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2020 DIGILAW 13 (GAU)

Amit Ghosh v. State of Assam

2020-01-03

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Suman Shyam, J. 1. Heard Mr. B. Prasad, learned Amicus Curiae, appearing for the appellant. We have also heard Mr. R. Baruah, learned Additional Public Prosecutor, Assam, appearing for the respondent No. 1. None has appeared for the respondent No. 2 despite service of notice. 2. By the impugned judgment and order dated 21.10.2017 passed by the learned Additional District and Sessions Judge (FTC), Hojai, Sankardev Nagar, in connection with Sessions case No. 80(N)/2014, the sole appellant Amit Ghosh has been convicted under section 302 of the Indian Penal Code (IPC) for committing the murder of Tapan Ghosh and sentenced to rigorous imprisonment for life and to pay fine of Rs. 10,000/- along with default clause 3. The prosecution case, in a nutshell, is that on 04.09.2012, at about 10-30 p.m., when the deceased was coming home after closing his shop, the appellant, armed with sharp weapon (dao and dagger), had chased the deceased person into the house of Trilochan Singh and hacked him to death. 4. The Officer-in-Charge of the Lanka Police Station had made G.D. Entry No. 94 on 04.09.2012 on the basis of information received from One Bappi Ghosh regarding the murder of Tapan Ghosh. The next day, i.e. on 05.09.2012, an ejahar was lodged with the Officer-in-Charge of Lanka Police Station by Shri Khagen Chandra Ghosh i.e. the elder brother of the deceased, based on which, Lanka PS Case No. 211/2012 corresponding to G.R. No. 1210 of 2012 was registered under Sections 387/448/302/109/34 IPC. The ejahar had named five persons including the appellant as the accused No. 1 besides Sri Girindra Chandra Ghosh, Sri Pradip Ghosh, Sri Babul Ghosh and Sri Swapan Ghosh as the accused Nos. 2 to 5 respectively. As per the projection made in the ejahar, the accused No. 1, on being instigated by the accused Nos. 2 to 5, had demanded money from the deceased as "Hafta" (protection money) for running his shop and when the demand was not met, the accused No. 1 had hacked the deceased Tapan Ghosh to death with a sharp "dao" in a pre-planned maner, on being ordered by the accused Nos. 2 to 5 to do so. 5. Sub-Inspector (SI) of Police Sri Tankeswar Das, who is the IO in this case, had conducted inquest on the dead body and prepared Inquest Report dated 05.09.2012. 2 to 5 to do so. 5. Sub-Inspector (SI) of Police Sri Tankeswar Das, who is the IO in this case, had conducted inquest on the dead body and prepared Inquest Report dated 05.09.2012. Upon completion of investigation, the IO had submitted charge sheet against all the five accused persons for committing the murder of the deceased Tapan Ghosh acting in furtherance of their common intent. The accused persons had pleaded not guilty. Hence, the matter was sent up for trial. Eventually, the learned trial court has convicted the appellant for committing an offence punishable under section 302 of the IPC while acquitting the remaining accused persons for want of evidence to show their involvement in commissioning the crime. 6. In this case, the prosecution side has examined as many as 12 witnesses, out of which, P.Ws. 9 and 10 are the eye witnesses. The defense side did not adduce any evidence but the accused has denied his involvement in the incident. 7. P.W. 9 Sri Trilochan Singh had deposed that on the day of the incident, at about 10-10.30 p.m., while he and his wife were taking meal, Tapan Ghosh had entered his house shouting "bachao-bachao" (save me save me). The accused had entered his house following the victim and hacked the deceased with a dao. P.W. 9 has also deposed that he had raised hue and cry and his sister had also arrive at that time but in the meantime, the accused had fled after dealing the cut blows on Tapan Ghosh. Later on, the deceased had succumbed to his injuries on the way to the hospital. P.W. 9 has further stated that the police had seized a pair of slippers of the accused from the "varanda" of his house, which was seized and later on produced as Ext. 3 along with the seizure list. 8. P.W. 10 Smt. Jasbir Kaur is the wife of P.W. 9 and in her testimony, she had corroborated the version of the P.W. 9 by stating that the incident took place inside her house at about 10 p.m. when she was having meal with her husband. P.W. 10 has stated that she knew the accused. According to P.W. 10, Tapan Ghosh had entered her house by shouting "save me save me". The accused had followed the deceased to her house and thereafter, inflicted cut blows on the victim and left the place. P.W. 10 has stated that she knew the accused. According to P.W. 10, Tapan Ghosh had entered her house by shouting "save me save me". The accused had followed the deceased to her house and thereafter, inflicted cut blows on the victim and left the place. Later on, the victim died. 9. From the testimony of P.Ws. 9 and 10, it is evident that both the husband and wife are the eye witnesses to the incident. During the cross examination, the testimony of both these witnesses could not be dislodged by the defense side. Moreover, it appears from the materials on record that P.Ws. 9 and 10 are neighbours of the victim, residing in that locality, who had incidentally become eye witnesses to the incident since the victim had entered their house in bid to save himself from the attack of the appellant. 10. Ext. 6 is the post-mortem report which indicates that there were as many as 4 (four) cut injuries on the left lower leg, right lower arm and on the scalp of the dead body. P.W. 11 Dr. Ajit Goswami, who had conducted the post-mortem examination on the dead body, has opined that the death was caused due to shock and hemorrhage, as a result of sharp cut injuries. A conjoint reading of the postmortem report and the testimony of P.W. 11 leaves no room for doubt that there were multiple cut injuries inflicted on the body of the victim, which had resulted into his death. 