Calcutta High Court (Appellete Side)
Sadhan Ghosh & Ors vs The State Of West Bengal on 26 September, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 474 of 2012
Sadhan Ghosh & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. Dipak Kumar Sengupta, Ld Sr. Advocate
Mr. M. Chatterjee, Ld. Advocate
For the State : Mr. Manjit Singh, Ld. Public Prosecutor
: Mr. Ranabir Roy Chowdhury, Ld. Advocate
Heard on : 03.08.2016, 04.08.2016, 05.08.2016, 08.08.2016
Judgment on : 26.09.2016
Md. Mumtaz Khan, J. :
The subject matter of challenge in this appeal is the judgment and order of conviction and sentence dated May 10, 2012 passed by the Ld. Additional Sessions Judge, Fast Track Court-III, Krishnagar, Nadia in Sessions Trial No. 1 (January) 2009 arising out of Sessions Case No. 84(7)2006. By virtue of the impugned judgment appellants were sentenced to suffer imprisonment for life as also to pay a fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for 9 months each for commissioning of the offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as IPC) with a direction that if the fine is realized then it should be handed over to Sukumar Ghosh entirely under Section 357 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Appellants were also sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs. 1,000/- each in default to suffer further rigorous imprisonment for 6 months each for commissioning of the offence punishable under Section 324/34 IPC with a direction that if fine is realized then it should be handed over to Sukumar Ghosh and Judhisthir Ghosh equally. Both the sentences were directed to run concurrently and the period of detention already undergone to be set off under Section 428 Cr.P.C. While accused Narayan Ghosh was acquitted from the charges punishable under Section 302/34 IPC as also under section 324/34 IPC.
The backdrop of the prosecution case is discussed in a nutshell hereunder:-
On March 7, 2005, P.W.1 lodged a complaint before the officer-in- charge, Nakashipara P.S., District Nadia stating that about four years ago his nephew Subhas Ghosh got married with P.W.7, daughter of appellant Sadhan Ghosh of their village and as their marriage was love marriage so, just after the marriage there was no conversation between two families. On March 6, 2005 at about 10 a.m. there was some family dispute with P.W.7 and due to this at about 3.30 p.m. father of P.W.7 namely Sadhan Ghosh, her elder brother Ratan Ghosh, Habu Ghosh, Tarak Ghosh, Narayan Ghosh, Bidhan Ghosh and her mother Arati Ghosh attacked them with dao and jhupo (used for catching fish) as a result his nephew Byomkesh Ghosh died on the spot and elder brother Sukumar Ghosh(P.W.14) and nephew Judhisthir (P.W.15) sustained severe bleeding injures and were admitted in Bethuadahari Hospital.
On the basis of the above written complaint, scribed by P.W.13, Nakashipara P.S. Case No. 62/2005 dated March 7, 2005 was started by P.W.21 against the appellants as also Narayan Ghosh and Arati Ghosh under Section 302/326/34 IPC and the case was endorsed to P.W.22 for investigation who then investigated this case and on completion of investigation submitted charge sheet being No. 85 dated April 27, 2005 under Section 302/326/34 IPC only against the appellants and Narayan Ghosh.
Charges were framed on January 2, 2009 against the appellants as also Narayan Ghosh under Section 326/34 IPC and 302/34 IPC and after denial of their involvement in the crime, trial commenced.
Prosecution examined 23 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants as also Narayan Ghosh under Section 313 Cr.P.C. the impugned judgment was passed.
Mr. Dipak Sengupta, learned senior advocate appearing on behalf of the appellants submitted that the impugned judgment, order of conviction and sentence cannot be sustained in law due to material discrepancies and contradictions in between the evidence of the prosecution witnesses with regard to the involvement of the appellants, the role played by them as also the nature of the weapon used in the commission of the offence, non reliability of the evidence of P.W.7 being not made voluntarily, doubt with regard to the place of occurrence, non disclosure of the name of the appellants before the doctor as assailant, arm being not shown to the doctors, absence of FSL report to connect the weapon with the commission of the offence as also the place of occurrence amongst others.
According to Mr. Dipak Sengupta, charges framed under Section 302/34 or 326/34 IPC was not proved against the appellants beyond reasonable doubt. According to him learned court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment, order or conviction and sentence.
