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2005 DIGILAW 133 (PAT)

Suresh Paswan v. State of Bihar

2005-02-08

body2005
JUDGMENT M.L. VISA, J.:- This appeal is directed against the judgment and order dated 19/20.02.2001 passed by Vlth Additional Sessions Judge, Bhagalpur in Sessions Trial No. 615 of 1992 convicting and sentencing both the appellants to undergo imprisonment for life under Sections 302/34 of Indian Penal Code (In short "IPC") and further convicting and sentencing appellant Suresh Paswan to undergo rigorous imprisonment for two years under Section 201 of IPC but, however, ordering his both sentences to run concurrently. 2. Briefly stated, the case of prosecution is that on 21.11.1997 at about 6 A.M. deceased Birbal Paswan was going to Bhagalpur on a bicycle from his village at Sardarpur. Informant Balram Paswan (PW 6) and Rudal Paswan (not examined) (illegible) brother of informant were following him by a distance of about 1560 yards but they were on foot. When Birbal Paswan reached on a Kacha road in front of the field of Uchit Mandal, both the appellants alongwith Wakil Paswan, Binod Paswan, Kunkun Paswan and Karu Paswan armed with Pasiyani Hasua came there and caught hold of the bicycle of Birbal Paswan and forced him to get down from the bicycle and brought him towards the north-west corner of the field of Uchit Mandal and started assaulting him with Pasiyani Hasua. The informant and Rudal Paswan reached near the appellants and asked them not to assault Birbal Paswan but the appellants and their companions did not pay any heed to their protest and appellant Suresh Paswan cut the neck of Birbal Paswan with Pasiyani Hasua (illegible) head from the body. Thereafter, Suresh Paswan picked up the severed head of Birbal Paswan, co-accused Binod Paswan took the cycle and co-accused Karu Paswan took the watch of deceased Birbal Paswan and appellants and their companions fled away towards south. Informant and Rudal Paswan, raising hulla, went to their house and narrated the incident to their family members and again came back to the place where the headless body of deceased Birbal Paswan was lying. Fard-e-bayan of informant was recorded by Sub-Inspector Nandu Sharma (not examined) of Jagdishpur Police Station on 21.11.1987 at 9.30 A.M. at the place of occurrence. About the motive of occurrence, the informant, in Fard-e-bayan, stated that on a Monday immediately preceding to the date of occurrence, which was Saturday, some altercation between Rita Devi (PW 7), wife of deceased and Sugmi Devi. About the motive of occurrence, the informant, in Fard-e-bayan, stated that on a Monday immediately preceding to the date of occurrence, which was Saturday, some altercation between Rita Devi (PW 7), wife of deceased and Sugmi Devi. wife of appellant Parmeshwar had taken place on the point of taking bath on a well and deceased had told to appellant Parmeshwar Paswan and his family members that because they were criminals so he will get them arrested by Police and in retaliation, appellants had given him threatening for killing him. On the previous night of the day of occurrence, informant had seen appellants standing near his hand pump who, on seeing him, had left the place. On the basis of Fard-e-bayan of informant, a case under Sections 302, 201, 379/34 of IPC was registered and police, after investigation, submitted chargesheet against the appellants and their companions. The appellants and Binod Paswan and Kunkun Paswan were shown absconders, therefore, their case was separated from the case of co-accused Karu Paswan and Wakil Paswal who faced trial in Sessions Trial No. 169 of 1989 and were convicted and sentenced and their appeal before this Court which was numbered as criminal appeal No. 263 of 1990 was also dismissed. It further appears that on 11.04.1997, the case of co-accused Binod Paswan and Kunkun Paswan was also separated because they could not be ape prehended inspite of issuance of non-bailable warrant of arrest and Parmeshwar Paswan and Suresh Paswan, appellants before us, who in the meantime, were arrested, were put on trial and charged under Sections 302/34 of IPC against both of them and a separate charge under Section 201 of IPC against appellant Suresh Paswan were framed and after trial, both the appellants were found guilty and were convicted and sentenced, as Indicated above. 3. No witness on behalf of appellants has been examined. The case of appellants, as it appears from the trend of cross-examination of prosecution witnesses, is that deceased himself was a criminal and appellants have been falsely implicated in this case. 4. In order to prove its case, prosecution has examined ten witnesses. Bodhi Paswan (PW 1), Gopal Yadav (PW 2) and Ramjeevan Paswan (PW 3) have not supported the case of prosecution and they have been declared hostile. 4. In order to prove its case, prosecution has examined ten witnesses. Bodhi Paswan (PW 1), Gopal Yadav (PW 2) and Ramjeevan Paswan (PW 3) have not supported the case of prosecution and they have been declared hostile. Suchit Paswan (PW 4) is a witness on the seizure list which was prepared by police when it had seized blood-stained soil. Although this witness has stated that he put his signature on that seizure list but in cross-examination, he has said that blood-stained soil was not seized in his presence and the paper on which he put his signature was blank. Ramesh Kumar (PW 5) is said to be witness on inquest report and he has said that on the inquest report, he had put his signature but in cross-examination, he has said that the paper on which he put his signature was blank. Balram Paswan (PW 6) is the informant. Rita Devi (PW 7), wife of deceased, is a hearsay witness. Dr. Kailash Jha (PW 8) and Dr. H.I. Ansari (PW 10) are doctors who had held post mortem examination on the dead body of deceased. Ajit Kumar (PW 9) is a formal witness who has proved photostat copy of post mortem examination report (Exhibit-1/1 ). 