Sri Nandadulal Ghosh & Anr vs State of West Bengal (13/1/2023)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi
C.R.A. No. 141 of 2020
Sri Nandadulal Ghosh & Anr.
Vs.
The State of West Bengal
With
C.R.A. No. 239 of 2020
Ananda Mohan Ghosh & Ors.
Vs.
The State of West Bengal
For the appellants (in CRA 141 of 2020) :: Mr. Pulak Ranjan Mondal, Adv.
:
Ms. Bandana Mandal, Adv.
For the appellants (in CRA 239 of 2020) :; Mr. Milon Mukherjee, ld. Sr. Adv.; Mr. Biswajit Manna, Adv.
For the State : Mr. Swapan Banerjee, Adv.; Mr. Anindya Sundar Chatterjee, Adv.; Ms. Purnima Ghosh, Adv.
For the de facto complainant; Mr. Malay Bhattacharyya, Adv.; Mr. Pradip Paul, Adv.; Ms. S. Mondal
Heard on : 15.12.2022
Judgment on : 13.01.2023
Md. Shabbar Rashidi, J:

Both these appeals are directed against the
judgment of conviction dated 11.02.2020 and order of
sentence dated 12.02.2020 passed by learned Sessions
Judge, Pashcim Medinipur, in Sessions Trial No. 9 of
April 2017 convicting the appellants under section
302/341/34 of the Indian Penal Code. The two appeals
are taken up together as they emanate from one and the
same judgment and order.
One Shymal Ghosh, a resident of Korongapote
within
Anandapur
police
station
lodged
a
written
complaint on September 03, 2012 alleging, inter alia,
2that his father Purna Chandra Ghosh was returning from
the fields in the afternoon at about 04.30 p.m. At that
time, the de facto complainant could see that his third
paternal uncle Anand Mohon Ghosh, his wife Parbati
Ghosh, their daughter Smapti Ghosh, second paternal
uncle of the de facto complainant Nanda Dulal Ghosh
and his wife Pushparani Ghosh grabbed his father at a
little distance from his house with a plan to kill him. The
de facto complainant rushed there and saw that all the
aforesaid persons were inflicting torture upon his father
in different ways. Uncle of de facto complainant Ananda
Mohan Ghosh and his daughter Smapti Ghosh were
shouting for killing the stupid (sala) completely. The de-
facto complainant also stated that Ananada Mohan
Ghosh, Parbati Ghosh, Smapti Ghosh were assaulting his
father by axe near the neck and head of his father
causing severe bleeding injuries. On alarm being raised
by
the
de-facto
complainant,
local
people
started
assembling. Seeing this, the aforesaid persons fled away
3leaving the father of the de facto complainant. With the
help of local people, the father of de facto complainant
was taken to Medinipur hospital with bleeding injuries
where he was declared dead. It was also stated by the de
facto complainant that Anando Mohon Ghosh, Parbati
Ghosh, Smapti Ghosh, Nannda Dulal Ghosh and Pushpa
Rani Ghosh killed father of the de facto complainant
Purnachndra Ghosh on account of the family disputes.
On the basis of such written complaint, Anandapur
Police Station Case No. 70 of 2016 dated 29.11.2016
under sections 341/302/120B/34 of the Indian Penal
Code was started against the accused persons including
the appellants.
The police took up investigation and on completion
of investigation submitted charge-sheet under sections
341/ 302/120B/34 of the Indian Penal Code.
Upon
appearance
/production
of
the
accused
persons and on compliance of the provisions under
4section 207 of the Code of Criminal Procedure, the case
was committed to the Court of Sessions for trial. In
consideration of the materials in the case diary, charges
under sections 302/34 and 341/34 of the Indian Penal
Code were framed against all the five accused persons.
In order to substantiate the charge-sheet, the
prosecution examined 12 witnesses. In addition, the
prosecution
also
adduced
documentary
material
evidences.
The de facto complainant Shymal Ghosh deposed
as PW1. He identified the accused persons in Court. He
stated that on 28.11.2016 at 04.30 pm, he was going out
from his house. At that time, he found that while his
father Purna Chandra Ghosh was returning from the
fields, all the five accused persons caught hold of him
and laid him down on the ground. All of them were
shouting to kill him. PW1 also stated that Parbati Ghosh
and Shymal Ghosh caught hold of the legs and hands of
his father. Accused Ananda Mohon Ghosh assaulted his
5father with an axe. The incident occurred at a distance of
twenty/twenty-five feet from his house. Seeing the
incident, PW1 shouted for help and at his alarm,
neighbors rushed to the place of occurrence. PW1 has
named Sushanta Ghosh, Tushar Ghosh and Ranajit
Ghosh who came to the place of occurrence upon his
alarm. Thereafter, Ananda Mohan Ghosh left the place
with the accused followed by the remaining accused
persons. Upon a close scrutiny, PW1 found his father
unconscious with active bleeding injuries. The victim was
taken to Medinipur Medical College and Hospital where
his father was declared dead. PW1 has also stated that
on the relevant date, his elder brother was not in the
house as he used to reside at Datan being a school
teacher. His mother was also not present having gone to
Ghatal in connection with delivery of child of elder sister
of PW1. PW1 also stated that he informed the matter to
the police station accompanied by his brother who had
arrived in the hospital upon being informed by PW1. The
6written complaint was scribed by the elder brother of
PW1 as per his instructions and he signed on it. PW1
proved the written complaint (Exhibit 1).