It is submitted by Mr. Ranabir Roy Chowdhury, learned advocate representing the state that the instant case was based on the evidence of eye witnesses and the case against the appellants had been proved beyond all reasonable doubt. According to him P.W.14, P.W.15, P.W.17 and P.W.18 have vividly narrated the incident and their evidence remained unshaken during cross-examination and as such there was no reason to disbelieve them. He also submitted that P.W.7 corroborated the evidence of the injured persons and eye witnesses and there was nothing in her evidence that no such incident took place and she even made statements before the Judicial Magistrate and there was also nothing in her evidence that she stated before the Magistrate under any compulsion,so her entire evidence can not be thrown away.
According to Mr. Roy Chowdhury incident started from the house and continued upto the canal beneath the house of the complainant and there was no doubt about the place of occurrence. According to him due to lapse on the part of the I.O. in not sending the seized articles to the FSL can not be a ground for acquittal.
Mr. Roy Chowdhury relied upon the decisions of Jodhan Vs. State of M.P. reported in 2015, AIR (SCW) 3589, Darshan Singh Vs. State of Punjab, reported in 2016 (1) crimes 9 and Hema Vs. State through Inspector of Police Madras reported in 2013(10) SCC 192 in support of his submission.
We have heard the learned Counsels appearing for the respective parties at length and have considered the entire facts and circumstances of this case carefully. For a proper analysis of the evidence on record, we need to examine the evidences given by the prosecution witnesses in detail.
It was evident from the evidence of the autopsy surgeon, P.W.19, as also the PM report (Ext.7) that on examination over the dead body of the deceased Byomkesh Ghosh, on March 8, 2005 in connection with Nakashipara P.S. Case No.62 dated March 7, 2005, he found six sharp cut injuries and two puncture wounds on the person of the victim namely:- (1) sharp cut injury, elliptical measuring 2'' x ½'' x ¾'' over upper end of right sterno mastoid muscle (neck) involving muscles vessel skin, subcutaneous tissues and fossa, bleeding and clotting. (2) deep sharp cut injury over lower end of right side of neck at its junction with supra clavicular and trapezoidal area, spreading from right side of back of neck 1" x right mid clavicular line 6'' x 4'' x 4'', skin, Subcutaneous tissue, muscles, vessels, 7th cervical vertebra cut laterally & upper end of scapular bone. (3) sharp cut injury lateral cut surface of right arm 1'' x ¼'' x ¼''. (4) sharp cut injury left first intescoastal space just lateral to manubriaul sternum 1'' x ½'' x ¼'' x ¼''. (5) sharp cut injury back of left forearm 1'' below elbow joint 3'' x 2'' x 1 ½'' skin, Subcutaneous tissues muscles upper end of olecranum cut. (6) sharp cut injury left hand dorsum measuring 3'' x ½'' x ¼'' skin, subcutaneous tissues, tendons & metacarpen bone of left index & left middle finger dorsal left cut. (7) two punctured wounds over back of left arm " 1/8 x 1/8 x 1/ 8".
In the opinion of the autopsy surgeon(P.W.19) death was due to shock and hemorrhage due to above mentioned injuries caused by heavy sharp cutting weapon which were ante-mortem and homicidal in nature. The above findings and opinion of the doctor was not challenge by the defence.
It was evident from the evidence of the doctor, P.W.23, as also the injury reports (Ext.10 series) that on examination of P.W.14 on March 7, 2005, at Bethuadahari P.H.C., he found six cut injuries on his person namely ; (1) cut injury on the left back measuring 10 cm. X 10 cm. (2) cut injury at left waist measuring 12 cm. X 3 cm. X 3 cm. (approx.).(3) cut injury on right forearm measuring 4 cm. X ½ cm. X 1 cm. (4) cut injury on left hand at palmar aspect measuring 3 cm. X 1 cm. X 1 cm. (5) cut injury on left forearm measuring 5 cm. X 2 cm. X 1 cm. (6) cut injury on occipital area measuring 3 cm. X 1 cm. X 1 cm. On the same day on examination of P.W.15, the doctor, P.W.23, also found one laceration on the right arm measuring 3 cm x 2 cm x 2 cm and one tender swelling measuring 2 cm x 2 cm in occipital area of P.W.15. According to the doctor (P.W.23) those patients came to the Emergency with the history of physical assault by sharp cutting weapons at around 2.30 P.M. and after giving them primary treatment he referred them to Nadia District Hospital.
