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2011 DIGILAW 1261 (CAL)

Gita Rani Ghosh v. The State of West Bengal

2011-09-13

J.N.PATEL, KANCHAN CHAKRABORTY

body2011
Judgment :- Kanchan Chakraborty, J. 1) This appeal has been preferred at the instance of 1) Gitarani Ghosh, 2) Kamakhya Rani Ghosh, 3) Netai Pada Ghosh, 4) Subrata Ghosh and 5) Lakshman Ghosh, the convicts and is directed against the judgment and order dated 24.2.1999 passed by the learned Additional Sessions Judge, Murshidabad in S.T. No. 2 of February, 1995 (S.C. No. 21 of 1992) thereby convicting the appellants for committing an offence punishable under Section 302/34 I.P.C. and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 10,000/- each, in default, R.I. for 2 years more. 2) On 4.2.1991, at about 5 a.m., the appellants (hereinafter referred to as accused) entered into the house of Paresh Nath Ghosh (P.W. 1) being armed iron rods. Amongst the accused, Gitarani Ghosh and Kamakhya Rani Ghosh caught hold Fultulsi Ghosh, 60 years old mother of Paresh Nath Ghosh while the accused Lakshman hit her with an iron rod on her head. She raised alarm followed by hue and cry and all the inmates, such as, chainarani (P.W. 2), Biswanath (P.W. 3), Rekharani (P.W. 4) appeared in the scene but were assaulted by the accused Netai, Subrata and Lakshman with iron rods resulting in serious bodily injuries. All the injuried including Fultulshi were taken to hospital. Paresh Rani (P.W. I) lodged one F.I.R. with Burwan Police Station alleging the incident. Fultulsi succumbed to her injuries in the mean time. On the basis of the same, Burwan P.S. case no. 26 of 1991 dated 4.2.1991 was started under Section 147, 148, 448, 323, 326, 302/34 of I.P.C. against the accused. 3) The accused persons were arrayed to face charges under Section 302/34 of the I.P.C. They abjured the guilt and consequently, the trial commenced. 4) In the Trial Court, nine (9) witnesses were examined on behalf of the prosecution. The post mortem report, injury reports, the F.I.R., sketch maps, inquest report etc. were admitted into evidence and marked Exhibit on behalf of the prosecution. 5) The accused persons denied the entire case of the prosecution and pleaded innocence. 4) In the Trial Court, nine (9) witnesses were examined on behalf of the prosecution. The post mortem report, injury reports, the F.I.R., sketch maps, inquest report etc. were admitted into evidence and marked Exhibit on behalf of the prosecution. 5) The accused persons denied the entire case of the prosecution and pleaded innocence. The learned Trial Court, and upon considering the oral testimonies of the eye-witnesses and other supporting oral as well as the documentary evidence, came to a conclusion that the prosecution brought home the charges under Section 302/34 of I.P.C. against all the accused persons and, accordingly, recorded their conviction referred to earlier. The accused persons have challenged the sustainability of the judgment, mainly, on the following grounds:- a) that the learned trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the trial Court failed to take note of the fact with importance that Fultulsi sustained only one head injury and, therefore, the appellants had no intention to kill her; c) that the trial Court erred in believing the oral testimonies of the witnesses who were close relations of the injured, deceased and to each other; d) that the trial Court ignored material discrepancies in the statement of the witnesses; e) that the Trial Court was oblivious of the fact that the prosecution developed the case in course of trial by shifting the place of occurrence; f) that the judgement being otherwise bad in law, is liable to be set aside; 6) Ms. Minoti Gomes, learned Counsel appearing on behalf of the appellants contended that according to evidence of Paresh Nath Ghosh (P.W. 1) when Fultulsi, the deceased had gone outside the house to attend natures call, she was assaulted. But, evidence of the other witnesses indicates clearly that the incident took place inside the house. This discrepancy, according to Ms. Gomes, is fatal to the prosecution case which the learned Trial Court ignored. 7) Mr. Debasish Ray, learned Counsel for the respondent/State of West Bengal contended that what Ms. Gomes submitted is factually not correct. According to the evidence of Pareshnath, when Fultulsi was about to go outside the house to attend natures call, she was assaulted. Therefore, this plea of Ms. Gomes is not at all tenable. 7) Mr. Debasish Ray, learned Counsel for the respondent/State of West Bengal contended that what Ms. Gomes submitted is factually not correct. According to the evidence of Pareshnath, when Fultulsi was about to go outside the house to attend natures call, she was assaulted. Therefore, this plea of Ms. Gomes is not at all tenable. 