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CALCUTTA HIGH COURT
SANKAR BHATTACHARYYA, J. N. HORE, JJ.
DULAL CHANDRA GHOSH AND OTHERS
VERSUS
THE STATE
Criminal Appeal No.17 of 1987,
Decided On : 6 -4 -1988
MURDER - Indian Penal Code - Section 302/34, Section 148
Fact of the Case:
The appellants were convicted for the murder of Mantu Ghosh. The deceased was assaulted by the appellants and others, resulting in his death. The prosecution's case relied on the testimony of an eyewitness, medical evidence, and seizure of articles from the crime scene.
Finding of the Court:
The court found the testimony of the eyewitness to be true and reliable, corroborated by medical evidence and seizure of articles. The court held that the appellants committed the murder in prosecution of their common intention.
Issues: The main issue was whether the appellants were responsible for the death of the deceased. The court also considered the reliability of the eyewitness testimony and the delay in sending the First Information Report.
Ratio Decidendi: The court relied on the trustworthy and reliable testimony of the eyewitness, supported by medical evidence and seizure of articles, to establish the guilt of the appellants. The court also dismissed the delay in sending the First Information Report as not fatal to the prosecution's case.
Final Decision: The court affirmed the conviction and sentence under Section 302/34, Indian Penal Code, but set aside the conviction and sentence under Section 148, Indian Penal Code.
Key Points: - The court relied on trustworthy eyewitness testimony corroborated by medical evidence and seizure of articles to establish guilt (!) (!) (!) (!) (!) (!) . - The appellants were convicted under Section 302/34 for murder committed in prosecution of a common intention (!) (!) (!) (!) . - The conviction under Section 148 was set aside as it was incompatible with the conviction under Section 302 read with Section 34 (!) (!) . - The court found the eyewitness testimony to be true, reliable, and supported by other evidence, dismissing doubts raised by the defense (!) (!) (!) . - The delay in sending the First Information Report was not considered fatal to the prosecution's case (!) (!) .
J.N. Hore, J. :- The five appellants and one Ananda Ghosh, since deceased, were arraigned before a learned Additional Sessions Judge, Nadia, to answer the following charges :
"First - That you, on or about the 15th day of December, 1984 at Ushidpur within P.S. Kotwali, were member of an unlawful assembly and did in prosecution of the common object of such assembly viz. in committing the murder of Mantu Ghosh commit the offence of rioting and at that time were armed with deadly weapons to wit Ramdao, fala etc. and thereby committed an offence punishable under Section 148 of the Indian Penal Code, and within my cognizance.
Secondly - That you, on or about the same day and at the same place in furtherance of common intention did commit murder by intentionally causing the death of Mantu Ghosh and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance."
Accused Ananda Ghosh died before the commencement of trial.
2. After completion of the trial, all the five appellants were convicted under Section 302/34, Indian Penal Code and sentenced to imprisonment for life. They were also convicted under Section 148, Indian Penal Code and for such conviction, they were sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.2,000/-each, in default to suffer further rigorous imprisonment for one year more. The substantive sentences of imprisonment were ordered to run concurrently. The fine, if realised, was ordered to be paid to the legal heirs of the deceased.
3. Briefly stated, the prosecution case is as under :
Mantu Ghosh (the deceased) was living with his family at Ushidpur, P.S. Kotwali, Nadia. De facto complainant Binapani Ghosh (PW1), Cousin of Mantu's wife Jari (PW9) and sister-in-law of Mantu, was living in the house of Mantu since the death of her husband at tender age. Mantu constructed a new house at Brahmanagar, not far off from Ushidpur. Mantu's wife Jari shifted to the house at Brahmanagar 4 days before the occurrence and she gave birth to a child 3 days before the occurrence.
4. On 15-12-84 Mantu came to his Ushidpur house in the afternoon and at or about 5.00 P.M. Mantu, Binapani and Mantu's son Tarak left their house at Ushidpur for good and started for Brahmanagar with their belongings. A steel trunk containing belongings was placed on the carrier of a bicycle and a bag of rice was also fastened to the bicycle. Mantu was pushing the bicycle followed by Binapani and Tarak. When they proceeded some distance along the village pathway and reached near the house of Dilip Mondal, the five appellants, Ananda Ghosh (since deceased) and some unknown persons armed with 'fala', 'Ramdao' etc. intercepted Mantu. Ananda dealt a Ramdao blow inflicting injuries on the four fingers of Mantu's right hand when Mantu lifted his right hand to ward off the blow. Appellant Bhola assaulted Mantu with a ramdao on his left hand as a result of which, 4 fingers of the left hand of Mantu were chopped off and fell down on the ground. Thereafter, appellant Atchali struck a blow with ramdao on the head of Mantu as a result of which Mantu fell down on the ground. All the persons who assembled there then assaulted Mantu with various weapons. Mantu, Binapani and Tarak raised a hue and cry and the assailants fled away. Being attracted by the alarm, Monoranjan Ghosh (PW2), Kala Das (PW6), ulal Mondal, Mahananda Das and others collected at the place of occurrence and arranged for shifting injured Mantu to hospital on a cart but on way to hospital Mantu expired near the Asram.
5. Balai Pal (P.W.7) and Paritosh Saha (PW8) went to village Bishnupur and reported the incident to PW12 S.I. Anil Kumar Manna who came there in connection with investigation of another case. On receipt of the information, PW12 visited Ushidpur village and found the deadbody of Mantu tying on a cart in front of the Asram. He recorded the statement of PW1 Binapani Ghosh which was treated as the First Informatio
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