From the evidence of the doctor (P.W.8) of Nadia District Hospital as also the injury reports and bed head tickets (Exts.3, 3/1, 3/2, 3/3) it appear that on March 7, 2005 on examination of P.W.14 at the said Hospital P.W.8 also found multiple incised wounds on his person namely; (1) on back 8'' x ½'' x ½'' and another injury 8'' x ½'' x 1'' (opening plural cavity of left side). (2) left loin 10'' x ½'' x 1''. (3) right forearm 1½'' x ½'' x ½''. (4) left forearm superficial abrasion and superficial laceration. (5) left thumb base and right forearm with Venus abulsion 1½'' x ½'' x ½''. On the same day on examination of P.W.15 also P.W.8 found incised wound over left arm 2''x ½ ''x 1 ½ '' and another ½ ''x ¼'' x ½ '' on his person. According to the doctor (P.W.8) injuries of those injured patients might have been caused by sharp cutting weapons. None of the doctors were also challenged by the defence that they did not examine those patients on those dates nor found any such injuries on their persons.
So, from the above it was evident that victim Byomkesh Ghosh died on March 7, 2005 due to the injuries caused by sharp cutting weapon which were ante-mortem and homicidal in nature and P.W.14 and P.W.15 sustained cut injuries on their person on the same date also being caused by sharp cutting weapons.
In this regard the version of P.W.1,defacto-complainant, was that P.W.7, daughter of appellant Sadhan Ghosh, got married with his nephew Subash Ghosh and the said marriage was the outcome of their love affairs which father of P.W.7 did not like and as such centering around the altercation in between P.W.7 and her mother-in-law in the morning of the date of the incident, appellants along with accused Narayan Ghosh and Arati Ghosh being armed with 'Jhupo' and 'Dao' came to their house at about 3.30 P.M. and murdered Byomkesh Ghosh and caused injuries on the persons of P.W.14 and P.W.15 by 'Jhupo' and 'Dao'.
According to P.W.14, father of the deceased Byomkesh as also the victim, on the relevant date at about 3 P.M. while he was uprooting banana saplings for his cows and his son Byomkesh had just returned from field then appellant Sadhan Ghosh assaulted his son with 'Jhupo' and appellant Ratan Ghosh with the help of 'Dao' gave his son a big blow which dissected his body from neck up to his belly as a result he fell down on the floor and thereafter appellants Habu Ghosh, Tarak Ghosh, Bidhan Ghosh and accused Narayan Ghosh started assaulting his son in that condition. He also deposed that after assaulting his son Byomkesh all the accused persons assaulted him with 'Dao' over his front and back portion of the body and when his son Judhistir Ghosh (P.W.15) came out from the room hearing noise shouting why they are killing his father and brother then appellant Bidhan gave him blow near his armpit of his hand.
According to P.W.15 in the morning of the incident one quarrel took place in between his mother(P.W.17) and his eldest boudi (P.W.7) and as such at 3 p.m. appellants and accused Narayan Ghosh came inside their house near the 'nada' and started assaulting his 'mejo dada' Byomkesh brutally due to which he died and after that they also assaulted his father (P.W.14) and when he came out from the room and shouted and told them that being relatives how they could kill his family, then hearing this appellant Ratan assaulted him (P.W.15) with a 'Dao' near his armpit for which he was given eleven stitches for his wound and was admitted in hospital along with his father.
According to P.W.17, marriage of P.W.7 was solemnized with her elder son Subhas and their marriage was a love marriage. On the date of incident accused Narayan Ghosh abused them in filthy languages and also abused her husband (P.W.14) who was uprooting banana trees and thereafter, appellants Sadhan Ghosh, Narayan Ghosh and accused Anil Ghosh started assaulting her husband (P.W.14) and when her son Byomkesh went to save his father, then Sadhan Ghosh assaulted him with a 'teta' as a result he fell down, then all accused persons started assaulting him mercilessly. At that time her son Judhistir (P.W.15) was returning from school then Sadhan assaulted Judhistir with a 'Dao' over his hand and he also assaulted her over back of her head by 'Dao'.
According to P.W.18,son of P.W.14, on the date of incident accused Narayan Ghosh came to the spot and starting abusing his father (P.W.14) and family members in filthy languages and thereafter, all the accused persons came to the P.O. being armed with 'Dao', 'teta' etc. and started assaulting his father. On hearing noise when he and his brother Byomkesh came out and tried to save their father, then Sadhan Ghosh assaulted his brother Byomkesh with a 'teta' and thereafter all the accused persons started assaulting Byomkesh by surrounding him and when his brother Judhistir (P.W.15) tried to save his brother Byomkesh then Sadhan assaulted him over his hand by 'Dao' and they also assaulted his mother.
