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2004 DIGILAW 661 (PAT)

Jakir Paswan v. State Of Bihar

2004-07-09

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment 1. The appellants have preferred this appeal against the judgment and order dated 30-11-2000 passed by 1st Additional Sessions Judge, Araria in Sessions Trial No. 264/95 whereby the appellant Jhunnu Paswan has been convicted for the offence u/s. 302 Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years. The rest of the appellants have been convicted for the offence under sec. 302/149 Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for life. All the appellants have further been convicted for the offence under Secs. 147 and 148 Indian Penal Code, 1860 and sentened to undergo rigorous imprisonment for one year and two years respectively. They have further been convicted for the offence u/s. 436 Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000.00 each and in default to undergo three months simple imprisonment. They have further been convicted for the offence u/s. 364 Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000.00 each and in default of payment of fine to undergo simple imprisonment for three months. 2. Baleshwar Pasawan, injured is informant in this case. He gave his fardbeyan on 28-6-1994 at 12.30 PM before the Sub-Inspector of Police of Narpatganj Police Station that last night i.e. 27-6-1994 after taking meal he was sleeping in his house. On hearing some sound he woke up and apprehended that some miscreants had come. He came out from the house and tried to run away towards west but he was caught. He raised alarm on which Deo Narayan Paswan, Jhunu Paswan, Raghunandan Paswan, Anmol Paswan, Manua Paswan, Vikas Paswan, Ganga Yadav and Jakir Paswan came. They assaulted him with the butt of the gun and dragged him. In the meantime Jhunnu Paswan fired from his country made pistol causing injury on the right side of his chest, Ganga Yadav fired from his country made pistol causing injury on the left side of his chest and he fell down and became unconscious. When he regained consciousness he found that his house had been set on fire and also learnt that his younger brother Shatrughan Paswan had been kidnapped by them. 3. When he regained consciousness he found that his house had been set on fire and also learnt that his younger brother Shatrughan Paswan had been kidnapped by them. 3. On the aforesaid fardbeyan formal FIR was drawn and the investigation was taken up. During the investigation the injured informant died. After completion of the investigation the charge sheet was submitted against 9 persons, cognizance was taken and the case was committed to the Court of Sessions for trial. The trial of Jhunnu Paswan and other absconding accused was separated. However, during the pendency of trial Biku and Runnu Paswan were apprehended and they joined the trial. The Trial Court convicted the appellants as indicated above. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case. The informant was a veteran criminal and he was killed out of previous enmity and they had been falsely dragged in the case. 5. The prosecution in support of its case examined 5 witnesses out of which P. W. 2 has been declared hostile, P. W. 3 was tendered, P. W. 4 is doctor who held post mortem over the dead body and P. W. 5 is Investigating Officer. P. W. 1 is the only eye witness to the occurrence. One defence witness namely, Geeta Lal Paswan was examined to show the enmity between Jhunnu Paswan and Runnu Paswan on one hand and the prosecution party on the other hand. 6. Balsehwar Paswan, injured was informant in this case who died subsequently during the Course of investigation. P. W. 1, Bhabhi of the deceased is the only eye witness to the occurrence. In the fardbeyan specific allegation has been made that Jhunnu Paswan fired causing injury on the right side of the chest of the deceased and Ganga Yadav fired causing injury on the left side of his chest. In this background we proceed to examine the evidence of the sole eye witness, P.W.1. 7. P. W. 1 in her evidence stated that at the relevant time she was taking meal in her courtyard. Her brother-in-law Baleshwar Paswan and Shatrughan Paswan (Dewar) were also there. Baleshwar Paswan, the deceased and Shatrughan Paswan went to sleep after taking meal. 10-12 miscreants came in the courtyard. On hearing some sound her brother-in-law Baleshwar and Shatrughan came at the door of the house. Her brother-in-law Baleshwar Paswan and Shatrughan Paswan (Dewar) were also there. Baleshwar Paswan, the deceased and Shatrughan Paswan went to sleep after taking meal. 10-12 miscreants came in the courtyard. On hearing some sound her brother-in-law Baleshwar and Shatrughan came at the door of the house. Jhunnu Paswan and Ganga Yadav fired causing injury to Baleshwar Paswan, one hit on the right side of his chest and other on the left side of the chest. She identified Jhunnu Paswan, Runnu Paswan, Raghuni Paswan, Rana Paswan Deo Narayan Paswan, Bikaru Paswan, Mannu Paswan, Shivnath Poddar and Jakir Paswan. They were holding firearms. Jhunnu Paswan, Jakir Paswan and Deo Narayan Paswan set fire in the house. The injured Baleshwar Paswan was taken to Purnea Hospital where he died during the course of treatment. Her brother-in-law Shatrughan Paswan was kidnapped. Due to fire in the house there was light and she identified the miscreants. Subsequently, she