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2002 DIGILAW 364 (PAT)

Bhutto Paswan v. State Of Bihar

2002-03-18

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. Though the appellant was prosecuted for the chqrges punishable under Secs. 307 and 324 of the Indian Penal Code (IPC) along with Sec. 27 of the Arms Act, he suffered conviction only under Sec. 324. IPC and was sentenced to suffer rigorous imprisonment for a term of two Years. 2. Shorn of details the prosecution case launched on behest of Ram Sagar Paswan (PW 8) was that on 28.09.1978 in the early morning of 8 a.m., while Ram Bahadur Thakur (PW 3) was shaving beard of Habbu Paswan near the tea siall of Munnu Poddar the appellant happened to come there who took Habbu Paswan to task for uprooting the crop from his field pursuant to which an altercation ensued between them and it was alleged that the appellant eventually took out a pistol and took recourse to firing causing injuries to Habbu Paswan and Ram Bahadur Thakur too suffered pellet injuries on his person. After the Police was set in motion with these accusation investigation commenced in course of which the Police Officer recorded statement of witnesses visited the place of occurrence got the injured clinically examined by the doctor and on conclusion of investigation laid charge sheet before the Court. In the eventual trial that commenced the State examined altogether nine witnesses including the injured. Police Officer, doctor and other witnesses, who claimed themselves to be conversant with the facts of the incident and the trial Court while believing the witnesses examined at trial to be true did not record finding of guilt under Sec. 307, IPC, and Sec. 27 of the Arms Act found the appellant guilty under Sec. 324, IPC, and sentenced him in the manner stated above. 3. Though finding recorded by the trial Court is sought to be assailed on various grounds by the learned counsel for the appellant none of them appeared to be meritorious. It is urged that though the incident was shown to have happened near the tea stall of Monnu Poddar, who could have been a competent witness, he was not examined by the State. Non-examination of the wife of Habbu Paswan, who allegedly took the injured to the doctor, was also taken to be a ground to assail the bona-fide of the prosecution case. Non-examination of the wife of Habbu Paswan, who allegedly took the injured to the doctor, was also taken to be a ground to assail the bona-fide of the prosecution case. Posture of the assailant and also the injured, which allegedly improbabilities the injuries on the person of the injured, was also taken to be a ground to impeach the credibility of the witnesses. Non-production of cartridges by the Police Officer at trial and non-examination of the doctor who examined Habbu Paswan, were also the grounds on which the finding of guilt recorded by the trial Court has been challenged. 4. Now, adverting to the thrust of the prosecution case one may not fail to notice that the case of the prosecution was that while Ram Bahadur Thakur was shaving beard of Habbu Paswan near the tea stall of Munnu Poddar, the appellant took Habbu Poddar to task for uprooting crops from his field. pursuant to which he took recourse to firing causing injury to him and in the same transaction, Ram Bahadur Thakur too suffered pellet injuries on his person and On this score, there have been evidences of Ram Bahadur Thakur (PW 5). Hibbu Paswan (PW 6) and Ram Sagar Paswan (PW 8), who made coherent statements before the Court about the appellant having taken Habbu Paswan to task for uprooting crop from his field and. thereafter, taking recourse to firing, causing injuries to him when Ram Bahadur Thakur too suffered pellet injuries on his person. No mitigating evidence was placed on the record to discard the credibility of theses witnesses, who happen to hail from village Nauha where the place of occurrence is situated. Their presence at the place of occurrence was most probable and also natural. Habbu Paswan (PW 6) was stamped witness and his presence cannot be discounted. True it is that the doctor, who examined him, was not examined at trial. As for PW 5, Ram Bahadur Thakur, he too was taking tea in the tea stall of Monnu Poddar. 5. There are other set of witnesses whose testimony deserves consideration. Gohal Mochi (PW 1) was repairing shoes near the tea stall of Munnu Poddar. Though he would narrate about altercation between Habbu Paswan and the appellant he turned volte face to the State about the appellant causing fire arm injuries to Habbu Paswan. 5. There are other set of witnesses whose testimony deserves consideration. Gohal Mochi (PW 1) was repairing shoes near the tea stall of Munnu Poddar. Though he would narrate about altercation between Habbu Paswan and the appellant he turned volte face to the State about the appellant causing fire arm injuries to Habbu Paswan. This witness however would admit to have noticed Habbu Paswan bearing injuries on his person. Though Markandey Sahni (PW 2) claimed to be ocular witness, while he was on the tea stall, he withdrew him self to be an ocular witness subsequently, and stated to have noticed the appellant only when he made good his escape with arms. Ram Bahadur Thakur (PW 3) was shaving beard of Habbu Paswan when the latter suffered injuries on his person. This witness too stated to have suffered pellet injury on his person but made all endeavours for not projecting himself as an eye-witness about the appellant having taken recourse to firing causing injury to Habbu Paswan and also himself. Mahavir Singh (PW 4) though did not claim to be an ocular witness about the firing having taken recourse to by the appellant, but stated to have noticed the appellant being chased with fire arm. On consideration of evidences of these witnesses, and also those who claimed to be ocular, no valid reason can possibly be assigned to discard the prosecution case about Habbu Paswan and Ram Bahadur Thakur having suffered injuries on their person at the hC1.nds of the appellant. 6. Though the doctor, who examined Habbu Paswan, was not examined at trial, the State had examined Dr. Ramanand Yadav (PW 7), who examined Ram Bahadur Thakur, and noticed blackish oval lacerated wound 1/8" x 1/9" x 1/10" on the front of pinna of right ear. The injury was found to have beep caused by pellet though simple in nature. The finding of guilt recorded by the trial Court, based on meticulous appreciation of evidences of witnesses, cannot be said to be contrary to the weight of mass of evidence which is accordingly upheld. The injury was found to have beep caused by pellet though simple in nature. The finding of guilt recorded by the trial Court, based on meticulous appreciation of evidences of witnesses, cannot be said to be contrary to the weight of mass of evidence which is accordingly upheld. However, so far as imposition of sentence against the appellant was concerned, he had suffered ordeal of protracted prosecution for about 24 years, and it is brought to my notice by the learned counsel for the appellant that both as under-trial prisoner and also during post conviction period the appellant has remained in custody for about 3 and 1/2 months and on consideration of these mitigating circumstances, while upholding the conviction recorded by the trial Court, as stated above and setting aside the sentence imposed against the appellant, he is sentenced to the period already undergone by him. In addition to that, he is sentenced to pay a fine of Rs. 1000.00 (One thousand) in default of which he would suffer rigorous imprisonment for a term of sixmonths and with this modification in sentence, this appeal is dismissed. The amount of fine must be deposited within two months of receipt/prosecution of order.