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2003 DIGILAW 41 (PAT)

Karu Paswan v. State Of Bihar

2003-01-10

A.K.SINHA, B.K.JHA

body2003
Judgment A.K.Sinha and B.K.Jha JJ. 1. Both the appeas were heard together and are being disposed of by this common judgment as both of them arise out of the same judgment. 2. The prosecution story, as disclosed in the fardbeyan of the informant which was recorded on the alleged date of occurrence at 10.00 A.M. in front of the house of the deceased, is that on 14.11.1995 at about 7.00 A.M. the wife of Umesh Paswan was making cow dung cakes in course of which some water fell down on the ground on account of which there was some altercation between the wives of Rajo Paswan and Umesh Paswan. There was exchange of abuses between them. After some time the appellant Rajo Paswan came out of the house and at about the same time the deceased, namely, Parmeshwar Paswan and his wife Girja Devi also came out from their house and tried to pacify the quarrel, whereupon, the appellant Rajo Paswan told to the informant that why he permitted Raghunandan Paswan to take water and when this altercation was going on, the appellants Rajo Paswan and Maula Paswan gave threats to teach lesson and soon thereafter Rajo Paswan, Maula Paswan, Umesh Paswan, Raj Kumar Choudhary, Karu Paswan, Jagdish Paswan, Pramila Devi and Bhola Paswan came at the door of the informants father-in-law being armed with various weapons. Again both the deceased tried to restrain them but to no effect and Rajo Paswan is alleged to have fired upon the informants father-in-law, namely, Parmeshwar Paswan who fell down injured and when the mother-in-law of the informant went to rescue her husband the appellant Rajo Paswan fired shot upon her also and she also fell down. It has been stated that Maula Paswan, Raj Kumar Choudhary, Karu Paswan, Jagdish Paswan and Bhola Paswan were armed with guns whereas Umesh Paswan was having a bomb in his hand and the appellant Pramila Devi threw brick bats. The informants father-in-law and mother-in-law both died at the spot. Thereafter, the above named accused persons fled away firing from their respective guns and exploded bomb. White retreating they are alleged to have stated that they had killed. It has further been alleged that appellant Bhola Paswan and Umesh Paswan exploded bombs due to which Sunita Devi, a village lady, sustained splinter injuries. Thereafter, the above named accused persons fled away firing from their respective guns and exploded bomb. White retreating they are alleged to have stated that they had killed. It has further been alleged that appellant Bhola Paswan and Umesh Paswan exploded bombs due to which Sunita Devi, a village lady, sustained splinter injuries. The occurrence was witnessed by Chhote Paswan (P.W.2), Gopi Paswan (P.W.7), Umesh Paswan @ Bakhori Paswan (P.W.8), Basudeo Paswan (P.W.6), Doman Paswan (not examined) and many others. The motive for the alleged occurrence as disclosed in the fardbeyan of the informant is that there was dispute regarding construction of hut on a Gairmazarua land besides ill feeling prevailing between the members of the Paswan community. 3. On the basis of the fardbeyan a case under sections 147, 148, 149, 324, 302 of the Indian Penal Code read with section 27 of the Arms Act and sections 3/4 of the Explosive Substance Act was registered against all the appellants and the chargesheet was submitted against them under the aforesaid counts. The case was committed to the court of sessions for trial. 4. Charges were framed against all the eight appellants under section 302 read with section 149 of the l.P.C. Appellant Rajo Paswan was separately charged under section 302 of the l.P.C. Appellant Pramila Devi was charged under section 147 of the l.P.C. and except Pramila rest seven appellants were also charged under section 148 of the l.P.C. read with section 27 of the Arms Act as also under section 3 of the Explosive Substance Act. The case of the defence as would appear from the trend of the cross-examination and suggestions given to the witnesses is that no such occurrence actually took place and there was a dacoity in the village in which the deceased received fatal injuries and due to previous grudge the informant implicated the appellants with false allegation. 5. In order to bring home the charges the prosecution examined as many as 12 witnesses out of whom P.W.1 Dhirendra Kumar Singh and P.W.10 Awadhesh Paswan are formal witnesses who have proved the formal F.l.R. (Ext. 1) and signature (Ext. 4/1) on the inquest report. P.W.6 Basudeo Paswan has been named as an eye witness in the fardbeyan but he turned volte face and did not support the prosecution version. 6. P.W.4 Dr. 1) and signature (Ext. 4/1) on the inquest report. P.W.6 Basudeo Paswan has been named as an eye witness in the fardbeyan but he turned volte face and did not support the prosecution version. 