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2003 DIGILAW 443 (PAT)

Naresh Paswan v. State Of Bihar

2003-04-17

CHANDRA MOHAN PRASAD

body2003
Judgment CHANDRA MOHAN PRASAD, J. 1. As all the three appeals arise out of the same judgment and they involved common question on facts and law hence they are being disposed of by this common judgment. 2. All the three appellants were convicted under Section 395 and sentenced to undergo R.I. for ten years by judgment dated 19.1.2002 of the Presiding Officer, Additional Court No. 1, Nalanda in Session Trial No. 198 of 1984/129 of 2001. 3. The fardbeyan of the case was recorded by S.I. B. Prasad, Officer-in- charge. Noorsarai Police station in the night of 15.11.1983 at 2.15 a.m. near the house of informant Rooplal Sao. He stated that in the night of about I Oclock he and his family members woke up on hearing the sound of the firing and bomb explosion and after some time he also heard the sound of breaking the door of his house. At that stage he went on the roof of his house and saw that some criminals had entered into the khand (open bounded Court yard) through bamboo and they were trying to break the door of his house. He raised hulla and pelted stones on the criminals. The criminals started firing and explosion, of bomb. In the meantime some village guards also assembled there who raised alarm also and pelted stones and an encounter ensued for ten to fifteen minutes between the criminals and the villagers. In the meantime the officer-in-charge of Noorsarai Police Station arrived there on a motor cycle and saying that other police force were also arriving encouraged the villagers. In the encounter with the criminals villagers Arvind Ram, Ravindra Kumar and Kapil Ram were couragiously encountering the criminals. The criminals opened fire due to which Officer-in-charge Balmiki Prasad and Arvind Ram received minor pellet injury. The officer-in-charge fired from his service revolver thereupon the sound of "ah" was heard which indicated that some criminals were hit. He fired for the second time which probably hit the jhola of the criminal containing bomb causing its explosion and the sound of crying of the criminals was also heard indicating injury by that explosion. The village guard Parshuram was also injured by the explosion of bomb thrown by the criminals. The informant and the villagers were flashing torch light and they claimed to identify the criminal on seeing them again. The village guard Parshuram was also injured by the explosion of bomb thrown by the criminals. The informant and the villagers were flashing torch light and they claimed to identify the criminal on seeing them again. When the other police force arrived the criminals fled away. Then on seeing the trails of blood fallen from the injury of criminals the villagers and the police party chased the criminals and after a good deal of chase one criminal in injured condition was apprehended with a pistol. Because of his being injured he was not in a position to flee away whereas the other criminals managed to escape. The criminal are said to have wore KACHHA, sweater and GANJI etc. The encounter is said to have taken place for about 40 to 45 minutes. It is said in the fardbeyan that the criminals could not succeed in taking away any property with them. The villagers Chandra Bhushan Prasad, Ravindra Kumar, Sita Ram and Ambika Prasad has signed on the fardbeyan as witnesses. 4. As may as 16 witnesses have been examined by the prosecution. PW 1 Vidya Prasad is a hostile witness and he says that on hulla he reached at the Place of occurrence at about 2 a.m. and he saw that dacoity had taken place in the house of Rooplal Sao and Darogaji was inspecting the place of occurrence. He further says that in the ensuing morning he learnt that one of the dacoits Banshi Beldar had been caught in injured condition. He further deposed that Parshuram had received pellet injury and none else was injured in the occurrence. His attention was drawn towards the police statement and he has denied to have lodged any police statement supporting the case of the prosecution. 5. PW 2 Arvinda Kumar have been tendered by the prosecution and had simply deposed that he had not given any statement before the police. 6. PW 3 Munna Lal Sah is also a hostile witness, he deposed that in the night of 15.11.1983 he woke up at about 1 Oclock on the sound of firing and explosion of bomb and he raised hulla when the dacoits were breaking the door of his house. 