State Of Jharkhand Through C.I.D ... vs Sunita Kumari
2023 Latest Caselaw 3408 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Criminal Appellate Jurisdiction)

                        Acquittal Appeal No. 71 of 2020

State of Jharkhand through C.I.D Jharkhand, Ranchi          ...... Appellant
                                  Versus
1. Sunita Kumari, w/o late Mantosh Kumar
2. Anish Vishal, s/o Mantosh Kumar
All residents of Flat No.307, Co-operative Colony, PO+PS-B.S City,
District-Bokaro                                ...... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
       HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the State of Jharkhand : Mr. Bhola Nath Ojha, APP
For the Respondents        : Mrs. Nirupama, Advocate
                               --------------
                                                      JUDGMENT

8th September 2023 Per, Shree Chandrashekhar, J.

The State of Jharkhand has filed Acquittal Appeal No.71 of 2020 challenging the judgment of acquittal dated 5 th July 2019 rendered by the learned District and Additional Sessions Judge-II at Bokaro.

2. Purnendu Kumar Singh gave a written report to the Superintendent of Police at Bokaro expressing his apprehension that Dipak Kumar Ghosh @ Dipu Ghosh and his sister Manjushree Ghosh are confined in their house for grabbing their property situated at House No.229 in the Co-operative Colony of B.S City. After the investigation, a charge-sheet was laid against Sunita Kumari and Anish Vishal who faced trial on the charge under sections 307, 302, 328, 343 and 347 of the Indian Penal Code. In Sessions Case No.352 of 2018, Sunita Kumari and Anish Vishal are acquitted of the aforesaid charges.

3. In Sessions Case No.352 of 2018, the trial Judge referred to the testimony of PW5, PW6 and PW7 and came to a conclusion that the prosecution failed to establish the charge framed against Sunita Kumari and her son Anish Vishal.

4. Mr. Bhola Nath Ojha, the learned APP contends that the judgment in Sessions Case No.352 of 2018 suffers from serious errors in law inasmuch as there is sufficient circumstantial evidence to prove the charge of attempt to murder and committing murder of Dipak Kumar Ghosh

@ Dipu Ghosh. The submission made at the Bar is that the charge of murder in a criminal trial can be proved by leading cogent and convincing circumstantial evidence and by showing that the chain of circumstances is complete in all respects and the only conclusion that can be drawn from the proved circumstances is the guilt of the accused.

5. According to the learned APP, the fact that Dipak Kumar Ghosh @ Dipu Ghosh and his sister Manjushree Ghosh were found unattended in their room and according to the witnesses they were starving to death are the circumstances sufficient to raise an inference about the complicity of the accused in the crime.

6. The prosecution case as disclosed in the written report of Purnendu Kumar Singh is that Dr. D.K. Gupta and Mantosh Kumar were jointly running Nav Jyoti Eye Clinic for the last 20 years. They had taken space in House No.229 at the Co-operative Colony on lease for running the said clinic. According to the informant, Mantosh Kumar had been treating Dipak Kumar Ghosh @ Dipu Ghosh and his sister Manjushree Ghosh in inhuman ways and Dr. D.K. Gupta was also extending all cooperation in inflicting inhuman treatment to the victims. There is a specific allegation against Mantosh Kumar and Dr. D.K. Gupta (both are dead now) that they had their greedy eyes on the house of the victims. In the trial, the prosecution examined 10 witnesses out of whom PW1 is the neighbor of the victims and PW2 is the computer operator who was working in Nav Jyoti Eye Clinic but they did not support the prosecution case and they were declared hostile. The case of the prosecution is grounded on the evidence of PW5, PW6 and PW7 who tendered evidence in the Court that Dipu Ghosh was lying on a traction in his room and Manjushree was lying naked on the floor.

7. As PW10, Dr. Ravi Murmu who conducted the post-mortem examination over the dead body of Dipak Kumar Ghosh @ Dipu Ghosh has tendered evidence to the effect that there were stitched injuries over the right temporo-occipital region of Dipu Ghosh. According to PW10, the injuries found on the person of Dipu Ghosh could not have been caused due to starvation. He admitted in the cross-examination that the viscera report would have only disclosed the presence of poison in the body.

8. Dr. Ravi Murmu who conducted the post-mortem examination over the dead body of Dipak Kumar Ghosh @ Dipu Ghosh found the following injuries on his person:

External Injury-

I. Abrasion (scab fallen) 2 cm x 1 cm base of right thumb dorsally. II. Surgical stitched wound-

1. there was 12 cm long having 11 stitches over right temporo-occipital region was inverted "U" in shape.

2. 2 cm long having 2 stitches front of right chest over the manubrium.

3. 5 cm long having 5 stitches over front of abdomen below the xiphoid process was vertically placed.