One of the co-villagers deposed as PW 2. He
identified the accused persons in the court. He stated
that Kartick, son of his sister Rekha, was married to the
daughter of accused Ananda Mohan Ghosh. He further
stated that he knew Purna Chandra Ghosh who was
murdered about 8 months ago (from 04.9.2017) at about
4.30 pm. He stated that hearing the hue and cry, he
rushed to the place of occurrence and was reported that
injured Purna was moved to Hopital and that he died. He
was murdered with an axe over land disputes. He further
stated that he was interrogated by the police. The witness
was declared hostile and in his cross-examination by the
prosecution, he denied making any statement before
police to the effect that there were land disputes between
Purna Ghosh and Ananda Ghosh and that on the date of
incident when Purna was returning from fields, all the
7accused persons, in a body, attacked and killed him over
previous grudge or that all the accused persons were
inflicting blows on the head of Purna with an axe and
seeing the local people, they fled away.
Another villager deposed as PW 3. He stated that the
accused persons and the victim were residents of his
village and his house was at a distance of 2/3 minutes
walk from that of the accused persons. He further stated
that Purna Ch. Ghosh was murdered about 8/9 months
prior to his deposition at about 4.30 pm. At that time, PW
3 was going towards his husking mill when he heard the
shouts of ‘save me, save me’. He rushed to the place and
found accused Ananda Mohan Ghosh inflicting blows on
the neck and head of Purna Ch. Ghosh with an axe and
accused Smapti Ghosh and Parbati Ghosh holding his
legs and hands. Accused Puspa and Nanda Dulal were
shouting ‘kill the brother-in-law’. Purna Ch. Ghosh
sustained bleeding injuries. PW 3 also saw Shyamal
Ghosh, son of Purna Ch. Ghosh and others coming to the
8place of occurrence. Thereafter, the accused persons fled
away. Purna Ghosh was taken to Medinipur Hospital.
Police was informed and PW3 was interrogated by police.
He also made a statement before learned Magistrate. He
proved his signature on his statement recorded by the
Magistrate (Ext.2). PW 3 was cross-examined at length by
the defence.
PW 4 is one of the residents of the village of accused
persons and the victim. He stated that about 8/9 months
ago, the accused persons (identified on dock) killed Purna
Ghosh. He was interrogated by the police in connection
with the incident. Police seized some bloodstained soil
and fresh soil from the place of occurrence. He signed on
the seizure list along with the witnesses Bablu Ghosh
and Aloke Ghosh. He proved his signature on the seizure
list (Ext.3).
PW 4 further stated that the police also seized the
offending axe from inside of a bamboo cluster as shown
and led by the accused Ananda Ghosh and Parbati
9Ghosh. The said axe was seized by the police under a
seizure list which was signed by him and the other
witnesses. He signed on the seizure list along with the
witnesses Bablu Ghosh and Aloke Ghosh and accused
Ananda Ghosh also signed on it. He proved his signature
(Ext. 4). PW4 also identified the seized soils and the axe
in court (Mat. Ext. I, II & III respectively). This witness
was also cross examined at length by the defence.
PW5 is one of the seizure list witnesses. He
identified all the five accused persons in the dock and
stated that they killed Purna who was of his village. He
was interrogated by the police. Police seized controlled
and bloodstained soil from the place of occurrence in his
presence. On another occasion, police seized an axe
recovered from the bamboo clusters, as per the statement
of the accused Ananda Ghosh. He signed on both the
seizure lists. He proved his signatures thereon (Ext. 3/1
& 4/1). Besides PW 5, the said seizure lists were also
signed by Arun Bera and Bablu Ghosh. Accused Ananda
10Ghosh also signed on the seizure list. PW5 also identified
the seized axe and soils in the court. This witness was
cross-examined by the defense.
Another son of deceased Purna, deposed as PW 6.
He is a hearsay witness. He stated that his father was
murdered on 28.11.2016. He further stated that he was a
school teacher posted at Dantan and used to reside at
Dantan at the relevant time. On 28.11.2016 at about
5.00 pm, he was informed over phone by PW1 that the
five accused persons, Ananda Mohan Ghosh, Samapti
Ghosh,
Nanda
Dulal
Ghosh,
Parbati
Ghosh
and
Pusparani Ghosh attacked and assaulted his father with
an axe causing bleeding injuries. He was moved to
Midnapore Hospital in unconscious condition. PW 1
requested him to come soon. On reaching Midnapore, he
went to hospital and came to learn that his father was
dead. Upon enquiry, PW1 reported to PW6 that on the
date of incident at about 4.30 p.m. while his father was
returning from fields, all the accused persons attacked
11him. They pushed him down on the ground. Accused
Ananda inflicted blows on his neck and head, whereas
Parbati and Samapti caught hold of his hands and legs.