6. PW 3 Munna Lal Sah is also a hostile witness, he deposed that in the night of 15.11.1983 he woke up at about 1 Oclock on the sound of firing and explosion of bomb and he raised hulla when the dacoits were breaking the door of his house. He further deposed that the Officer-in-charge of the police station had come to the place of occurrence and an encounter had taken place between the villagers and the criminals and one Parashuram had received injury and he did not know any body else was injured in the occurrence. On his attention being drawn towards the police statement supporting the prosecution story. 7. PW 4 Parashuram Prasad deposed that in the night of occurrence he, Daya Nand, Rajeshwar Sao, Hira Chaudhary, Raj Kumar Thakur, Suresh Prasad were on village guard duty and they had heard hulla from the house of Rooplal Sao and also on hearing the sound of firing they had gone there and an encounter had taken place between the villagers and the criminals. He has further deposed that Darogaji had come and the dacoits has opened fired due to which he, Arvind, Ravindra and Darogaji had received injury. He also deposed that the fire resorted to by the Darogaji had hit one dacoit and the bomb carried by the dacoits had exploded and thereafter the dacoit started fleeing away. He further deposed that the dacoits were chased. He also deposed that later on he had learnt that one dacoit had been caught after chase and the apprehended dacoit had disclosed his name as Banshi Beldar. At para 4 of his cross-examination he deposed that Darogaji had arrived one hour after the occurrence. 8. PW 5 Shiv Prasad Ram have been tendered and he simply deposed that he has not given any statement before the police. 9. PW 6 Rooplal Prasad Sao is the informant himself and this is important to note that he too has turned hostile. 8. PW 5 Shiv Prasad Ram have been tendered and he simply deposed that he has not given any statement before the police. 9. PW 6 Rooplal Prasad Sao is the informant himself and this is important to note that he too has turned hostile. He deposed that in the night of occurrence at about 1 Oclock he woke up on the sound of explosion of bomb and then he went on the roof of his house and saw that some dacoits were breaking the door of their house and some of the criminals were also firing shot and when the villagers guard had arrived there, stones were pelted on the criminals and an encounter had taken place and in the meantime police had arrived there and due to explosion of bomb Parshuram Prasad had received injury and that none else was injured and that Darogaji had simply received splinters injury. He further deposed that the dacoits were chased and subsequently he learnt that a dacoit was apprehended after chase and that police persons had told that the apprehended criminal was Banshi Beldar. He deposed that he did not know as to what was recovered from the possession of the apprehended accused. The attention of this witness (informant) was drawn towards the police statement and he denied to have stated before the police that he had chased the dacoit with the villagers and that a dacoit in injured condition was apprehended and that a country made pistol was recovered from the apprehended dacoit. 10. PW 7 Kapil Deo Prasad is a witness named in the fardbeyan. But this witness has been tendered by the prosecution and he has simply deposed that hulla was raised and after half an hour of the hulla he had gone to that place. 11. PW 8 Deelip Kumar had deposed that on the night of occurrence he had heard the hulla chor chor and the sound of bomb explosion and firing coming from the side of the house of Rooplal Sao and that thereafter he had gone on the roof of his house. He had further deposed that in the ensuing morning he learnt that police had come and thereafter the dacoits had fled away. He had further deposed that in the ensuing morning he learnt that police had come and thereafter the dacoits had fled away. At paragraph three his attention was being drawn by the APP towards the police statement and he denied to have given any statement supporting the case of the prosecution any further. 12. PW 9 is Ravindra Kumar. According to fardbeyan he is said to have taken part in the encounter and he has also been cited as a witness on the seizure regarding seizure of pistol from the apprehended accused Banshi Beldar but this witness has been tendered by the prosecution and he had simply deposed in his evidence that he had not given any statement before the police supporting the case of the prosecution. 