5. Dr Kailash Jha (PW 8) has said that on 21.11.1987, he was posted as Tuitor in FMT Department of Jawaharlal Nehru Medical College and Hospital at Bhagalpur and on that day at 3 PM he held post mortem examination on the dead body of deceased Balbir Paswan and the head was missing from the neck and the body was identified by Havaldar Rajendra Singh who had brought the dead body. He has further said that he found the following injuries on the dead body: (1) Sharp cut wound on necj, anterio-posteriorly 6" x 5-1/2" sharply cut above crecoid cartiledge and level at fifth cervical vertebra and head portion was missing. (2) Sharp cut on left shoulder joint 5" x 2" x bone deep. Head of the left humerous cut apart. (3) Sharp cut wound on left thumb at root. Amputated thumb found in cloth. (4) Sharp cut on left palm obliquely horizontal 3" x 1/2" bone deep. (5) Sharp cut on left forearm interiorly at mid bone 3" x 1". (6) Sharp cut on left arm above elbow joint laterally 3" x 1-1/2". Head of the left humerous cut apart. (3) Sharp cut wound on left thumb at root. Amputated thumb found in cloth. (4) Sharp cut on left palm obliquely horizontal 3" x 1/2" bone deep. (5) Sharp cut on left forearm interiorly at mid bone 3" x 1". (6) Sharp cut on left arm above elbow joint laterally 3" x 1-1/2". (7) Sharp cut as cross on back at lumber area midline4" x 2". (8) Small sharp cuts on right side chest and right arm at elbow. According to him, injuries No.1, 2 and 3 were ante mortem and others were post mortem caused by sharp cutting weapon and cause of death was hemorrhage and shock and time elapsed since death was within six to twelve hours. He has proved his post mortem examination which is marked Exhibit-1. In cross-examination, he has said that informant identified the body of deceased. 6. The case of prosecution is that at the time of occurrence, appellants and their companions took away the severed head of deceased and the head was recovered eight days after the occurrence. Rita Devi (PW 7), who is the wife of deceased, in para-11 of her evidence, has said that the police made search for the head of her deceased husband but could not get on the date of occurrence and eight days after the occurrence on a Saturday, it was recovered from a well situate in the garden of Jain Mandir. 7. Dr H.I. Ansari (PW 10) is the doctor who had conducted post mortem examination on the head of deceased and he, in his evidence, has said that on 29.11.1987, he was posted in Forensic Medicine Department of Jawaharlal Nehru Medical College and Hospital, Bhagalpur and on that day at 3.30 P.M.. he conducted post mortem examination on the decapitated head of deceased which was identified by Dafadar Santlal, informant and Sahdeo Paswan, brother-in-law of deceased and on external examination of head, he found that it was decomposed decapitated head with magots, skill and hair (illegible) foul smell. He has further said that on further examination, he found following injuries: (1) Incised wound on right parietal area of head 4" x 2" with cut of parietal bone. (2) Incised wound obliquely on the vertex from the right parietal to the occipital region 6" x 2" with cut of bone. He has further said that on further examination, he found following injuries: (1) Incised wound on right parietal area of head 4" x 2" with cut of parietal bone. (2) Incised wound obliquely on the vertex from the right parietal to the occipital region 6" x 2" with cut of bone. (3) Incised wound on left parietal area of head 3-1/2” x 1" with cut of muscles. (4) Incised wound on the left side occipital area 2-1/2" x 1/2" with cut of bone. (5) Incised wound on left temporal area of head 2" x 1/2" x cut of bone. (6) Incised wound on left side forehead and eye brow of 1-1/2" x 1/4" with a cut of orbit bone. (7) Incised wound at the base of nose 3/4' x 1/4" with cut of nasal bone. (8) Incised wound on left side of face near the outer angle of mouth and cheek 1" 1/2" x cut of muscles. (9) Incised wound around the neck 5" x 4-1/2" x bone cut. The soft tissues including the skin muscles, blood vessels, nerves, trachea and osophagus all found sharply cut hear the crecoid cartilage at the level of second cervical vertebra which had cut surface. He has further said that the remaining part of neck, trachea and extrimidies were missing and the left side mandible was also found horizontally cut. According to him, weapons used were sharp cut weapons and injuries, which he found, may be caused by Pasiyani Hasua and cause of death was decapitation and intraverial injuries and time elapsed since death was about a week. He has proved his original post mortem examination report which is marked Exhibit-1/1. The evidence of PWS 8 and 10 show that death of deceased was homicidal which resulted from the injuries inflicted by sharp cut weapon which may be Hasua. 8. He has proved his original post mortem examination report which is marked Exhibit-1/1. The evidence of PWS 8 and 10 show that death of deceased was homicidal which resulted from the injuries inflicted by sharp cut weapon which may be Hasua. 