Brother of PW6 raised alarm whereupon, local people
assembled. Seeing the neighbours, accused Ananda fled
away carrying the axe followed by the other accused
persons. PW6 also stated that on the following day, police
visited the Hospital and conducted inquest on the dead
body of his father. He signed on the inquest. He proved
his
signature
(Ext.5).
Thereafter, post mortem
examination on the dead body was conducted and the
dead body was brought to the house of PW6. PW 6
accompanied PW1 to Anandapur police station and
lodged the written complaint. The written complaint was
scribed by PW 6 as narrated by PW1 who signed on it.
PW 6 also signed on the written complaint as the scribe.
PW 6 tendered and proved the written complaint (Ext. 1).
PW 6 was interrogated by the police. He also recorded his
statement before learned Magistrate. He proved his
12signature on such statement (Ext.6). PW 6 was also
cross-examined on behalf of the accused persons at
length.
PW 7 is another co-villager. He has stated that his
villager Purna Chandra Ghosh was murdered at about
4.00 p.m. one year ago in front of his house. He also
stated that on the said day he was working with Purna
Ghosh in the fields and after completing their work, they
were returning to their houses. Reaching the house, they
parted their ways to their respective houses. Immediately
thereafter, he heard the screams of Shayamal Ghosh
(PW1) that his father was killed. Turning back, PW 7
could see Purna Ghosh lying on the ground and accused
Ananda Mohan Ghosh was inflicting blows upon him
with an axe. He could also see that Parbati and Smapti
were catching hold of the hands and legs of Purna
Chandra Ghosh. Nanda Dulal Ghosh and Pusparani
Ghosh were standing beside, abetting the other accused
persons by saying ‘kill the brother-in-law’. PW7 and son
13of Purna Chandra Ghosh (PW1) rushed to the place of
occurrence, whereupon the accused persons fled away.
Accused Ananda Mohan Ghosh fled away carrying the
axe. PW 7 further stated that Susanta Ghosh reached the
place of occurrence prior to him followed by PW7 and
Ranjit Ghosh and few others. Purna Chandra Ghosh was
taken to Medinipur Hospital by a hired Maruti van. He
was then wearing a Lungi and Shirt and PW7 noticed
profuse bleeding from the neck and head of Purna
Ghosh. Later on, he came to know that Purna Ghosh
died of the aforesaid injuries. He was interrogated by
police in connection with the case and also recorded his
statement before learned Magistrate. He proved his
signature on the statement (Ext.7). PW 7 was cross-
examined by the defence, However, nothing favourable
appears to have been extracted during such cross-
examination.
PW 8 is the police officer who conducted inquest on
the dead body of Purna Chandra Ghosh. He proved the
inquest report prepared by him (Ext.5/1).
PW 9 is another villager of the deceased and the
accused persons. He has stated in his deposition that
Purna Chandra Ghosh of his village was murdered at
about 4.00 p.m. At that time, he was working in his farm.
He heard the shouting of Shyamal Chandra Ghosh that
‘his father was killed’. PW 9 saw that accused Samapti
Ghosh and Parbati Ghosh were holding the hands and
legs of Purna Chandra Ghosh who was lying on the
ground whereas, Ananda was inflicting blows on the
person of Purna Chandra Ghosh with an axe on his head
and neck. Accused Nanda Dulal and Pusparani were
abetting by saying ‘kill him’. He sustained bleeding
injuries and was in a critical condition. PW 9 along with
Shyamal Ghosh, Susanta Ghosh, Tushar Kanti and
others assembled there. Purna Chandra Ghosh was
taken to Hospital by a Maruti Van. PW 9 also stated that
15he was interrogated by police and also recorded his
statement before learned Magistrate. He proved his
signatures on the statement so recorded (Ext.8). This
witness was also cross-examined at length but nothing
favourable could be elicited by the defence.
The autopsy surgeon deposed as PW 10. He stated
that he had sufficient experience on conducting post
mortem examinations. On 29.11.2016, he conducted
post mortem on the dead body of Purna Chandra Ghosh
aged 56 years in connection with UD Case No.758/2016.
He found the dead body with bloodstained white shirt
and greenish Lungi. Upon such examination, he found
the injuries on the dead body that’s to say:
i.
Scalp Haematoma 10 inches x 6 inches over
left Temporo-Parieto-Occipetal Region.
ii.
Depressed Comminuted fracture 6 inches X 3
1/2 inches involving squamous part of left
Temporal Bone, left Parietal & Left Side of
occipital bone.
16iii.
Fissured fracture 2 1/2 inches long placed
traversely over left middle cornial fossa.
iv.
Subdural Haematoma 8 inches X 7 inches over
both Cerebral Hemispheres.