According to P.W.11 on the date of incident appellants Sadhan Ghosh, Tarak Ghosh and accused Anil Ghosh and Narayan Ghosh assaulted his uncle's son Byomkesh with a 'Jhupo' in the left side of his chest and also assaulted him with a 'Dao' on his neck resulting in his death. Those accused persons also assaulted Sukumar Ghosh (P.W.14) over his stomach (belly) region due to which he was found almost dead. According to him incident of assault took place around 3:10 p.m near canal (khal) which situates beneath the house of Sukumar.
According to P.W.7, her brother-in-law Byomkesh was murdered before 4 years 3 months at about 3 p.m. besides canal (khal) nearby their house by her father Sadhan Ghosh, jetha Narayan Ghosh and Anil Ghosh, elder brother Bidhan Ghosh and her elder cousins Atul Ghosh, Tarak Ghosh and Habu Ghosh. Her father-in-law Sukumar Ghosh (P.W.14), younger brother-in-law Judhistir Ghosh (P.W.15), mother-in- law Bharati Ghosh (P.W.17) were also injured. According to her on the previous day of incident there was 'gondogol' between her and Judhistir in the matter of detergent powder for which Judhistir assaulted her like her brother. Then on the next day Narayan Ghosh sent some boys who raised hue and cry and were raising dust to which her father-in-law (P.W.14) raised objection, then her father appellant Sadhan Ghosh dragged out Byomkesh Ghosh from the house and took him besides canal (khal) and struck on the person of Byomkesh by 'Jhupo' and 'Dao', appellant Habu Ghosh struck on the left side of stomach of her father-in- law (P.W.14) by 'Dao' while appellants Tarak Ghosh and Bidhan Ghosh struck Judhistir (P.W.15) and her mother-in-law (P.W.17)by 'Dao'. She also gave statement to magistrate regarding the incident.
According to P.W.22, on March 7, 2005 he was assigned by O.C. Nakashipara P.S. to take up Nakashipara P.S. Case No. 62/05 dated March 7, 2005 and accordingly he took up investigation of the case, visited the P.O., prepared rough sketch map with index (Ext. 9), held inquest and prepared the inquest report (Ext. ¼), seized blood stained 'gamcha', one 'koch' (gaff) around 10 ft. length having 7 pointed arms (Mat. Ext.I), blood stained earth (Mat. Ext.III), and blood free earth (Mat. Ext.IV) from the P.O. by a seizure list (Ext. 2/3). Thereafter, proceeded to conduct search in the house of appellants Sadhan Ghosh and Bidhan Ghosh in presence of local witnesses and from their house he seized one black and white check full sleeve shirt with blood stained and cut mark which was partly torned (Mat Ext. V) and one light ash colour full pant with prominent blood stain (Mat Ext. VI), one hesua currently sharpened with prominent blood stain over it (Mat Ext. VII), one 'Bontir Achar' made of wood (Mat Ext. VIII) used for sharpening the instrument which had still marks that proved that some sharp cutting instruments were recently sharpened with the help of it and white sand (Mat Ext.IX) which he seized from the place where from 'Bontir Achar' was found by a seizure list (Ext. 4/2). Thereafter,he conducted search in the house of appellant Habu Ghosh and on search he seized one blue coloured shirt with prominent blood stain and mud over it(Mat Ext. X) by a seizure list marked(Ext. 5/1). He also seized blood stained earth and blood free earth from the courtyard of Sukumar's house by another seizure list (Ext. 11). In course of his investigation he examined the injured witnesses and recorded their statement u/s 161 of Cr.P.C. and also sent Kalubala @ Basanti Ghosh (P.W.7) to court for recording her statement u/s 164 of Cr.P.C. He also collected the injury report and bed head ticket from hospital as well as the post mortem report of the deceased and thereafter, on completion of investigation submitted the charge-sheet u/s 302/ 326/34 of I.P.C. against the accused persons.
The learned Court below took into consideration the entire facts and circumstances of the case leading from the place where from the dead body of the victim bearing sharp cut injuries was found, the FIR, inquest report, P.M. report, injury reports, bed head ticket, seizure of weapon and other articles, evidence of injured eye witnesses and other material witnesses to arrive at a conclusion that it was the appellants who in furtherance of their common intention caused death of the victim Byomkesh Ghosh and also caused cut injuries on the persons of P.W.14 and P.W.15 by sharp cutting weapons and have thus committed the offence punishable under section 302/324/34 I.P.C.