8) We have carefully gone through the oral testimonies of all the witnesses and the rough sketch map prepared by the Investigation Officer (Ext. 5) with rapt attention. The P.W. 1 Paresh Nath Ghosh stated, “that date in the morning my mother went to call of nature outside. While she was going out, Kamakhya and Girarani who are present in Court today (identifies them) caught hold of her. At that time Lakshan who is present in Court (identifies) assaulted by mother with iron rod.” A thorough reading of the statements of other eye-witnesses makes it clear that the incident had taken place inside the house. The rough sketch map of P.O. (Ext. 5) gives a clear picture of the household belonging to the Ghosh family. It shows that there was no separate toilet inside the structural portion but outside within the household. The P.W. 1 Paresh said Fultulsi was going out to attend natures call and on her way, Kamakshya Ghosh & Gitarani Ghosh caught hold her while Lakshman assaulted her with an iron rod on her head. Ms. Gomes, however, failed to mention this statement of the P.W. 1. Therefore, if the statement of P.W. 1 in this regard is read as a whole we find that before Fultulsi had gone outside, she was assaulted. What Ms. Gomes submitted does not appear to be factually correct at all. 9) Ms. Gomes contended further that Fultulsi sustained only one head injury. Had the appellants any intention to kill her, they could have hit her repeatedly. There was absence of mens rea on the part of the appellants and, therefore, they can not be said to have committed the offence of murder. 10) Mr. Ray, on the other hand, contended that the appellants with common intention being armed with weapon like iron rod attacked Fultulsi who was aged more than 60 years at the relevant period of time. They committed the offence at an odd hours obviously for causing her death. The offence they committed comes well within 300 of the I.P.C. Therefore, Mr. Ray, on the other hand, contended that the appellants with common intention being armed with weapon like iron rod attacked Fultulsi who was aged more than 60 years at the relevant period of time. They committed the offence at an odd hours obviously for causing her death. The offence they committed comes well within 300 of the I.P.C. Therefore, Mr. Ray contended, the learned Trial Court came to a correct findings to the effect that the accused committed offence of murder. 11) From the injury report (Ext-3/1) prepared by Dr. Sital Chandra Ghosh, the P.W. 8, the following injuries could be detected on the body of Fultulsi on examination at the first instance: i) one globular swelling on right maxilla and the area was tremendusly tendered on palpation and oozing of blood was present; ii) one swelling on the left side of the forehead and the area was blackish due to haematorma and the partital eminenee of left side was also swollen due to injury with any blackish spot and bleeding; iii) one abraded spot on left reached without any bleeding. 12) The P.W. 8 opined that the First (i) and second (ii) injuries were sufficiently strong to cause brain injury and those injuries were done with some heavy blunt weightful weapon like iron rod. He also opined that those injuries would turn grievous. 13) Dr. Samir Kumar De, the P.W. 7, conducted post-mortem (Ext. 2) on the dead body of Fultulsi Ghosh on 04.02.1991 and detected the following injuries : a) lacerated injury over the right cheek 4’ x ½ x ¼” deep to the bone ( maxillary bone of right side) about 1 cm. below right earlobe; b) bruise over right lower eye. The injury was done by heavy instrument; c) linear fracture found over maxillary bone about 2 cm x ¼ cm. 14) Dr. De opined that cause of death was due to shock and hemorrhage due to injuries which were ante-mortem and homicidal in nature. He further opined that injuries might be caused by using hard substance like iron rod. 15) The oral testimonies of Dr. Ghosh and Dr. De as well as the Ext. 3/1 and Ext. 2 altogether unerringly leads to the only conclusion that the injuries on the Maxillary bone of Fultulsi were caused by heavy blunt weapon like iron rod and caused her death which was ante-mortem and homicidal in nature. 