PW 10 opined that all those injuries were sufficient
to cause death of a healthy person and that the aforesaid
injuries could be caused by blunt side of an axe like the
one shown to him in the court (Mat. Ext.III). He also
opined that the nature and distribution of injuries
suggested it to be homicidal. In the opinion of the doctor,
the injuries found on the person of Purna Chandra
Ghosh could be inflicted if one falls on a blunt object
from a height of 20 to 25 feet and were unlikely if
someone falls on the ground while working. He tendered
and proved the post mortem report prepared by him
(Ext.9).
PW 10 is the police personal who accompanied the
dead body from Medinipur Hospital to morgue under a
Challan which he signed. He proved his signature on the
17dead body challan (Ext. 10). He also identified the dead
body to the autopsy surgeon. Defence declined to cross
examine the witness.
The investigating officer deposed as PW 11. He
stated
that on 29.11.2016, he
received a written
complaint from Shyamal Ghosh by endorsing the receipt
on it. He proved the endorsement (Ext. 1/1). On the basis
of such written complaint, he started Anandapur Police
Station Case No. 70/2016 dated 29.11.2016 by filling up
the formal First Information Report. He proved the same
(Ext. 11). He took up investigation of the case and in
course of investigation, he visited the place of occurrence
and prepared rough sketch map with index thereof (Ext.
12). He also seized bloodstained soil and controlled soil
from the place of occurrence under a seizure list
(Ext.3/2).
He
also
recorded
the
statement
of
the
witnesses and arrested the accused persons and prayed
for police custody of accused Ananda Mohan Ghosh and
Parbati Ghosh. As per leading statement of the accused
18Ananda Mohan Ghosh, PW 11 recovered the offending
axe in presence of witnesses under a seizure list prepared
in his pen (Ext. 4/2). PW 11 also proved the relevant
portion of the statements of accused Ananda Mohan
Ghosh and Parbati Ghosh leading to recovery of offending
weapon (Ext. 133 & 14). He also arranged for recording
the statements of witnesses under section 164 of the
Code of Criminal Procedure. He further recorded the
statement of witnesses and collected post mortem report
and inquest report. He also sent the viscera for chemical
examination, the report of which was later received in the
court (Ext. 15). On completion of investigation, he
submitted Charge-sheet against all the five accused
persons.
In his cross-examination, PW 11 stated that PW 3
did not state before him that Ranjit Ghosh and Tushar
Ghosh arrived at the place of occurrence and that he had
noticed that Samapti Ghosh and Parbati Ghosh were
holding hands and legs of Purna Chandra Ghosh. He also
19stated that the witnesses examined till 25.12.2016 did
not state the name of Ranjit Ghosh as the person present
at the place of occurrence. He further stated that PW 4
did not state before him that all the five accused persons
killed Purna Chandra Ghosh.
Upon completion of the evidence on behalf of the
prosecution, the accused persons were examined under
section 313 of the Code of Criminal Procedure. The
accused persons pleaded innocence, however, declined to
adduce any defence witness. No positive case in defence
was pleaded by the appellants/accused persons.
It has been argued on behalf of the appellants that
was
unexplained
delay
in
lodging
of
First
Information Report. The occurrence is said to have taken
place on 28.11.2016 at 4.30 p.m. whereas the case was
reported on 29.11.2016 at 12.25 hrs. No explanation in
this regard was advanced and as such the implication of
the appellants was an outcome of afterthought for which,
the case of the prosecution is not believable. It has also
been contended that there has been embellishment and
material
contradictions
in
the
statements
of
the
prosecution witnesses vis-à-vis the written complaint
rendering the prosecution case untrustworthy and,
thereby, a conviction based on such evidence is not
tenable.
The
appellants
have
also
challenged
the
prosecution case that the prosecution has withheld vital
witnesses named by the other witnesses to be present at
the place of occurrence. Moreover, the testimony of
witnesses are not supported by medical evidence in so far
as the narration of the manner of occurrence coming out
from the mouth of the ocular witnesses does rule out the
possibility of the injuries found on neck and back of the
victim. It has also been contended that the alleged
recovery of the weapon of offence on the statement of
appellant Ananda Mohan Ghosh, is highly doubtful as
the same did not bear any label attached to it as also the
land owner and one of the seizure list witness were not
examined by the prosecution. Learned advocate for the
21appellant also submits that since there was enmity
between the parties, testimony of interested witnesses
cannot be safely relied to secure conviction of the
appellants. There were contradictions in the description
of the place of occurrence as well. For the aforesaid
reasons, it has been contended on behalf of the
appellants that their conviction is liable to be set aside.
On the other hand, it has been submitted on behalf
of the State of West Bengal that PW 1 has fully supported
the case made out in the First Information Report. The
testimony of other witnesses specifically PW 3, 5, 7 and 9
are quite in consonance with that of PW1 so far as the
manner and conduct of the occurrence is concerned. As
such, it has been contended that the judgment of
conviction and order of sentence passed by learned trial
court are well founded and liable to be upheld.
