Loharam Ghosh vs State of West Bengal

Ravi Krishan Kapur, J.

This is an appeal directed against the judgment and order of conviction dated 27 of September, 2012 and 29 September, 2012 passed by the

Learned Additional Sessions Judge, First Track Court-III, Krishnanagar, Nadia in Sessions Trial No.VII (March)2008 arising out of Sessions Case

No. 69(5) 2007 convicting the appellant under Section 302/34 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life as

well as pay a fine of Rs.5000, in default to suffer rigorous imprisonment for 9 months each.

The case of the prosecution, in brief, is that information was lodged by Uday Ghosh, son of Sadhan Ghosh that on 22 October, 1995 at about 8 a.m.

due to a previous quarrel the accused alongwith Jhunu Ghosh, Duryodhan Ghosh, Bhanshi Ghosh and Naru Ghosh all of a sudden attacked the house

of the complainant with spear, battle-axe, ram-dao, pipe gun and also threw brickbats. As a result of the attack, the uncle of the complainant Tapas

was wounded by brickbats on his head and his grandmother Jamuna Bala Ghosh was also wounded by brickbats on her right leg. At the time of the

attack, the accused Loharam Ghosh fired a gun-shot with a pipe-gun at the father of the complainant, Sadhan Ghosh. Consequently, a bullet struck the

father of the complainant on his belly due to which he sustained severe bleeding injuries. Thereafter, some people including the complainant took the

complainant’s father to the Dhubulia hospital for treatment and subsequently the father was referred to Saktinagar Hospital by the doctor. But due

to the injuries he had suffered Sadhan Ghosh ultimately succumbed and died.

Upon receipt of the complaint by the Dhubulia Police Station, the police investigated the case and submitted a charge sheet against the appellant

and the other accused persons. The case being a Sessions triable case, was committed to the Court of the Learned Sessions Judge at Nadia which

was thereafter transferred to the Additional Sessions Judge, Fast Track Court-III, Krishnanagar, Nadia. Subsequently, charges were framed under

Section 302/34 of the IPC against all the accused persons including the appellant. The appellant pleaded not guilty and claimed to be tried.

In the course of the trial, the prosecution examined 16 witnesses and also produced documents in support of their case. The accused persons were

examined under Section 313 of the Cr.P.C., when the trial ended. The general stand of the accused persons was that they were innocent and had

been falsely implicated in this case. In conclusion of the trial, by a judgment and order, dated 29 September, 2012 the Trial Judge convicted and

sentenced the appellant as stated hereinabove.

Hence the present appeal.

Mr. Prabir Majumder, Advocate appearing for the appellant strenuously argued that in convicting the appellant the Trial Court committed errors

both in law and on the facts. He contended that there was evidence which substantiated that PW-1 was not an eye witness but a post-occurrence

witness. He next contended that in respect of the place of occurrence there were serious discrepancies and infirmities. With particular reference, to

the evidence of PW-9, he submitted that there were discrepancies as to how the incident occurred.

Counsel for the prosecution submitted that in the circumstances the Trial Judge justifiably held the appellant guilty under Section 302 and correctly

awarded the sentence of life imprisonment to the appellant.

Before addressing the rival contentions of the parties I think it is essential to appreciate the evidence of the witnesses in this proceeding.

PW-1 (Uday Ghosh) is the son of the deceased and the de facto complainant. He categorically stated that his father had died because of a gun-shot

fired with a pipe gun by the appellant. He stated he stood besides his father inside the house and at the time when his father was tying a cow, the

appellant forcefully entered the house alongwith Jhunu Ghosh, Banshi Ghosh, Naru Ghosh and fired a shot in the stomach of the deceased. He also

stated that the accused persons were armed with dao and other weapons. He stated that when the appellant aimed the gun towards him he lost his

senses and fell on the ground. He stated that in his house there were other relatives like his mother, kaka and jaitha who lived with him. He stated that

his mother stood in the same place where he was standing. He stated that he had gone to the hospital with his father by a cart. He stated that he had

lodged a written complaint with the police station. He stated that he was illiterate and is unable to read or write. He identified the appellant in Court. In

cross-examination, he stated that majority of people in his locality belonged to the Ghosh community. He stated that at the time of the incident he was

standing besides his father. He identified the location of his house and he described his house where the incident had occurred. He stated that he could

not recollect that he told the police that the appellant had aimed the pipe gun at him when he fainted. He stated that he could not recollect whether the

place of occurrence was full of blood.

