Ananda Sen, J
1. During the course of hearing, though on repeated calls, no one appeared on behalf of the appellant Simal Ghosh in Criminal Appeal (DB) No. 606 of
2014 to argue the case, on request, Mr. K. K. Ojha, the learned counsel for the appellant Devi Ghosh in Criminal Appeal (DB) No. 593 of 2014
argued on behalf of the both the appellants and placed all the points.
2. We have heard the learned counsel appearing on behalf of the appellants and the learned counsels for the State at length.
3. Both these Criminal Appeals arise out of the judgment of conviction dated 24.07.2014 and order of sentence dated 31.07.2014 in Sessions Case No.
133 of 2013 whereby and whereunder learned Principal Sessions Judge, Pakur convicted both the appellants under Sections 302/34 of the Indian Penal
Code and sentenced them to undergo RI for life with fine of Rs. 25,000/- each for the offence under Section 302/34 of the Indian Penal Code.
4. It was argued on behalf of the appellants that there is no eye-witness to the said occurrence and only on the basis of doubt these two appellants
have been implicated in this case. The prosecution has failed to prove that Devi Ghosh was having any illicit relation with Simal Ghosh. Mere
allegation without any corroborative evidence cannot be a ground for conviction. PW11 has not been examined during investigation by the
Investigating Officer, thus her statements before the Court as PW11, for the first time cannot be relied upon. There was land dispute between the
parties i.e. the brother of the deceased and the appellant Devi Ghosh, in which the another appellant Simal Ghosh was helping the husband of the Devi
Ghosh, thus out of grudge these appellants have been implicated in this case. The credential of all the witnesses are doubtful, thus their testimony
cannot be accepted. Further it was argued that PW2, PW4, PW5, PW7 and PW8 are hearsay witnesses and they cannot be relied upon. PW1 and
PW3 have not seen commission of murder, thus their testimony to the effect that these two appellants had committed murder of the deceased is based
on conjecture and surmises, which cannot be a ground to convict these appellants. Further it has been argued that the pillow etc. which was used to
strangulate and suffocate the deceased has not been seized by the investigating officer, which is fatal to the prosecution.
5. The learned counsel appearing on behalf of the State submits that PW11 is an eye-witness to the occurrence of the murder and she has explained
why her statement was not recorded by the investigating officer. She had explained that after seeing the murder, she was disturbed to such an extent
that she was not in a position to get her statement recorded. There is nothing in her statement which can discredit her testimony. Further the fact that
there was illicit relationship between these two appellants has been established by PW1 and PW3 who had seen them in compromising position. The
deceased died in her house, where on the date of occurrence Devi Ghosh and Simal Ghosh were present and there were no other person. The fact
that few hours before the incident the appellant Simal Ghosh was present in the house and was driven out by the others, is substantiated from the
deposition of PW1 and PW3. Thus it was both these appellants who had committed the murder of the deceased, out of grudge.
6. The prosecution case is based on the fardbeyan of Laltu Yadav who is none but the brother of the deceased. In the fardbeyan which is marked as
Exhibit-3 he has stated that in the morning of 19.04.2013 he got a telephonic information from the in-law’s house of his sister at village Jaipur that
his sister was killed by strangulation by Simal Ghosh and Devi Ghosh. On this information he went there and saw the dead body of his sister lying on
the floor of her house and there was a black mark in her neck and on seeing this it appears that she had been strangulated by them. On the basis of
fardbeyan Maheshpur PS Case No. 74 of 2013 was registered under section 302/34 of IPC against the appellants.
7. After investigation, the Investigating Officer submitted chargesheet against the appellants for the offence punishable under Section 302 read with
section 34 of the Indian Penal Code.
8. On the basis of chargesheet and materials available on record cognizance was taken and case was committed to the Court of Sessions where
charge was framed under Section 302/34 of the Indian Penal Code and trial proceeded.
