*A FAMILY FEUD AND MURDER

IN THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,

1ST COURT, DISTRICT: BIRBHUM, SURI

Present:- Harjinder Singh, Additional District and Sessions Judge,

Dated, Suri the 25th day of August, 2008.

Sessions Case No.24/1997, [GR Case No.395/95, Birbhum]

Arising out of Md. Bazar P.S. case No. 38/95 dated 13.5.1995.

( u/Secs.147/148/149/326/307/302 IPC)

State v. 1).Tushar Kanti Ghosh and 15 others.

J U D G E M E N T

The Complainant Nirod Baran Ghosh on 13.5..1995 at about 07.30 hours lodged a complaint with the Md. Bazar P.S. in respect of an incident that took place on 12.05.1995 at about 10.00 pm at village Rupganj under P.S. MD. Bazar and in his FIR alleged that on the night of 12.5.95 at about 10.00 p.m. in the night 1)Shri Tushar Kanti Ghosh, 2) Piyush Kanti Ghosh, 3) Benukar Ghosh, 4) Dashrath Ghosh, 5) Krishna Ghosh, 6) Vishnu Ghosh, 7) Astik Ghosh, 8) Rakshakar Ghosh, 9) Ram Prashad Ghosh, 10) Shri Anup Kumar Ghosh, 11) Tanup Kumar Ghosh s/o Tushar Kanti Ghosh of Rupganj, 12) Shri Damodar Ghosh s/o Bagal Chandra Ghosh – Rupganj 13) Shri Narayan Chandra Ghosh s/o Gadadhar Ghosh while armed with lathies and Ballam (spear) and abusing came to the house of the Complainant, Harisadhan Ghosh and Muktipada Ghpsh and pushed the doors of their house and at that time the Complainant came out of the house. At that time, the accused persons assaulted the elder brother Barid Baran Ghosh and as a result his elder brother sustained bleeding injuries and fell down on the ground. As a result of the assault by the accused persons the Complainant, his nephew Shyamal Ghosh, another elder brother Muktipada Ghosh of the Complainant and one domestic laborer Adhir Bagdi sustained head injuries and on other parts of the body. At that time the accused persons threatened the Complainant and other neighboring witnesses to shoot them with the gun and as a result none dared to go near the victim. Thereafter, when the Police from Md. Bazar P.S. came, the injuried persons with the help of a bullock-cart were taken to Md. Bazar Hospital. But, Barin Baran Ghosh breathed his last as soon as he reached Md. Bazar P.S. Thereafter, Shyamal Ghosh – the nephew – of the Complainant was shifted from Md. Bazar P.S. to SIURI SADAR HOSPITAL where his condition was very serious. The Complainant prayed for necessary action against the accused persons. On the basis of the aforesaid Complaint Md. Bazar P.S. Case No.38/95 dated 13.5.1995 under Ss. 147/148/149/326/307/302 IPC was started against the 13 FIR named accused persons. After investigation, the I.O. submitted a Charge Sheet No.54 dated 30-10-95 u/Secs. 148/149/147/325/326/307/302 IPC against 17 accused persons namely, 1) Tushar Kanti Ghosh, 2) Pijush Kanti Ghosh, 3) Benukar Ghosh, 4) Dasarath Ghosh, 5)Bishnu Ghosh, 6) Astik Ghosh, 7) Rakshakar Ghosh, 8) Rampada Ghosh all sons of Nandalal Ghosh,9) Anup Kumar Ghosh, 10) Tanup Kr. Ghosh both sons of Tushar Kanti Ghosh, 11) Damodar Ghosh s/o Late Bagal Ch. Ghosh all of Village Rupganj, 12) Jyotirmoy Ghosh s/o Gadadhar Ghosh, 13) Krishna Ghosh @ Kesto,14) Narayan Chandra Ghosh, 15) Smt. Bani Ghosh w/o Pijush Kanti Ghosh, 16) Smt Sefali Ghpsh w/o Dasarath Ghosh and 17) Smt. Purnima Ghosh w/o Sushanta Ghosh. Accused Tushar Kanti Ghosh died during the pendency of the trial.

This Court on 04-02-2003 framed a Charge u/Sections 148/307/302149 IPC against the accused persons who pleaded not guilty and claimed to be tried. The accused persons neither filed any W.S. as envisaged under Section 233(2) of the Cr.P.C. nor examined any witness in support of their defence case.

POINTS FOR DETERMINATION

DECISION WITH REASONS

Points Nos. 1 to 5:- All these points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. In this case, the prosecution has examined 21 witnesses and proved several documents marked Exts.1 to 16 as per list in support of their case. Some of the witnesses in this case turned hostile and therefore, their status and relationship with the accused persons as well as the victims needs to be explored.