15) The oral testimonies of Dr. Ghosh and Dr. De as well as the Ext. 3/1 and Ext. 2 altogether unerringly leads to the only conclusion that the injuries on the Maxillary bone of Fultulsi were caused by heavy blunt weapon like iron rod and caused her death which was ante-mortem and homicidal in nature. Let us turn to the evidence of eye witnesses who also sustained injuries. The P.W. 1 praresh Nath Ghosh is the son of deceased Fultulsi. He has given a vivid picture of the incident. He stated categorically that on 04.02.1991 while his mother Fultulsi was going outside to response natures call, the appellant Kamakshya Ghosh and Gitarani Ghosh caught hold her and appellant Lakshman Chandra Ghosh assaulted her with iron rod. Hearing alarm of Fultulsi, he and other inmates such as, the P.W. 2, the P.W. 3 & the P.W. 4 then and there appeared in the scene but appellants Netai and Subrata assaulted all of them with iron rods causing bleeding injuries. Fultulsi fell on the ground being assaulted. All the injured had been to hospital and were provided with medical treatment. Fultulsi succumbed to her injuries. The P.W. 1 also stated that local people, such as, Atul Ghosh and Shankar Lal Ghosh (P.W. 5) came to the place of occurrence and witnessed the incident. 16) On careful appraisal of the evidence of the P.W. 2,3,4 and 5 (Sankar ghosh), we find all of them have made consistent and corroborative statement and faced the test of cross-examination quite Confidently. To be stated precisely, all the witnesses supported the prosecution case and their evidence was found by the trial Court trustworthy, credible and consistent. We also find no reason to disbelieve their oral testimonies. Ms. Gomes contended that all the witnesses being closed relations and interested witness the trial Court ought not have relied on them. We find no substance in such a proposition. It is trite law that evidence of close relations can not be discarded simply because of their relationship. In the case in hands, we find that the P.W. 1,2 and 3 were not only ocular witnesses but sustained injury caused by the appellants. Being inmates, their appearance in the scene was natural and normal. Rather their absence would have been abnormal and unmatching with the facts and circumstances of the case. The Ext. 3/1 and evidence of Dr. In the case in hands, we find that the P.W. 1,2 and 3 were not only ocular witnesses but sustained injury caused by the appellants. Being inmates, their appearance in the scene was natural and normal. Rather their absence would have been abnormal and unmatching with the facts and circumstances of the case. The Ext. 3/1 and evidence of Dr. De, the P.W. 8 together makes it abundantly clear that they had been to hospital immediately after the incident and were provided with medical treatment. The statement of P.W. 8 supported the evidence of the P.W. 1, 2,3, 4 and 5. 17) We find that the Trial Court relied on the oral testimonies of the prosecution witnesses. We are of view that the trial Court was justified in doing so. The evidence of the eye-witnesses –Cum- injured witnesses cuppled with medical evidence leaves no room of doubt that the appellants being armed with weapon like iron rods entered into the house of the P.W. 1 Paresh Nath Ghosh early in the Morning, on 2.4.1991 with a common intention. Amongst them, the appellants Gita and Kamakshya caught hold Fultulsi while the appellant Laksman hit on her head with an Iron rod. Fultulsi raised alarm. All the inmates, i.e., the P.W. 1, 2, 3 and 4 rushed to the spot, witnessed the incident and were also assaulted by the appellants. The case of the prosecution, no doubt, has been established to the hilt beyond any shadow of doubt. 18) Ms. Gomes contended that even if it is accepted that the appellants came together, only Lakshan hit Fultulsi. Therefore, other appellants cannot be held liable for murder by involving the provision of Section 34 of the I.P.C. She contended further that there was absence of mens rea on the part of the appellants and, therefore, they cannot also be said to have committed the offence of murder within the meaning of Section 300 I.P.C. 19) Mr. Ray on the other hand, contended that on the facts and circumstance of the case as well as evidence recorded by the Trial Court, it is clear that in order to fulfill common intention, the accused persons being armed with iron rods came to the house of the P.W. 1. Ray on the other hand, contended that on the facts and circumstance of the case as well as evidence recorded by the Trial Court, it is clear that in order to fulfill common intention, the accused persons being armed with iron rods came to the house of the P.W. 1. The provisions of Section 34 of I.P.C. are squarely applicable in this case and there was no mistake on the part of the Trial Court to hold all the accused guilty of offence under Section 302 read with Section 34 of the I.P.C. 20) We have bestowed our serious thought over both the points raised by Ms. Gomes. Section 34 of the I.P.C. says:- “Section 34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 21) In the instant case, it is crystal clear that all the accused had acted with common intention to cause injuries to the member of Ghosh family in order to settle a score. They