Ratan Kumar Ghosh @ Ratan Ghosh & vs State Of Orissa
2022 Latest Caselaw 7184 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     CRLA No.334 of 2012

     (From the judgment of conviction and order of sentence dated
     17.03.2012 passed by the learned Ad hoc Additional Sessions
     Judge (FTC-IV), Bhubaneswar in Criminal Trial No.8/4 of 2010).


     Ratan Kumar Ghosh @ Ratan Ghosh &          ....           Appellants
     Anr.
                                  -versus-
     State of Orissa                            ....           Respondent

     Advocates appeared in the case:
     For Appellants            :         Mr. Chittaranjan Sahu, Adv.
                                -versus-

     For Respondent              :             Mr. S.S. Kanungo, AGA

                 CORAM:
                 MR. JUSTICE D. DASH
                 DR. JUSTICE S.K. PANIGRAHI

                    DATE OF HEARING:-01.11.2022
                   DATE OF JUDGMENT:-08.12.2022

       Dr. S.K. Panigrahi, J.

1. This appeal is directed against the order, dated 17.03.2012, passed

by the learned Ad hoc Additional Sessions Judge, (FTC-IV),

Bhubaneshwar in Criminal Trial Case No. 8/4 of 2010 (arising out

of G.R. Case No. 111/2019 corresponding to Jatni P.S. Case No.80

of 2009) convicting the Appellant for the offence punishable

under Section 302/34 IPC & under Section 27 of the Arms Act and

sentencing them to undergo imprisonment for life and to pay a

fine of Rs.2,000/- each and in default to undergo R.I. for six

months.

I. CASE OF THE PROSECUTION:

2. The case of the prosecution is that one Renubala Sarkar (deceased)

was residing in the house of her late aunt (mausi), Avarani Sen, at

Balichhaka Sahi, Jatni, Dist-Khurda. Ananda Sarkar (Informant),

nephew of the deceased, used to visit Renubala regularly for she

used to reside alone in the house. On 20.06.2009, at about 9 AM,

when the informant came to visit Renubala, he witnessed Ratan

Kumar Ghosh (Appellant No. 1), elder brother of Renubala, and

his son, Sujit Kumar Ghosh (Appellant No. 2) assaulting Renubala.

Sujit Kumar inflicted khanda blows on Renubala while Sujit Kumar

bludgeoned her with a wooden plank (Kabata Dhada); mortally

wounding her.

3. Thereafter, the appellant fled to their house with their weapons.

When the informant finally found Runubala, she had already

succumbed to her wounds.

4. The informant (P.W. 1) went to the police station and lodged a

written FIR. After that the Mr. Sunil Kumar Nanda, Inspector I/c,

Jatni P.S. (P.W.11), registered P.S. case No. 80/2009 under Section

302/34 IPC and started the investigation.

5. During the course of investigation, the Investigating Officer (I/o)

examined the informant, issued requisition for scientific team,

visited the spot and prepared the spot map. He conducted inquest

over the dead body of the deceased and prepared the inquest

report. The Scientific Officer, DFSL, Bhubaneswar visited the spot

and collected blood-stained cement piece, control cement piece

and one wooden plank (Kabata Dhada). He sent the dead body for

post-mortem examination. The apparel worn by the deceased were

also collected.

6. Then, the I.O. raided and arrested the appellants on 21.06.2009 and

interrogated them. He recorded the confessional statement of

Ratan Kumar Ghosh in presence of witnesses in accordance with

Section 27 of the Evidence Act.

7. On account of the confessional statement of Ratan Kumar, the I/o

and proceeded to Balichhak Sahi, Laxminarayan temple Chhak

and seized one blood-stained sword from the house of Ratan

Kumar. The I.O. also seized the apparel worn by Ratan Kumar and

Sujit Kumar. He sent both the appellants for their medical

examination and on 21.06.2009 forwarded them to court.

8. The I/o received the post mortem report from the Doctor of District

Head Quarters hospital, Khurda. He also sent the viscera

preserved by Medical Officer to SFSL, Rasulgarh for chemical

examination.