PW1(Nirod Baran Ghosh) – the complainant and PW8 (Muktipada Ghosh) one of the victims of assault are the sons of Gangadhar Ghosh the real brother of the deceased turned hostile. It is worth noting that both of them continue to live in the same village as the accused persons while the family (wife and sons) of their deceased brother have now out of fear of the accused persons as per evidence on record has shifted to the village Danjona from their old residence at village Rupganj. Therefore, one wonders if these witnesses became practical enough and for their personal safety are following the policy that while in Rome do as the Romans do! PW4(Smt. Jayanti Ghosh) being the wife of PW1 could obviously toed the same line as her husband did and denied knowledge regarding the incident.

PW2(Birendra Kumar Ghosh) is the scribe who wrote the FIR but also the grandson of Late Fulchand Ghosh and being the cousin of accused Damodar Ghosh – the grandson of Late Mukunda Ghosh and the accused Jyotirmoy Ghosh - the grandson of Late Babulal Ghosh probably did not dare to offend the heirs of Mukunda Ghosh and Babulal Ghosh as Mukund, Tarini (grand father of deceased Barid Baran Ghosh) , Fulchand and Babulal were four brothers and the sons of Radhaballav Ghosh as per the evidence of PW6(Harilal Mondal). Therefore his turning hostile is understandable.

PW11(Sarat Kumar Ghosh) being the real brother of the accused Damodar Ghosh (both sons of Bagal Ghosh), could not be expected to depose against his own brother.

But in spite of PW1 and PW2 becoming hostile, they partly supported prosecution case. PW1 (Nirod Baran Ghosh) in his evidence stated, “The incident took place on 28th Baisakh 9 years ago. The incident took place at night and I was in my house. On hearing a hue and cry I came out of my house and found my elder brother Barid Baran Ghosh was lying besides the road near a tube-well with severe bleeding injuries on his person. After a while I found that police vehicle came there. The police interrogated me and other who were present there. Being directed by police, I took my elder brother Barid Baran to Md. Bazar P.S. by a bullock cart. My brother was alive then and and he was referred to Patelnagar hospital from Md. Bazar P.S. The attending physician of Patelnagar hospital declared my brother as dead......” He in his evidence further stated, “I know Birendra Kr. Ghosh. He is a resident of our village. Birendra Kr. Ghosh had written the F.I.R. as per my instruction. This F.I.R. is written by Birendra Kr, Ghosh. It bears my signature. This is that F.I.R. Ext. 1.”

Similarly, PW2(Birendra Kumar Ghosh) too in his evidence stated, “....I drafted the F.I.R. as per the instructions of Nirod Baran Ghosh. This F.I.R. was written by me.(identified the F.I.R.) marked as Ext.1 as the said F.I.R.)” Therefore, writing of the FIR by PW2 as per the instructions of PW1 has been established by the prosecution. He in his cross-examination denied the defence suggestions that the F.I.R. was written at the P.S. or that he did not read over and explain the contents of the F.I.R. to Nirod Baran Ghosh.

PW8 (Muktipada Ghosh) another brother of the deceased and a hostile witness in his evidence stated, “About 9/10 years ago there was a marpit on 28th Baisakh at night. I was in my house. I have not seen the incident of marpit. I do not know what had happened.” He is obviously telling a lie as he as per F.I.R. is a victim of assault and from the evidence of PW18 (Dr. Jayanta Kr, Sukul) examined Muktipada Ghosh at Md. Bazar P.H.C. On 13.5.95 in the night and found abrassion over lower part of left arm. The patient was treated primarily at Md. Bazar P.H.C. and was referred to Suri Sadar Hospital Emergency/Orthopedic department for expert opinion about the injury and management of the patient. This fact is corroborrated by Dr. Manoj Kanti Dutta who deposed that the said patient was admitted under him at Suri Sadar Hospital on 14.05.95 but he did not receive any treatment as one Sourendra Ghosh took away the patient from the Hospital at his own responsibility.

As per the F.I.R. we find that Shyamal Ghosh(PW12) and Adhir Bagdi (PW13) are also injured witnesses. PW12 (Shyamal Ghosh) in his evidence stated, “I am a resident of Danjona under P.S. Md. Bazar. Barid Baran Ghosh was my father. He died. I know all the accused persons who are present in Court today (identified). We shifted our residence to Danjona after demise of my father and because of torture of the accused persons. Our house is at a distance of 10/12 cubits from Durgamandir. We had to go to our house at Rupganj by a lane beside Durga temple. The temple is situated adjoining to the village road and it is situated in the left side of the exit road. The house of Harisadhan is at a distance of 15 cubits from Durga temple and the house of Harisadhan. Adhir Bagdi is cultivating at present.