appeared in the scene at an odd hour being armed with iron rods. They did not ever spare the aged lady Fultulsi. The accused Gitarani and Kamakshya caught hold her tightly so that appellant Lakshman could hit her and cause injury on her body. In our estimate, there was union of minds of the accused to commit the offence and thereby all of them are liable jointly for the Criminal act committed by them within the meaning of Section 34 of the I.P.C. The facts and circumstances of the case, unmistakably lead to the only conclusion that there was common intention in the sense of a prearranged plan between the accused and all of them participated in some manner in the act constituting the offence. We, therefore, do not accept the contention of Ms. Gomes. 22) Turning to the next point raised by Ms. Gomes we reiterate the settled principles of law that all murders are culpable homicides but not vice versa. 23) A bare reading of Section 299 and Section 300 of the I.P.c. makes it clear that all culpable homicide are not amounting to murder and there is distinction between the offence acquittal hostile not amounting to murder and culpable homicide amounting to murder. 23) A bare reading of Section 299 and Section 300 of the I.P.c. makes it clear that all culpable homicide are not amounting to murder and there is distinction between the offence acquittal hostile not amounting to murder and culpable homicide amounting to murder. The distinction between two are given below: 24) The mental attitude of accused committing an offence of murder can be of two-fold in nature. Firstly, the intention to cause bodily harm and next there is the objective knowledge that death will be the likely consequence to the intended injury. The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends to cause and thus causes is sufficient to cause death in the ordinary course of nature, the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences of the act or not. If on referring to Section 300, the Court is of opinion that the killing does not come within one of the four clauses, we can then refer to Section 299. If the killing comes within the second part of Section 299, which relates to intention of causing bodily injury likely to cause death, it comes under Section 304, part- I, and if there is no intention but only knowledge, that is to say, if there is no intention to cause death or a bodily injured likely to cause death, but only knowledge the death is likely to be caused, the offence is under Section 304, Part - II. 25) In this contest, the decision of Apex Court in State of A.P. Vs. R. Punnayya, reported in 1976 SCC (Cr) can well be referred to It can be gathered from the view of the Apex that whenever a Court is called upon to decide as to whether the offence committed was that of murder of culpable homicide not amounting to murder on the proved facts of a case, the stress should be to approach the problems in three stages. At the first stage it has to be considered whether the accused has done an act by doing which he has caused death of another and proof of such causal connection between the act of the accused and the death of the deceased leads to the second stage for deciding whether the act proved amounted to culpable homicide as defined in section 299, I.P.C. If the answer to this question is prima facie found in the affirmative, third stage for considering the operation of Section 300, I.P.C. is reached, At this stage the Court has to determine whether the factrs proved by the prosecution bring the case within the ambit of any of the four classes of the definition of ‘murder’ specified in Section 300 I.P.C. and if the answer to this question is not in the affirmative, but is in the nagative the offence would be culpable homicide not amounting to murder punishable under the first or second part of Section 304, I.P.c. If the reply to this question is found in the positive and the case comes within any one of the exceptions enumerated in Section 300, the offence would again be culpable homicide not amounting to murder punishable under the first part of Section 304, I.P.C. It is also admitted that all murders are culpable homicide but all cases of culpable homicide cannot be termed to be murder. Even though no exception is pleaded or prima facie established on the evidence on record, the prosecution is required to bring the accused under any of the four clauses of the accused would get its benefit and the charge would be held to have been proved of culpable homicide not amounting to murder. Even though no exception is pleaded or prima facie established on the evidence on record, the prosecution is required to bring the accused under any of the four clauses of the accused would get its benefit and the charge would be held to have been proved of culpable homicide not amounting to murder. The prosecution, therefore, has to prove in every case of cuolpable homicide to attract the provisions of Section 300, I.P.C. that the act by which the death was caused was done (I) with the intention of causing death or (ii) with the intention of causing such bodily injury as to offender knows to be likely to cause the death of the person to whom the harm is caused, or (iii) 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 (iv) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death.” 