Learned advocate for the de-facto complainant also
supported the case of the prosecution on similar counts
22and submits that the conviction of the appellants is well
founded and requires to be affirmed.
In the case, the accused persons/appellants were
charged with the offence of committing murder of Purna
Chandra Ghosh, the father of the de-facto complainant.
According to PW 1, the de-facto complainant, being
injured in the incident on 28.11.2016, his father was
moved to Medinipur Hospital where he was declared
dead. Inquest over the dead body was conducted. The
inquest report (Ext. 5) testifies that the victim Purna
Chandra Ghosh was admitted in the
hospital on
28.11.2016 at about 7.02 p.m. and was declared dead at
about 7.40 p.m. in course of treatment with severe
injuries on the back side of the head. From the testimony
of the doctor who conducted post mortem examination
(PW 10) and tendered the post mortem report (Ext.9), it is
evident that Purna Chandra Ghosh had
injuries on his person that’s to say:
23
found severali.
Scalp Haematoma 10 inches x 6 inches over
left Temporo-Parieto-Occipetal Region.
ii.
Depressed Comminuted fracture 6 inches X 3
½ inches involving squamous part of left
Temporal Bone, left Parietal & Left Side of
occipital bone.
iii.
Fissured fracture 2 ½ inches long placed
traversely over left middle cornial fossa.
iv.
Subdural Haematoma 8 inches X 7 inches over
both Cerebral Hemispheres.
The autopsy surgeon opined that the injuries found
on the person of Purna Chandra Ghosh, were sufficient
to cause death of a healthy person. The testimonies of
the prosecution witnesses including that of the PW 10 &
PW 12, together with that of Exhibit 5 and Exhibit 9, go
to establish that Purna Chandra Ghsoh died out of the
injuries inflicted upon his person and that the death was
an unnatural one.
As regards the person/persons responsible for the
injuries inflicted on the person of the victim Purna
Chandra Ghosh, it is the case of the prosecution that
while the victim was returning back from the fields, the
appellants attacked and assaulted him with an axe, near
his
house,
inflicting
the
injuries
which
ultimately
resulted in his death. PW 1, the son of the victim
happens to be an eye witness. He has claimed to have
seen the occurrence. He stated in unambiguous terms
that while his father was returning home from the fields,
he was attacked by the appellants conjointly. They
pushed his father down on the ground. The accused
Parbati Ghosh and Samapti Ghosh held the legs and
hands of his father while accused Ananda Mohan Ghosh
assaulted him with an axe. He has also stated that all the
accused persons/appellants were shouting, ‘kill the
brother-in-law (Prane mere phel salake)’. PW1 could see
the occurrence of his own eyes and shouted for help.
Upon his screams, several villagers like Susanta Ghosh,
25Tushar Ghosh (PW7) and Ranajit Ghosh (PW9) assembled
at the spot. Seeing this, the accused persons fled away
carrying
the
offending
weapon.
PW2
was
though,
declared hostile, but his testimony goes to support the
case of the prosecution in so far as he has stated that the
victim Purna was murdered at 4.30 p.m. in his village
and that he was murdered with an axe over land
disputes. He rushed to the place of occurrence after
hearing hue and cry. PW 3 is an eye witness. He has fully
supported each and every description of the incident as
narrated by PW 1, so far as it relates to the manner of
perpetration of the incident or the words used by the
appellants at the relevant point of time or the specific
part performed by each of the perpetrators. It is also
consistent with the narration of events set out in the
First Information Report. Another eye witness has
deposed as PW 7. He in fact was working with the
deceased in the fields and returned to the village
together. On reaching the village, they parted and took
26respective paths to their houses. A little farther, he heard
the shouting of PW 1. Looking back he could see
appellant Ananda Mohan Ghosh inflicting injuries on the
person of Purna Chandra Ghosh, who was lying on the
ground, with an axe. He also noticed that appellant
Parbati and Samapti were catching hold of his legs and
hands and appellant Nanda Dulal and Puspa Rani were
shouting abetting the crime ‘Mar Salake’ (kill the brother-
in-law). PW 7 went there followed by the son of the victim
whereupon
the
appellants
fled
away
carrying
the
offending axe. PW 7 also stated that one Susanta Ghosh
(PW3) arrived at the place of occurrence prior to him.
PW 9 is another eye witness. He has narrated the
incident which is in quite consonance with that of PW1,
3, 5 and 7. Like PW 7, he also was attracted to the
incident at the shouting of PW 1. The words he heard
from the mouth of PW1 are also the same that was heard
by PW7 ‘Babake Mere Dilo’ (meaning in Englsih they are
killing my father).
The narration of incident is also consistent with the
other eye witnesses. He also saw appellant Samapti
Ghosh and Parbati Ghosh catching hold of the legs and
hands of victim Purna Chandra Ghosh while appellant
Ananda Ghosh was inflicting blows upon his neck and
head with an axe. He also saw appellant Nanda Dulal
and Puspa abetting the offence by saying kill him (Mere
phel oke).