6. P.W.4 Dr. Sunil Kumar Singh conducted the autopsy on the dead body of Girja Devi and he found the following ante mortem injuries on her person: A lacerated wound of size 2" x 1" over front of neck with margin inverted and blackened (wound of entry) communicating with wound of exit which was lacerated wound of size 1" x 3/4" over left scapular region. On dissection the doctor found that there was laceration of larynx, trachea and oesophagus. There was fracture of second rib in front and fourth rib behind over the left side. There was fracture of left scapula and there was blood clot in subcutaneous tissue of the aforesaid injury in the left pleural cavity. In the opinion of the doctor the cause of death was due to shock and haemorrhage by the aforesaid injuries which was caused by fire arm. P.W.4 has proved his report (Ext.2). In his cross-examination P.W.4 has stated that he found blackening mark around injury no.1 and the injury found by him can be caused from a distance of 20 yards but not from a close distance. But this opinion of the doctor does not seem to be correct because injury no.1 with blackening mark cannot becaused from such a distance and it is possible from a short distance only. 7. P.W.5 is another doctor who conducted autopsy on the dead body of Parmeshwar Paswan and found the following ante mortem injuries on his person: Wound of entry 1/2" lacerated circula wound x brain cavity deep on bridge of nose with inverted margin. Wound of exit 1/2 lacerated circular wound over upper portion of left side of neck with inverted margin. On dissection fracture of nosal bone sphenoid occipital bone were seen. Cranial cavity contained blood and blood clot. There was laceration of brain matter and extrasation of blood in the soft tissue of left side of neck. P.W.5 has proved his report (Ext. 2/1) and has stated in his cross- examination that he did not find any tattooing mark around the wound. So he stated that it was caused from a distance of 4 ft. There was laceration of brain matter and extrasation of blood in the soft tissue of left side of neck. P.W.5 has proved his report (Ext. 2/1) and has stated in his cross- examination that he did not find any tattooing mark around the wound. So he stated that it was caused from a distance of 4 ft. In the opinion of P.W.5 also the death was caused due to aforesaid fire arm injuries. 8. From the evidence of P.Ws. 4 and 5 it is well established that both the deceased died due to the injuries caused by fire arms and both sustained single fire arm injury on their persons. The allegation in the F.l.R. is also to the effect that appellant Rajo Paswan fired one shot upon Parmeshwar Paswan and one shot upon his wife, Girja Devi. 9. It may be stated here that in the fardbeyan of the informant which was recorded after three hours of the alleged occurrence by the l.O. it has been clearly stated that when the deceased Parmeshwar Paswan and his wife tried to stop the quarrel it was Rajo Paswan who fired upon Parmeshwar Paswan first from his country made gun on account of which he fell down injured and when his wife ran to rescue her husband the appellant Rajo Paswan again shot fire upon her on account of which she also fell down. So it is clear from the fardbeyan that both the deceased received gun shot injuries at the hands of Rajo Paswan and other appellants had not resorted to any firing upon the deceased. But it seems that during evidence the prosecution tried to improve its case, inasmuch, as the witnesses were examined to say that Maula Paswan had also fired upon one of the deceased but the witnesses have made contradictory statements in this regard which we will refer to in our subsequent paragraphs. 10. So far appellant Rajo Paswan is concerned there is consistent evidence of P.W.3 Nitu Kumari and P.W.9 Sahdeo Paswan (informant) that he fired upon Parmeshwar Paswan. In the fardbeyan also the allegation is that at first Rajo Paswan fired upon Parmeshwar Paswan who fell down and died at the spot. Therefore, it would appear that P.Ws. 10. So far appellant Rajo Paswan is concerned there is consistent evidence of P.W.3 Nitu Kumari and P.W.9 Sahdeo Paswan (informant) that he fired upon Parmeshwar Paswan. In the fardbeyan also the allegation is that at first Rajo Paswan fired upon Parmeshwar Paswan who fell down and died at the spot. Therefore, it would appear that P.Ws. 3 and 9 both have supported the prosecut on story as regards the firing made by Rajo Paswan upon Parmeshwar Paswan and there is consistency in their evidence on this score. Both the witnesses remained unshaken in their cross-examination on this point and no material contradiction could be elicited from them. We are, therefore, of the view that the prosecution has been able to prove, at least, this fact that appellant Rajo Paswan committed the murder of Parmeshwar Paswan for which he has been held guilty for committing the offence under section 302 of the Indian Penal Code. 11. As already stated