Now with regard to the discrepancies and contradictions, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525 and the relevant portions of the above decision are quoted below:-
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp.514-15) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weightily and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
(emphasis supplied) It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution's case doubtful, contradiction in the statement of witness is fatal for the case. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247 and the relevant portion of the above decision is quoted below:-
"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person."
(Emphasis supplied) In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The relevant portion of the above decision is quoted below:-
"49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."
In the matter of State of U.P. vs. M. K. Anthony, reported in (1985) 1 SCC 505 it has been observe by the Hon'ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. The relevant portion of the above decision is quoted below: -
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trival matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
(Emphasis supplied) In the matter of Jodhan vs. State of M.P. reported in 2015 AIR (SCW) 3589,it has been held by the Hon'ble Apex Court that the testimony of injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. The injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence and is unlikely to spare his actual assailants in order to falsely implicate someone.
In the instant case, we find from the evidence on record that appellants belong to the same family and due to love marriage between P.W.7, daughter of appellant Sadhan Ghosh with Subhas, son of injured P.W.14 there was strained relation between two families and prior to the incident in question there was one minor incident with P.W.7 at her in- law's house over family matters. Appellant Sadhan Ghosh also during recording of his statements under section 313 Cr.P.C. stated that he could not give any money at the time of marriage of his daughter,P.W.7, with Subhas, so they used to torture her. Defence also by putting suggestion to P.W.1 tried to prove that over the incident between P.W.7 and the members of her in-law's house, when Anil Ghosh, Jetha of P.W.7 and a matabbar of that area, came there to compromise the matter he was assaulted by them and as such para people assaulted them (victms) which he denied. The above plea of defence was also denied by P.W.7, P.W.14 and P.W.15. An attempt was also taken by the defence by putting suggestion to P.W.17, mother of the deceased, that in that incident both sides were injured which she denied. So, from the trend of cross- examination it was apparent that on the relevant date there was an incident at the house of the victims in which P.W.14 and his sons Byomkesh Ghosh and P.W.15 sustained sharp cut injuries. Surprisingly, save and except initiation of one counter case by the appellants relating to assault on Anil Ghosh and others,as is evident from the evidence of P.W.1, appellants did not adduce any defence witness nor produced any single scrap of paper in support of their above claim nor any such plea was taken during recording of their statements under section 313 Cr.P.C. Under such circumstances and in the light of the specific evidence adduced by the eye witnesses as also the injured, the plea of sustaining injuries of the victims in a free fight between them and the villagers did not appear to be believable. On the other hand evidence on record adduced on behalf of the prosecution clearly shows that victims were attacked with sharp cutting as also piercing weapons which caused sharp cut injuries on their persons resulting in death of Byomkesh and hospitalization of P.W.14 and P.W.15 with sharp cut injuries. The defacto complainant as also the eye witnesses and injured namely P.W1, P.W14, P.W.15, P.W.17 and P.W.18 had given vivid and consistent account of entire incident and clearly spoken about participation of all the appellants in attacking the deceased Byomkesh Ghosh as also P.W.14 and P.W.15 at their house. The testimonies of the above witnesses are consistent and they have established the presence and participation of the appellants in the offence. They also identified the appellants in course of recording of their evidence before court. The medical evidences have gone further to strengthen their testimonies. In criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. We can not rule out the possibility of post incident trauma and shock. In the instant case evidence of the defacto-complainant was recorded before the court after more than four years of the occurrence while those of the injured were recorded after more than six years of the occurrence. In such a situation one can not expect every details with accuracy. As such omission to mention the specific role played by each one of the miscreants in the commission of the offence were not contradictions of material dimension going into the root of the case rendering the testimonies of the injured witnesses liable to be discredited and make the prosecution case doubtful. Furthermore, appellants have been charged for the commission of the offence in furtherance of their common intention. The principle relating to the criminal act of the accused persons in furtherance of their common intention was laid down by Privy Council in Barendra Kumar Ghosh vs. Emperor, reported in AIR 1915 PC 1 (at page 6) as under:-
"......S. 34 deals with the doing of separate acts, similar or diverse by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for " that act " and " the act " in the latter part of the section must include the whole action covered by " a criminal act " in the first part, because they refer to it."