Therefore, the narration of events coming out from
the evidence on record exhibits that the deceased Purna
Chandra Ghosh was attacked near his house. He was so
attacked by none
other than the
appellants. The
appellants attacked him, threw him down and caught
hold of him by hands and legs and assaulted him with an
axe. There are consistent statements that the victim was
caught hold by appellant Samapti Ghosh and Parbati
Ghosh and was assaulted by appellant Ananda Mohan
Ghosh. It was also consistently reiterated that appellants
Nanda Dulal and Puspa were abetting the commission of
28crime by the other appellants and they were standing at
the place of occurrence sufficiently close for such
abetment. All the prosecution witnesses, specially the eye
witnesses have given the account of commission of the
offence by the appellant in unambiguous terms. The
narration
of
the
incident
by
the
prosecution
is
convincing, consistent and unambiguous so as to rule
out any doubt or proposition suggesting the innocence of
the appellants. There appears no ambiguity in the
identification of the date, time and place of occurrence,
the manner in which the offence was committed, the
weapon used in the crime and the part played by each of
the appellants in furtherance of the commission of such
offence. The averments so made by the prosecution
witnesses also get supported by the medical evidence.
The autopsy surgeon (PW 10) coupled with the post
mortem report (Exhibit 9) and also the inquest report
(Exhibit 5), are quite explicit about the nature of injuries
found on the person of the victim. The doctor had opined
29that the injuries found on the person of the victim might
have been caused by a weapon like that Mat. Exhibit
shown to him during his deposition and were sufficient in
the ordinary course of nature to cause death of a healthy
person. In the cross examination also PW9 opined that
the nature of injury found on the person of the victim
could be inflicted if someone fell from a height of 20-25
feet. However, no such case was made out nor evidence
was led at the trial in support of such proposition on the
part of the defence. Mere speculation cannot make out a
case to disbelieve the prosecution.
So far as the contention of delay in lodging the First
Information Report is concerned, the offence is said to
have been committed on 28.11.2016 at about 4.30 pm
and it was reported at 12.25 hrs on 29.11.216 following
which, an inquest over the dead body of the victim was
conducted.
It has consistently come out from the evidence that
just after the occurrence at about 4.30 pm, the victim
30was moved to Medinipur Hospital and there the victim
was declared dead in course of treatment. PW1 has
stated that he took his victim father to the hospital and
informed the incident to his elder brother over phone who
was then posted and residing at Dantan. He arrived at
the hospital in the evening where after, PW1 returned to
his house with some of his co-villagers. His said brother
returned with the dead body on the following day i.e. on
29.11.2016. The brother of PW1 has deposed as PW6.
He, in his deposition, has corroborated the statement of
PW1 to the effect that he was informed about the incident
by his brother at about 5.00 p.m. over phone while he
was at Dantan. Being so informed, he arrived at
Medinipur Hospital and came to know that his father
expired in the meantime. PW6 also testified the statement
of PW1 that when he reached Medinipur Hospital, the
condition of his brother was not good for which he sent
him back to the house with some villagers. On the
following morning, police came to hospital and conducted
31inquest over the dead body of his father. He is an inquest
witness (Exhibit 5) as well. Thereafter, the dead body was
carried to the house following which a police complain
was lodged. Such narration of happenings, to our opinion
sufficiently explains the delay in lodging in the First
Information Report.
As regards the worthiness or otherwise of the
testimony of interested witnesses, PW1 and PW6, the two
sons of the victim are closely related to the appellants.
There is a story coming out that there were family feud
for
which
they
could
have
deposed
against
the
appellants. As a matter of fact, previous enmity has not
been pleaded at the trial on behalf of the prosecution or
the defence in support of partisan nature of witnesses. At
the same time, the co-villager witnesses PW 3, 5, 7 and 9
are all independent witnesses. There is nothing on the
record to justify an aspersion of them being partisan
witnesses. All the aforesaid witnesses have vehemently
supported the case of the prosecution as evident from the
32First Information Report or narrated by PW 1. Nothing
has been brought forth as to for what conflict of interest,
there was the possibility of false implication of the
appellant in the offence on the part of the complainant
party. Therefore, we do not find much force in the
submissions of the appellant to the effect that their
conviction on the basis of interested witnesses cannot be
sustained.
We are not unmindful of the proposition that the
offending weapon was recovered as per the statement of
the appellant Ananda Mohan Ghosh. Such weapon was
recovered from the midst of a bamboo clamp. The
witnesses to the seizure list (PW4 and PW5) have testified
such facts. They have categorically and equivocally stated
that the offending axe was brought out by Ananda
Mohan Ghosh from the midst of a bamboo clamp. PW4,
PW5 as well as the accused Ananda Mohan Ghosh,
signed the seizure list besides other witnesses. They also
identified the said axe in the court (Mat. Ext. III). The
33recovered article was seized under proper seizure list
(Exhibit 4/2). The relevant portion of the statements of
the appellants which lead to recovery of offending axe
were proved and admitted in evidence (Ext.13 and 14).