9. After completion of investigation, the I.O. submitted charge-sheet

under Section 302/34 IPC and under Section 27 of Arms Act

against the appellants. This led to the charge sheet against the

appellant, who pleaded not guilty and claimed trial.

10. The prosecution examined twelve witnesses and led evidence with several documents and material objects. The Defence, on the other

hand, examined two witnesses but did not submit any document

or any material object to substantiate its claim.

II. TRIAL COURT JUDGMENT

11. The trial Court began the analysis of the case with the examination of the testimonials of the P.Ws.

12. According to the informant (P.W. 1), late Avarani Sen was the Aunt (Mausi) of the deceased Runubala Sarkar and the appellant,

Ratan Kumar Ghosh. Avarani Sen died issueless and after the

death of Avarani, Ratan Kumar lived in her house. Some days

later, Renubala arrived at the house from Kolkata and started

living jointly with the family of Ratan Kumar. While Ratan Kumar

occupied fifty percent of the house, Renubala occupied the other

fifty percent.

13. Initially, there was good relationship between Ratan Kumar and Runubala. However, it grew bitter on the question of

appropriation of some amount saved by late Avarani Sen under a

fixed deposit. According to P.W.1, after the death of Avarani Sen,

Runubala had withdrawn the total amount deposited by Avarani

Sen and had left for Kolkata.

14. P.W.1 revealed that, prior to this occurrence, Runubala had also lodged an FIR alleging harassment against Ratan Kumar Ghosh.

About two months before this occurrence, there was boiling

tension and disturbance between Ratan Kumar and Renubala.

15. The investigation conducted by I/o (P.W.11) revealed that the late Avarani Sen was the owner of the house in question. That house

consisted of six rooms; three rooms situated at Eastern side and the

other three rooms situated at western side. Renubala Sarkar and

her mother Charubala Ghosh resided in the eastern side while

Ratan Kumar and his family occupied the western side. Both

Renubala and Ratan Kumar claimed to have been adopted by their

late aunt.

16. The trial court also considered the allegation that there was a dispute between the deceased and Appellant No. 1 for the lawful

possession of the house.

17. Ardhendu Pattnaik (D.W.2) is the western side neighbour of late Avarani Sen. His statement corroborated the testimony of P.W.1.

Through this, the trial court concluded that Ratan Kumar and

Runubala were at litigating terms prior to this occurrence. So,

there was prior enmity between the deceased and Appellant No. 1

in respect of the house in question. The testimony of P.W.1 also

corroborates the testimonies of D.W.1 and D.W.2 as well as P.W.

11.

18. Bhaskar Kar (P.W. 12), the doctor who conducted the post-mortem examination, found multiple external and internal injuries on the

body of the deceased. He opined that the cause of death of

Runubala is shock and haemorrhage caused by multiple mortal

wounds and injuries to vital organs like brain. He also opined that

all the injuries as recorded in the post-mortem report could've

been caused by the sword and the wooden plank seized during the

investigation. He further claimed that the above injuries combined

are sufficient to cause death of the deceased by shock and

haemorrhage. The defence did not submit any arguments against

this witness to falsify the evidence on record.

19. The trial court concluded that the death of Renubala is indeed homicidal.

20. Next, in his cross examination, P.W.1 stated that he witnessed the occurrence from a distance of fifteen to twenty meters. Except him,

nobody had seen the occurrence. It is also borne out his cross-

examination that, at the scene, the Appellant No. 1 was striking the

deceased with a blood-stained sword while verbally-abusing her;

saying "MARIJA MAGHIA". Appellant No. 2 was also assaulting

her with a wooden plank (Kabata Dhada).

21. P.W.1 shouted loudly in a bid to stop the assault. But when he reached the spot, the perpetrators had fled and the body of

Runubala had no movement. Five to six bystanders assembled

near the spot while the lifeless body of Runubala laid in a pool of

blood. P.W.1 immediately informed about this incident to his

brother Sona Sarkar (P.W.2.)