9. To prove the prosecution case, altogether 11 witnesses were examined by the prosecution, who are:-
i. PW1 :-Lalu Ghosh
ii. PW2 :-Â Â Ashok Ghosh
iii. PW3 :-Â Â Sankari Ghosh
iv. PW4 :-Â Â Kailash Yadav
v. PW5 :-Â Â Monu Yadav
vi. PW6:-Â Â Dr. Sanjay Kumar Jha
vii.PW7:- Bandna Devi
viii.PW8:- Laltu Yadav
ix.PW9:- Subhash Chandra Basan, I.O.
x.PW10:- Uma Shankar Singh, I.O.
xi.PW11:- Jowa Ghosh
10. This is a case where the appellants were convicted under section 302/34 of the Indian Penal Code on the allegation that these appellants
committed murder of the deceased and the death is homicidal. To establish that the death is homicidal the prosecution has examined PW6 the doctor
who has exhibited the postmortem report which was marked as Exhibit-1. The doctor found the following injuries:
External on appearance :-
(i) Bruise mark over anterior part of throat 3†x ½â€
(ii) Rigor mortis were present in all four limbs.
Internal on dissection :
(i) Subcutaneous tissue below bruise mark congested.
(ii) Hyoid bone fractured.
(iii) Larynx and trachea congested.
(iv) Heart all chambers filled with blood, lungs bilateral congested.
(v) Liver congested.
(vi) Stomach liquid material present.
(vii) Spleen congested.
(viii) Small and large intestine filled with liquid and gases.
(ix) Uterus empty.
(x) Bladder empty.
(xi) Brain congested.
The doctor also opined that the death was due to asphyxia due to throttling. This clearly suggest that the death is homicidal in nature and the
prosecution has proved the aforesaid fact.
From the evidence of the doctor who had opined that the death is due to asphyxia due to throttling is corroborated by the evidence of PW11 who had
seen the occurrence.
11. After going through the evidence we find that admittedly PW2, PW4, PW5, PW7 and PW8 are hearsay witnesses. The witnesses in this case
who are of utmost importance are PW1, PW3 and PW11. PW1 is Lalu Ghosh he stated that three years ago on the date of occurrence at night at
about 11:00 PM he was present in his house. His house is just in front of the house of deceased Jairani Ghosh and the road was dividing both the
houses. His mother, father and wife were also present. His sister-in-law (deceased) Jairani Ghosh came and called him to their house and took him to
the attic there he saw Simal Ghosh [appellant in Cr.A (DB) No. 606 of 2014] and his brother’s wife Devi Ghosh [appellant in Cr.A(DB) No.593
of 2014] in a compromising position. After being caught by these witnesses Simal Ghosh fled. Thereafter he returned to his house. At about 1:30 PM
at night he heard scream of deceased Jairani Ghosh and when he went to their house, he saw Jairani Ghosh was dead with mark on her neck, the
police was informed who came and arrested both of the accused when they confessed their guilt. In the cross-examination he stated that when he
saw the dead body he raised alarm upon which neighbours assembled. He denied the suggestion that because of property disputes, he is implicating
these appellants. PW3 is Sankari Ghosh who is wife of PW1. She also narrated that at night the deceased came and informed her about the fact that
both the appellants were seen in a compromising position in their house on which she went to her house alongwith her husband, PW1 and mother-in-
law who is PW11 when they saw both these appellants sleeping in the floor of attic fully naked. These witnesses rebuked them when Simal Ghosh
fled. She also stated that her house was just opposite to the house of deceased. She further narrated that at night she heard scream of the deceased
when they went there she found her dead and there was mark on her neck. When the police arrested these two appellants, they confessed their guilt
and stated that they had killed this deceased. In cross examination she stated that the deceased was staying with her husband in a separate room and
the appellant Devi Ghosh was residing with her husband in the house of the deceased. She stated that others also assembled there on hearing her
alarm.
12. From the evidence of these two witnesses, the fact which has been established is that they had seen these two appellants in a naked condition
sleeping together in the attic of the house of the deceased. The prosecution case thus to the effect that there was illicit affair between both the
appellants have been established from their evidence.
13. Another important witness is PW11 who is the mother-in-law of the deceased. She also stated in the same line as was stated by the PW1 and
PW3. She also stated that she had seen these two appellants sleeping together in the attic of the house of the deceased, fully naked. She also stated
that when they rebuked, Simal Ghosh fled. She further stated that again when at night she heard scream, she along with her husband went to the
house of Jairani Ghosh and saw Devi Ghosh catching the deceased and Simal Ghosh pressing her neck. She also stated that the leg, hand and arm of
the deceased was also broken by them. She further stated that after she reached there, her son and daughter-in-law who are PW1 and PW3 also
reached. She further narrated that her husband died within two days from the death of the deceased. On the date of occurrence her two sons, namely,
Bachchu Ghosh and Ashok Ghosh were not present there, who returned after the incident. She stated that seeing this she had lost her mental balance.
