to the spot where an abandoned water pipe was kept behind Durga Mandir. Arriving there, he found Laxman and his son Dilip holding Rup while Prahlad gave a blow with a Ram da on the backside of his neck. His wife embraced his son while he tried to resist Prahlad. Prahlad struck him with Ram da and he sustained injuries on his left hand. He was treated at Laudoha B.P.H.C. As a result of assault, his son sustained bleeding injuries and died at the spot. Local people assembled at the spot. Uttam Mondal (P.W. 6), a former panchayet member, informed Faridpur Police Station over phone. Police came to the spot. He lodged written complaint between 11.30 to 11.35 p.m scribed by 6 Mukta Gope, (Exhibit 1). Police held inquest on the dead body of the victim, Exhibit 2/3. Police seized bloodstained earth and slippers of the deceased from the place of occurrence under a seizure list. Subsequently, on 10.01.2009 police brought Prahlad to the village and on his showing, a Ram Da was recovered from an old room belonging to Prahlad. He signed on the seizure list regarding seizure of weapon.
In cross-examination he stated that the place of occurrence was 30 cubits from his house. He further admitted that he did not carry any lantern or torch light to the place of occurrence.
Evidence of P.W. 1 is corroborated by his wife P.W. 2.
P.W. 3 and P.W. 4 are post-occurrence witnesses. They came to the spot soon after the incident. They claimed that Manik, P.W. 1 narrated the incident to them. They were the witnesses to the seizures effected at the place of occurrence by police. They proved their signatures on the seizure list.
P.W. 5 also came to the place of occurrence soon after the incident. He deposed Prahlad Ghosh had purchased a LIC policy through him. He further deposed Prahlad called him on his mobile phone. He disconnected the call. When Prahlad again called him on his mobile, he took the call and handed the telephone to Uttam Mondal, P.W. 6, a former Gram Panchayet Member. Over the telephone Prahlad enquired whether the victim had died.
P.W. 6, the former local Panchayet Member, deposed he heard cries coming from the spot and had rushed to the spot. He found the dead body of Rup Chand lying there. He made a phone call to police and the police arrived. He corroborated the evidence of P.W. 5 with regard to the telephonic version with Prahlad soon after the incident.
These are the witnesses of fact.
7From the aforesaid evidence, it appears that the genesis of the incident as narrated by eyewitnesses P.W. 1 and P.W. 2 is corroborated by P.W. 3 to P.W. 6 who arrived at the spot soon thereafter. Manik Gope told them about the incident. Pursuant to the telephonic communication with P.W. 6, police arrived at the spot and thereafter written complaint was lodged by PW 1 at the spot.
From the narration of the aforesaid witnesses I do not find any inordinate or inexplicable delay in lodging first information report which was lodged within a couple of hours after police came to the spot. I am also in agreement with the argument advanced on behalf of the State that a cryptic telephonic information to the police station cannot be a ground to discount a detailed written complaint lodged by an injured eyewitness as the first information report (FIR).
Argument has been advanced that the incident had not occurred at the place of occurrence and in the manner and circumstances in which the eyewitnesses have deposed in Court. I am unable to accept such contention of the learned counsel for the accused persons on the ground that the ocular version of P.W. 1 and P.W. 2 finds sufficient corroboration from the contemporaneously seized bloodstained earth and slippers of the victim from the place of occurrence soon after the incident.
It has been argued that there is a dichotomy in the manner of assault received by P.W. 1 and the medical reports (Exhibits 10 and 11) proved by P.W.
8. P.W. 1 claimed that he was hit on his left hand by Prahlad with a Ram Da and suffered cut injury. PW 8 found abrasion on the left hand. Drawing my attention to the cross-examination of P.W. 8 it is contended that no lacerated/cut injury was found on the left hand of P.W. 1 improbabilising assault with Ram Da. I am unable to accept such contention as PW 8 had explained the abrasion wound on PW 1 and deposed if a person hits another 8 with Ram da and the weapon grazes the hand such type of injury may be caused. Evidence of PW 1 and 2 with regard to assault on the deceased with Ram da on the back of the neck is also corroborated by post mortem doctor, PW
7. The doctor noted deep cut injuries on right eye, left shoulder joint, cervical cut injury and cut injury on the spinal cord. He deposed the injuries were likely to cause death. Hence, medical opinion with regard to the injuries on the deceased and P.W. 1 corroborates the ocular version of PW 1 and 2. In fact, evidence of PW 8 (doctor who treated PW 1) probabilises the latter's presence at the place of occurrence and fortifies him as a truthful witness.