The incident took place on 28th Baisakh 1402 B.S. at night. On that night, I myself, my parents, my elder sister Tapati and Adhir Bagdi were in our house. On that night somebody had called my father from outside by knocking the door. My father went out. Thereafter we heard shouts from outside. All of us rushed to the place immediately. On coming out I found that my father is being assaulted (by) Tushar, Dasarath, Kanu, Benu, Kesta, Bishnu, Ramprasad, Astik, Rakshakar. Then says all the accused assaulted my father except these two persons (the witness identified Jatirmoy and Damodaar as the said two persons.) Accused Bishnu was armed with a sabal and other accused were armed with lathi. When I myself, Adhir Bagdi, my mother and my sister tried to rescue my father the accused persons assaulted us. I sustained bleeding injury on my head. My father was assaulted on his head by a rod and Krishna poured acid on his eyes. My father fell down. The female accused had thrown acid bulb and they were armed with lathis. Female accused also pelted stones from the roof of a house. The villagers were not allowed to come. Nandalal Ghosh was standing at the spot with a gun. Nandalal died in the meantime. When we were lying injured the villagers of village Danjona shifted my father, Adhir and myself to the hospital.........” The evidence of this witness regarding injuries sustained by him and Adhir Bagdi is corroborated by Dr. P.S. Dey (PW17) who on 13.5.95 as M.O. examined them at 1.40 a.m. He in his evidence regarding the injuries of this witness deposed, “ On examination I found a cut injury measuring about 1 c.m. x 1 c.m. over middle of the frontal bone with bleeding. The patient was given primary management and referred to Suri Sadar Hospital for better treatment and medico legal opinion. As regarding injuries sustained by Adhir Bagdi, he stated, “On examination I found the patient seems drowsy but oriented with one c.m. x 1 c.m. cut mark over left parietal region. I also found one 2 c.m. x 2 c.m. cut mark over occipetal parietal region. The patient was given primary management with stitches, pressure bandage and titanus toxoid.” This witness being injured as stated in the F.I.R. and having lost his own father in the incident, would be the last person to screen the real offenders and falsely implicate innocent persons. Hon'ble SC in Dalip Singh and others v. The State of Panjab, AIR 1953 SC 364 (Vol,40 C.N. 81) observed, “ A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation of criticism of the evidence is often a sure guarantee of truth. No doubt no sweeping generalisations can be possible in all cases, but at the same time, there can not be any general rule of prudence to require corroboration before the evidence is believed. Each case must be limited to and governed by its own facts.”

The evidence of this witness was criticized by the defence on the grounds that his evidence does not tally with the FIR story that even though he saw Nandalal Ghosh standing at the spot there is no mention of his name in the FIR and in the FIR there is no mention of any female accused persons. In my opinion there is no such discrepancy as because he is not the maker of the FIR in the first place and the FIR mentioned the victims being threatened with gun. This explains why the deceased could not be removed immediately to the Hospital after the assault. Hon’ble Kerala H.C. in Mani v. State of Kerala,1987 observed, “A first information report is not, and need not be, a catalogue of all information that may be in the mind of the informant. Several fat ors would determine what would be said and what would be missed. The dimensions of perception, the sense of importance or unimportance of events in the mind of the maker of the statement, his own state of mind, his views of relevancy and irrelevancy would all form the backdrop in which the state made will have to be considered. A first information report is not an encyclopedia of the entire prosecution case , but only a starting point that alerts the investigating machinery into the process of probe the result of which will be evaluated y the Court. Therefore, no fault can be found with the first information report about a murder case lodged by a witness because the informant did not mention the injuries sustained by one of the witnesses in the course of the same transaction.” A similar view was taken by Hon’ble SC in Rattan Singh v State of H.P., AIR 1997 SC 768 wherein Hon’ble SC observed, “It is settled law that FIR are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.”

This witness (PW12) saw his father being assaulted by Sabal and lathies by the accused persons. Dr. S.K. Hazra (PW 16) conducted Post Mort em over over the body of Barid Baran Ghsh and he in his evidence stated, “On examination I found that rigour mortis was present. I found the following injuries on examination of the dead body:-

Next we must deal with another proven injured witness and he is none else than PW 13 (Adhir Bagdi). He in his evidence stated, “I used to do work under Barid Baran. I cannot recollect the date of incident. I was in the house of Barid Morol. On that night I myself, his wife, his son and one daughter were present in the house. The incident took place at night when the wife of Barid Baran was distributing rice. At that time somebody knocked the door and Barid Baran went away. There was shout outside after departure of Barid Baran and we went out to see what had happened. We found that a marpit is going on. The accused persons who are present in Court today (identified the accused) were assaulting Barid Baran. We tried to rescue. I myself, Shyamal and some villagers tried to rescue and we were assaulted. I myself and Shyamal sustained bleeding injury on our head. Benukar and others assaulted us. Barid Baran died. We were taken to Patelnagar hospital wherefrom we were taken to Suri Hospital. We were in the hospital for 9/10 days.” The defence could not demolish the evidence of this witness. In his cross-examination it was suggested to this witness that Barid Baran had kept in his house as a hired lathial, but he denied the allegations. But, even if the suggestion be true, it only shows how insecure the deceased felt from the accused persons that he had to kept in his house a hired lathial to protect himself and members of his family in the night.