22. The defence suggested that P.W.1 has foisted this case in lieu of an inimical relationship with the appellants and in order to grab the

house and property of Avarani Sen. But, the defence has admitted

the dispute between the deceased and the appellants regarding the

house of late Avarani Sen.

23. Other P.Ws. were also examined who testified to have seen the bloodied dead body at the gate of the house. Nothing substantial

has been brought out from the cross examination of P.Ws. to

disbelieve the evidence of these witnesses regarding the

occurrence as well as subsequent scenario.

24. Now, coming to the discovery of the weapons of offence, when the appellants were in the police custody, they confessed their guilt to

the police and in the presence of independent witnesses, N. Gopi

(P.W. 9) and Ajay Pattnaik (P.W. 10). After that, Appellant No. 1

disclosed that he had concealed the khanda (sword) in his house

under a table. Appellant No. 2 also confessed of concealing the

wooden plank. The statement of the appellants was recorded by

P.W.11 per Section 27 of the Indian Evidence Act. Thereafter, they

led the police (P.W.11) to the place of concealment wherein the

weapons were revealed and seized. This series of events has been

corroborated in the cross-examination of P.W. 9 and P.W. 10.

25. The defence relied on a catena of judgements to buttress their contention that the investigation has not been carried out properly

and the evidence adduced by the prosecution suffers from

substantial and procedural lapses. But the trial court was not

satisfied with the defence submissions and concluded that there is

no basis to support the defence of innocence.

26. The trial court held that the appellants intentionally dealt several deadly blows on the deceased with a sword and a wooden plank

(Kabata dhada). Their strikes mortally wounded her which

inevitably led to her death. The trial court also held that where the

positive evidence against the accused persons are clear, cogent and

reliable, the question of motive can be inferred easily.

27. The trial court legitimized the prosecution story by pronouncing that the appellants had prepared to murder the deceased based on

instances such as:

i. Appellant No. 1 verbally abused the deceased by

swearing "MAGHIA MARIJA" to the deceased while

dealing strikes.

ii. The post-mortem report mentioned several wounds on

the body of the deceased inflicted by consecutive strikes

of weapons found by the police.

iii. The appellants used the sword and wooden plank

(Kabatadhada) for their misdeed and afterwards,

concealed the weapons in their house.

28. By the conjoint reading of the evidence of the official and independent witnesses including the doctor and Investigating

Officer, the trial court observed that there was a clear intention to

cause death. The appellants have been unequivocally implicated

with the charge of injury and death of the deceased. The

undiscredited testimonies of the above witnesses does not create

any substantial doubt against the story of the prosecution. It is also

further established that, the deceased died on the spot.

29. The Trial Court, upon examination of evidence at its level has held the accused guilty of committing the murder of the deceased,

Renubala Sarkar. Accordingly, the accused has been convicted for

offences punishable under Section 302/34 IPC with a sentence to

undergo imprisonment for life and an R.I. for three months and to

pay a fine of Rs.2,000/- (two thousand) each. The have also been

sentenced to undergo R.I. for three years each & to pay a fine of

Rs.2,000/- (two thousand) each u/s. 27 Arms Act, 1959.

III. APPELLANTS' SUBMISSIONS:

30. Learned counsel for the Appellants completely denied the charges pressed herein and asserted that it is a case of false implication. It

was submitted that the judgment of conviction and sentence

passed by the trial court is highly illegal, arbitrary, perverse and

not sustainable in the eye of law and that the trial court failed to

consider that this case does not lie within the four corners of

Section 302 1.P.C.

31. It was suggested that P.W.1 is an interested party to the aforementioned property dispute as the deceased did not have any

successor. As the deceased's nephew, P.W.1 is interested in

acquiring the deceased's and appellants' share. As a result, his

evidence requires close scrutiny and the trial court has failed to

properly appreciate it.