III. There was an opening "Burr hole" of 1.5 cm x 1.5 cm size over right parietal bone, opening on dura matter of 1/2 cm x 1/2 cm size beneath the burr hole. There was mild enlarged cavity of right lateral ventricle. There was longitudinal ulcerative congestion over the wall of stomach, both kidneys were grossly lesser in weight and were spongy in consistency.

Preservation-

I. For histopathology -

1. Each 1/2 of kidney.

2. A portion of lung

3. A portion of liver.

II. Viscera -

1. Stomach and its contents.

2. proximal small intestine.

3. A portion of spleen.

4. Each 1/2 of kidney.

5. A portion of liver.

Opinion-

I. Opinion regarding cause of death kept reserve, as viscera preserved for chemical analysis will be sent to FSL as soon as requisition will be made and constable will be deputed for the same. Tissue has preserved for histopathology examination.

II. T.S.D. is 6 hours Examination to 24 hours from the time of P.M.

9. This is thus quite apparent that the cause of death has not been proved by the prosecution.

10. PW5 admitted in the cross-examination that the family members of Dipu Ghosh came to Bokaro after the incident. PW6 has stated that there was no dispute between Dipu Ghosh and Mantosh Kumar in respect of the lease and rent for the property. He further admitted that Dipu Ghosh did not lodge a case against Mantosh Kumar or his wife or issue a notice to them. According to PW6, Dipu Ghosh got injured in a road accident in 2016 and his family members visited and stayed with him at Bokaro for few days. PW7 also admitted in the Court that the family members of Dipu Ghosh are residing at Kolkata. Notwithstanding that, there is no complaint lodged by any of the family members of Dipak Kumar Ghosh @ Dipu Ghosh to the police expressing any apprehension against

Sunita Kumari or her husband or her son about the confinement of Dipak Kumar Ghosh @ Dipu Ghosh and Manjushree Ghosh. In fact one of the family members of Dipak Kumar Ghosh @ Dipu Ghosh who came in the dock as PW9 to give evidence deposed in the Court that on getting information that Dipu Ghosh and his sister were not provided food he came to Bokaro but Dr. D.K. Gupta did not allow him to meet them. The conduct of PW9 seems to be quite unnatural inasmuch as he admitted in the Court that he did not make any complaint with the police and after staying at Bokaro for few days he returned to Kolkata.

11. This is fundamental in a criminal trial that the offence charged must be proved beyond all reasonable doubt. A criminal trial therefore depends on the quality of evidence produced by the prosecution. Section 134 of the Evidence Act provides that no particular number of witnesses is required to prove a fact in any inquiry or trial. Therefore, a conviction can be recorded on the basis of a solitary witness provided the testimony of the witness inspires confidence of the Court and no inherent improbability in his testimony is shown to the Court. However, as noticed above, not only there is no eye witness to the allegation of confinement or starvation rather the prosecution has failed to establish the cause of death as proposed by it.

12. We have this in mind that the High Court in dealing with an appeal against acquittal may exercise a similar power as is exercised while dealing with an appeal against conviction, re-appreciate the evidence and come to a different conclusion but the Court must keep in mind that there are judicially evolve norms and guidelines when interference with a judgment of acquittal is permissible. In the first-place, acquittal of the accused by the trial Court raises a double presumption of innocence in favour of the accused and secondly wherever two views are possible the High Court shall be denuded of its powers to interfere with the judgment of acquittal.

13. In "Kalyan v. State of U.P." (2001) 9 SCC 632 the Hon'ble Supreme Court has observed as under:

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in

our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram v. State of H.P. this Court observed that the golden thread which runs through the web of administration of justice in a criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: (SCC p. 821, paras 27-28) "27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on p. 157 of 'The Proof of Guilt' by Glanville Williams, 2nd Edn.:

'I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.'

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao as is clear from the following observations:

'Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' "

9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

14. Having the aforesaid principles in mind, we do not find any compelling reason to interfere with the judgment of acquittal dated 5th July 2019 passed in Sessions Case No.352 of 2018 and, accordingly, Acquittal Appeal No.71 of 2020 is dismissed.

15. The State of Jharkhand through the Deputy Commissioner at Bokaro is directed to provide medical aid to the victim, namely, Manjushree

Ghosh and, if necessary, better mental health treatment shall be provided to her at the National Institute of Mental Health and Neuro Sciences at Bangalore or the Vidyasagar Institute of Mental Health, Neuro and Allied Sciences at New Delhi and for that purpose initially a corpus of Rs.5 lakhs shall be provided by the State of Jharkhand through the victim compensation scheme.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) High Court of Jharkhand, Ranchi Dated: 8th September 2023 Sudhir/NAFR