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2018 DIGILAW 1324 (JHR)

Sudev Ghose v. State Of Jharkhand

2018-06-26

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard learned counsel for the appellants and learned Addl. Public Prosecutor for the State. 2. The instant Criminal appeal was preferred by the two appellants, namely, Sudev Ghose and Bhuwan Mandal, but the appellant No.2, Bhuwan Mandal has died during pendency of the appeal and to that effect affidavit has been brought on record and as such, the instant Criminal appeal stands abated against the appellant No.2, Bhuwan Mandal as no application for grant of leave has been preferred by legal heirs under Section 394 Cr.P.C., 1973 to continue with the appeal preferred by the deceased. The present Criminal appeal is only confined for the appellant no.1, Sudev Ghose. 3. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 19.12.2003, in S.C. No.66 of 1989 /S.C. No. 199 of 1993 as well as S.T. No.49 of 2001, passed by the learned Addl. Sessions Judge-I, Rajmahal, whereby the appellant has been convicted for the offence under Section 436 of the Indian Penal Code and awarded rigorous imprisonment for four years each and also fine of Rs. 500/- each. 4. The prosecution case is based upon the written report of the informant, Dhiren Ghosh (P.W.3) before the Officer-in-Charge, Radhanagar Phari, alleging therein that on 27.03.1987 at about 12.00 in the midnight, while he was sleeping, the neighbour, Ranjo Bewa raised brawl of fire, upon which he got up, he along with his wife and children came out of house and saw three persons fleeing away, namely, Sudev Ghosh, Niren Ghosh and Bhuwan Mandal and thereafter the villagers assembled there and they tried to save the house by extinguishing the fire, but it could not be saved. The informant has alleged, that neighbour, Ranjo Bewa has disclosed that Sudev Ghosh, Niren Ghosh and Bhuwan Mandal have put the house of informant on fire and she has seen the occurrence. On the basis of the aforesaid ''fardbeyan'' of the informant, the Police has instituted, First Information Report being Rajmahal P.S. Case No. 49 of 1987 (dated 29.03.1987) corresponding to G.R. No.89 of 1987, under Section 436 of the Indian Penal Code. 5. After investigation, the Police has submitted charge-sheet vide chargesheet No.108 of 1987 dated 26.08.1987 under Section 436 of the Indian penal Code against appellants/accused, Sudev Ghosh, Niren Ghosh and Bhuwan Mandal. 6. 5. After investigation, the Police has submitted charge-sheet vide chargesheet No.108 of 1987 dated 26.08.1987 under Section 436 of the Indian penal Code against appellants/accused, Sudev Ghosh, Niren Ghosh and Bhuwan Mandal. 6. Cognizance of the offence has been taken vide order dated 15.09.1987 and the case has been committed to the court of Sessions vide order dated 08.02.1989. The charge has been framed against the appellants and other accused persons under Section 436 of the Indian Penal Code, on 04.09.1992. The co-accused, Niren Ghosh died on 29.06.2001, during trial, as such, name of accused, Niresh Ghosh was expunged on 29.06.2001. 7. The prosecution, in order to prove its case, has examined altogether six witnesses and documentary evidence up-to Exhibit-4. Deven Ghosh, brother-in-law of the informant has been examined as P.W.1, Seema Ghosh (daughter of the informant) has been examined as P.W.2, Dhiren Ghosh, informant of the case has been examined as P.W.3 who has proved his signature on ''fardbeyan'' and marked as Exhibit-1, Kalpana Ghosh (wife of the informant P.W.3) has been examined as P.W.4, Ranjo Bewa (neighbour of the informant and eye-witness) has been examined as P.W.5 and Niwaran Chandra Saha (munshi) has been examined as P.W.6, who proved the formal First Information Report, fardbeyan and seizure-list, being formal witness as Exhibits 2, 3 and 4 respectively. 8. After closure of the prosecution evidence, the statement of the appellant/accused persons have been recorded under Section 313 Cr.P.C., 1973 on 26.08.2003. The defence has not adduced any oral evidence, but adduced documentary evidence i.e. certifying copy of the order of Settlement Case No.132/ 74-75 including kanoongo''s report. 9. Mr. S. S. Choudhary, learned counsel appearing for the appellant has submitted that all the prosecution witnesses examined in this case are interested witnesses. P.W.1 ( Deven Ghosh) is the brother-in-law of the informant, P.W.2 (Seema Ghosh) is the daughter of the informant, P.W.3 is the informant, P.W.4 is Kalpana Ghosh (wife of the informant) and Ranjo Bewa (P.W.5) being the neighbour, claims to be eye-witness to the occurrence is also an interested and partition witness in this case, as she is a party with Dhiren Ghosh (informant), in the litigation, which was fought between the prosecution side against accused persons, owing to the ownership of the land. Learned counsel for the appellant has further submitted, that P.W.1 (Deven Ghosh) is not an eye-witness to the occurrence. Learned counsel for the appellant has further submitted, that P.W.1 (Deven Ghosh) is not an eye-witness to the occurrence. He has not seen the occurrence, as it appears from perusal of Paras 2 and 3 of his crossexamination. P.W.2 (Seema Ghosh) being the daughter of the informant, is also not an eye-witness to the occurrence, as she got up, when her father asked her and thereafter she came out of the house. P.W.3 (Dhiren Ghosh) is also not an eye-witness to the occurrence, rather he was sleeping, as P.W.5 (Ranjo Bewa) raised brawl and after hearing the brawl, he took his wife and children, came out of house, saw his house on fire. This witness (P.W.3) has stated, in para-4 of his cross-examination to the effect that when he went to the Police Station in the night itself and informed the Sub-Inspector of