32. While the prosecution did not mention that P.W.1 was staying in the house in question, it has failed to bring out as to why P.W. 1

was coming to the house of the deceased at that particular hour.

Therefore, his presence at the time of occurrence is not believable.

33. The appellants also hinted at foul play. It was contended that even though P.W.1 claimed to have seen the occurrence from a distance

of 30 meters, in broad daylight, he did not specifically mention

that on which body parts of the deceased, the appellants assaulted.

In absence of such particulars his evidence has to be discarded

being omnibus in nature.

34. Even if the entire prosecution case is accepted, the Medical Officer does not say that the injuries sustained by the deceased are

sufficient to cause death in course of ordinary course of nature. In

absence of such finding, it cannot be said that the appellants

intended to commit murder. In absence of such opinion of the

Medical Officer, the ingredients of Section 302 I.P.C. is completely

absent. Therefore, the prosecution story shall lie within purview of

Section 304 of I.P.C.

35. It was argued that P.W.9 and P.W.10 are not reliable independent witnesses. It was suggested that P.W.9 and P.W.10 had already

heard about the occurrence from P.W.1 over phone. Prior to the

discovery of weapons by the police, they had come to spot and

had seen the deceased. Several people had sighted them in that

locality which is a serious lacuna on behalf of the prosecution. In

absence of any other independent witnesses, the testimonies of

P.Ws. 9 and 10 is liable to be discarded.

36. It was submitted that the most important lacuna of this case is non-

production of the chemical examination report of the sword and

wooden plank. The prosecution must show that the weapons

discovered by the police were unquestionably used in the crime

and contained the blood of the deceased. In absence of such

evidence, it cannot be said that the seized weapons were actually

used for the commission of the offence. It was also argued that

sword and wooden plank are commonly available items in many

houses.

37. For that the prosecution case only on the evidence of P.W. 1, the sole eye witnesses and leading to discovery it is bound to failed for

the reasons stated above.

IV. RESPONDENT'S SUBMISSIONS

38. Learned counsel on behalf of the prosecution countered the submissions of the appellant by contending that the testimony of

P.W. 1 is quite clear and cogent. Their testimonies also correspond

to the post-mortem report and its details as described by P.W. 12.

39. The prosecution submitted all in favour of the findings returned by the Trial Court in holding the accused to be the author of the

crime. According to him, the Trial Court on detail analysis of

evidence on record did commit no error in returning the finding

that the prosecution has established its case against the accused in

causing the murder of Renubala Sarkar beyond reasonable doubt

and therefore, the judgment of conviction and order of sentence

are not liable to be interfered with.

V. COURT'S ANALYSIS AND REASONING:

40. Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also bestowed our

due attention to the evidence on record, both oral and

documentary.

41. At the outset, there is no dispute over the fact that the deceased, Renubala Sarkar, met a homicidal death, which has been well

established through the doctor conducting the autopsy over the

dead body of the deceased and in view of his opinion remaining

unchallenged as to the cause of death.

42. In the given case, we cannot help but notice that the story embroidered by the prosecution is dominantly based on the

testimony of P.W. 1. It is no doubt that there is only one eye

witness who is also a relative of the deceased, viz. her nephew. But

it is well-settled that it is quality of evidence and not quantity of

evidence which is material. Quantity of evidence was never

considered to be a test for deciding a criminal trial and the

emphasis of Courts is always on quality of evidence. So, the

argument of the defence against presence of only one eye-witness

to the occurrence is not enough to dilute the case of the

prosecution.

43. It is the settled principle of law that a conviction can be based on sole eye witness testimony.1 The rider, however, remains that in

order to draw the inference as to the guilt of the accused from such

testimony the eye-witness shall be wholly reliable.