above the prosedition has developed its story, inasmuch as, the witnesses have been examined to say that it was not only Rajo Paswan who fired upon both the deceased, rather, appellant Maula Paswan also shot fire upon one of the deceased. P.W.2 Chhote Paswan has deposed that it was Rajo Paswan who fired upon his sister-in-law (Girja Devi) and appellant Maula Paswan fired upon his brother Parmeshwar Paswan. His evidence is contradictory to the prosecution case as made out in the fardbeyan where it has been alleged that appellant Rajo Paswan had fired upon both the deceased. The evidence of P.W.2 has been contradicted by P.W.3 who has stated that it was Maula Paswan who fired upon her mother and P.W.8 has also made a contradictory statement that it was Rajo Paswan who fired upon Girja Devi and according to P.W.9 Maula fired upon Girja Devi. The attention of P.W.12 Mr. R. S. Singh who is the I.O. of this case was also drawn in this connection and he has stated that Chhote Paswan (P.W.2) had not stated before him that Rajo Paswan had fired upon Girja Devi. Similarly P.W.3 Nitu Kumari had also not stated before him that her mother died as a result of firing of Maula Paswan and P.W.8 Umesh Paswan had also not stated before him that appellant Maula Paswan fired upon Parmeshwar Paswan with his gun. Similarly P.W.3 Nitu Kumari had also not stated before him that her mother died as a result of firing of Maula Paswan and P.W.8 Umesh Paswan had also not stated before him that appellant Maula Paswan fired upon Parmeshwar Paswan with his gun. The I.O. has stated that it has been noted in the diary that Rajo Paswan had fired upon Girja Devi also. Therefore, what we find is that so far the evidence of the witnesses that Maula Paswan had also participated in the firing on the deceased has not only been contradicted by the I.O. rather the evidence of the witnesses on this point is also not consistent, inasmuch as, two witnesses have stated that Maula Paswan fired upon Girja Devi whereas two of them have stated that he fired upon Parmeshwar Paswan and their evidence is contradictory to the allegations in the F.I.R. Therefore, the evidence of the witnesses that Maula Paswan had fired upon the deceased does not inspire confidence to believe. 12. Save and except appellants Rajo Paswan and Parmila Devi the remaining six appellants have been convicted under sections 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. It has been canvassed at the bar that the appellants who have been convicted under sections 302/ 149 of the l.P.C. are innocent and there is no material on record to convict them for that charge. It was pointed out that appellants Rajo Paswan and Jagdish Paswan are the sons of Baldeo Paswan and Bhola Paswan is the son of Jamuna Paswan and he is their cousin brother whereas appellants Karu Paswan, Umesh Paswan and Maula Paswan are the sons of Ram Awatar Paswan who are not related to Rajo Paswan as there is no such evidence on record. The appellant Raj Kumar Choudhary who is the son of Munshi Choudhary have no connection with Rajo Paswan. There is nothing in the evidence of the witnesses which may show that all the appellants had any common dispute with the deceased so that they might have formed unlawful assembly with common object of killing the deceased persons. The appellant Raj Kumar Choudhary who is the son of Munshi Choudhary have no connection with Rajo Paswan. There is nothing in the evidence of the witnesses which may show that all the appellants had any common dispute with the deceased so that they might have formed unlawful assembly with common object of killing the deceased persons. The informant has himself admitted in his evidence that he had not made statement while making his fardbeyan before the l.O. that his parent-in- laws had any dispute regarding the Gairmazarua land or due to ill feeling on account of being the members of the same caste. He has further stated that some dispute is going on regarding the construction of hut on Gairmazarua land but they have no concern with that dispute which was actually going on between Raghunandan Paswan and Rajo Paswan. As such, it was submitted that there can not be any earthly reason for the appellants who have been convicted under sections 302/149 of the l.P.C. to attack the deceased persons and the entire allegations against them are false. 