learnt that Shatrughan Paswan was taken to Nepal where he was killed. The police had reached her house and she had given statement before the police. In the cross-examination the witness admitted that she is illiterate and cannot say the date of the occurrence. However, she stated that the occurrence took place at about 9 P. M. The witness stated that once Baleshwar Paswan, the deceased, was sent to Jail. However, she denied the suggestion that he was a criminal. She also denied the suggestion that her husband was a criminal and a month ago the accused Ganga Yadav committed loot of two firearms of her husband. She stated that her courtyard and of Baleshwar Paswan, the deceased and of Shatrughan Paswan is the same. The room was burnt. Jakir Paswan set fire on the house. Many persons came at the place of occurrence. The appellant, Jakir Paswan is her brother-in-law (Debar). She denied the suggestion that there was dispute in between the appellant Jakir Paswan, the deceased Baleshwar Paswan and her husband for land and she stated that the land of her brother-in-law (Debar) was joint. Her mother-in-law was living separately. Some land has been given by the Government in the name of her father-in-law Munga Lal Paswan. The said land was cultivated by her husband and the deceased Baleshwar Paswan. Her mother-in-law was living separately. Some land has been given by the Government in the name of her father-in-law Munga Lal Paswan. The said land was cultivated by her husband and the deceased Baleshwar Paswan. She also stated in her evidence that appellant, Shivan Poddar is resident of village Manikpur which is at a distance of about 3 miles from her village. She had seen Sivan Poddar for the first time during the course of occurrence. She also identified Shivan in the dock. She stated that she also came on the date of occurrence. She denied the suggestion that Baleshwar Paswan, the deceased was a criminal and he had dispute with accused Ganga Yadav and also that she had deposed only with a view to grab land of appellant Jakir Paswan. 8. From the discussion of the evidence of the sole eye witness it is evident that her evidence is consistent with the prosecution case as made out in the fardbeyan on all the material points. There is no contradiction in her evidence from the statement made before the police, nor the defence has drawn her attention to the statement made before the police. Learned counsel for the appellant however, pointed out that there is some discrepancy in between the fardbeyan and the evidence of the sole eye witness. He pointed out that in the fardbeyan it has been stated that the informant came out of the house and tried to run away towards west but he was caught and fired at whereas P.W. 1 in her evidence stated that the informant came at the door of house and he was fired at by Jhunnu Paswan and Ganga YadaV/s. He also pointed out that in the fardbeyan Shivan Poddar has not been named. As such, the evidence of sole eye witness cannot be said to be consistent with the prosecution case. In this regard it would not be out of place to mention herein that the discrepancy as pointed out is minor in nature which depends upon how the person present there reacts. As such, the evidence of sole eye witness cannot be said to be consistent with the prosecution case. In this regard it would not be out of place to mention herein that the discrepancy as pointed out is minor in nature which depends upon how the person present there reacts. In the case of Rana Pratap V/s. State of Haryana (1983)3 SCC 327 ( AIR 1983 SC 680 ) : (1983 Cri LJ 1272) which also finds reference in the case of Appabhai V/s. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848), the Supreme Court while considering such question has held that, (Para 11) "every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way." In the instant case also it appears that the informant was injured and he subsequently died. P.W. 1 was present in the courtyard. The occurrence of firing took place when the injured came out of the house. In such a situation, such type of discrepancy in evidence is possible. Moreover, the P.W. 1 was not attacked and she had got ample opportunity to identify the miscreants, whereas the injured must be in trauma of attack and as such he may have missed the name of the miscreants and as such on such discrepancy evidence of P.W. 1 cannot be said to be untrustworthy. 9 The evidence of the sole eye witness in our view is consistent with the prosecution case. Her evidence was also been corroborated by the evidence of the doctor. The doctor P.W. 4 who held post mortem over the dead body has deposed that he held post mortem over the dead body of Baleshwar Paswan on 6-7-94 at 2 P.M. He found ante mortem injury on the person of the deceased. Her evidence was also been corroborated by the evidence of the doctor. The doctor P.W. 4 who held post mortem over the dead body has deposed that he held post mortem over the dead body of Baleshwar Paswan on 6-7-94 at 2 P.M. He found ante mortem injury on the person of the deceased. He found three injuries, one was lacerated wound near the left ear, bandaged wound on the abdomen with lacerated black margin wound with a rubber drainage tube in the right iliac fossa 2" x 2" and stitched wound on the abdomen about 6" in length. Obviously the evidence indicates that the deceased was under treatment and the doctor found two injuries