13. PW 10 Balmiki Prasad is the then Officer-in-charge of Noorsarai Police Station. He is the police Officer who has recorded the fardbeyan of this case and he had become the I.O. of this case. According to the case of prosecution he has taken active part in the encounter between the villagers and the criminals and he is said to have fired from his pistol upon the criminals. He deposed that in the night of 15.11.1983 when he was at his quarter, he heard hulla and sound of Firing coming from the side of Daya Nagar mohalla of Noorasarai Bazar. On hearing this he went there on a motor cycle and he saw that an encounter was going on between the villagers and the criminals. He (PW 10) assisted the villagers in that encounter and he fired from his service revolver and that the fire shot hit the jhola of one criminal causing explosion of bomb and as a result of which one criminal was injured. He deposed that he and two villagers Parashuram Singh and Ravindra Kumar had received injury due to the firing resorted to at the hands of the criminals. Ravindra Kumar (PW 9) is said to have received injury in the occurrence but in his evidence he himself does not support the story of his being in- jured in the occurrence. PW 10- further deposed that police force including Arvind Kumar Mishra Assistant-Sub- Inspector of Police Ram Nagina Pandey and Baidhyanath Singh havaldar had also arrived there and upon their arrival the dacoits had started fleeing away. PW 10- further deposed that police force including Arvind Kumar Mishra Assistant-Sub- Inspector of Police Ram Nagina Pandey and Baidhyanath Singh havaldar had also arrived there and upon their arrival the dacoits had started fleeing away. He further deposed that seeing the trails of blood he had chased the dacoits and in a khanda of Gordiha village he had found one man lying in seriously injured condition at a lonely place and a pistol was also recovered from the possession of that person. He says that a seizure list was prepared there in presence of Chandra Bhushan @ Chamru Prasad and Ravindra Kumar. The seizure list has been marked as Ext. 2 and the signature of these two witnesses is as Ext. 2/1 and 2/2. He also deposed that in presence of the above two witnesses he had also seized the blood soaked soil and a seizure list was also prepared. The seizure list had been marked as Ext 2/3 and the signature of the witnesses 2/4 and 2/5. He further deposed that at 2.15 a.m. in the night of 15.11.1983 he had recorded the fardbeyan of the informant at his house. He further goes to depose that according to his statement the fardbeyan had been recorded by AS1 Baijnath Singh and the informant had put his signature on that fardbeyan. At paragraph one of his evidence he deposed that he had apprehended accused Banshi Beldar at a distance of one and half kilometer from the place of occurrence. He has also deposed in his examination-in-chief that he and his associates had seen the faces of the dacoits at the time of their fleeing away. He further deposed that on conclusion of investigation he has submitted charge-sheet. He proved the formal first information report marked as Ext. 1. he also proved the writing on the injury report marked as Ext. 5 and 5/1. He further proved the writings of the injury report Ext. 5/2 and 5/3. It has to be mentioned here that the doctor who is said to have examined the injury has not been examined by the prosecution. At paragraph 22 of his cross examination he deposed that the seizure list witness Chandra Bhushan @ Chamru and Ravindra Kumar were with them at the time of the chasing of the criminals. 5/2 and 5/3. It has to be mentioned here that the doctor who is said to have examined the injury has not been examined by the prosecution. At paragraph 22 of his cross examination he deposed that the seizure list witness Chandra Bhushan @ Chamru and Ravindra Kumar were with them at the time of the chasing of the criminals. But these two witnesses have not said in their evidence that accused Banshi Beldar was apprehended as criminal. At paragraph 28 of the cross-examination he further deposed that he had prepared the seizure list regarding recovery from Banshi Beldar of a country made pistol at the place where he was apprehended. 14. PW 11 Ram Nagina Pandey deposed that he had heard the sound of firing coming from the side of Noorasarai Bazar and he upon the orders of Darogaji he had gone there with the armed party and had seen the encounter was taking place between the villagers and the criminals. He further deposed that on the arrival of the police party the dacoits started fleeing away and that he had identified the dacoits in the torch light at the time of their fleeing. This witness has deposed twice as PW 11 and PW 11-A respectively on 6.5.1988 and 16.5.1989. In his evidence recorded as PW 11-A he had identified the accused Naresh Paswan in dock. He also identified the accused Banshi Beldar in dock saying that (he) Banshi Beldar have been apprehended in badiha khanda and a country made pistol has also been recovered from his possession. He further deposed that in the T.I.P. held on 28.1.1984 and 28.12.1983 he had identified three culprits. He identified them again in the dock. Accused Garibal Beldar was represented on the day of evidence of this witness. At paragraph 3 of his cross- examination he deposed that the night was dark and that he had seen the criminals fleeing away from the distance of 50 yards and that he had identified the criminals in the torch light but the torch light was not produced in the Court. 