44. Here, the counsel for the appellants has raised objections on the reliability of the testimony of P.W. 1 calling him an interested

party of the property dispute which engulfed this criminal

occurrence. However, they have not produced any substantial

evidence or witnesses to back their hypothesis. Per se, their

accusation against P.W. 1 is farfetched; based on conjecture and

Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165; Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367

surmises. Next, the presence of P.W. 1 at that time of the day has

been duly explained by the prosecution; he used to deliver

essential items and vegetables to the deceased as she lived alone at

her side of the house. At this juncture, the onus lies on the defence

to prove that the presence of P.W.1 was unusual, which they have

not done effectively. In any event, such a hypothetical reason

would not be sufficient to discard credible eye witness version.

45. The defence has also attempted to discredit the testimony of P.W.1 by arguing that he did not mention which body parts of the

deceased were allegedly hit by the appellants in the occurrence.

Here, we would like to assert that the testimony of the eye witness

need not include every minuscule detail of the occurrence. It is

enough that he is able to process the happenings of the occurrence,

identify the faces participating and reproduce an unambiguous

sequence of events. As Bentham said, "Witnesses are the eyes and

ears of justice. Hence the importance and primacy of the quality of the

trial process. Eye witnesses' account would require a careful independent

assessment and evaluation for their credibility which should not be

adversely prejudged making any other evidence as the sole touchstone for

the test of such credibility. The evidence must be tested for its inherent

consistency and the inherent probability of the story; consistency with the

account of other witnesses held to be credit-worthy; consistency with the

undisputed facts; the `credit' of the witnesses; their performance in the

witness-box etc. Then the probative value of such evidence becomes

eligible to be put into the scales for a cumulative evaluation." Ergo, in

absence of any satisfactory argument to the contrary, the testimony

of P.W. 1 stands credible.

46. Moreover, the version adduced by P.W 1 is duly corroborated by the testimony of P.W. 12 and the post-mortem examination report.

The Doctor conducting the autopsy over the dead body of the

deceased has opined that the death was due to shock and

haemorrhage caused by mortal wounds inflicted on the body and

the head. It has also been opined by P.W. 12 that the wounds could

have been inflicted by the weapons discovered by the police. The

evidence as above has remained unimpeached.

47. Next, the defence has stated that the Medical Officer did not opine that injuries sustained by the deceased are sufficient to cause death

in course of ordinary course of nature. In absence of such an

opinion, the appellants should not be tried under Section 302 but

Section 304 of IPC. We are unable to accept this contention in light

of the essentials of Section 300 IPC as elucidated by Vivian Bose, J.

in Virsa Singh vs The State of Punjab:2

"The prosecution must prove the following facts before it can bring a case under s. 300; Firstly, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations; Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be

1958 SCR 1495

proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300"

48. In this case, the first three elements have been effectively answered by the prosecution and validated by the trial court. No questions

have been asked about intention of the appellants by the defence

but the emphasis here is on the sufficiency of the injury in the

ordinary course of nature to cause death. The sufficiency is the

high probability of death in the ordinary way of nature and when

this exists and death ensues and the causing of such injury is

intended the offence is murder. Sometimes the nature of the

weapon used, sometimes the part of the body on which the injury

is caused, and sometimes both are relevant. The determinant factor

is the intentional injury which must be sufficient to cause death in

the ordinary course of nature. If the intended injury cannot be said

to be sufficient in the ordinary course of nature to cause death, that

is to say, the probability of death is not so high, the offence does

not fall within murder but within culpable homicide not

amounting to murder or something less.

49. We proceed to consider the evidence of P.W. 12, which was tendered at the trial. The injuries were, no doubt, numerous, but

what is relevant is the nature, and not the number of the injuries. A

scrutiny of these injuries evidence consecutive blows on the body

and its vital organs such as the brain. Most of the injuries were

grievous and evidently sufficient in the ordinary course of nature

to cause death. Besides, the weapons used in the occurrence are of

considerable importance. A deadly weapon is designed to cause

death, for instance, a gun, a bomb, a rifle, a knife or even a sword

in this case. A thing not so designed may also be used as a weapon

to cause bodily injury and even death, such as the wooden plank.

The use of sword and wooden plank (kabata dhada) are

symptomatic of an intention to kill and in this case, these objects

have been used to inflict mortal wounds which took life of the

deceased.