Now let us revert to the evidence of Smt. Sefali Ghosh(PW3) the wife of the deceased Barid Baran Ghosh. She in her evidence stated, “ I am at present residing at Danjona under Md. Bazar P.S. after the incident. Previously I used to reside at Rupganj under P.S. Md. Bazar. Barid Baran Ghosh was my husband. I know the accused persons who are present in Court today (identified the accused on dock). They murdered my husband.

The incident took place on 28th Baisakh, 1402 B.S. around 9/10 P.M. at night. I was serving rice at the time of incident in the dishes. Somebody knocked at the door from outside at that time by saying that Gomosta is calling. Harisadhan Ghosh is our Gomosta. My husband told me that as the son of the Gomosta was ill, he will go to his house and will come back and take the supper. As my husband did not return back even after sometime I asked my son Shyamal to see see where his father had been and to call him. I heard from my son that when he reached there his father was being assaulted by the accused and he was also assaulted when he tried to rescue his father. When my son Shyamal went out of my house in search of his father I heard a shout of my son by saying “Ma go”. Adhir Bagdi, Tapati Ghosh and I myself were inside the house when my husband and son already went away. On hearing the sound of my son 'Ma go' we all rushed to the place and found that my son Shyamal is being assaulted by accused Anup, Tanup and Ramu by means of lathi. I also found that my husband was also being assaulted by Dasarath, Krishna, Bishnu, Raksha, Pijus, Benu, Tusar, Astik by means of lathi and sabal. Bishnu was armed with sabal and other accused named above were armed with lathi. I myself and my daughter tried to rescue my husband from the clutches of the accused. My husband being assaulted fell down beside the tube-well at a distance 5/7 cubits from the tube-well. Shyamal was also fell down being assaulted by the accused. When I tried to rescue my husband and son I myself and my daughter Tapati also sustained injury. Adhir Bagdi also sustained bleeding injury on his head when he had been to the place of occurrence to rescue. When my husband fell down being assaulted accused Kesta poured liquid substance on the eyes, on the mouth and navi of my husband by saying that he will regain senses immediately. As soon as the liquid was poured on the person of my husband my husband started jerking his body. My husband could not speak. Accused Bani, Sefali and Purnima were throwing pieces of glasses of broken bottles. The father of Benu was showing fire arm.................” Her evidence gets sufficient corroboration from medical evidence -since the stomach of the deceased was found empty as per the PM Report (Ext.7) - and the evidence of other victims of the crime as already discussed above. Even the hostile witness PW6 (Harilal Mondal) in his evidence stated, “While I was in the house of Harisadhan I heard shouts 'Mele go, melego'. I was standing in the courtyard of Harisadhan Ghosh. Stones and brick bats were being thrown from the roof of Damodar. I cannot say who pelted stones and brick bats.” This hostile witness(PW6) in his evidence also stated, “When I was returning back from the temple, the youngest son of Harisadhan Ghosh became unconscious.” Therefore, the evidence of PW3 the wife of the deceased to the effect that when she was serving rice to her husband, at that time somebody knocked at the door and called her husband that Gomosta has called him and that her husband left the house saying that the son of Gomosta was sick and he would return soon cannot be doubted.

PW 5 (Smt. Tapati Ghosh) – the daughter of the deceased and PW3 ( Smt. Sefali Ghosh almost repeated what her mother except ommission regarding hearing of the sound of Melego, melego.' Such minor discrepancies should be ignored.

Hon'ble SC in Bhoginbhai v. State of Gujarat, AIR 1988 SC 753 = 1983 Cri.L.J. 1096 observed, “Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—

Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.”

PW 19 (Amaresh Mazumdar), the first I.O. in his evidence stated, “It is true that in connection with this case a Departmental proceeding was started against me.” Therefore, in this case on account of shabby investigation in this case, the effect of such discrepancies become all the more diluted.

A perusal of the Post Mortem Report (Ext.7) shows that the Surgeon during PM examination found that the stomach was empty. This corroborates the version of the victim-witnesses from the family of the deceased that the deceased went out on being called without taking supper when the rice was being served by PW3 (Smt. Shefali Ghosh). Seizure of Blood stained earth, broken pieces of glass of bottles as per Ext. 2 (Seizure List) by the I.O. from in front of the house of Haradhan Ghosh confirms the P.O. and corroborates the version of the witnesses that the female accused persons threw bottles and glass to prevent the other villagers come to the rescue of the deceased Barid Baran Ghosh. As per the sketch map (Ext 15) the P.O. is in front of the house of Harisadhan Ghosh (The Gomosta) indicated by 'N' and near the Tubewell (T) the place where the deceased was summoned by the accused persons before the assault. The house of Damodar Ghosh (E) is located in such a position that glass bottles, brick bats and stones can be thrown from that place and observed from the house of Harisadhan Ghosh 'N'.