15. At paragraph 3 of his cross- examination he deposed that the night was dark and that he had seen the criminals fleeing away from the distance of 50 yards and that he had identified the criminals in the torch light but the torch light was not produced in the Court. 15. PW 12 Satya Narayan Singh Sub- Inspector of Police is also said to be a member of the police party and like the PW 11 he had deposed similarly saying to have gone to the place of occurrence and about the fleeing of the criminals on the arrival of the police party and about the apprehending of one criminal in injured conditions from badiha khand and a country made pistol was recovered from the apprehended criminal who had disclosed his name as Banshi Beldar. He identified the accused Banshi Beldar in the dock. He further disposed that in T.I.P he had identified accused Gariban Beldar. This witness has identified Gariban Beldar in the dock also. He has denied the suggestion that Garibal Beldar had been kept at the police station after apprehension and he was got identified at the police station by the witness. 16. PW 13 Upendra Sharma has been tendered by the prosecution and he has said nothing about the occurrence. 17. PW 14 Ajit Pd. Verma is the Judicial Magistrate who conducted the T.I.P. He deposed that on 28.12.1983 he had conducted the T.I.P. in respect of Naresh Paswan, Gariban Beldar and in that T.I.P. S.N. Singh S.I. (PW 12) and Ram Nagina Pandey havaldar (PW 11) and A.K. Mishra had identified the criminals Naresh Paswan and Gariban Beldar. He proved the carbon copy of the T.I. Chart marked Ext.I. The terms mentioned in column 7 of the T.I.P. chart shows that it requires to be mentioned in that column as to in what connection identified i.e. as a member of mob or carrying a sword or doing any particular act. But the report of the T.I.P. Magistrates as given in this column No. 7 simply mentions that the witnesses identified the two suspects and it is not mentioned as to in what connection the identification was made. 18. PW 15 Prithwi Nath Sharma is a sipoy posted in Court malkhana at the relevant time. But the report of the T.I.P. Magistrates as given in this column No. 7 simply mentions that the witnesses identified the two suspects and it is not mentioned as to in what connection the identification was made. 18. PW 15 Prithwi Nath Sharma is a sipoy posted in Court malkhana at the relevant time. While deposing in Court on 26.8.1989 this witness (PW 15) produced a country made pistol in Court saying that he had brought a country made pistol from Court malkhana on the orders of malkhana incharge Madan Prasad Daroga. Thus according to the evidence of PW 15 a country made pistol was produced by him in Court on 26.8.1989. Naturally this production was in connection with this case. PW 16 Madan Prasad is the incharge of Court malkhana and his evidence recorded on 8.12.1989 shows that on that day he had produced one 12 bore country made pistol in Court bringing it from the malkhana. The pistol produced by him was marked as material Ext. 1/2. 19. While screening the evidence as produced by the prosecution learned counsel for the appellants assailed the prosecution story on various points. Firstly the learned counsel argued that the very recording of the fardbeyan is not prompt and it was not recorded in the manner as it is said by the prosecution. The learned counsel argued that the fardbeyan has been recorded much later with various emblishment and concoctions. He argued that according to the prosecution the fardbeyan contains the statement of the informant Rooplal Sao but the learned counsel continued to argue further that in fact the fardbeyan is not in the statement of Rooplal Sao but the police managed to get the fardbeyan recorded at the statement of police personnel itself and the police party simply got the signature of informant Rooplal Sao on it. Learned counsel pointed out that it is important to note that the informant of this case has gone hostile. Learned counsel pointed out that according to the case of the prosecution the police party returned to the P.O. after chasing the dacoits and then the fardbeyan was recorded there. Learned counsel pointed out to the fardbeyan and he says that the fardbeyan is a long statement and it has been very neatly recorded. Learned counsel