PW-2 (Sanjay Ghosh) is a cousin of the complainant. He stated that the deceased was his maternal uncle. He stated that he had been murdered. He

stated that he had transcribed the complaint as per the words of the complainant. He stated that after writing the complaint he read over the same to

the complainant who then put his signature on the complaint. He stated that he had also put his signature on the complaint. In cross-examination, he

stated that he was a cultivator and had a business. He stated that Dhubulia police station is 2 k.m. away from their village. He stated that on the day

of the incident the complainant had called him from his house. He stated that he was not a dalal of Dhubulia P.S. He stated that it was not a fact that

he was on good terms with any of the police officers and that it was not a fact that he was tutored by the police.

PW-3 (Bhandul Ghosh), is the brother of the deceased. He stated that the deceased was murdered. He stated that he could not recollect the exact

year and date but that it was approximately 8/9 a.m. at the house of the deceased when the appellant Loharam Ghosh had fired the shot at Sadhan

Ghosh. He stated that the other persons namely Jhunu Ghosh, Naru Ghosh and Banshi Ghosh were present. He identified the appellant. In cross-

examination, he stated that the police had interrogated him but he could not remember all the facts. He deposed that he had told the police that the

incident took place at approximately 8/9 a.m. He told the police that Durjodhan Ghosh, Dalim Ghosh, Naru Ghosh and others had attacked his para

(locality). He deposed that they had thrown brickbats at the home of the deceased. He stated that the people of the locality carried the deceased to

the hospital. He stated that trouble had brewed due to the theft of a goat. He reiterated that the deceased had been shot by the appellant.

PW-4 (Haradhan Ghosh), is the brother of the de facto complainant and the son of the deceased victim. He deposed that his father died on 22

October, 1995 at 8 a.m. He deposed that his father was tying a cow at the cowshed which was situated within the premises. He stated that he was at

his home at the time of the incident. He further deposed that at the time of the incident his mother, his brother and his father were also present in the

house. He stated that the de facto complainant is his elder brother. He stated that at the time of occurrence of the incident the appellant, Jhunu Ghosh,

Banshi Ghosh and Naru Ghosh threw brickbats and entered their home. He stated that the appellant fired a shot with a pipe gun in the stomach of his

father and his father fell down. He stated that blood was coming out from his father’s abdomen as a result of the gunshot. He stated that he tied

the wound with a gamcha (cloth) and took his father to the hospital. He stated that Narayan Ghosh and Sudhanshu Ghosh went to the hospital with his

father. He stated that his grandmother Jamuna Ghosh was injured.

He stated that his uncle Tapas Ghosh was also injured by brickbats. He stated that 2/3 days before the incident there was a dispute regarding stealing

of a goat in their village. He stated that the goat belonged to the people of Iswarchandrapur. He stated that his father and uncle had objected to this

incident. He identified the appellant in Court. He further deposed that the accused namely Banshi Ghosh and Jhunu Ghosh had died and Naru Ghosh

was not present in the Court. In cross-examination, he deposed that he was a cultivator and had studied up to class-IX. He further deposed that he

had told the police that his father was tying a cow at the time of the incident. He also deposed that his father and his uncle raised an objection

pertaining to the theft of the goat. He deposed that many people had seen the incident. He deposed that he had told the police that blood was coming

out from his father’s abdomen. The police had come to their house at 2 p.m. He had shown the place of occurrence to the police. He deposed

that he and his family was nothing to do with the theft of the goat. He deposed that it was not a fact that he was tutored by the de facto complainant

to give any evidence.

