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2007 DIGILAW 1227 (PAT)

Jiwan Paswan v. State Of Bihar

2007-07-26

SHEEMA ALI KHAN, SHIVA KIRTI SINGH

body2007
Judgment Shiva Kirti Singh, J. 1. All the five appellants of this appeal, namely, Jiwan Paswan Surendra Paswan, Nagina Paswan Sitaram Rawani and Dhuri Paswan have been convicted by the judgment under appeal dated 19th December, 1987 passed by 8th Additional Sessions Judge. Patna in S.T. No. 86/86/5/87, for the offence under Section 302/149 of the IPC and Sec. 27 of the Arms Act. By an order of the same date under challenge, they have been awarded life imprisonment for the offence under Section 302/149 IPC and RI for 7 years for the offence under Sec. 27 of the Arms Act. Both the sentences are to run concurrently. 2. The prosecution case, in brief, is that Fardbeyan of PW 3, Kongress Beldar, was recorded by Officer Incharge of Khusrupur PS, SI Chandradeep Singh (PW4) on 11-6-1985 at 16.00 hours at Baish Khanda, the alleged place of occurrence, disclosing that the informant is an artist of Deoki Natya Kala Academy and at about 10.00 a.m. he proceeded from his village to the village Chak Singar along with other artists of the Mandali, his co-villagers, Rajjan Beldar (deceased), Sugambar Rawani (PW1) and Sukhdeo Ram (PW2) for performing dance on the basis of an agreement (Satta). At about 1.00 PM in the noon when they were at Haibatpur Baish Khanda at a distance of about 2 kms from village Haibatpur, which was a lonely place, suddenly from the North all the fire accused/appellants came. Appellants Jiwan Paswan and Surendra Paswan were armed with country made rifle, Nagina Paswan was armed with a gun, Sitaram Rawani was armed with a pistol and appellant Dhuri Paswan had a rifle in his hands. There were 2-3 unknown persons with them. They all came running and on threat forced them to stop. Dhuri Paswan caught the deceased, Rajjan Beldar and threw him on the ground. Jiwan Paswan shot him with his rifle in the abdomen. Dhuri Paswan shot him with his rifle on the head and Surendra Paswan shot him with his rifle below the neck. Rajjan Beldar died instantaneously. The accused persons threatened the informant and his companion not to disclose the occurrence to anybody and fled away towards West-South while firing. Jiwan Paswan shot him with his rifle in the abdomen. Dhuri Paswan shot him with his rifle on the head and Surendra Paswan shot him with his rifle below the neck. Rajjan Beldar died instantaneously. The accused persons threatened the informant and his companion not to disclose the occurrence to anybody and fled away towards West-South while firing. The reason for the occurrence was said to be an occurrence which had taken place a month earlier in which on account of dispute over fishing, an altercation had taken place resulting into firing in which an old lady, a Gotia of the accused persons, had died. For that, the accused persons had lodged a case at Chandi police station in which the deceased. Rajjan Beldar was an accused. He had been released on bail in that case and had come back to his village about 10-15 days earlier. On account of that enmity, the accused persons had committed the murder. 3. On the basis of aforesaid Fardbeyan of PW 3, police instituted Fatuah (Khusrupur) PS Case No. 217/85 dated 11-6-1985. The formal FIR had been drawn up at 6.00 PM. The FIR (Ext. 5) shows that it was dispatched from the Police Station on 12-6-1985 but was seen by the learned Magistrate on 13-6-1985. After investigation, police found the case true and submitted charge-sheet whereupon cognizance was taken and the case was committed to the Court of Session. Charges were framed against all the five appellants under Sec. 302/149 of the IPC and Section 27 of the Arms Act. The accused appellants pleaded not guilty to the charges. Their defence is denial of the entire allegation and a plea that they have been falsely implicated due to previous enmity. After trial, they have been convicted and sentenced as noticed earlier. 