50. In this behalf, in the present case, the presence of the Appellants to the spot, armed with dangerous weapons, and resultantly, causing

fatal injuries on a vital organ being sufficient in the ordinary

course of nature to cause death with a shared common intention

clearly and unequivocally attracts the provision embodied in

Section 300 clause (3) IPC and the corresponding punishment in

Section 302 thereof. The above inferences are enough for us to hold

that this case is being appropriately dealt under Section 302 IPC.

51. Next, the counsel for the appellants have questioned the veracity of the independent witnesses, P.Ws. 9 & 10. The have decried a

case of bias for they were allegedly seen in the neighbourhood

where the occurrence had taken place. In lieu of this, the counsel

for the appellants has challenged their depositions as independent

witnesses.

52. Indeed, one of the earliest statements with respect to independent witnesses in criminal cases was made by the Supreme Court in

Dalip Singh v. State of Punjab,3 wherein this Court observed:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means 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 to screen the real culprit and falsely implicate an innocent person."

53. We think, it would be unreasonable to contend that evidence given

by P.W. 9 & 10 should be discarded only on the ground that they

were seen in that neighbourhood and/or they had knowledge of

the occurrence. The mechanical rejection of such evidence on the

sole ground that it is partisan would invariably lead to failure of

justice. While no hard and-fast rule can be laid down as to how

much evidence should be appreciated, in absence of any credible

evidence by the appellants to the contrary, the plea that such

evidence should be rejected because it is partisan cannot be

accepted as correct.

54. Finally, the defence argued that since the chemical examination report did not mention the blood group of the stains on the

weapon and the clothes seized therein, the mere detection of

human blood on these two articles is of no consequence,

whatsoever. In this case, we have the direct testimony of P.W. 1,

besides the testimony of PWs 9, 10, and 12 which we have

considered earlier. The detection of human blood on the weapons

1953 AIR 364

lends corroboration to the testimony of P.W. 1 when he states that

he had seen the appellants inflicting blows on the deceased with a

sword and a wooden plank. The appellants have not explained the

presence of human blood on these two articles. We are, therefore,

of the opinion that there is no general proposition that, in the

absence of determination of blood group, the detection of human

blood on the weapon or garment of the accused is of no

consequence. We, therefore, see no substance in this contention

urged by Mr. Sahu.

55. In light of the aforesaid deliberations and inferences reached by us, we have no doubt in concluding that the evidence in this case is

clear to the effect that the appellants were clearly involved in this

crime. The prosecution has adduced sufficient evidence to show

that the appellants inflicted grievous injuries to the deceased. The

defence has been blatantly unsuccessful in affirming their claim.

Furthermore. The samples collected during the investigation and

the later post-mortem also solidifies the story of the prosecution.

VI. CONCLUSION:

56. On the basis of above observations and discussions, prosecution successfully bring home guilt against the appellants, Ratan Kumar

Ghosh and Sujit Kumar Ghosh for commission of offence under

Section 302/34 IPC. Hence, the appellants are convicted of the

offences under Section 302/34 IPC. In addition, the appellants are

also convicted for commission of offence under Section 27 of Arms

Act.

57. The result is that this appeal is without merits and the same is liable to be dismissed. We do so, confirming the judgment of

conviction and order of sentence dated 17.03.2012 passed by the

learned Ad hoc Additional Sessions Judge (FTC-IV), Bhubaneswar

in Criminal Trial No.8/4 of 2010.

58. The Appellant No.2/ Sujit Kumar Ghosh, who is stated to be on bail, vide order dated 07.11.2012 passed by this Court in Misc.

Case No.883 of 2012 arising out of CRLA No.334 of 2012, is

directed to surrender before the trial court forthwith to undergo

the sentence.

59. The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the

Appellant No.2/ Sujit Kumar Ghosh to undergo the sentence as

imposed.

60. Accordingly, this Appeal is dismissed.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 8th Dec., 2022/ B. Jhankar