PW 18 ( Dr. Jayanta Kr. Sukul) who examined one of the victims Mukti Pada Ghosh in his evidence in cross-examination stated, “M.O. has brought today the Admission Register of the Hospital regarding date 12-05-1995. It appears from the Serial No.827 dated 12-05-1995 that one Bishnu Ghosh s/o Nandalal Ghosh of village Rupganj P.S. Md. Bazar was admitted in the hospital.” Ld. Advocate for the accused submitted that the prosecution has failed to explain how Bishnu Ghosh sustained injuries on the said date and as such the case of the prosecution can not be believed. I do not agree with this argument as it is within the special knowledge of the said accused how he came about the injuries and it is for him to tell the Court how he came to sustain such injuries. Non explanation of such injuries does not affect prosecution case at all.

This Court is not left with any doubt in its mind that it is the accused persons who were the assailants on account of the following facts:-

Some of the prosecution witnesses alleged that the accused Krishna poured some liquid (acid) in the eyes and navi of the deceased after he fell down. But there is nothing in the Post Mortem report (Ext. 7) to suggest that the deceased suffered from any injuries caused by acid. It may either be on account of the PM report being prepared in a perfunctory manner or on account of the witnesses exaggerating. Hon'ble Supreme Court in State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = AIR 1988 S.C. 1998 observed, “....With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reasons to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside a criminal trial merely to see that no innocent man is punished. A Judge also presides over to see that a guilty does not escape. One is as important as the other. Both are public duties which the Judge has to perform....”

Hon'ble Supreme Court while disposing off Criminal Appeal No.87 of 2004, Chacko @ Aninya Kunju and others v. State of Kerala, disposed of on 21.01.04 observed as follows:-

“Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be acceptable.”

Ld. Advocate for the accused on 19.08.08 after closure of arguments on 12.08.08 filed a xerox copy of a ruling of Hon'ble SC in Babu Ram and Others v State of Punjab, (2008) 2SCC (Cri) 727 wherein Hon'ble SC in para 18 and 19 thereof observed, “ It is well settled law that in a murder case, the non-explanation of the injuries sustained b y the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

“1. that the the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

2. that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

3. that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.”

In para 19 of the Ruling Hon'ble SC observed, “Finally, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.”

A perusal of the aforesaid Ruling shows that in the aforesaid case evidence regarding sustaining of injuries was adduced by the defence. In the said case the accused Indraj as per para 14 of the Ruling suffered 7 injuries of which injuries Nos. 1 and 2 were incised wounds and the remaining 4 injuries were abrasion injuries. The wife of accused Indraj Smt. Maya also suffered 3 injuries. In this case the defence did not adduce any such evidence that the accused suffered any serious injuries. The aforesaid ruling has not over-ruled an earlier ruling of Hon'ble SC in Jagdish v State of Rajasthan, AIR 1979 SC 1010 wherein Hon'ble SC laid down the criteria for the application of the aforesaid principle as follows:-

“It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as the the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied:

Needless to say that the defence did not satisfy the aforesaid pre-requisites for the application of the principle of law as enunciated in the Ruling cited by them. No evidence was adduced by any of the accused persons in support of their defence case nor any injury report to show that any serious or grievous injury was sustained by any of the accused persons is proved by the defence. It is true that PW18 (Dr Jayanta Kumar Sukul ) in his evidence on being cross-examined referring to Injury Report Serial No.E-167 deposed that on 12.05.1995 he examined Bishnu Ghosh and noticed 9 injuries on his person and opined that some of the injuries were serious. But the defence dare not get the said injury report page of the register get Exhibited in their favor nor took details of the said injuries. Normally an unexhibited document can not be used by the prosecution against the accused persons, yet as per the Ruling of Madhya Pradesh High Court in Shatrughan and another v. State of Madhya Pradesh 1993 Cri.L.J. 120 the defence can not be shut out from that document, merely because the prosecution had not formally proved it. Since the entire edifice of the defence case is built up on the defence case that when Bishnu Ghosh was attacked by the deceased and his men, he exercised the right of private defence, let us see the nature of the 9 injuries sustained by the said accused as per the unexhibited document to find out if the same is of any help to the defence or not. The unexhibited page of the injury report register reads as follows:-

“E-167/12.05.95 at 11.25 P.M. Bishnu Ghosh 29/H/M

S/o Nanda Lal Ghosh

Village: Rupganj

P.O. Sahela Roypur

P.S. Md. Bazar

District: Birbhum

According to the statement of the pt. he was assaulted at about 10 PM on 12.05.1995 at Rupganj village with spears, Lathi etc.