PW-5 (Narayan Ghosh) is also the brother of the deceased. He deposed that his brother had died 13/14 years ago. He deposed that the incident took

place at around 8/8.30 a.m. He deposed that he was at the house of the deceased when the incident occurred. He deposed that his house is

contiguous to the house of the deceased. He deposed that he was sitting at the home of the deceased when the incident occurred. Jhunu Ghosh, Naru

Ghosh, Banshi Ghosh and Loharam Ghosh were also present at the time of the incident.

He deposed they threw brickbats at the house of the deceased. He deposed that the appellant fired a shot at the deceased. He deposed that the

deceased was injured on the left side of his stomach. He stated that Jamuna Ghosh and Tapas Ghosh were also injured by brickbats. He deposed that

he had carried the deceased to the hospital by a cart. He stated that the deceased was first taken to Dhubulia hospital and then to Saktinagar hospital.

He identified the appellant in the Court. In cross-examination, he deposed that there was some incident which had occurred between the people of

Iswarchandrapur and Balainagar in which a constable namely Uttam Ghosh had been murdered. He deposed that he had told the police that he lived

just opposite the home of the deceased. He deposed that he did not know whether there was any dispute due to a goat in Duluipur and Balainagar. He

deposed that he did not know whether eating of the goat was a reason for the dispute between the people. He deposed that it was not a fact that no

incident had taken place at the home of the deceased. He deposed that he was not tutored by the complainant into giving evidence.

PW-6 (Sukumar Ghosh), deposed that the deceased was murdered at his house. This witness was declared hostile by the prosecution. In cross-

examination, this witness stated that he knew the appellant and identified the appellant in Court. He stated that the appellant fired a gun-shot in the

stomach of the deceased. He deposed that the police did not interrogate him. He deposed that he lived on the southern side of the house of Loharam

Ghosh. He was a cousin of the deceased. He deposed that he had good relations with the deceased. He deposed that there was some trouble

between the people of two localities.

PW-7 (Sudhansu Ghosh). He deposed that he knew the deceased as they were residing at the same locality. He deposed that he was not at home

when the incident occurred. This witness was declared hostile by the prosecution. In cross-examination, this witness deposed that police had not

interrogated him. This witness did not tell the police that the appellant had shot his elder brother being the deceased. He identified the appellant in

Court. This witness further stated that he went to the field in the morning and returned only at 3.30 p.m. He further stated that there was some trouble

between the people of Duluipur and the adjacent village being Balainagar. He further deposed that he had taken the injured deceased from the

roadside of Duluipur to the hospital.

PW-8 (Bimal Ghosh) is the younger brother of the deceased. He deposed that about 14 years ago at 8/8.30 a.m. the deceased was feeding the cows

at cowshed. He deposed that he had reached the home of the deceased when he saw Jhunu Ghosh, Banshi Ghosh and Naru Ghosh throwing

brickbats at the home of the deceased and the appellant who fired a shot at the deceased with a pipe gun. He stated that the deceased was injured on

the left side of his stomach. He stated that upon firing of the gun-shot there were hue and cries and people assembled when the miscreants fled away.

He stated that the deceased was taken to the hospital by a cart. He stated that he had not gone to the hospital. He identified the appellant in the Court.

In cross-examination, he stated that the police had interrogated him. He reiterated the incident to the police. He stated that there were a number of

persons who had assembled at the place of occurrence. He denied that no such incident had occurred. He denied that there was any trouble between

the family member of the deceased and the people of Duluipur.