pointed out that according to the case of the prosecution the police party returned to the P.O. after chasing the dacoits and then the fardbeyan was recorded there. Learned counsel pointed out to the fardbeyan and he says that the fardbeyan is a long statement and it has been very neatly recorded. The I.O (PW 10 at paragraph 3) said that the fardbeyan of the case was recorded by A.S.I. Baijnath Singh on his statement. Learned counsel argued that the very evidence of the I.O. itself indicates that the fardbeyan was recorded not on the statement of the informant Rooplal Sao but according to the statement of the officer-in-charge Balmiki Prasad who was one of the member of the police party. Considering the evidence of PW 10 at paragraph 3 and also that the informant has turned hostile and further the informant has turned hostile and further the circumstances show that the detailed fardbeyan is found so neatly written, I feel that the submission of the learned counsel in this regard has to be given importance and reliance. 20. The learned counsel for the appellant referred to the formal first information report (Ext. 4) and pointed out to column No. 3 of it. In column 3, the date of despatch from the Police station is to be mentioned. It is pointed out that this column does not mention the date of despatch from the police station and it simply mentions special messenger. Thus the date of despatch from the police station is not being mentioned in the first information report. Learned counsel for the appellant points out that the occurrence of this case is in the night of 14/15.11.1983 and the initial of the Chief Judicial Magistrate mentioned on the F.I.R. as well as on the fardbeyan bears the date 18.11.1983. The fardbeyan and the formal first information report both have been placed before the Chief Judicial Magistrate on 18.11.1983. Admittedly the date of despatch is not disclosed. The learned counsel for the appellant has argued that it has been probably not disclosed as because the fardbeyan and the first information were not properly recorded and despatched but everything has been done subsequently at belated time hence he argued that the first information report and the fardbeyan are not the documents recorded properly as is said by the prosecution. In support of his argument learned counsel cited the authority in the case of Datar Singh V/s. State of Punjab 1974 BBCJ 192. The Hon ble Supreme Court has held in this authority that : "it is difficult to believe that so neatly written and detailed a FIR could have been written up so soon. It is more likely that the FIR was drafted and written up carefully afterwards. The failure of the police to enter the date of despatch to a Magistrate in column of the FIR seems to be quite significant in the light of other facts indicating that the FIR must have been drawn up much later than it is actually shown to have been." 21. Admittedly in the instant case the first information report does not disclose the date of despatch from the police station and it has been placed before the Chief judicial Magistrate after three days. Considering some other aspect of this case which are being discussed further not mentioning the date of despatch in the FIR is fatal to the case of the prosecution. 22. Learned counsel for the appellants has further argued that in this case the I.O. (PW 10) has taken active part in the occurrence. Referring to the prosecution story and the evidence of the witnesses the learned counsel submits that this witness (PW 10) had arrived at the P.O. from the P.S. and he had taken part in the encounter between the villagers and the criminals, he has opened fire twice from his pistol upon the criminals, he had chased the criminals on the basis of the trails of blood and he had also arrested one criminal at a distance of one and half kilometer from the place of occurrence. Thus this witness is an active participant in the occurrence. Learned counsel further submits that according to the evidence of this witness itself the fardbeyan was also recorded according to his own statement still, the learned counsel submits that, this witness has taken up the investigation himself. Hence the learned counsel argued that the prosecution based upon the charge-sheet submitted by the I.O. cannot be said to be fair and impartial act of the prosecution. The learned counsel refers to the authority in the case of Gholtu Modi V/s. State of Bihar, 1986 BLJ 2 : 1985 East Cr C 805 (Pat). Hence the learned counsel argued that the prosecution based upon the charge-sheet submitted by the I.O. cannot be said to be fair and impartial act of the prosecution. The learned counsel refers to the authority in the case of Gholtu Modi V/s. State of Bihar, 1986 BLJ 2 : 1985 East Cr C 805 (Pat). This Court has held in this case that the investigation should not be permitted to be conducted by an S.L who was himself a member of the raiding party. The learned counsel argued that in practical sense considering the circumstances of the case the PW 10, after the institution of this case has become the I.O. so he might have made extraneous efforts to collect evidence in support of the statement of the first information report. Considering the circumstances, I find that the PW 10 becoming the I.O. is not a fair and impartial act of the prosecution and it goes to affect the prosecution case adversely. 