26) It would appropriate to refer the Section 304 of I.P.C. to appreciate the issue properly: Section 304: Whoever commits culpable homicide not amount to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death; Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 26A) From the evidence recorded by the trial Court as well as other papers placed before us, it appears to us that there was long standing dispute between the appellants & Ghosh family. The accused had chosen to put the Ghosh family in fear by doing something scaring. Whether they had any intention to kill any member of the family or not is really doubtful. The accused had chosen to put the Ghosh family in fear by doing something scaring. Whether they had any intention to kill any member of the family or not is really doubtful. Incidentally or unfortunately, they met the old lady Fultulsi first of all. The accused Lakshman hit her on her head while appellant Gitarani and Kamakshya caught hold her. Other two accused, however, did not assault or tried to assault Fultulsi. Had they any intention to kill her, all of them could have done so very easily by attacking Fultulsi together. Other two accused persons were also having iron rods with them which they did not use on Fultulsi. Lakshman hit Fultulsi on her head obviously to cause a bodily injury. Nowhere within the four corners of the evidence recorded by the Trial Court it has been stated that he hit Fultulsi with an intention to kill her or knowing that the death was likely to be caused. Therefore, we find substance in the submission of Ms. Gomes. Intention to killl being sine quo non in the a case of murder, absence of same amounts to culpable homicide not amounting to murder and offence can be said to have committed under Section 304 Part II of the IPC. 27) Taking everything into consideration we are of view that the order of conviction is sustainable in law but not under Section 302 of IPC but under Section 304 – Part II of the IPC. In our estimate, the accused persons committed the offence punishable under Section 304 – Part II of the IPC and are liable to be punished for that. 28) Ms. Gomes contended that amongst the appellant Lakshman is no more alive. The appellant Nitai and Subrata already undergone imprisonment for more than 12 years in connection with this case. The appellants Gita Rani and Kamakhya were in custody for about two months and at present are on bail. She contended that this Court should take a lenient view as far as sentence is concerned taking the facts above into consideration. 29) As far as the appellant Lakshman is concerned the case is abated against him. We find that the appellants Nitai and Subroto have already undergone rigorous imprisonment for more than 12 years in connection with this case. She contended that this Court should take a lenient view as far as sentence is concerned taking the facts above into consideration. 29) As far as the appellant Lakshman is concerned the case is abated against him. We find that the appellants Nitai and Subroto have already undergone rigorous imprisonment for more than 12 years in connection with this case. We have already found that they committed offence punishable under Section 304 part II of the IPC and not an offence under Section 302 of IPC. Considering the period of their detention, we reduce their sentence to the period already undergone by them in connection with this case. As far as appellants Gitarani and Kamakhya are concerned, we find that although they had active role in committing the offence, they did not hit any of the members of Ghosh family. They were in custody for about two months in connection with this case and were granted bail by this Court. Considering the entire facts and circumstances, we reduce their sentence to the period they were in custody in connection with this case. However, they are sentenced to pay a fine of Rs.15,000/-each which is to be disbursed equally to the injured persons as compensation. In case of their failure to pay the fine amount within thirty (30) days from the date of passing of this order, they should undergo rigorous imprisonment for three years. 30) The appeal is, thus disposed of with the order above.