Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1717 (PAT)

Om Prakash Paswan v. State Of Bihar

2007-11-05

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2007
Judgment 1. The sole appellant is aggrieved by the judgment and order dated 25th March, 1995 passed by Additional Sessions Judge-XIIth, Patna in Sessions Trial No. 478/1992 whereby he has been convicted for offence under Sec. 302 of the Indian Penal Code and also under Sec. 27 of the Arms Act. For the offence under Sec. 302 of the Indian Penal Code he has been awarded life imprisonment and for offence under the Arms Act three years RI. Both the sentences are to run concurrently. 2. The prosecution case is based upon fardbeyan of informant Dipu Kumar, PW-5 recorded on 5.7.1991 at 8:45 p.m. at the emergency ward of Patna Medical College Hospital. In brief it is to the effect that informants brother, Santosh Kumar, the deceased, was a student of B.A. at Tata and due to strike in the college, since last one month he was staying at home. On 4.7.1991 during day time Santosh came back to his home and disclosed to the informant that he had verbal altercation with Om Prakash Paswan, the appellant and he had received threats. The reason for the altercation was said to be criminal nature of Om Prakash and that the deceased used to dissuade him from indulging in criminal activities. On 5.7.1991 at 6:00 p.m. accused Birendra Yadav came and called Santosh who went with him towards Ramnagar road. At about 6:45 p.m. sound of fire arm shots were heard on which the informant went running and saw that in front of one Dayal Bhawan towards north and on the turning of road going towards north his brother, Santosh had fallen flat in a pool of blood and the appellant, Om Prakash and another accused Birendra Yadav (since acquitted by the trial court) were running away towards west with revolvers in their hands. The informant raised hulla on which people assembled. Out of them Lal Das Paswan, PW-3, Rekha Kumari, PW-1 and Poonam Kumari, PW 2 disclosed that they were near the place of occurrence and according to them Om Prakash Paswan and Birendra Yadav had run away towards west after assaulting the deceased with revolver. He saw that Santosh had sustained bleeding injuries on head and abdomen and since some part of intestine had come out, he guessed that besides fire arm Santosh had been assaulted with Chhura also. He saw that Santosh had sustained bleeding injuries on head and abdomen and since some part of intestine had come out, he guessed that besides fire arm Santosh had been assaulted with Chhura also. At that time Santosh stated to the informant to take him quickly to the hospital and that Om Prakash and Birendra Yadav had assaulted him. The informant brought a tempo and took Santosh to hospital on the same. Santosh became unconscious in the way and died at PMCH in course of treatment. 3. The fardbeyan > was recorded by Sub Inspector of Police, Ram Sahay Roy and he only prepared the inquest report at the PMCH and thereafter investigation was taken over by PW-8, Sub Inspector, Janardan Prasad Singh. He was a member of the patrolling party which reached the place of occurrence on hearing rumours of the occurrence at 7:15 p.m. After taking charge of investigation the PW-8 made formal inspection of the place of occurrence, recorded statement of witnesses including further statement of the informant, sent dead body for post mortem examination and after finding the case to be true against the two named accused including appellant, submitted charge sheet. After cognizance by the learned Magistrate, the case was committed to the court of Sessions where the accused persons pleaded not guilty to the charges and after trial one of the accused, namely, Birendra Yadav was acquitted on being extended the benefit of doubt and the appellant was convicted and sentenced as already noticed. 4. From the trend of cross-examination the defence of the appellant appears to be of false implication on account of enmity between the appellant and the deceased. A defence witness was also examined to show that soon after the occurrence as per rumours some other person was alleged to be the culprit. 