Suraj @ Suresh Ghosh @ Suraj Ghosh And Ors vs State of Jharkhand

The appellants namely, Suraj @ Suresh Ghosh @ Suraj Ghosh and Anand Ghosh have challenged the judgment of conviction dated 05.12.2008 under section 302/34 IPC and the order of sentence of R.I for life dated 10.12.2008 passed by the 4th Additional Sessions Judge, East Singhbhum at Jamshedpur in Sessions Trial No. 326 of 2006.

On the basis of the fardbeyan of Rakesh Kumar Singh, the informant, recorded at about 18:05 hrs. on 01.04.2006, Jugsalai (Bagbera) P.S. Case No. 71 of 2006 was registered against Suraj @ Suresh Ghosh, Anand Ghosh and Sunil Ghosh under section 302/34 IPC; the accused Sunil Ghosh was declared juvenile. After the investigation charge-sheet was filed under section 302/34 IPC and the appellants namely, Suraj @ Suresh Ghosh and Anand Ghosh have faced the trial in Sessions Trial No. 326 of 2006 on the charge of causing death of Radheyshyam Jaiswal in furtherance of common intention of all.

Dr. J. Shree Nivas Raw-P.W.3 who has conducted postmortem examination on the dead body of Radheyshyam Jaiswal has found as many as 18 injuries on him; most of them were contusions and abrasions. The doctor has found fracture on left hand, left femur, right tibia and fibula. He has noticed injuries around the face, head, scalp and occipital region of the deceased. In the opinion of the doctor all the injuries were antemortem and caused by hard and blunt substance, except injury no. xvii.

The prosecution has projected P.W.1, P.W.2 and P.W.5 as eye-witnesses.

The informant of the case is Rakesh Kumar Singh-P.W.4. He has stated that at about 12:00 noon on 01.04.2006 he received an information from Chatarbhuj Patro that the accused persons have assaulted his employee-Radheyshyam Jaiswal, who has been shifted to MGM Hospital with the help of the locals. He has further stated that from MGM Hospital Radheyshyam Jaiswal was referred to TMH Hospital where he was admitted in the emergency ward, but finally succumbed to the injuries.

The person namely, Chatarbhuj Patro, who has given information about the incident to the informant, has not been examined by the prosecution.

Wife of the deceased namely, Manju Jaiswal, who has been examined as P.W.2 is not an eye-witness to the actual occurrence. In paragraph no. 15 of his cross-examination, P.W.1 has admitted that before P.W.2 arrived at the place of occurrence, her husband was taken to MGM Hospital. The learned Judge has also referred to this aspect of the matter in paragraph no. 14 of the judgment in Sessions Trial No. 326 of 2006.

In her examination-in-chief, the wife of the deceased has deposed that she was informed about the occurrence by a boy at about 10:30 a.m, however, in her cross-examination, she has stated that she does not know the name of the boy. She has further stated that she does not remember when she was given information about the incident and who were the persons present there. She has failed to give distance of her house from the Toll and she has also failed to describe on which part of the main road Sanjay Nagar is situated. She says that she does not recall the name of the person who had taken her to the MGM Hospital and she admits that she had gone there after her injured husband was taken to MGM Hospital.

The prosecution witness namely, Ajay Kumar Singh-P.W.1, who has been projected as an eye-witness, in his examination-in-chief, has simply stated that at about 10:00 a.m on 01.04.2006 he has visited the Toll situated in Sanjay Nagar. In his examination-in-chief, he does not state that he was informed about the incident by Chatarbhuj Patro. He simply says that accused persons started assaulting Radheyshyam Jaiswal and his elder brother namely, Dharmendra Singh tried to save him, but the accused persons did not listen him. He says that with the help of locals Radheyshyam Jaiswal was taken to MGM Hospital. In his cross-examination, he says that there are 25 huts around the place of occurrence. He has failed to indicate the distance between the place of occurrence and the house of the appellants. He has also failed to identify the weapon held by the appellants and the time when the family of the deceased was informed about the incident. He admits that there was no enmity between the deceased Radheyshyam Jaiswal and the appellants.

The witness namely, Dharmendra Singh-P.W.5 has also deposed in the court on similar lines. In his cross-examination, he says that distance between the Toll and his house is 3-4 kilometres. In paragraph no. 16 of his cross-examination, this witness says that Radheyshyam Jaiswal was taken to the Hospital by P.W.1 and others, however, in paragraph no. 15 of his cross-examination P.W.1 admits that when the deceased was taken to MGM Hospital he was not with him. He says that he went to MGM Hospital at about 1:00 p.m.

The evidence of P.W.1, P.W.2 and P.W.5, who have failed to disclose the material informations of the case, do not inspire confidence.

The Investigating Officer-P.W.6 says that on 29.03.2006 a petition was received from the accused-Sunil Ghosh about an altercation between Rakesh Kumar Singh and them. The Investigating Officer has deposed that on the petition dated 29.03.2006 a proceeding under section 107 Cr.P.C was recommended.

It is the defence of the accused persons that due to previous altercation the informant has falsely implicated them in this case.

In paragraph no. 6 of his examination-in-chief, the Investigating Officer has admitted that he has taken statement of several other persons, however, they have not been made charge-sheet witnesses. He admits that he has not prepared the map of the place of occurrence and he does not remember how many houses are there near the place of occurrence. He further admits that he did not record the statement of the persons who had gone with the deceased in the Tempo and he has not even visited house of the deceased nor recorded statement of the brother and cousin of the deceased. He has also failed to give details of the Tempo on which the deceased was allegedly taken to MGM Hospital. The crime weapon and the blood-stained earth were not collected and the blood-stained cloths of the deceased were also not sent for forensic examination.

True, defect in the investigation may not result in prejudice to the accused, but then, to connect an accused with the crime the prosecution must bring home the charge beyond all reasonable doubts. The prosecution witnesses - P.W.1, P.W.2 and P.W.5 - have failed to disclose the material informations about the occurrence and the Investigating Officer has not only not conducted the investigation properly he has suppressed some material witnesses. This throws a considerable doubt on the prosecution's story.

In the above facts, having examined the materials brought on record during the trial of Sessions Case No. 326 of 2006, we hold that the appellants are entitled for benefit of doubt.

The judgment of conviction dated 05.12.2008 under section 302/34 IPC and the order of sentence dated 10.12.2008 of R.I for life and fine of Rs. 5,000/- imposed upon each appellants for the aforesaid offence passed by the 4th Additional Sessions Judge, East Singhbhum at Jamshedpur in Sessions Trial No. 326 of 2006 are set-aside.

In the result, Criminal Appeal (DB) No. 138 of 2009 is allowed.

Both the appellants namely, (1) Suraj @ Suresh Ghosh @ Suraj Ghosh and (2) Anand Ghosh shall be set free forthwith, if not wanted in connection to any other criminal case.

We appreciate the efforts of Mr. Mahesh Kumar Sinha, the learned Amicus and the assistance rendered by Mr. Satish Kumar Keshri, the learned APP.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs. 5,500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let the lower-court records be transmitted to the court concerned, forthwith.