13. In view of above discussion we find that the improvement brought by the prosecution in its case that Maula Paswan also fired upon the deceased does not inspire confidence to believe and it seems that the allegation of firing against him is an after thought. Having reached to such conclusion it would be found from the F.I.R. that there is no allegation of causing any violence against the appellants Karu Paswan, Maula Paswan, Umesh Paswan, Raj Kumar Choudhary, Bhola Paswan and Jagdish Paswan. The F.I.R. reveals that after death of the deceased all the accused persons went away by saying that they had killed and while retreating they had exploded bomb and fired from their guns. Firstly, when Parmeshwar Paswan and his wife had died there was no occasion for the accused persons to say that they had killed. So, this statement in the F.I.R. appears to be ornamental designed to bring all the accused in one fold. As such, it is not worth belief that accused persons will make such announcement that they had killed when the fact was that Parmeshwar Paswan and his wife had already been killed. So, this statement in the F.I.R. appears to be ornamental designed to bring all the accused in one fold. As such, it is not worth belief that accused persons will make such announcement that they had killed when the fact was that Parmeshwar Paswan and his wife had already been killed. Another circumstance as stated in the fardbeyan that the accused persons went away resorting to firing and also exploded bomb also fall short of belief because P.W.12 R.S.Singh, l.O. of the case, did not find any objective finding of firing or explosion of bomb near the place of occurrence. The witnesses have stated that appellant Umesh Paswan exploded bomb on the wall of one of the witnesses but the l.O. did not find anything. Had it been a fact that the assailants exploded bomb or resorted to firing after accomplishment of their object, the I.O., who inspected the place of occurrence after three hours of the alleged occurrence must have found the sign of explosion of bomb or empty cartridges left over by the assailants. It, therefore, appears that the statement made by the informant in this regard is nothing but an exaggerated version which is not supported by any cogent evidence nor inspire confidence to believe. 14. As discussed above we find that all the accused were not related to each other or belonged to same family nor they had any dispute with the deceased. There was also no immediate cause for all the appellants to form unlawful assembly with common object to kill the deceased persons. The fact, however, remains that they all live in the same vicinity. The informant is not a resident of the village as he is son- in-law of deceased Parmeshwar Paswan and it has come in the evidence that he left the village after the occurrence. The learned counsel appearing for the appellants strongly argued before us that the informant falsely implicated the appellants who have been convicted under sections 302/ 149 of the I.P.C. in order to feed fat his grudge by falsely alleging that they had also participated in the occurrence and had resorted to firing and exploded bombs which has not been supported by the evidence of the I.O. So, when there was neither any immediate cause nor any previous dispute between the deceased and the appellants who have been convicted under sections 302/149 of the I.PC. the prosecution has miserably failed to prove that they had any common object. 15. The existence of common unlawful object is a requisite for unlawful assembly and unless there is proof of an agreement amongst the persons to do anything or a plan to carry out a design and if it is not possible, unless it is shown that an inference in support of that act can reasonably be drawn from the relations, act and conduct of the parties, a person cannot be constructively made liable for the acts of the others; the common object of the unlawful assembly can be collected from the nature of the assembly, arms used by them and behaviour of the assembly at before the scene of occurrence, the common object is an inference of fact to be decided on the facts and circumstances of each case. It is also well established rule of law that simply because certain members are present in a crowd at the time of the commission of riot by certain members it cannot be said that all of them were guilty of riot having common object. In other words, the common object is required to be established with reference to the evidence, facts and circumstances of each case. In the instant case, we find that appellants Umesh Paswan, Raj Kumar Choudhary, Karu Paswan, Jagdish Paswan and Bhola Paswan did not cause any injury to the deceased persons or to the informant and the allegation of causing injuries to the deceased against appellant Maula Paswan has been disbelieved by us, so none of them caused any violence or any injury to any one. We have also found above that they had no common cause for committing the murder of the deceased nor they had any dispute with them. Therefore, even assuming that they were present at the place of occurrence as they happened to be living in the vicinity, it cannot be said that they were also the members of unlawful assembly or had any common object to commit the murder of the deceased persons. It appears more probable to us that informant might have implicated them by making an omnibus allegation against them that they also came armed with guns and bombs and resorted to firing and exploded bombs but that has not been substantiated by any evidence. 