5. The prosecution in order to prove its case has examined altogether 9 witnesses. Out of them PW-1, Rekha Kumari, PW-2, Poonam Kumari and PW-6, Kaushalya Devi have been declared hostile as they chose not to support the prosecution case in court. PW-3, Lal Das Paswan, although related to the appellant as his uncle, has supported the prosecution case. PW-4, Neelam Devi is daughter of PW-3 and a cousin (sister) of the appellant and as noticed earlier Dipu Kumar, the informant is PW-5. PW-7, Mangal Dayal Rajak is the father of the informant. PW-3, Lal Das Paswan, although related to the appellant as his uncle, has supported the prosecution case. PW-4, Neelam Devi is daughter of PW-3 and a cousin (sister) of the appellant and as noticed earlier Dipu Kumar, the informant is PW-5. PW-7, Mangal Dayal Rajak is the father of the informant. PW-8, Sub Inspector of Police, Janardan Prasad Singh is the 1.0. and PW-9, Dr. Sunil Kumar is the, doctor who held autopsy on the body of the deceased and has proved the post mortem report as exhibit-6. As noticed earlier the informant PW-5 has claimed that he came to the place of occurrence on hearing the sound of firing and saw some persons running away including the appellant who was carrying a revolver in his hand. In court he has claimed that his brother, Santosh while in injured condition disclosed the name of this appellant as his assailant. PW-3, Lal Das Paswan has also claimed to have reached the place of occurrence on hearing the sound of firing. He saw Santosh lying down in an injured condition and he was speaking that Om Prakash Paswan, the appellant had shot and injured him. This witness has also claimed to have seen 2-3 persons running away out of whom he could identify only Om Prakash Paswan, the appellant who was armed with a revolver and he was showing that revolver and threatening the people in the neighbourhood and therefore nobody chased him. PW-4, the daughter of PW-3 has also claimed to have come to the place of occurrence after hearing the sound of firing. She found Santosh at the place of occurrence and she saw that he had received fire arm injuries. She saw Santosh talking to his brother but she could not hear the actual words spoken by Santosh, the deceased. She claimed that PW-1 and PW-2 had disclosed to her that it was Om Prakash, this appellant who had assaulted the deceased. She further deposed that Santosh asked for being taken to hospital and he was taken to the hospital by his family members. The aforesaid three material witnesses in their deposition in court have not implicated Birendra Yadav, the accused who has already been acquitted but they have consistently named this appellant as one of the persons who was seen fleeing away from the place of occurrence armed with a revolver soon after firing at the deceased. The aforesaid three material witnesses in their deposition in court have not implicated Birendra Yadav, the accused who has already been acquitted but they have consistently named this appellant as one of the persons who was seen fleeing away from the place of occurrence armed with a revolver soon after firing at the deceased. As noticed the deceased also named this appellant as one of his assailants which fact has been supported by the informant, PW-5 as well as by PW-3, Lal Das Paswan. Further the informant has clearly deposed in court also that on 4.5.1991 the deceased who was younger brother of the informant had disclosed to him about verbal altercation with the appellant and some others and regarding threat given to the deceased. The defence has cross examined PW-3 with a view to create a suspicion that he is interested in securing conviction of the appellant, his own nephew because of enmity between the appellant and Manoj Paswan, a son of PW-3. PW-3 has candidly admitted that his son Manoj Paswan is in jail on account of his conviction in a criminal case but has further stated that in jail his son and the appellant are very close to each other and they dine out of same plate. He further asserted that even if he had seen his own son firing at the deceased he would have come forward to depose against him. On a close scrutiny of the evidence of PW-3 it is found that being a close relation of the appellant he has deposed against him without there, being any reason for him to falsely implicate the appellants. PW-4, Neelam Devi also appears to be truthful and although she did not hear the exact words spoken by the deceased to the informant but her evidence is reliable and shows that the deceased did not die instantaneously and was in a position to talk and he did talk to the informant as claimed in the fardbeyan. There is nothing in the cross examination of PW-4 or PW-5 to doubt the truthfulness of their testimony as given in the court. 6. There is nothing in the cross examination of PW-4 or PW-5 to doubt the truthfulness of their testimony as given in the court. 