Police that villagers have put his house on fire, but his statement was not recorded there, rather the Sub Inspector of Police said that he will visit the place of occurrence and even not at the place of occurrence and after seeing the place of occurrence, without recording his statement, Sub Inspector returned to Police Station and called the informant there and recorded the statement at the Police Station and thereafter his statement was recorded at 8.00 a.m., on which he put his signature. The signature of the informant on the First Information Report, has been proved and marked, as Exhibit-1. Learned counsel for the appellant relying on the aforesaid submissions, has submitted that it is the case which has been lodged, being an afterthought. From perusal of the evidence of P.W.3 (Dhiren Ghosh) particularly in Para-4 of his cross-examination, the cognizable offence has been reported to the Sub-Inspector of the Police in the night, but no station diary or entry or fardbeyan was recorded and at that time, the informant has not disclosed the names of the accused/appellants at that time, rather the informant has said that his house was put on fire by the villagers and the Sub-Inspector of Police has not recorded the statement of the informant, rather he came to the place of occurrence and asked the informant to come to the Police Station and thereafter, the statement of the informant was recorded. From perusal of the First Information Report, written report of the informant, in which the informant has alleged against three accused persons, including the present appellant. Learned counsel for the appellant has submitted that if a cognizable office is reported to the officer-in-charge, it is duty of the Officer-in-Charge to institute a case at once, but the circumstance and deposition of P.W.3 (Dhiren Ghosh), informant in Para-4 of his cross-examination cast some doubt being an after thought. Learned counsel for the appellant has further submitted that from perusal of evidence of P.W.3 (Dhiren Ghosh) in Para-4 of his cross-examination, it appears that initial information given to the Police, was not against the accused/appellant, rather it was against the villagers without disclosing the names of the appellants, as such, the present First Information Report is nothing, but an after-thought, in which appellant has falsely been implicated. Learned counsel has further submitted, that in a case of the land dispute, the informant P.W.3 (Dhiren Ghosh) and P.W.5 (Ranjo Bewa) were on one side as parties and the accused persons were on the other side as parties. He has submitted, that it would be suffice to note that P.W.5 (Ranjo Bewa) is highly interested witness and being partition witness, would not be relied upon. Learned counsel for the State has not disputed the aforesaid facts from the record. 10. Kalpana Ghosh has been examined as P.W.4. She is the wife of the informant and being a hearsay witness. Ranjo Bewa, the eye-witness and important witness of this case has been examined as P.W.5. She claims to be eye-witnessed to the occurrence. Learned counsel appearing for the appellant has drawn attention towards the deposition of this witness (P.W.5). This witness has stated therein that she has seen the occurrence, which has been committed by the three accused persons by putting the house of the informant on fire. Learned counsel appearing for the appellant has submitted that in Para-4 of crossexamination of this witness (P.W.5- Ranjo Bewa), this witness has stated therein that she was as a party with Dhiren Ghosh (P.W.3) and the accused persons were on other side and they were claiming possession over the Government land, for which both the parties were fighting a case. Learned counsel appearing for the appellant has submitted that in Para-4 of crossexamination of this witness (P.W.5- Ranjo Bewa), this witness has stated therein that she was as a party with Dhiren Ghosh (P.W.3) and the accused persons were on other side and they were claiming possession over the Government land, for which both the parties were fighting a case. Learned counsel appearing for the appellant has drawn attention of this Court towards Para-5 of cross-examination of P.W.5 (Ranjo Bewa), this witness has stated therein that she saw the accused persons were talking themselves. She saw the accused persons putting the house on fire. She has further stated, that she talked to the accused persons, as such, learned counsel for the appellant has submitted that credential of this witness (P.W.5) seems to be doubtful, as this witness instead of raising brawl initially talked to the accused in night with whom she has animosity. Learned counsel for the appellant has further submitted, that if the evidence of P.W.3 (Dhiren Ghosh) is compared with the evidence of P.W.5 (Ranjo Bewa), presence of P.W.5 (Ranjo Bewa) is highly doubtful. He has further submitted that presence of only P.W.5 (Ranjo Bewa) at the spot being an eye-witness of the occurrence, is under cloud, when the informant (P.W.3- Dhiren Ghosh) has stated in Para-3 of his cross-examination that after he got up, he came along with his wife and children outside the house, at that time, two rooms have already burnt. He came out of the house and as soon as he came out of his house, he saw 50-60 persons were present there. Meaning thereby, the statement of P.W.5 (Ranjo Bewa), that she was alone at the place of occurrence, is highly under doubt. Learned counsel for the appellant has further submitted, that credential of P.W.5 (Ranjo Bewa), regarding her presence at the place of occurrence, is under doubt, when she says that she talked to the accused persons. In the normal course, it is not expected. 