O/E

A perusal of these injuries shows that injury No.1 is no injury and all other injuries including the injury No.8 which is 0.5 cm deep pointed cut injury are superficial injuries and all these injuries except injury No.2 can be caused by fall if a person falls backwards accidentally on the ground with a sharp cutting weapon in his right hand and while trying to save himself by his left free hand by extending his left hand towards the ground to reduce the impact of fall by way of reflex action as all these injuries are either on the left side of the various parts of the hand or that of the back of this accused. While falling injury No.8 - a minor penetration of 0.5cm - can be caused by the sharp cutting weapon being held by such a person in his right hand during such backward accidental fall.

Therefore, the pseudo defence case regarding the accused Bishnu Ghosh being first assaulted by the deceased and other persons on his way back home from work and his retaliation in exercise of the Right of Private Defence evaporates in thin air like the droplets of dews that vanish the moment they get exposed to the heat of the sun-rays. In a nut-shell the defence case, gets miserably destroyed when weighed in the scale of logic and reasoning, leaving absolutely no room for holding two views so that the Court, in the event if there be any possibility of holding two views of an incident may adopt the view that favors the accused. Therefore, the defence miserably fails to give a version which competes in probability with that of the prosecution one, as is required by the ruling cited by the defence. It is extremely improbable that accused Bishnu Ghosh on being assaulted by at least four persons namely the deceased Barid Baran Ghosh, Shyamal Ghosh, Adhir Bagdi, Mukti Pada Ghosh with deadly weapons (as these persons as per Exts. (7,10), (9), (4,8) and (11,12) are injured persons - would sustain only eight superficial injuries while he in exercise of his right of private defence would succeed in causing serious injuries to four persons, of such a nature that one of them (Barid Baran Ghosh) succumbed to the injuries sustained by him. Now let me revert to the injuries sustained by the deceased Barid Baran Ghosh as per the evidence of the Dr. S.K. Hazra (PW16) who found the following injuries on the person of the deceased:-

In my opinion the cause of death of above subject was due to shock from head injury which was homicidal and ante mortem in nature.” The injury on the right wrist joint with fracture of radius and ulna suggests that on being assaulted by some weapon like lathi, iron rod or sabol, the deceased once tried to save himself by trying to avoid the assault by getting hold of the weapon of offence, but the force of assault was so strong that he sustained fracture of the radius and ulna of the right wrist joint. Similarly the injury found on dissection with depressed fracture of the right parietal bone (which is the upper portion of the head) suggests that this injury was undoubtedly homicidal injury as no body can while falling bring the upper portion of his head in contact with the floor or earth. The deceased aged about 55 years was definitely neither somersaulting to dive into a swimming pool nor indulging in an gymnastic activity on the road at odd hours i.e. 10 pm in the night. Therefore the doctor, contrary to the submission made before me during the argument, rightly rejected the suggestion that such injuries can be caused by fall in the following words, “It is unnatural and unlikely because of violent fall beside the tube-well these injuries noted by me were caused” and he rightly opined that the injuries sustained by the deceased were homicidal and ante mortem in nature.

Next ld advocate for the accused persons argued before me that the FIR was lodged with delay and after much deliberations and projects a concocted story. According to him, the incident as per FIR took place at 10 pm on 12.05.1995 while the FIR as per Ext.14 was lodged on 13.05.1995 at 7.30 am after an unexplained time gap of 9.30 hours even though the police as per the evidence of PW2 (Birendra Kumar Ghosh) the came in the night. He, therefore, argued that this unexplained delay is fatal to the probabilities. This is an absurd argument as because except PW2 who is a hostile witness none other reliable witness stated that the police came in the night. The relative of every injured witness wants that the injured person should be rushed to the hospital as early as possible so that the life of the seriously injured person may be saved. From the evidence of PW18 (Dr. Jayanta Kr. Sukul) and Ext.10 we find that the deceased was brought to the Md. Bazar P.H.C. at about 1.40 hours 3.40 hours after the incident and he was declared brought dead by the doctor. When the male members of the family say Barid Baran Ghosh, Shyamal Ghosh and laborour Adhir Bagdi are either dead or seriously injured and hospitalized, the female members of the family like PW3(Smt Sefali Ghosh) and PW5(Smt. Tapati Ghosh) can not in the dead hours of night be expected to go to the P.S. which as per Ext.14 is located at a distance of 7 kms from the P.O. particularly when as per evidence of these two female witnesses the female accused persons were throwing pieces of glasses of broken bottles and the father of Benu, Nandalal Ghosh – now dead – was roaming about with a gun in his possession to scare away the villagers and to ensure that none came to the rescue of the deceased who after the assault fell down on the earth and was unable to speak. When the accused persons themselves ensured that none should come to the help of the deceased and even removal of the injured to the hospital was delayed by them, the accused persons have no locus stand ii to raise the plea that there was a delay in the lodging of the FIR. The prosecution version acquires credibility in this regard as because, even the I.0. as per the Seizure list (Ext.2) seized broken bottles of glasses from the P.O. along with the blood stained earth as well as the controlled earth. Under such circumstances there was in my opinion no delay in lodging of the FIR. Hon'ble SC in Ram Jug and others v The State of U.P.,1974 Cri.L.J. SC 116 observed, “....It is true that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the FIR was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of occurrence can be condoned if the witnesses on whose evidence the prosecution relies has no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.” Therefore, in this case, no adverse inference can be drawn on account of delayed lodging of the FIR.