4. The prosecution in order to prove the charges examined six witnesses in all. PW 1, Sugambar Rawani and PW 2, Sukhdeo Ram are the witness named in the FIR who have supported the prosecution case as eye witnesses. PW 1 like PW2 and the informant, PW 3, has stated that firing by appellant Jiwan Paswan caused injury in the stomach of the deceased but according to him, firing by appellant Dhuri Paswan caused injury on the chest whereas firing by Surendra Paswan caused injury in the head of the deceased. PW 1 like PW2 and the informant, PW 3, has stated that firing by appellant Jiwan Paswan caused injury in the stomach of the deceased but according to him, firing by appellant Dhuri Paswan caused injury on the chest whereas firing by Surendra Paswan caused injury in the head of the deceased. But PW 2 has fully supported the version of the informant that firing by Jiwan Paswan caused injury in the stomach, firing by Dhuri Paswan caused injury in the head and firing by Surendra Paswan caused injury in the chest of the deceased. Except the aforesaid contradiction in the statement of PW 1, there is no other material contradiction in the statement of the three eye witnesses i.e. PW 1, PW 2 and PW 3 (the informant). 5. PW 1 has frankly stated that Sukhdeo Ram, PW 2 is his cousin. PW 2 has also clearly admitted that he as well as the informant, Kongress Beldar are among the accused in the case lodged by accused Surendra Paswan for the murder of a lady, said to be wife of one Jiya Das. Thus, it is clear that there is enmity between the parties from before as in an earlier case of murder lodged by accused Surendra Paswan, PWs 2 and 3 are among the accused persons and PW 1 has admitted to be a cousin of PW 2. 6. The IO, PW 4, has deposed relating to the steps taken by him in course of investigation of the case. According to him, on 11-6-1985 at 14.30 hours Chaukidar Rameshwar Paswan of village Haibatpur came running and disclosed that only some time ago in Baish Khanda of his village at a lonely place one person had been murdered by some and the dead body was lying there. PW 4 recorded this information as Station Diary Entry No. 162 dated 11-6-1985 and reached the place of occurrence by foot along with other police officials at 15.30 hours and saw the dead body. PW 3, who was present there, gave his Fardbeyan and on that basis the case was instituted. The Fardbeyan has been proved as Ext. 2. He has also proved the inquest report as Ext. 4. PW 3, who was present there, gave his Fardbeyan and on that basis the case was instituted. The Fardbeyan has been proved as Ext. 2. He has also proved the inquest report as Ext. 4. He inspected the place of occurrence which was Baish Khanda of village Haibatpur, a lonely field at a distance of about 2 kms North of village Haibatpur and 1/2 km North-East of village Nuruddipur Chilka. There was a passage through the field itself at a distance of about 15 yards where the dead body was found. The village of the deceased was 6-7 Kms South of the place of the occurrence. He found blood at the place of occurrence which was seized and a sizure list was prepared. He sent the dead body to hospital at Patna for post-mortem through a constable, Madan Singh and Chaukidar, Rameshwar Paswan. He has also proved the formal FIR as Ext. 5. From his evidence, it further appears that the concerned police station was at a distance of about 4 kms from the place of occurrence. He recorded further statement of the informant and the statement of witnesses at the place of occurrence itself. 7. The evidence of IO discloses that he was not very methodical in conducting the investigation as he has admitted that he did not look for empties near the place of occurrence and although he asserted that he had seized blood stained earth but admitted that the seizure list was not attached with the case diary. 8. PW 5, Rajeshwar Prasad, is a formal witness who has proved his signature and signature of another witness on the inquest. PW6, Dr. Nawal Kishore Singh, has claimed that he conducted autopsy on the dead body of the deceased on 12-6-1985 at 3.15 pra. He found (i) Punctured wound 3/4" diameter on left parietal region. The parietal bone was fractured and brain matter was coming out of the wound. There was burning of a few hair around the wound with black margin. It was a wound of entrance, (ii) Incised wound 3/4" x 1/4 on front of chest right side 4" medially downward right shoulder, (iii) Punctured wound 3/4" on front of abdomen 4" above umbilicus with black margin of wound and tattooing around 6" of the wound. There was burning of a few hair around the wound with black margin. It was a wound of entrance, (ii) Incised wound 3/4" x 1/4 on front of chest right side 4" medially downward right shoulder, (iii) Punctured wound 3/4" on front of abdomen 4" above umbilicus with black margin of wound and tattooing around 6" of the wound. This was wound of entry and wound of exit was on left side of abdomen 1 1/2 with lacerated margin with protruding of intestine from the wound. A few portion of exterior intestine was of greenish colour, (iv) Abrasion on right thigh lateral side and back of both shoulders. From the skull, he extracted a bullet. In his opinion, the time elapsed since death was 12-36 hours, injury Nos. (i) and (ill) were due to firearm and No. (ii) by sharp cutting substance and No. (iv) may be due to hard and blunt substance. 