The seized axe was marked by the investigating officer by
a label. The investigating officer (PW12) identified the
seized axe as well as the tag attached to it bearing his
signature, in the court.
The aforesaid offending axe was recovered from the
midst of a bamboo clamp brought out by appellant
Ananda Mohan Ghosh. The midst of bamboo clamp was
not a public place frequently and easily accessible to any
person. The recovery of the axe from the place, it was
recovered together with the testimony of Exhibit 13 and
Exhibit 14, sufficiently proves the special knowledge of
the appellant Ananda Mohan Ghosh with regard to its
existence at the particular place. Though, the label
attached to the seized axe was not found at the time of
deposition but PW12 has identified the tag attached to it
34with his signature thereon. The witnesses to the recovery
and seizure, PW 4 and PW5 have also identified the said
weapon with sufficient clarity. We must not lose sight of
the fact that the said weapon was sent for chemical
examination was handled by the chemical examiner and
assigned separate identification mark to it. No suggestion
whatsoever, was confronted to PW4, PW5 and PW12 that
the axed identified by them was not the same that was
recovered and seized in course of investigation. There
appears extensive cross examination on the part of the
defence in reference to the chemical examination of the
offending axe
and marks found thereon. In such
circumstances, mere missing of the label attached to the
seized article cannot be taken to cast a doubt upon the
identification of the same.
Learned advocate for the appellants has also
contended that as per the allegations made out in the
First Information Report and coming out from the
evidence on record, the acts done on the part of the
appellants does not bring the case in the purview of
murder as defined under section 300 of the Indian Penal
Code punishable under section 302 of the said Code.
Rather, at best, the appellants can be held to be guilty of
the offence punishable under section 304 of the Indian
Penal Code, 1860.
In support of his contention learned advocate
argued that the appellant had no intention to kill the
deceased Purna Chandra Ghosh in so far as inspite of
having an axe in his possession the blunt side of the axe
was used to inflict the injuries on the person of the
victim. The appellants having the option to use the blade
of the axe deliberately used its blunt end as such, there
was no intention to kill.
Intention as fact may not be proved on the basis of
positive evidence. It is an abstract thing which can be
deciphered
from
the
attending
circumstances.
The
circumstances under which the offence was committed,
the nature of injuries inflicted and the nature of weapons
36used are some of the factors with the help of which
existence or otherwise of intention can be worked out in a
given circumstance. It is a well-settled proposition of law
that the intention to cause death with the knowledge that
the death will probably be caused, is a very important
consideration for coming to the conclusion that death is
indeed a murder with intention to cause death or the
knowledge that death will probably be caused.
In the instant case, the evidence on record goes to
suggest that the appellants were, in an assembly, waiting
for the victim to return, they being close relatives. They
were armed with an axe. In furtherance of their common
intention, they overpowered the victim brought him down
onto the ground and assaulted with the axe they were
armed with, inflicting sever injuries on his person. Each
and every appellant played a vital part in the commission
of the crime. The nature of injuries, include at least two
fractures and haematoma. According to the opinion of
the autopsy surgeon, all those injuries were sufficient to
37cause death of a healthy person. Therefore, to our
consideration, there is nothing on the record to suggest
that the appellants lacked the intention to kill the victim.
Section 299 of the Indian Penal code, 1860, defines
the offence of culpable homicide in following terms, that’s
to say:
Culpable
homicide.—whoever
causes
death by doing an act with the intention of
causing death, or with
the intention
of
causing such bodily injury as is likely to
cause death, or with the knowledge that he is
likely by such act to cause death, commits
the offence of culpable homicide.
Whereas, the offence of murder has been defined
under section 300 of the said Code which runs as
follows:
Murder.—Except in the cases hereinafter
excepted, culpable homicide is murder, if the
38act by which the death is caused is done with
the intention of causing death, or
2ndly. If it is done with the intention of
causing such bodily injury as the offender
knows
to
be
likely to cause the death of the person to
whom the harm is caused, or
3rdly. If it is done with the intention of
causing bodily injury to any person and the
bodily
injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or
4thly. If the person committing the act
knows that it is so imminently dangerous
that it must, in all probability, cause death,
or such bodily injury as is likely to cause
death, and commits such act without any
39excuse for incurring the risk of causing death
or such injury as aforesaid.
The circumstances emanating from the evidence on
record do suggest that the appellants while assaulting
the victim with an axe, were quite conscious of the
nature of injuries likely to be sustained by the victim out
of the blows dealt by the appellant. The evidence also
proposes that this was preceded by a plan chalked out by
the appellant to intercept the victim on his way or
wherever he was to be found. He was overwhelmed by the
appellants by forcefully holding him down to the ground
in order to prevent the victim from any probable escape
and then dealing vital blow with an axe inflicting severe
injuries which according to the doctor, were sufficient to
cause death of a healthy person in ordinary course.