In Mahabub Shah vs. Emperor, reported in AIR (32) 1945 PC 118, the Privy Council repeated and reiterated the same view. The above proposition of law was adopted by a Bench consisting of three Hon'ble Judges of the Supreme Court in Pandurang, Tukia and Bhillia vs. State of Hyderabad, reported in AIR 1955 SC 216. The above well settled proposition of law was repeated and reiterated time and again by the Apex Court.
The above principles of law have been elaborately discussed by us in the Judgement delivered on May 6, 2016 in the matter of Gopal Chandra Das & Ors. Vs. The State of West Bengal (In re: CRA No. 420 of 2011).
Therefore, under the provisions of Section 34 of the Cr.P.C., in the event separate criminal acts, similar or diverse, are done by several persons in furtherance of a common intention, each person is liable for the result of them, as if he had done all those acts himself. In most of the cases it was difficult, if not impossible, to procure direct evidence to prove the intention of an individual and in most of the cases it had to be inferred from his act or conduct or other relevant circumstances of the case.
In the instant case, evidence on record clearly show that the deceased Byomkesh Ghosh, a young boy aged about 22 years, was attacked with sharp cutting weapon by the miscreants who dragged him upto the canal near his house, surrounded him and was not spared even after his falling down on the ground due to sustaining grievous injuries on the vital parts of his body namely neck rather further injuries were inflicted on him and 'Konch'('Jhupo' or 'tenta') was also pierced in his tricep muscle of left hand. He was ultimately died on the spot. The number and severity of the injuries inflicted on the vital part and other body parts of the deceased indicates the brutality with which he was killed and the intention was also very much clear.
Therefore, we do not find any error in the decision making process of the learned court below in this regard.
Regarding the nature of the weapon used, it was evident from the FIR as also the evidence on record that the eye witnesses as also the injured had specifically narrated about the use of 'Dao' and 'Jhupo' (used for fishing) in the commission of the offence. Only P.W.17 and P.W.18 had stated about use of 'Teta' and 'Dao'. It appear from the seizure list (Ext.2/3) that during investigation there was seizure of one 'koch' (gaffer) around 10 ft. in length having 7 pointed arms from the P.O. P.W.5,P.W.6 and P.W.11,the witnesses to the seizure of the above weapon, have clearly stated that Jhupo was seized. So, the weapon described by I.O. as 'koch' (gaffer) was also known as 'Jhupo', 'Teta' which is used for catching fish. As such the above discrepancy as to the nature of the weapon used was minor in nature. The commission of offence by the appellants and the weapon of offence used in the commission of the offence was examined by the learned Court below on the basis of the evidence of the the defacto complainant as also the eye witnesses, victims and other material witnesses namely P.W1, P.W14, P.W.15, P.W.17 and P.W.18 and also corroborated by P.W.7 but her evidence was not taken into consideration by the learned court below being not made voluntarily. Therefore, we are of the opinion that there was no error in the finding of the Trial Court in this regard ignoring minor discrepancies.
With regard to the reliability of the evidence of P.W.7, it was evident from the record that she had corroborated the evidence of the eye witnesses and the injured towards the involvement of the appellants in the commission of the offence both during her examination before court and also during recording of her statements before Magistrate but in view of her admission during cross-examination that she was told by the members of her in-laws house that if she did not depose in their favour they would drive her away from the matrimonial home, learned court below did not put much reliance on her statements keeping in mind the precarious condition of P.W.7. Therefore, we do not find any error in the decision making process of the learned court below in this regard.
With regard to the dispute as to the place of occurrence, we find from the rough sketch map (Ext.9) and the inquest report (Ext.1/4) that the dead body of the victim was found near the house of the victim beside canal and this also found corroboration from P.W.7, P.W.11, P.W.15 and P.W.16. It was evident from the evidence of the eye witnesses as also the injured that incident started from inside the house of the victims and ended beside the canal near their house where the dead body of deceased Byomkesh Ghosh was found. It is true that FIR was silent about the exact place of occurrence and the evidence of P.W.14 was also not very clear on this score and there were some minor variation/infirmity in some details about the place of occurrence but that can not make the prosecution case doubtful.
Therefore, our interference with the impugned judgment is not required on the above ground.