9. With respect to injury No. 2, it is noticed that the Doctor has not given its depth nor he has probed whether any further internal injury was caused as he had done in respect of injury Nos. 1 and 3. The opinion of the Doctor that it may have been caused by sharp cutting substance does not inspire confidence, particularly in view of clear and consistent ocular evidence regarding assault by firearm. Even the inquest report (Ext. 4) discloses that in the opinion of the witnesses as well as the police officer death appeared to have been caused by firearms. 10. On behalf of the defence only one witness, Rameshwar Paswan, has been examined as DW1. No documentary evidence has been exhibited on behalf of the defence. DW 1 is the same Chaukidar who had informed PW 4, SI Chandradeep Singh at 14.30 hours regarding murder of someone at Biash Khanda. In Court, he has deposed on behalf of the defence that at 12.30 in the noon he was going to the market at Khusrupur and he saw a dead body in Biash Khanda and at that time he saw nobody present there. He claimed that even in the way he did not see any person. He has supported that he gave an information to the police officer at 2.30 pm and thereafter he came to the place of occurrence along with police officer at about 3.00 pm. 11. He claimed that even in the way he did not see any person. He has supported that he gave an information to the police officer at 2.30 pm and thereafter he came to the place of occurrence along with police officer at about 3.00 pm. 11. On behalf of the appellants strong reliance has been placed upon DW 1 for submitting that the time of occurrence was prior to 1.00 pm as given by the informant and the entire claim of the informant and witnesses to be present with the deceased till the arrival of (he police is falsified by evidence of DW 1, who found no one near the dead body. On a careful perusal and evaluation of deposition of DW 1, it is found that he has been gained over by the defence so as to try and change the time of the occurrence and to create a doubt regarding presence of the informant and witnesses at the time of occurrence. However, the distance of the concerned police station from the place of occurrence has been given by PW 4 as 4 kms and even according to DW 1 it took the police party to come from the police station to the place of occurrence only about 1/2 an hour. Thus, it is apparent that this witness has falsely claimed to have found the dead body at 12.30 in the noon because he claims to have immediately gone to the police station for which he would not have taken 2 hours. It is also improbable that killing by three fire shots would not have attracted any other person in the vicinity and only DW 1 could have seen the dead body in the noon without there being any other person at the place of occurrence. His claim that by chance, he saw the dead body without hearing any sound of firing etc. does not inspire confidence and his deposition is found fully unreliable. It is also relevant to notice here that when the IO arrived at the place of occurrence, the informant and the witnesses were found present there although their village is said to be 6-7 kms away. does not inspire confidence and his deposition is found fully unreliable. It is also relevant to notice here that when the IO arrived at the place of occurrence, the informant and the witnesses were found present there although their village is said to be 6-7 kms away. It is also unbelievable that as a Chaukidar, DW 1 would not have pointed out to the IO at the time of recording of the Fardbeyan itself if he found the claim of the informant to be present throughout with the deceased to be blatantly false. Hence, in the facts of the case, the defence cannot be given any benefit on the basis of unreliable testimony of DW 1. The only minor contradiction in the evidence of PW 1 vis-a-vis the statement of PWs 2 and 3 regarding location of injuries due to firing by appellant Dhuri Paswan and appellant Surendra Paswan, in the facts of the case, is not found material enough so as to warrant rejection of the entire prosecution case. PW 1, Sugambar Rawani might have made the contradictory statement that Dhuri Paswan caused injury on the chest in place of head and Surendra Paswan caused injury on the