When police questioned her, as she was not in proper senses, she could not say anything. She identified these two appellants. In cross-examination she
admitted that she stated that she lost her senses, now also she is not in her proper senses. She also stated that there is no house next to the place of
occurrence. In the cross examination nothing was extracted from her.
14. From her evidence also, we find that statement of PW1 and PW3 gets corroborated to the effect that there was illicit relationship between both
these appellants and they were seen sleeping together in the house of the deceased in compromising position. It is also established by the prosecution
that the deceased disclosed the aforesaid fact to PW1, PW3 and PW11 who on her disclosure came and witnessed the aforesaid fact. This is also
established that these two appellants knew that it is the deceased, who had disclosed about their illicit relationship to these witnesses. Further from the
evidence of PW11 we find that she had seen the commission of murder. She explains that within two days of the said occurrence, her husband
expired. This lady lost her daughter-in-law and her husband within a span of two days. Thus she suffered a mental shock. The prosecution tried to
discredit this witness on the ground that her statement was not recorded during investigation but we think that the said ground does not hold good in
view of the explanation which she had given and also the fact that her statement about seeing both the appellants in a compromising position is
corroborated by the statement given by PW1 and PW3. Further the fact that she had gone to the house of the deceased is also corroborated by the
statement of PW3. In cross examination nothing was extracted to discredit her testimony. PW2 is the husband of the deceased she was not present at
the place of occurrence nor was the other brother. PW2 clearly stated that they were not present in the house. From his deposition we would also
gather that there was no male member in the house and in absence of the male member the appellant Simal Ghosh, who had developed illicit
relationship with another appellant-Devi Ghosh came and was spending the night in the house along with Devi Ghosh and was seen in the
compromising position by PW1, PW3 and PW11. The other witnesses on the point of occurrence are hearsay witnesses had narrated what they had
heard from these witnesses.
15. Though when there is direct eye-witness to murder, motive losses its relevance but in this case the prosecution has also been able to prove the
motive of the murder. The motive in this case is that the deceased came to know and had seen these appellants in a compromising position and had
informed PW1, PW3 and PW11 who came and had also seen these two appellants in a compromising position, sleeping together naked. They were
rebuked when Simal Ghosh fled from the place of occurrence and within one and a half hour at night, the deceased died a homicidal death in her
house. PW4 stated that he came to know that on the next day panchayati was going to be held in relation to this illicit relationship but before that, this
incident of murder had taken place. This also clearly suggests that there was strong motive of these two appellants to commit the murder.
16. Further we find that the murder had taken place within the four corners of the house of the deceased. From the evidence led by the prosecution it
is clear that save and except the deceased it is Devi Ghosh who was residing there. The witnesses PW1, PW3 and PW11 had seen both the
appellants in compromising position when one of the appellant Simal Ghosh fled. The dead body was also found in the same house. Thus as per
section 106 of the Evidence Act it was Devi Ghosh who should have explained as to how deceased died, but she has failed. Further it is not humanly
possible for one lady to strangulate the other without the help of any other person. It is clear that the paramour of Devi Ghosh i.e. Simal Ghosh came
to help her which is evident from the evidence of PW11. Even for the sake of argument for a moment if we accept that PW11 is not trustworthy but
the motive of appellant Simal Ghosh to commit the murder was strong enough. No one except him could have committed the said offence along with
Devi Ghosh.
17. The guilt of the accused has to be proved beyond all reasonable doubt. The doubt should be reasonable. Doubt simplicitor which a prudent mind
cannot conceive, cannot be the reason to acquit the accused by giving benefit of doubt. The doubt should be grounded on fact, or some plausible
alternative proposition set forth by the defence in their favour. In this case, we find that the defence has not put forth any reasonable ground to
disbelieve or to ignite reasonable doubt about the prosecution case. We find that in this case the prosecution has led firm evidence which leads to only
one conclusion that these appellants have committed murder of the deceased. Thus conviction of these appellants and sentence imposed by the trial
Court needs no interference.
18. Criminal Appeal (DB) No. 593 of 2014 and Criminal Appeal (DB) No. 606 of 2014 stand dismissed.
19. Judgment of conviction dated 24.07.2014 and the order of sentence dated 31.07.2014 passed by the learned Principal Sessions Judge, Pakur in
Sessions Case No. 133 of 2013 are affirmed.
20. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.