Coming to the question of absence of the name of the appellants as assailants in medical reports or before the attending doctors, we do not find this to be fatal to the prosecution case. In emergency cases, a doctor generally attend the patient and provide him immediate medical treatment instead of wasting time in collecting evidence and even if he records the history leading to the injury the same can not be taken as a substantive piece of evidence. But simply because names of the appellants were not stated before the attending doctors as assailants, the evidence of the injured witness made on oath can not be disbelieved as the injured witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to not showing the weapon of offence to the doctor, we do not find this also to be fatal to the prosecution case. We find from the evidence of the investigating officer, P.W.22, that he had clearly narrated the incident relating to the recovery of the weapon of offence. The injuries sustained by the deceased as a result of assault by sharp cutting weapon like 'Dao' and 'Jhupo' were corroborated by the post mortem report of dead body of the deceased. In Bakhshish Singh vs. State of Punjab & Ors., reported in (2013) 12 SCC 187, the Hon'ble Supreme Court took into consideration the testimony of the doctor who had prepared the post mortem report that the injuries of the deceased had been caused by a sharp-edged weapon, to arrive at a conclusion that it was quite consistent with the use of dagger for the offence. The relevant portion of the above decision 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 through the sharp-edged weapon given in the court. 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."
The autopsy surgeon (P.W.19) had clearly stated that the injuries on the person of the deceased Byomkesh Ghosh were caused by heavy sharp cutting weapon which was not challenged by the defence. Similarly, injuries sustained by P.W.14 and P.W.15 as a result of assaulting by the appellants were corroborated by the doctors (P.W.8 and P.W.21) who also clearly stated that those injured sustained injuries due to sharp cutting weapon. They were also not challenged by the defence on this score. Thus, we find from the testimonies of the doctors that the injuries were caused by sharp cutting weapon which is quite consistent with the use of 'Dao' and 'Jhupo'.
With regard to the contention of the appellant that failure on the part of the investigation agency to collect the Forensic Serological Laboratory report to connect the weapon with commission of offence and blood report of the deceased as also the reports of blood stained soil and controlled earth to prove the place of occurrence, the same relates to a defect of investigation. It was observed by the Hon'ble Supreme Court in Karnel Singh vs. State of M.P., reported in (1995) 5 SCC 518 that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Otherwise it would amount to depending in the hands of the investigating officer in the event the investigation is designedly defective. The relevant portion of the above decision is quoted below:-
"5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. 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; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. . . ."
Similar view was taken by the Hon'ble Supreme Court in the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518. It was observed that failure of the investigating officer in sending the firearms and the empties for comparison could not completely throw out the prosecution case when the same was fully established from the testimony of eyewitnesses whose presence on the spot could not be doubted as they all received gunshot injuries in the incident.
In the matter of Promode Dey vs. State of West Bengal, reported in (2012) 4 SCC 559, it was decided by the Hon'ble Supreme Court that non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. The relevant portion of the above decision is quoted below:-
"13. The learned counsel for the respondent argued that the fact that the FSL report was not collected from the FSL may be a defect in the investigation but a defect in investigation cannot result in acquital of an accused against whom enough evidence is available for conviction. In support of this proposition, he relied on the decision of this Court in Ramappa Halappa Pujar v. State of Karnataka."
This principle has also been repeated and reiterated by the Hon'ble Apex court in a number of decisions time and again.
In the instant case, we find from the record that investigating officer though seized bloodstained weapon of offence, blood stained earth, bloodstained apparels etc. but there was nothing on record to show that he ever took any initiative to get those examined in the Forensic Serological Laboratory and collect the FSL report. This shows omission rather negligence on the part of the I.O. and defect in investigation.
We do not find any substance in the submission made to the effect that the impugned conviction requires our interference on the ground of failure on the part of the investigation agency to collect the Forensic Serological Laboratory report to connect the weapon with commission of offence and blood report of the deceased as also the reports of blood stained soil and controlled earth to prove the place of occurrence. When the prosecution case is based on the evidence of eyewitness as also the injured witnesses then there is no scope of acquittal of the accused persons on the above ground.
After scrutinizing the entire evidence on record, we do not find any illegality in appreciation of evidence, or in arriving at the conclusion as to the guilt of the appellants by the learned Trial Court.
Therefore, for the reasons discussed above, we find no force in this appeal which is liable to be dismissed.
Accordingly, the appeal is dismissed. Appellants who are on bail be taken into custody to make them serve the sentence awarded by the trial court.
Copy of this judgement along with the lower court records be sent down to the trial court immediately for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)