head in place of chest of the deceased due to human error in observation or recollection but he has claimed that he saw firing by Jiwan Paswan, Dhuri Paswan as well as Surendra Paswan and such firing caused three injuries to the deceased on various places. Hence, such contradiction cannot be treated fatal to the prosecution case. 12. The offence had taken place in a village 6-7 kms away from the village of the deceased as well as that of the witnesses. Their claim that they belong to a group of artists who perform in marriages etc. has not been questioned in cross-examination and the prosecution has also brought on record the copy of agreement for such performance (Satta) as Ext. 1 without any objection. Hence, the presence of the informant and the witnesses at the place of occurrence appears to be natural and probable. It also appears natural and probable that in another village, after the occurrence they might not have felt safe to leave the dead body and the company of the people collected there till the arrival of the police on information by the local Chaukidar which is a common practice. It also appears natural and probable that in another village, after the occurrence they might not have felt safe to leave the dead body and the company of the people collected there till the arrival of the police on information by the local Chaukidar which is a common practice. In the facts of the case, since the witnesses including the informant have been shown to have enmity with the accused persons, their evidence has been scrutinized with due caution. However, there is nothing in their deposition to affect their reliability and the medical evidence is also largely in support of the prosecution case. It has already been discussed earlier that opinion of the Doctor in respect of injury No. (ii) that it may have been caused by sharp cutting substance does not inspire confidence. In this respect the ocular evidence is found to be consistent and reliable. 13. The submission advanced on behalf of the appellants that no independent witness from the neighbouring village has been examined to support the prosecution case is found to be without any merits because the place of occurrence is a lonely place and the nearest village is at the distance of 1/2 km. During afternoon of a summer season non-presence of independent witnesses at the time and place of occurrence is not at all surprising. Further, a judicial notice can be taken of the fact that in respect of serious offences affecting strangers, people are, now a days, reluctant to come out as witnesses. 14. On behalf of the appellants it was further submitted that adverse inference should be drawn against the prosecution for not producing Station Diary Entry No. 162 which PW 4 admittedly recorded on the information of Chaukidar, Rameswar Paswan (DW-1). It is clear from the evidence of the IO (PW-4) that only a vague information was given to him by the Chaukidar that in Baish Khanda of his village at a lonely place one person had been murdered by some one and the dead body was lying there. The information given lacked all material particulars and could not have affected the prosecution case in any manner. When the defence proceeded to examine witnesses it could have prayed for summoning the relevant Station Diary Entry but that was not done. The information given lacked all material particulars and could not have affected the prosecution case in any manner. When the defence proceeded to examine witnesses it could have prayed for summoning the relevant Station Diary Entry but that was not done. In the facts and circumstances, it would not be proper to draw any adverse inference against the prosecution in not bringing the Station Diary Entry No. 162 on record when its contents had been disclosed by the official witness, PW 4 and was not challenged by the defence through cross examination on that point. 15. On careful consideration of all the materials available on record, it is found that the prosecution has succeeded in proving the charges against the appellants beyond reasonable doubt and the judgment and order of the trial Court convicting the appellant does not suffer from any legal or factual error so as to warrant interference. The sentences also suffer from no illegality. Thus, it is found that the appeal of the appellants has no merit. It is accordingly dismissed. Since appellants are on bail, their bonds shall stand cancelled. They should be taken into custody forthwith to serve out the remaining sentences in accordance with law. Sheema Ali Khan, J. 16 I agree.