11. Learned counsel for the appellant has further submitted, that credential of P.W.5 (Ranjo Bewa), regarding her presence at the place of occurrence, is under doubt, when she says that she talked to the accused persons. In the normal course, it is not expected. 11. Learned counsel for the appellant has submitted that the Investigating officer has not been examined in this case and the same has caused serious prejudice to the appellant as the appellant could not examine the Investigating officer with respect to the disclosure of the cognizable offence by the informant (P.W.3- Dhiren Ghosh) to the Officer-incharge, in the night and lodging of the First Information Report, after inspection of the place of occurrence by asking the informant to come to the Police Station. He has submitted, that serious prejudice has been caused by non-examination of the Investigating officer, but informant (P.W.3) has stated in Para-4 of his cross-examination that he has informed the Sub Inspector of Police that villagers have put his house on fire but in the First Information Report which was lodged after delay, the informant (P.W.3) has disclosed and has only alleged against the three accused persons including the appellant which seems to be after thought. P.W.6 (Niwaran Chand Saha) is a Clerk. He proved the formal First Information Report, the fardbeyan and seizure-list as Exhibits 2, 3 and 4 respectively, but still non-examination of the Investigating officer has caused serious prejudice to the appellant, as submitted. 12. Mr. Ravi Prakash, learned Addl. Public Prosecutor appearing for the State has submitted, that P.W.5 (Ranjo Bewa) is not an interested witness, although she was party with the informant, in a case, but she has seen the occurrence, which was committed by the accused persons, but could not satisfy this Court on the query, as to why the Investigating officer has not lodged the First Information Report, on disclosure of cognizable offence, in the night, at the Police Station, wherein the informant has alleged against the villagers, without disclosing their names, as such, learned counsel for the State could not explain the same, from the perusal of the records. 13. After hearing Mr. S. S. Choudhary, learned counsel appearing for the appellant, Mr. Ravi Prakash, learned Addl. 13. After hearing Mr. S. S. Choudhary, learned counsel appearing for the appellant, Mr. Ravi Prakash, learned Addl. Public Prosecutor appearing for the State and on perusal of the records i.e. ''fardbeyan'', charge-sheet, framing of charge, evidence of six prosecution witnesses, exhibits and the defence exhibit, this Court is of the opinion, that the entire case is based upon disclosure made by P.W.5 (Ranjo Bewa) and as per evidence, she is not an eye-witness, as such, her credential is under cloud. Her statement shows that she is interested and partition witness, who has fought the case with the side of the informant against the accused persons. Her credential is further doubtful, when she said that she saw the accused persons, prior to the occurrence. After the occurrence has been committed, by putting the house on fire, she talked to the accused persons which does generate confidence of this Court as normal conduct. If the house is put on fire, she will raise brawl and certainly she will not talk to the accused persons under fear. Further the presence of P.W.5 (Ranjo Bewa), as sole eye-witness is highly doubtful, when evidence of P.W.3 (Dhiren Ghosh) in Para-3 is compared and considered, P.W.3 has stated to the effect that 50-60 persons were present at the place of occurrence. This Court has also found the initial information given to the Police officer regarding a cognizable offence, has not been recorded, wherein the informant has only alleged against the co-villagers without disclosing their names and after inspection by the Investigating officer, the informant has alleged the same against three accused persons. This itself creates doubt and in addition to that, non-examination of the Investigating officer has caused serious prejudice to the appellant as he could not get an opportunity to cross-examine the Investigating officer, on the above facts, that as to how he has not lodged the First Information Report and as to why he has not recorded the statement of the informant (P.W.3), at the place of occurrence. At that time, the informant has not disclosed name of any of the accused persons, rather he has disclosed about the villagers. At that time, the informant has not disclosed name of any of the accused persons, rather he has disclosed about the villagers. When the informant was subsequently called to the Police Station for lodging the First Information Report, wherein the informant has alleged the invovlement of three accused persons, such vital contradictions in the prosecution case coupled with the nonexamination of the Investigating officer has certainly caused serious prejudice to the appellant. 14. In the aforesaid background of the discussions made herein-above, this Court is of the opinion that the appellant cannot be convicted for the offence punishable under Section 436 of the Indian Penal Code, on the statement of P.W.5 (Ranjo Bewa), whose credential is doubtful, apart from the nonexamination of the Investigating officer, in the present case has caused serious prejudice to the appellant. The conviction of the appellant under Section 436 of the Indian Penal code is non-sustainable in the eyes of law. 15. Accordingly, the impugned judgment of conviction and order of sentence dated 19.12.2003 both, passed in S.C. No.66 of 1989, S.C. No.199 of 1993 as well as S.T. No.49 of 2001 by the learned Addl. Sessions Judge-I, Rajmahal, is hereby set aside. 16. Thus, in the result, the instant appeal stands allowed. 17. The appellant, who is already on bail, is discharged from the liability of his bail bonds. 18. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.