The words like ‘prane mere phel salake’ meaning kill
the brother-in-law. The words ‘mar’ ‘maro’ might be taken
to mean ‘kill’ or ‘murder’ and ‘beat’ as well. But ‘prane
mere phel’ or ‘jan se mardo’ can only denote murder.
The utterance of the words like ‘prane mere phel
salake’ meaning kill the brother-in-law not only connotes
the intention to kill but at the same time, it also
encompasses and exhibits the common intention shared
by the assailants and his associates towards the
commission of the crime.
The case at hand, to our opinion surely, seems to
fall under 3rd provision of section 300 of the Indian Penal
Code
and
has
a
resemblance
with
illustration
(c)
appended to section 300 of the Code of 1860.
The appellants, as evident from the evidence on
record, after overpowering the victim, caught hold of his
legs and hands and inflicted injuries on his head and
neck. The injuries so inflicted were of such magnitude
that resulted in depressed comminuted fracture as well
as fissured fracture of considerable size with expulsion of
brain matter. The blow dealt by the appellant also
resulted in large haematoma on scalp and both the
cerebral hemispheres. All these injuries were on the vital
41organs of the body. and were opined by the doctor to be
sufficient to cause death of a healthy person. In fact, the
autopsy surgeon (PW10) had opined in his deposition
that “all these injuries were sufficient to cause death of a
healthy person.” The phrase used by the autopsy surgeon
at his deposition denotes that each of the individual
injuries were sufficient to cause death in ordinary course
of nature.
The nature of the weapon, the manner of its use
and the frequency of the injuries found on the person of
the victim and its extent seems to be sufficient to rule out
any possibility of a sudden or free fight. Repeated blows
were administered on the victim to result in such
injuries.
Repeated blows on vital parts of the person of the
victim with such an impact that each of such injury was
found to be sufficient to cause death in the ordinary
course of nature. The appellant appears to have gone
with repeating the blows without exhibiting any apparent
42sense of remorse or repentance. The injuries apparently
were so grave that it resulted in the expulsion of brain
matter, nevertheless, the appellant showed no clemency
to the victim. The evidence shows that they left the victim
when local people assembled there
instead of a
demonstration of regret to what was perpetrated on their
part, had it been done out of sudden passion and zeal.
All
the
appellants
conjointly
performed
their
part
consistently until they left the place of occurrence for the
intervention of the local people. Such circumstances,
clearly displays the quantum of culpable state of mind all
of them shared at the relevant point of time.
Thus, on the basis of the evidence led at the trial,
together with the nature and extent of the injuries
inflicted, it can be said that the acts done by the
appellants were done with the intention of causing such
bodily injury which were sufficient to cause death in the
ordinary course of nature. The action on the part of the
appellants can, at no stretch of imagination, be restricted
to intention or knowledge that his act was likely to cause
death or likely to cause such injury as was likely to cause
death. Therefore, the case at hand surely comes within
the purview of offence defined under section 300 of the
Indian Penal Code, 1860, punishable under section 302
of the Indian Penal Code, 1860 and not under section
304 of the said Code.
Similarly, the evidence goes to show that the victim
Purna Chandra Ghosh was intercepted on his way back
to his home while he was returning from the fields. He
was overwhelmed and attacked by the accused persons
and thereby, he was restrained from lawfully proceeding
to his house which he had intended. Such an act on the
part of the appellants surely attracted the provisions of
section 341 of the Indian Penal Code.
In the light of the discussions made hereinbefore,
we find no reason to `interfere with the judgment of
conviction and order of sentence passed by learned trial
court.
The appellants in CRA No. 141 of 2020 remaining
unrepresented, a Rule was issued upon the appellants
therein by order dated December 01, 2022. However, the
said Rule was discharged in consideration of the affidavit
submitted by the aforesaid appellants in response to
such Rule, by order dated December 15, 2022.
Accordingly, the judgment of conviction dated
11.02.2020 and order of sentence dated 12.02.2020
passed by learned Sessions Judge, Pashcim Medinipur,
in Sessions Trial No. 9 of April 2017 are affirmed.
Period of detention already undergone by the
appellant during investigation, enquiry and trial shall be
set off in terms of the provisions of section 428 of Code of
Criminal Procedure.
Trial court records along with copies of this
judgment be sent down at once to the learned trial Court
as well as the Superintendent of Correctional Home for
necessary compliance.
The appellant, if on bail, shall surrender to the
learned trial court to undergo the remaining part of his
sentence within 2 weeks from the date. In default, the
jurisdictional court will take appropriate steps to secure
their presence.
Photostat certified copy of this order, if applied for,
be given to the parties on priority basis on compliance of
all formalities.
Consequently, both the appeals being CRA 141 of
2020 and CRA 239 of 2020 are dismissed.
Connected applications, if any, shall also stand
disposed of.
[MD. SHABBAR RASHIDI, J]
I agree.
[DEBANGSU BASAK, J.]