PW-9 (Santi Bala Ghosh) is the wife of the deceased. She deposed that the incident had occurred approximately 14 years ago. The deceased died at

his home. The deceased was feeding a cow when the incident occurred. It was a rainy day when the incident occurred. She deposed that about

8/8.30 a.m. Loharam Ghosh, Jhunu Ghosh, Naru Ghosh and Banshi Ghosh entered their house and threw brickbats at the home of the deceased. She

deposed that at the time of the incident Jhunu Ghosh, Naru Ghosh and Banshi Ghosh caught hold of her husband. She deposed that she tried to resist

but the appellant pushed her and she fell on the ground when the appellant fired a shot at the deceased. She deposed that her mother was hit by a

brickbat. She also deposed that the brother of the deceased Tapas Ghosh was injured with brickbats. She deposed except her husband there were her

sons Haradhan, Uday and Narayan also present at the time of the incident. She deposed that the brother of the husband was also present. She

deposed that she tied the wound of the deceased with a piece of cloth. She deposed that her deceased husband was taken by a cart to the hospital.

She deposed that the appellant was present in Court and she identified the appellant. In cross-examination, she deposed that she told the police all

about the incident. She denied that she gave false evidence. She deposed that she was clearing the floor in the cowshed when the incident occurred.

She denied that no such incident had taken place at their house. She denied that her husband had gone to Belpukur for purchasing fertilizer when the

incident occurred. She denied that there was any false case which had been registered against the accused persons. She denied that her evidence was

false or tutored. She deposed that she was an eye witness to the murder of her deceased husband.

PW-10 (Dr. Ajit Biswas), was posted at the District Hospital at Nadia as a Medical Officer at the time of the incident. He had conducted the post-

mortem examination over the dead-body of the deceased. He deposed that the dead body was brought and identified by a constable. On examination,

he had found a number of injuries namely: (a) bleeding from the nose (b) penetrating injury on the right side of lower abdomen (c) lacerated and

penetrating wound on the left side of lower abdomen (d) multiple perforations or coils on small intestine. In his opinion, the death was caused as a

result of a bullet injury. He identified the signature on the post-mortem report which was marked as Exhibit-2. He deposed that, in his opinion, if a shot

was fired by a gun such injuries might have happened. He deposed that the time of death could not be ascertained. In cross-examination, he reiterated

that the time of death could not be ascertained. According to him, the range of shooting could also not be ascertained.

PW-11 (Tapas Ghosh) is the brother of the deceased. He deposed that the incident had occurred about 15 years ago at the home of the deceased at

around 9 a.m. He deposed that the accused persons had assaulted the deceased with a pipe gun, fala, lathi. He deposed that the accused persons

entered the house of the deceased and Naru Ghosh in particular, had assaulted the deceased with brickbats. He deposed that he had lost his senses at

the time of the incident. He identified the appellant in Court. In cross-examination, he deposed, that he was not examined by the police after the

incident. He denied that no such incident had occurred.

PW-12 (Tapas Mallick), he was the Officer-in-Charge of Dhubulia police station at the relevant point of time. He had investigated the case and filed a

charge sheet against the accused persons. He identified the charge sheet which was marked as Exhibit-3. He also identified the signature of the

Assistant Sub-Inspector who had filled the formal FIR. PW-13 (Samir Bhattacharya), was posted with the Dhubulia Police Station on 22 October,

1995 as O.C. He had taken charge of the investigation. He had examined the complainant, he visited the place of occurrence and prepared a rough

sketch map with index. He identified the sketch map being marked as Exhibit-5 which had been prepared by him. He seized some articles from the

place of occurrence. He identified the seizure list prepared by him. He examined available witnesses and conducted a raid at the house of the accused

persons. He arrested some of the accused persons. He had collected the injury report and had also collected the post-mortem report. He had

examined Sudhansu Ghosh (PW-7). He also examined Sukumar Ghosh both of them had stated that the appellant had shot the deceased.

PW-14 (Karuna Ketan Ghosh) is an acquaintance of the deceased. He had deposed that the deceased had been murdered approximately 10 or 12

years ago. He had visited the Saktinagar morgue. His father had also visited the Saktinagar morgue with him. He put his signature over the inquest

report and his father also put his signature over the inquest report. In cross-examination, he stated that there was some misunderstanding between the

family of Sadhan Ghosh and Kapalies over the issue of food. He deposed that the deceased was an accused in the murder of a constable.