11. P.W. 12 Tankeshwar Das, S.I. of Police was the I.O. in this case. P.W. 12 has deposed to the effect that upon receipt of information regarding murder of Tapan Ghosh by Amit Ghosh on the residence of Trilochan Singh, he had proceeded to the place of occurrence and thereafter investigated the matter. P.W. 12 had stated that he had recorded the statement of witnesses and that inquest on the dead body was done by him on the next morning at about 7 a.m. P.W. 12 has also stated that the accused had confessed his guilt before him and on 10.09.2012, he had seized one "dao" from Rajapukhuri on being shown by the accused. 12. P.W. 5 is another witness examined by the prosecution side who had deposed before the Court that the police had recovered a "dao" from Rajapukhuri pond and the dao was shown to him. 12. P.W. 5 is another witness examined by the prosecution side who had deposed before the Court that the police had recovered a "dao" from Rajapukhuri pond and the dao was shown to him. P.W. 5 has also deposed that the police had told him that the accused had thrown the dao in the pond after committing the murder. P.W. 5 has further confirmed that the Ext. 4 is the seizure list of the "dao" and Et. 4(1) is his signature. 13. P.W. 3 Bapi Ghosh has deposed that on the day of the incident, his wife had informed him over phone that the appellant Amit has hacked Tapan in the house of Trilochan and on entering Trilochan's house, he saw Tapan lying wounded inside the house with blood in his body. P.W. 3 has also stated that he went to the Police Station and verbally informed the Police about the incident and brought the Police to Trilochan's house. 14. P.W. 4 Krishna Debnath has deposed that on the date of the incident he saw Police and people gather around the house of Trilochan and when he asked what had happened, Trilochan (P.W. 9) had informed him that Amit has hacked Tapan. This witness has also deposed that the Police had seized a pair of slippers and took his signature in the seizure list Ext. 3. 15. Sri Kanta Ghosh is another prosecution witness examined as P.W. 6 who has also deposed that on receipt of information about the incident, he along with his family members, went to the house of Trilochan and saw his elder brother Tapan lying in a pool of blood inside the house. 16. The testimony of the prosecution witnesses including the two eye witnesses i.e. P.Ws. 9 and 10 are found to be trustworthy and could be relied upon for reaching a conclusion in this case. The bulk of evidence brought on record by the prosecution side clearly goes to show that the appellant Amit Ghosh had chased the victim Tapan Ghosh to the house of Trilochan and hacked him to death with a "dao" by inflicting multiple cut injuries. 17. By relying upon the evidence adduced by the prosecution side, the learned Trial Court has held that the charge of murder brought against the appellant Amit Ghosh was established beyond reasonable doubt. 17. By relying upon the evidence adduced by the prosecution side, the learned Trial Court has held that the charge of murder brought against the appellant Amit Ghosh was established beyond reasonable doubt. Accordingly, the learned Trial Court had convicted the appellant for committing the offence under Section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/-, in default, rigorous imprisonment for another six months. However, the other accused persons were acquitted on the ground of want of evidence against them. 18. Mr. Prasad, learned Amicus Curiae has argued that the prosecution side has failed to establish the motive behind the crime by leading cogent evidence and to that extent, the conviction was un-sustainable in the eye of law. We are afraid, the said submission of Mr. Prasad cannot be accepted by this court firstly on account of the fact that the ejahar itself had disclosed the motive behind the crime, which was refusal to pay "protection money" by the victim. The informant Khagen Chandra Ghosh was examined as P.W. 1, who has proved the ejahar (Ext. 1). However, during his cross-examination, no question was put to the said witness challenging the veracity of the contents of the ejahar. 19. Secondly, as noticed above, there is overwhelming evidence including the testimony of two independent eye-witnesses, available on record so as to establish the charge against the appellant and therefore motive for the crime, in our view, would not have any material bearing in this case. In the case of Nand Kumar Vs. State of Rajasthan reported in (1963) 2 SCR 890 , the Supreme Court has held that where there is overwhelming evidence, motive for the crime need not be speculated. 20. Having regard to the bulk of evidence brought on record more particularly, the testimony of the two eye witnesses P.Ws. 9 and 10, we are of the view that the learned Trial Court has rightly convicted the appellant for committing an offence under Section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life besides imposing fine of Rs. 10,000/-. We are, therefore, of the view that no interference is called for with the impugned judgment and order dated 21.10.17. As such, the conviction of the appellant and the sentences imposed upon him by the learned Trial Court stands affirmed. 10,000/-. We are, therefore, of the view that no interference is called for with the impugned judgment and order dated 21.10.17. As such, the conviction of the appellant and the sentences imposed upon him by the learned Trial Court stands affirmed. This appeal is found to be devoid of any merit and is, accordingly, dismissed. Send back the LCR.