Ld. Advocate for the accused argued that PW3 (Smt. Sefali Ghosh) and PW5(Tapati Ghosh) in their cross-examination stated that they sustained bleeding injuries and their wearing apparels became stained with blood and yet there is neither any injury report in this regard and it is strange that they did not accompany their husband/father to the hospital. Therefore, they are not truthful witness and their evidence can not be believed. It appears that these witnesses who might have received some simple injuries while trying to defend their husband/father and son/brother etc, might have exaggerated in this regard. But this fact alone is not sufficient to throw away their evidence. I have already cited the ruling of Hon'ble SC in State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = AIR 1988 S.C. 1998 earlier in this regard wherein Hon'ble Apex Court observed that merely because the witnesses exaggerated or added embroidery to the prosecution case, the prosecution case can not be thrown out in toto if true in the main. Similarly, merely because they did not go along with their injured husband/father and son/brother to the hospital their evidence can not be doubted. Hon'ble SC in Ram Pratap v State of Haryana, AIR 1983 SC 680 observed. “...Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even, going to the extent of of counter-attacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.” As such, the argument of ld Advocate for the accused persons in this regard cannot be accepted. There may be several minor discrepancies in the evidence of injured witnesses and the relatives of the deceased i.e. PW3 and PW5, yet, I do not find any major discrepancy as would cut at the root of the prosecution case as per the principle of law laid down by Hon'ble SC in State of Rajasthan v Kalki, 1981 Cri.L.J.1012 = AIR 1981 SC 1390. Ld. Advocate for the accused submitted that it was a dark night and as such the prosecution witnesses in absence of electric light could not have identified the assailants. This is again an absurd proposition as none of the witnesses on whose evidence this Court is relying upon stated that it was a dark night. Any defence case built on the basis of stray illogical statements made by any hostile witness can not be relied upon to discredit the truthful evidence of other prosecution witnesses. Accused Bshnu Ghosh in his 313 Cr .P.C. Statement stated that when on 12.05.1995 he was returning home from Md. Bazar P.S. at about 10 pm, and when he had reached near the door of his house, he was assaulted by Nirod, Barid, Shyamal, Adhir, Harisadhan with lathi and ballam (spear) and he sustained injuries and taken to the Hospotal on a motor-cycle by his brother Krishna. We have already seen that this defence story is baseless and concocted. But this statement raises the question, when accused Bishnu Ghosh and others could identify Nirod and others in the darkness, why can't the prosecution witnesses not identify the assailants? To none of the material prosecution witnesses who did not turn hostile, it was suggested that it was pitch darkness and as such the witnesses could not identify the actual assailants. Besides, is it not strange that the victims of assault were the members of the family of the deceased or his relatives or his labor alone and all of them sustained injuries on their head. Therefore when the accused persons in the night could distinguish between their own members and not only the members of the family of the targeted victims, but also their vital organs like heads as all the victims as per the medical report received injuries on their heads, it would be ridiculous to suggest that the darkness affected only the victims and not the assailants. The fractured radius and ulna bones of the right wrist of the deceased suggests that the said injury was sustained while he tried to save himself from being assaulted by a weapon like lathi or sabol by trying to catch hold of the weapon of offence at the time of assault. This could happen only when there is sufficient light for the deceased to see the swing of the weapon being aimed at him, without which there can not be any question of any attempt to stop the assault by hand. In other words, there was sufficient light, may be that of the moon or something else that enabled the assailants to identify the victims and the victims and other witnesses to identify their assailants.

Ld. advocate for the accused persons submitted that from the evidence of witnesses like PW2 (Birendra Kumar Ghosh) we find that there was an incident of marpit or mutual assault between two groups and therefore, the accused persons who fought in self defence can not be dubbed as assailants. Only hostile witnesses like PW2 used the words 'marpit.' The evidence on record clearly shows that when the deceased was summoned and was going to attend the the ailment of the son of Harisadhan – the Gomosta – he was suddenly attacked by the accused persons. As such, these facts are ipsa locutor and clearly establish that the accused persons were the aggressors or the assailants. Therefore the defence argument needs to be rejected with the contempt it deserves.

In a nutshell, this Court on account of the reasoning given above and in the light of evidence discussed above, is convinced that the prosecution has been able to establish the guilt of the accused persons beyond all reasonable doubts. Therefore, the next question is to determine if any of the accused persons is entitled to the benefit of doubt or not.