8. Balram Paswan (PW 6), the informant, in his evidence, has said that on the day of occurrence, his deceased brother was going to Bhagalpur on a bicycle for working as labourer and he and Rudal were also following him on foot and when his brother reached near the field of Uchit Mandal, both the appellants alongwith their other four companions came there and forced his brother to get down from cycle and started indiscriminately assaulting him with Pasiyani Hasua and when he and Rudal raised protest, the appellant and their companions did not stop assaulting the deceased and appellant Suresh Paswan by cutting the neck of deceased from Pasiyani Hasua. severed his head at that time, his other companions had caught hold of hands and legs of deceased and after severing the head appellants and their companions took away the head of deceased and co-accused Binod Paswan carried away the cycle and co-accused Kunkun Paswan carried away the wrist watch of deceased. He has further said that after occurrence, he went to his house where he narrated the incident to Rita Devi, wife of deceased and, thereafter, she came to the place of occurrence where she saw the dead body of her husband. About motive of occurrence, he has said that on a Monday in the same week, some altercation had taken place between Rita Devi and wife of appellant Parmeshwar Paswan and deceased had raised protest and had asked that he would get appellant Parmeshwar Paswan and his other family members arrested by police and for this reason, appellants and their companions committed the offence. He has further said that on the previous night of the day of occurrence, he had seen the appellants standing near his hand pump who, on seeing him, had fled away towards south. He has been cross-examined at length but we do not find that there is anything in his cross-examination to disbelieve his evidence. He has denied the suggestion of defence that his brother was a man of bad character and used to bring girls and for this reason a number of villagers had become his enemies. He has been cross-examined at length but we do not find that there is anything in his cross-examination to disbelieve his evidence. He has denied the suggestion of defence that his brother was a man of bad character and used to bring girls and for this reason a number of villagers had become his enemies. He has also denied the suggestion of defence that Katu Paswan and Wakil Paswan, other co-accused persons of this case had lodged a case against the deceased. Rita Devi (PW 7) wife of deceased, has said that on the day of occurrence, informant and her son-in-law came to her house and informed her that her husband had been murdered and she then went near the field of Uchit Mandal where she saw dead body of her husband which was without head and she found that neck of her husband was cut and blood, in cupious quantity, had fallen there. She has further said that informant told her that both the appellants alongwith their four other companions had committed the murder of her husband. About the motive of occurrence, she has said that on a Monday when she was taking bath on a Government well. she had some altercation with the wife of appellant Parmeshwar Paswan and her husband at that time told the appellant Parmeshwar Paswan that he would get him arrested by police and in retalliation, Parmeshwar Paswan gave threatening of killing him. In para-11 of her evidence, she has said that head of her husband was found eight days after the occurrence from a well situate in the garden of a Jain Temple. 9. The learned counsel appearing on behalf of the appellants has argued that Rudal Paswan who, in Fard-e-bayan, has been described an eye witness to occurrence and who is said to be with informant at the time of occurrence has not been examined in this case. He has further argued that the informant is only the eye witness of this case-and conviction of appellants on uncorroborated evidence of informant is not justified. It is true that on the point of occurrence, there is the evidence of informant only in this case but then we find that the Informant has fully supported the case of prosecution and we do not find any reason to disbelieve him. It is true that on the point of occurrence, there is the evidence of informant only in this case but then we find that the Informant has fully supported the case of prosecution and we do not find any reason to disbelieve him. The evidence of PWs 8 and 10, who are doctors and who held post mortem examination on the dead body of deceased, show that deceased was brutally assaulted by sharp edged weapons and had received a number of injuries and the manner in which he was killed shows that it was a brutal murder because after cutting his neck, his head was severed and appellants and their companions carried away the head which was subsequently found thrown in a well. The evidence of PW 7 Rita Devi supports the evidence of informant that immediately after the occurrence, he went to the house and narrated the incident to her. The learned counsel of appellants has also argued that Investigating Officer has not been examined in this case which has prejudiced the case of appellants. it is true that Investigating Officer has not been examined but there is nothing on record to show that his non-examination has caused any prejudice to the case of appellants. 10. Considering the entire evidence on record, we do not find any ground for interfering with the findings of Court below which has held both the appellants guilty under Sections 302/34 of IPC and has further held appellant Suresh Paswan guilty under Section 201 of IPC. The sentences passed against appellants also do not require any change because sentences are not excessive. 11. In the result, this appeal stands dismissed. I agree.