It has been strongly contended that there was no light at the spot and therefore P.W. 1 and P.W. 2 could not have identified the assailants. No doubt, evidence has come on record that P.W. 10, one of the investigating officers had carried torch light to the spot for holding inquest. However, one cannot lose sight of the fact that the incident occurred around 7.30 p.m. in the night at a place which is behind a temple. Neither did the incident occur in the dead of night, nor was the spot an uninhabited place. More so, accused persons were known to the witnesses and as it appears from the evidence on record there was jostling between Prahlad and PW 1 when the latter was attacked with Ram da.
Time and the place of occurrence gives rise to a possibility of diffused light coming from the neighbouring temple and the close proximity between the witnesses and the accused persons who are known to each other does not render the identification of the accused persons by PW 1 & 2 as improbable in the facts of the case.
Recovery of the Ram da pursuant to the leading to the statement of appellant Prahlad Ghosh has also been proved. P.W.10 deposed that the said accused on interrogation made a statement that he could take them to a barn 9 where he had kept the weapon of offence. P.Ws. 1 & 6 deposed that Prahlad was brought to the village on 10.1.2009 and on his showing, Ram da was seized from a barn which was used by him. It is contended that there are discrepancies in the evidence of P.Ws 1 & 6 with regard to labeling on the Ram da. There is also no forensic report with regard to the presence of blood on the seized weapon. Discrepancies with regard to the alleged seizure are minor in nature and pales into significance in view of the fact that the labelled weapon of offence was produced in court. Remisness in investigation with regard to non- production of forensic report in my opinion does not affect the credibility of the case which is strongly founded on the eyewitness version of P.Ws 1 & 2. Hence, I am of the opinion that the version of P.Ws 1 & 2 with regard to the role of appellant Prahlad Ghosh in assaulting the victim on the neck causing cut throat injury sufficient in ordinary course of nature to cause death has been fully established.
Accordingly, conviction and sentence of the appellant is upheld. With regard to the acquitted persons, namely, Laxman Ghosh and Dilip Ghosh it appears that the trial court acquitted them on the ground that their role in holding the victim when Prahlad assaulted him with Ram da as narrated by PW 1 and 2 is an exaggeration as the victim was assaulted while he was sitting on the pipe.
I have scanned the evidence on record but do not find much to support such conclusion recorded by the trial judge.
It is trite law that an order of acquittal ought not to be lightly interfered with and therefore notwithstanding my lack of agreement with the reasoning giving by the trial judge for acquitting Laxman Ghosh and Dilip Ghosh, I have analysed the prosecution evidence on record independently to test whether the 10 said accused persons had shared common intention with Prahlad Ghosh to commit murder of the deceased. P.Ws 1 & 2 deposed on hearing cries of their son they rushed to the spot. They found Laxman and Dilip holding hands of their son and Prahlad Ghosh struck him with a Ram da at the back of his neck. When P.W.1 resisted Prahlad, he was also assaulted on his left hand. Fact that P.Ws 1 & 2 heard cries of their son gives an impression that an altercation had begun between the parties even before the witnesses arrived at the spot. Hence, one may conclude that the assault with Ramda by Prahlad Ghosh on the victim was in the midst of a free fight between the parties. It is trite law that in the course of a free fight, each accused is responsible for his individual act and cannot be held vicariously liable for the act of others [see Pundalik Mahadu Bhane & Ors. Vs. State of Maharashtra, JT 1997(7) S.C. 410 Para 6]. It is also relevant to note that there is no evidence to record to show that the acquitted accused persons had come along with Prahlad to the spot or was aware that Prahlad Ghosh was carrying a weapon with him. In the backdrop of the aforesaid facts, it is possible that the acquitted accused persons had held the hands of the victim in order to prevent him from assaulting them when Prahlad suddenly attacked him with a Ram da. These facts emanate from the attending circumstances of the case and militate against the conclusion that the acquitted accused persons shared common intention with Prahlad Ghosh to commit murder of the victim. When two reasonable views are possible in the facts of a case - one implicating the accused and the other exonerating him it may not be prudent to reverse an order of acquittal and convert it to one of conviction. Hence, I am not inclined to disturb the order of acquittal recorded against respondent nos. 2 & 3, namely, Laxman Ghosh and Dilip Ghosh @ Alladh.
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Both the appeals are dismissed.
The period of detention, if any, undergone by the appellant Prahlad Ghosh during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) ap/ss/rkd & PA