None of the prosecution witnesses named the accused persons Jyotirmoy Ghosh and Damodar Ghosh nor did they assign any role to them in the assault. Therefore, these two accused persons deserve to be acquitted as PW12 (Shyamal Ghosh) the son of the deceased and himself also a victim gave a clean chit to these two accused persons. But, so far as the other 14 accused persons are concerned, including the three female accused persons, they are guilty of having committed offences u/Secs.148/307/302/149 IPC as all of them by their individual acts exhibited that the common object or intention of all of them was the same i.e. to cause the death of the victim Barid Baran Ghosh as the acts of the female accused persons contributed to the delayed despatch of the deceased to the hospital and thus ensuring his death. Since almost all the victims received injuries on their heads at the hands of the assailants, it is clear that the object of the accused persons was to commit even the murders of Shyamal and Adhir Bagdi as well. As such, all the four points are decided in favor of the prosecution and against these 14 accused persons. Hence, it is

O R D E R E D

that the accused 1) Krishna Ghosh @ Kesto, 2) Bishnu Ghosh, 3) Pijush Kanti Ghosh @ Kanu, 4) Benukar Ghosh @ Beno, 5) Dasarath Ghosh, 6) Astik Ghosh, 7) Rakshyakar Ghosh, 8) Ram Prasad Ghosh @ Ramu, 9) Anup Kumar Ghosh, 10) Tanup Kumar Ghosh, 11) Narayan Chandra Ghosh, 12)Smt, Bani Ghosh, 13) Smt. Shefali Ghosh and 14) Smt. Purnima Ghosh are found guilty u/Sec.235(1) of the Cr.P.C. of having committed offences u/Secs.148/307/302/149 IPC and covicted accordingly. Their bail-bonds stand forfeited and they are taken into Judicial Custody. Fix 26-08-2008 for 235(2) Cr.P.C. examination of these convicts on the question of sentence.

The accused 1) Damodar Ghosh and 2) Jyotirmoy Ghosh are acquitted from the aforesaid offences and discharged from their bail-bonds.

( Harjinder Singh )

Additional Sessions Judge, 1st Court,

Birbhum, Suri.

26.08.2008 Examination of the convicts u/Sec 235(2) of the Cr.P.C. on the question of sentence:-

After considering the submissions made by the convicts on the question of sentence, I find that most of them have familial liabilities and therefore, a lenient view is called for. Besides, the facts and circumstances of the case do not fall within the purview of of the rarest of the rarest case and therefore, in my opinion R.I. For life for the offence u/Sec.302 of the IPC would suffice the ends of justice and the convicts should also be directed to pay a fine of Rs.5000/- each for the said offence i.d. To suffer additional S.I. For five months. So far as the offence u/Sec.307 IPC is concerned, a sentence of seven years of R.I. and a fine of Rs.2000/- i.d. of payment to suffer S.I. for two months would suffice the ends of justice. As regards the offence u/Sec.148 of the IPC, R.I. for two years to each one of the convicts would suffice the ends of justice. There is no question of invoking the provisions of the Probation of Offender's Act in this case as the offences u/Ss.302/307 prescribes a maximum punishment of death or imprisonment for life. Hence, it is

O R D E R E D

that the fourteen 14 convicts who were found guilty and convicted for the offences u/Secs.148/307/302/149 of the IPC on 25.08.2008 are hereby sentenced to suffer R.I. for life and to pay a fine of Rs.5000/- each for the offence u/Sec.302 of the IPC i.d. of payment to suffer additional S.I. for five months each. The 14 convicts are also sentenced to suffer R.I. for seven years each and to pay a fine of Rs.2000/- i.d. of payment to suffer additional S.I. for two months each for the offence u/Sec.307 of the IPC. They are also sentenced to suffer R.I. for 2(two) ears for the offence u/Sec.148 of the IPC each. All the three sentences shall run concurrently. 50% of the fine amount, if realised, shall be paid to the wife of the deceased Barin Baran Ghosh and the victims Shyamal Ghosh and Adhir Bagdi in equal shares u/Sec.357 of the Cr.P.C. since the imprisonment for the offence u/S 302 of the IPC is imprisonment for life, there is no question of any set off of sentence in respect of that offence. But, so far as the other two offences are concerned their detention in judicial custody shall be set off from the period of sentence imposed by this Court for the offences u/Secs.148/307 of the Indian Penal Code. The seized alamats shall be destroyed six months after the expiry of the period of appeal. Let certified copies of this Judgement be given free of cost to the convicts at once and a copy of the Judgement be sent to the District Magistrate, Birbhum, Suri u/Sec.365 of the Cr.P.C. Request Copying Department accordingly.

( Harjinder Singh )

Date: 26th August, 2008. Additional Sessions Judge, 1st Court,

Birbhum, Suri.