Calcutta High Court (Appellete Side)
Kesto Ghosh & Anr vs The State Of West Bengal on 5 April, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Rai Chattopadhyay
CRA 598 of 2010
Kesto Ghosh & Anr.
Vs.
The State of West Bengal
The Amicus Curiae : Mr. Aniket Mitra
For the State : Mr. P.K. Datta,
ld. APP.,
Mr. Pravash Bhatacharyya,
Mr. Santanu Debroy.
Hearing on : 15.03.2023
Judgment on : 05.04.2023
Rai Chattopadhyay,J.
1. Two appellants have faced trial in Sessions Trial No. 4(6)/2007 in the Court
of Additional Sessions Judge, 2nd Court at Kandi, Murshidabad and have
been convicted under the provisions of Section 304/34 & Part- I, Part- II of
the Indian Penal Code respectively. They were directed to suffer sentence of
rigorous imprisonment for seven years and five years respectively, with a
further direction to pay fine to the tune of Rs.10000/- and Rs.5000
respectively. In default, the appellants were directed to serve rigorous
imprisonment for a further period of one year and six months respectively.
2. The judgment as above was delivered by the Trial Court on 23rd August,
2010. Being aggrieved by and dissatisfied with the said impugned
judgment both the appellants/convicts have preferred the present appeal in
this Court.
3. At the outset, it may be mentioned that by filing a report dated 13th March,
2023 it has been informed that the appellants have already undergone the
period of sentence in incarceration and ultimately were released on 18th
August, 2017.
4. Be that as it may, let the appeal be considered on merit.
5. Mr. Mitra, learned Amicus curiae has categorically mentioned about the
substantive evidence to be convincing and coherent including that of the
eye-witnesses for which it is his opinion that in this case the prosecution
case has duly proved the charges against the accused persons/appellants.
6. Mr. Mitra has further emphasized on the corroborating documentary
evidence that is post mortem report, which suggests that the cause of death
that the victim was due to sufferance of the injuries on his person.
7. Thus, according to Mr. Mitra, there is no scope for this Appeal Court to
interfere in any manner with the impugned judgment.
8. The submissions made by Mr. Mitra, learned amicus curiae has been
supported by Mr. Bhattacharyya, learned Advocate appearing for the State.
9. Mr. Bhattacharyya, learned Advocate for the State submits that by
producing enough and clinching evidence, the prosecution has duly proved
the charges against both the appellants.
10. It has also been pointed out that the Trial Court by delivering the
judgment has duly considered the evidence and other materials on record.
He has prayed for dismissal of the appeal.
11. It appears in this case that the same was started by lodging of FIR by one
Bimal Ghosh on 15th June, 1998. The FIR was lodged against four persons
namely,
i. Nayan Ghosh,
ii. Nitya Gopal Ghosh,
iii. Kesto Gopal Ghosh,
iv. Swetbarani Ghosh.
12. Allegedly all the FIR named accused persons jointly and collectively
assaulted the victim, that is, the father of the defacto complainant with
heavy and sharp-cutting weapon. The motive is alleged to be grudge of the
accused persons over the victim regarding certain dispute relating to
landed property. The defacto complainant further states that due to
assault by the accused persons, his father sustained multiple bleeding
injuries on different parts of his body including the vital parts like head.
13. He has further alleged that his mother, elder brother and he himself were
also assaulted by the accused persons in the course of their endeavour to
rescue their father.
14. It is further stated that at the intervention of the other villagers who
ultimately rushed into the place of occurrence, the accused persons were
restrained and run away.
15. Upon lodging the FIR as above, Kandi Police Station Case No. 76/1998
dated 15.06.1998 under Section 341/325/326/34 of the Indian Penal Code
was registered. Police has conducted investigation and submitted charge-
sheet.
16. The trial started with framing of charge on June 6, 2007 under Section
304/34 of the Indian Penal Code against all the accused persons.
17. Prosecution has examined ten witnesses in total in this trial.
18. Amongst them PW 1 is the defacto complainant and one of the eye-
witnesses of the alleged offence. He has stated in evidence the facts which
he earlier lodged before the police in the FIR. Such evidence of PW 1 is duly
corroborated by the two other eye-witnesses that is PW 4 and PW 8. PW 4
is the independent witness that is neighbour of the defacto complainant
and the victim. PW 8 is the wife of the victim.
19. After due consideration on the evidence of all the eye-witnesses of the case
it is found that the same is amply sufficient and coherent and has duly
withstood the cross-examination and remained unshaken in this case.
20. In so far as the alleged offence is concerned, the evidence of the eye-
witnesses as above, may be considered to be sufficient to have brought the
charges against the appellants home, as the quality of the same appeared
to be sacrosanct.
21. Under such circumstances, in view of the provisions under Section 134 fo
the Indian Evidence Act, the Court would not proceed normally to look into
the corrborative evidences though in this case for the ends of justice and
fair trial the medical documents and doctor's deposition may be considered
to find out if those has corroborated with the evidence of the witnesses as
mentioned above.