on the stomach consistent with the prosecution case. On dissection the doctor stated that abdomen cavity was full of pus and has opined that death was due to septicaemia and shock due to abdominal injury caused by firearm. The wound of right iliac fossa was entry wound of fire arms because its margins were black and lacerated. The time elapsed since death is between six to thirty six hours. In cross- examination the witness stated that the wound in the right iliac fossa was sufficient to cause death in the ordinary course of nature. Therefore, it is evident that the oral evidence of the sole eye witness is corroborated by the evidence of the doctor who held post mortem over the dead body. However, learned counsel for the appellants pointed that since the death was due to septicaemia and as such the conviction of the appellant for the offence u/s. 302 Indian Penal Code, 1860 is bad in law. In this regard it would not be out of place to mention herein that septicaemia is not primary cause of death. The doctor has categorically stated that septicaemia was out of injury found on the person of the deceased. In the examination-in-chief, the doctor however, did not say that the injury found on the person of the deceased was sufficient to cause death in ordinary course of nature but it appears that in the cross-examination the witness has categorically stated that wound on the right iliac fossa was sufficient to cause death in ordinary course of nature. In the examination-in-chief, the doctor however, did not say that the injury found on the person of the deceased was sufficient to cause death in ordinary course of nature but it appears that in the cross-examination the witness has categorically stated that wound on the right iliac fossa was sufficient to cause death in ordinary course of nature. Therefore, it can safely be said that the septicaemia was not a primary cause of death in the case of State of Haryana V/s. Pala, 1996 SCC (Cr.) 526 : 1996 Cri LJ 1872 and also in the case of Jagtar Singh V/s. State of Punjab, 1999 SCC (Cr.) 120 : 1999 Cri LJ 20 the Apex Court while considering such question has held that if medical evidence on record clearly establishes that septicaemia is not primary cause of death and it was due to the injury caused to the deceased and that was sufficient to cause death in ordinary course of nature the septicaemia would therefore not be taken into account. It appears to us that if in a case septicaemia is primary cause of death, then no conviction can be held for the offence under Section 302 but if septicaemia is secondary cause of death i.e. because of injury found on the person of the deceased and the said injury, if found to be sufficient to cause death in ordinary course of nature, the accused persons cannot take advantage of the septicaemia as cause of death. Thus, on consideration we find no substance in the submission of the learned counsel for the appellants. 10. The Investigating Officer, P.W. 5 has proved the formal FIR written by the Officer-in-charge, Ext.2, fardbeyan written by S. K. Singh, Ext. 2/1 and also writing of the Officer-in-charge, Ext. 2/2. He inspected the place of occurrence and has given a vivid picture of it. He stated that on the western side of the courtyard there was a room. The door of the room in which the brother of the informant/deceased was living had no plank. There was also a room on eastern side of the courtyard in which Shatrughan Paswan was living and the door had no plank. In the north of both the rooms there was third room in which Bigan Paswan was living. There was also no plank in the door of that room. The said room was burnt. There was also a room on eastern side of the courtyard in which Shatrughan Paswan was living and the door had no plank. In the north of both the rooms there was third room in which Bigan Paswan was living. There was also no plank in the door of that room. The said room was burnt. The witness further deposed that on enquiry it was found that Shatrughan Paswan was kidnapped and was taken to Nepal and there he was killed. The post mortem was also held by the Nepal Police. He tried to get the post mortem report but the same could not be obtained. In cross-examination the witness stated that the rooms of Bigan Paswan and Shatrughan Paswan were separate. The witness denied the suggestion that Jakir Paswan had falsely been implicated in this case out of enmity. Thus, it appears that the witness stood the test of cross-examination and also supported the prosecution case with respect to the place of occurrence. The witness has found burnt room which is consistent with the prosecution case as well as the evidence of P.W.1. Thus, it appears that though there is only one eye witness to the occurrence but her evidence is consistent with the prosecution case as made out in the fardbeyan. The evidence of the doctor who held post mortem over the dead body also corroborates the evidence of P.W. 1. The I.O. inspected the place of occurrence which also supports the prosecution case. On consideration, we find that the prosecution has succeeded in establishing its case beyond all reasonable doubts. 11. Thus, on consideration as discussed above, we find no merit in this appeal which is accordingly dismissed. The appellants, Jakir Paswan, Shivam Poddar and Runnu Paswan are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial Court to serve the remaining period of sentence.