6. So far as PW-7, Mangal Dayal Rajak is concerned, although he has claimed in court that he arrived at the place of occurrence at the crucial time when the appellant was running away and he saw the appellant while fleeing away at a close distance from the place of occurrence but from the cross-examination and the evidence of the Investigating Officer, PW-8 it is clear that he had not made such claim before the police during his examination under Sec. 161 of the Cr.P.C. Besides he has also admitted that the school where he is Headmaster is at a distance of 8 to 10 Kilometers from his house and after the school closes at 4:00 p.m. he comes back on foot to his house. Further from the evidence of the informant as well as from the earliest version given in the FIR it appears that this witness was not present till the stage the deceased, Santosh was taken to hospital on a tempo. Hence, it is not found safe to rely upon this witness. From the evidence of the Investigating Officer, PW-8, it is clear that the occurrence came to the knowledge of the police by wireless message within a short time of about half an hour and on reaching the place of occurrence persons were found assembled there and the place of occurrence is supported by the objective finding of the I.O. The medical evidence as adduced by PW-9 shows that the deceased had sustained fire-arm injuries in the abdomen and on the head besides some other injuries which could have been possible either due to fall or due to impact of injury No. 4 which was the wound of exit on the left parietal bone. The injuries were found sufficient to cause death in ordinary course of nature. On being pressed by the defence in cross examination the doctor has no doubt stated that such injuries may cause unconsciousness and also instantaneous death but he has not claimed with certainty that the injuries must have caused instant death. The injuries were found sufficient to cause death in ordinary course of nature. On being pressed by the defence in cross examination the doctor has no doubt stated that such injuries may cause unconsciousness and also instantaneous death but he has not claimed with certainty that the injuries must have caused instant death. On a careful perusal of the injuries found on the deceased externally as well as after dissection it appears that no doubt injuries were of serious nature and could have caused death any time but the nature of the injuries is not such that it was bound to cause instant death. However, no further speculation is required on this aspect of the matter in view of the clear unchallenged evidence of the informant and other witnesses that the deceased was taken to hospital where he was given some medicines and he died in course of treatment. This aspect of the matter is further corroborated by the evidence of PW-9, the doctor that he found the injuries of the deceased bandaged and that indicates that deceased had received treatment. 7. On behalf of the appellant it was submitted by learned Amicus Curiae that only the evidence that the deceased had received threats from the appellant on an earlier date and the claim of some of the witnesses that they saw this appellant running away from the place of occurrence with a revolver soon after the firing can not be treated as sufficient material for his conviction. It was submitted that the claim of the prosecution that the deceased gave an oral dying declaration to the informant is not free from doubt specially when in the earliest version the alleged dying declaration contained the names of this appellant as well as of co-accused Birendra Yadav but in court the witnesses including the informant have confined dying declaration only against this appellant. 8. No doubt, co-accused Birendra Yadav has been given benefit of doubt and acquitted by the learned trial court. 8. No doubt, co-accused Birendra Yadav has been given benefit of doubt and acquitted by the learned trial court. In absence of any challenge to that order of acquittal before us, We would not like to go into details to find out as to whether he has been rightly given that benefit of doubt or not but from the evidence of the witnesses it is clear that the deceased was in a position to make a statement while he was lying in an injured condition at the place of occurrence and he, in fact, made a statement regarding the persons who had assaulted him. As to why some of the witnesses including the informant became soft to co-accused, Birendra Yadav is not an issue before us. There may be many reasons for the same but it is clear that the deceased before his death had named this appellant which fact has been supported by at least the informant and PW-3 in court. The deposition of PW-3 carries with it special credibility because as noticed earlier he is uncle of the appellant and We have found that there is no conceivable reason for his resorting to falsehood to implicate the appellant. 9. Thus, on a careful consideration of all the facts and circumstances. We are of the view that the learned trial court has rightly convicted the appellant for the offence under Sec. 302 of the Indian Penal Code and Sec. 27 of the Arms Act. We find no good reason to interfere with the conviction or the sentence awarded to the appellant. The appeal is therefore found to be without any merit. It is dismissed accordingly.