22. PW 5 is the Doctor who has conducted the autopsy examination of the
dead body of the victim. The following is his findings:-
"1)One bruise over back of rt. Arm bluish in colour, 4"/2";
2) One lacerated injury over posterior aspect of rt. Parietal boe, 3"/1/2" bone
deep seen after removal of 5 stitches on it;
3) Hemorrhage under scalp, covering frontal, both parietal bones and
extending over occupying bone;
4) Fracture of skull present involving both tables of vault of skull, transversely
disposed, extending from squamous part of temporal bone on the rt. To lower part of
left parietal bone- measuring 9".
5) Profuse hemorrhage covering the surface of frontal, parietal and
occipins lobes on both sides.
6) Hemorrhage present in Branin substance in both levispheres at moiety
places- inside Rt. Parietal lobe and also in both frontal and left parietal lobe.
7) Contention over Rt. Parietal lobe, read in colour, 3"/2" in size.
The cause of death in my opinion is due to extensive intravenial injuries as
stated above, resulting from trauma on head which is homicidal and ante-mortem in
nature."
23. The findings of the doctor of the autopsy has not really been challenged in
this trial. Therefore, there is no scope of any doubt regarding finding of the
doctor that the death of the victim occurred due to injuries sustained by
him and as described by the doctor in his report. The evidence of the
witnesses as above being duly corroborated with that of the doctor as well
as the documentary evidence like the post mortem report, there is left no
possibility for the prosecution being flawed.
24. Such overwhelming and sufficient substantive evidence of the vital
witnesses, been duly corroborated by that of the doctor as well as by the
documentary evidence in the trial, absence of the materials evidence like
seized weapon etc. may not jeopardized the prosecution case. The evidence
has otherwise been so overwhelming that production of the weapon of
offence during trial by the prosecution shall not be considered to be any
vital latches on its part to vitiate the trial. On the contrary, all as above
which has strengthen the prosecution case in this trial should lead the
Court to find guilt of the accused persons beyond all reasonable doubt, in
this trial.
25. Profitable would be to once consider the necessary ingredients of offence
under Section 304/34 Part I and Part II of the Indian Penal Code
respectively for this purpose, the provision is extracted as hereinbelow:-
"304. Punishment for culpable homicide not amounting to
murder.--Whoever commits culpable homicide not amounting to
murder shall be punished with 1[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 of
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.
Section 300 IPC, Exception 1, has described "when culpable homicide
is not murder", that is, :-
" Exception 1.--When culpable homicide is not murder.--Culpable
homicide is not murder if the offender, whilst deprived of the power
of self-control by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of
the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the
lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough
to prevent the offence from amounting to murder is a question of
fact."
26. Accordingly, the ingredients of offence as regards the above stated
provisions of law are found to be sufficiently brought on record by the
prosecution in this trial. Hence, there remains no scope of any doubt that
the charges against the present appellants have duly been proved in this
case by the prosecution. The finding to that effect by the Trial Court is
proper and would not warrant any interference thereto by this Appeal
Court.
27. Hence, the impugned judgment is legible to be upheld, to the extent, of the
finding of the Court regarding guilt of the present appellants as well as
their conviction. There is no interference by this Trial Court to the said
judgment and order dated 23th August, 2010 and 25th August, 2010
respectively, to the extent as mentioned above.
28. As regards the question of sentence, the quantum of sentence granted to
the appellants by the Trial Court has already been mentioned above.
However, the appellants being in custody during pendency of the present
appeal, the said period of time has already elapsed the appellants being in
custody as under trial prisoners. The report submitted on behalf of the
State suggests such a fact which is accepted in absence of any contrary
material therefore.
29. Under such circumstances, this Court find it proper to interfere into the
impugned judgment regarding the sentencing portion. The same shall be
modified to the effect that the appellants shall be sentenced to suffer simple
imprisonment for the period already undergone by them in custody as
under trial prisoners.
30. Hence, the appeal succeeds in part.
31. CRA 598 of 2010 is allowed in part. The conviction of the appellants as
directed by the Trial Court is upheld. However, the sentence as directed by
the Trial Court to the appellants is modified to the extent as mentioned
above.
32. Other directions if any, in the judgment remain as it is.
33. With these observations, this appeal is disposed of.
34. All pending applications, if any, are consequently disposed of.
35. Finally before parting, this Court extends sincere appreciation for the
assistance rendered by the Amicus Curiae, in this case. Let the High Court
Legal Services Committee take necessary steps to pay fees to the learned
Amicus Curiae in accordance with the scale applicable to "Category-A"
lawyer in the panel. The same may be paid within a period of one month
from the date of this judgment. Let a copy of this judgment be forwarded to
the Secretary, High Court Legal Services Committee, for doing as necessary.
36. Certified website copies of this judgment, if applied for, be supplied to the
parties subject to compliance with all the requisite formalities.
---x---
Digitally signed
RAI by RAI
CHATTOP CHATTOPADHY
AY
ADHYAY Date: 2023.04.05
13:23:27 +05'30'
(Rai Chattopadhyay, J.)