16. It appears more probable to us that informant might have implicated them by making an omnibus allegation against them that they also came armed with guns and bombs and resorted to firing and exploded bombs but that has not been substantiated by any evidence. 16. P.W.7 Gopi Paswan who is a Choukidar has stated that Maula Paswan was armed with a pistol, Rajo Paswan was armed with rifle and other appellants were armed with lathi, meaning thereby except Maula Paswan and Rajo Paswan others were not armed with guns or bombs as has been alleged in the F.I.R. There is another contradiction, according to P.W.7, Maula Paswan was armed with pistol but in the F.I.R. it has been alleged that he was armed with a gun. Therefore, the contradictory statements made by the witnesses on the manner of occurrence is a circumstance making it more probable that the appellants, namely, Karu Paswan, Maula Paswan, Umesh Paswan, Raj Kumar Choudhary, Bhola Paswan and Jagdish Paswan have been falsely implicated by the informant. 17. After careful consideration of the evidence facts and circumstances of the case, we are of the view that possibility of false implication of appellants Karu Paswan, Maula Paswan, Umesh Paswan, Raj Kumar Choudhary, Jagdish Paswan and Bhola Paswan cannot be ruled out. So we give the benefit of doubt to them and acquit them of the charges under sections 302/ 149 of the I.PC. 18. So far the appellant Pramila Devi is concerned, she has been convicted under sections 147 and 323 of the I.P.C. for causing injury to Sunita Devi whose injuries were examined by P.W.11 Dr. Naresh Kumar Sinha. P.W.11 has deposed that he examined Sunita Devi and found an abrasion of size 1/8th" x 1/8th" on the posterior aspect of right thigh. The injury was caused by hard and blunt object. He has also proved his report (Ext.5). In his cross- examination P.W.11 has admitted that the injury was most superficial which can be caused by any rough substance and may be easily manufactured. The age of injury according to him was beyond 24 hours from the time of his examination. The admitted fact is that Sunita Devi was examined on the same day. In his cross- examination P.W.11 has admitted that the injury was most superficial which can be caused by any rough substance and may be easily manufactured. The age of injury according to him was beyond 24 hours from the time of his examination. The admitted fact is that Sunita Devi was examined on the same day. So it will clearly appear that the injury found on her person was not caused at the time of the alleged occurrence as the doctor found the same to have been caused beyond 24 hours from the time of his examination. The appellant Pramila Devi is the wife of appellan Rajo Paswan and according to F.I.R. she was standing at the place of occurrence and alleged to have thrown brick bats. In course of the evidence P.Ws. 2 3, 8 and 9 stated that she threw a bomb causing injury to Sunita Devi but the I.O did not find any sign of bomb explosion at the P.O. which shows that the witnesses have exaggerated their version that appellant Pramila Devi threw bomb which caused injury to Sunita Devi. Considering the nature of injury and the contradictory statements made by the witnesses we find that the allegation against Pramila Devi is false and in the facts and circumstances of the case it cannot be said that she was a member of unlawful assembly merely because she was standing near the place of occurrence which is situated in front of her house. We are therefore, of the view that the charges under sections 147 and 323 of the I.P.C. have not been proved against appellant no.2 of Cr. Appeal No. 206 of 1998 beyond reasonable doubts. So we hold Pramila Devi not guilty to the said charges. 19. In view of the evidence, facts and circumstances of the case as discussed above, we are of the view that the prosecution has proved the charge under section 302 of the Indian Penal Code against appellant Rajo Paswan of Cr. Appeal No. 206 of 1998 beyond all reasonable doubts. As such, the order of conviction and sentence recorded by the trial court against him are upheld. The remaining appellants are acquitted of their respective charges. 20. In the result, therefore, Criminal Appeal No. 206 of 1998 is dismissed with modification as stated above and Criminal Appeal No. 190 of 1998 is allowed. As such, the order of conviction and sentence recorded by the trial court against him are upheld. The remaining appellants are acquitted of their respective charges. 20. In the result, therefore, Criminal Appeal No. 206 of 1998 is dismissed with modification as stated above and Criminal Appeal No. 190 of 1998 is allowed. The appellant Rajo Paswan of Cr.Appeal No. 206/98 is in custody. He will serve out the remaining part of the sentences and the remaining appellants of both the Criminal Appeals who are on bail are discharged from the liability of their bail bonds.