PW-15 (Jayanta Khan), was a retired police officer and had made an endorsement on the written complaint. He had filled the formal FIR which was

marked as Exhibit-4.

PW-16 (Paritosh Ghosh) is the Assistant Sub-Inspector of police. He conducted a “surathal†over the dead body of the deceased. He prepared

an inquest report and appended his signature over the same. In cross-examination, he stated that during preparation of the inquest report he did not get

any particular name of any assailant in relation to this case.

The three witnesses being the two sons and the widow of the deceased namely Uday Ghosh (PW-1), Haradhan Ghosh (PW-4) and Santi Bala

Ghosh (PW-9) are the most natural witnesses to the incident. They are all family members. They were all living together and were present at the

place of occurrence of the incident. The incident happened in the morning when the deceased Sadhan Ghosh was busy feeding the cow. The evidence

of all the three ocular witnesses does not suffer from any fundamental discrepancies and is trustworthy, unblemished and inspires confidence in the

Court. All these three witnesses flawlessly narrated the incident. It was argued by the appellant that the evidence of these witnesses should not be

given much credence because they are ‘related’ witnesses.

It is now well settled by a series decision of the Hon’ble Apex Court that that though great care and circumspection is to be attributed to the

evidence of relations their evidence ought not to be discarded merely on the ground of relationship between the parties (2008) 17 SCC 587 at para 13.

I am also of the view that the evidence of PWs-3, 5, 8 and 11 who all the brothers of the deceased sufficiently corroborates the evidence of PWs-1, 4

and 9. The appellant was identified by these witnesses. Their evidence was cogent, clear and convincing. There is no doubt from the medical report

and the inquest report as to the cause of the death of the deceased being homicidal. I am, therefore, of the view that the close relationship of the

witnesses with the deceased is no ground to reject their evidence mechanically. This is more so when there was no evidence nor suggestion that any

of the witnesses otherwise had any kind of animosity towards any of the accused persons.

I am also of the view that the FIR was lodged promptly. The deceased was shot in his stomach, thereafter, he was taken to Dhubulia hospital

wherefrom he was referred to Saktinagar hospital where he ultimately succumbed to injuries on 22 October, 1995 at 12.20 p.m. (inquest report). The

post-mortem report clearly corroborates the fact that the deceased had died due to shock and haemorrhage as a result of a bullet injury. The death

was homicidal in nature. There is complete parity between the evidence of the ocular witnesses, inquest report and the post-mortem report. The

depositions of PW-16 and PW-10 (being the police officer and the doctor respectively) leave no room for doubt as to the case of the prosecution who

have proved their case beyond reasonable doubt.

The argument on behalf of the appellant that there were minor discrepancies in respect of the place of occurrence of the incident has no force and

deserves to be rejected. It is now well settled by a catena of decisions that minor discrepancies and omissions in the investigation are not fatal to the

case of the prosecution (1999) 9 SCC 525 at para 8. Furthermore, the attempt on the part of the appellant to shift the place of occurrence is neither

clear nor concurring. Minor inconsistencies and contradictions in the evidence of some of the witnesses in respect of throwing of brickbats pertains

only to the other accused persons who have, in any event, been given the benefit of doubt by the Trial Court and have been ultimately acquitted.

Accordingly, there is no substance in this argument made on behalf of the appellant and the same is rejected.

In my view, the prosecution has succeeded in establishing their case. In the above facts and circumstances and for the foregoing reasons, I concur

with the findings of the Trial Court and uphold the conviction and sentence imposed on the appellant. Accordingly, the appeal stands dismissed.

A copy of the judgment along with the Lower Court Records be sent back to the Court below at once. The certified copy of this order, if applied

for, be given to the parties on a priority basis upon compliance of all necessary formalities.