23. The learned counsel for the appellants submitted that the apprehended accused Banshi Beldar is said to be one of the dacoits who had received the injury during the occurrence. But he argued that there is no cogent evidence to connect him with the crime. This accused Banshi Beldar according to the evidence of the witness was apprehended at a distance of one and half kilometer where he was lying in an injured condition. It is said that a pistol was recovered from his possession. A seizure list was also prepared there in presence of the witness. The seizure list i.e. Ext. 2/1. The learned counsel points out that the seizure list does not mention the place of seizure. He also pointed out that this seizure list has also not been sent directly to the Magistrate but it bears the signature of the Chief Judicial Magistrate with date 18.11.1983 which shows that it was sent to the Chief Judicial Magistrate belatedly. Besides this it is also argued that the Chandra Bhushan Prasad and Ravindra Kumar have been cited as witness on this seizure list but Chandra Bhushan Prasad was not examined by the prosecution and Ravindra Kumar who has been examined as PW 9 does not say about the seizure having been made in his presence. Considering these circumstances the factum of seizure becomes doubtful. Considering these circumstances the factum of seizure becomes doubtful. As regards the accused Banshi Beldar the learned counsel argued that the I.O. says that he had seized blood soaked soil from the place of occurrence but he did not send the blood soaked soil for chemical examination in order to tally it with the blood coming from the wounds of Banshi Beldar. Learned counsel argued that Banshi Beldar was arrested from some other place and not arrested during the occurrence and he has been implicated in this case. Learned counsel also argued that the injury report of Banshi Beldar has also not been brought on record and no doctor has been examined to say about the injury of Banshi Beldar. 24. As regards the identification of the two other appellants Gariban and Naresh Paswan the learned counsel for the appellant argued that the two accused are said to have been identified by the police party during chase. He argued that the torch light has not been produced in the Court. He further argued that in the case of identification while chasing is a case of identification from back side and in a dark night no reliance can be placed on such identification. The learned counsel has also argued that none of the villagers who had encountered with the criminals for a considerable time has identified any of the two accused. He says that only the police personnal PWs 11 and 12 have identified the two accused in T.I.P. but they have failed to show any details as to in what context they have identified them. If has already been discussed above that column 7 of the T.I.P. Chart does not give the required details of the manner in which the identification was made. It is apparent that the PWs 11 and 12 did not say before the T.I.P. Magistrate as to in what context or in connection they identified these two appellants. In absence of mentioning the details of the criminals and in connection of the identification was made and also considering the other aspects I feel that it is not safe to place reliance on the identification as has been evidence by the PWs 11 and 12. 25. On the basis of the facts and circumstances discussed above I find that the prosecution has not been able to prove the charge beyond the shadow of doubts. 25. On the basis of the facts and circumstances discussed above I find that the prosecution has not been able to prove the charge beyond the shadow of doubts. In the result the appeals are allowed and the appellants are acquitted of the charge. The conviction and sentence as passed by the trial Court are set aside. Appellants Naresh Paswan and Gariban Beldar who are in custody are directed to be released forthwith if not wanted in any other case. Appellant Banshi Beldar who is on bail is discharged from the liabilities of his bail bond.