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2007 DIGILAW 895 (PAT)

Ganesh Paswan v. State Of Bihar

2007-05-07

INDU PRABHA SINGH

body2007
Judgment I. P. Singh, J. 1. There are thirteen appellants in this case. Appellant No.1 ganesh Paswan has been convicted under section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.1,000, in default, to undergo further rigorous imprisonment for two months. He has further been convicted under Sections 452,380,427, 147 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years under Sec.452, three years under Sec.380, two years under section 427, one year under Sec.147 and four months under Sec.323 of the Indian penal Code. Appellant No.2 Rama paswan, appellant No.3, Saujiwan Paswan, appellant No.5, Nanhak Paswan, appellant no.6 Ram Bali Mistri, appellant No.8. Umesh Das, appellant No.9, Sheoraj Das, appellant No.10. Bhuneshwar Das, appellant No.11 Ram Lekh Das and appellant no.12, Karo Das have been convicted under Sec.452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years each. Further they have been convicted under Sec.380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each. They have also been convicted under Sec.427 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each. They have further been also convicted under Sections 147 and 323/34 of the Indian Penal Code and each sentenced to undergo rigorous imprisonment for one year under Sec.147 and rigorous imprisonment for three months under Sec.323/34 of the Indian Penal code. Appellant No.4, Tripit Paswan and appellant No.7, Panna Lal Das have each been convicted under Sections 452,380,427, 147 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years under Sec.452, three years under Sec.380, two years under section 427, one year under Sec.147 and four months under Sec.323 of the indian Penal Code. Appellant No.13, Sukhu paswan has peen convicted under Sections 436/109, 452, 380, 427, 147, 323 and 341 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years with a fine of Rs.1,000 for the offence under Sec.436/109 of the Indian Penal code. Appellant No.13, Sukhu paswan has peen convicted under Sections 436/109, 452, 380, 427, 147, 323 and 341 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years with a fine of Rs.1,000 for the offence under Sec.436/109 of the Indian Penal code. In default to undergo rigorous imprisonment for two months and further sentenced to undergo rigorous imprisonment for four years under Sec.452, three years under Sec.380, two years under Section 427, one year under Sec.147, four months under Sec.323 and simple imprisonment for fifteen days under Section 341 of the Indian Penal Code. However, the sentence have been ordered to run concurrently. 2. Prosecution case, in short, is that while the informant was standing at his house on 19.3.1986 at 5 p. m. all the appellants armed with weapons and gun came and started abusing and making search for the informant and the father of the informant. Appellant Ganesh Paswan caught hold of the informant and appellant Panna Lal Das and tripit started assaulting the informant by lathi and Shukhu Paswan assaulted the father of the informant by lathi and Shukhu paswan thereafter ordered to set the house on fire of the informant and on the command of Sukhu Pawan, Ganesh Paswan set on fire the dwelling house of the informant by a match box as a result of which the house burnt to ashes. Thereafter the accused persons also damaged the cow-shed of the informant and looted away some grains and also they took away wrist watch of the informant. The motive of the occurrence is said to be enmity between the parties due to partition of land. The fardbeyan of the informant was recorded by the Officer-in-Charge of Khizarsarai on 19.3.1986. On the basis of the fardbeyan, FIR was drawn up. The police took up investigation and after completion of the same submitted charge-sheet against the appellants. Accordingly cognizance was taken and the case was committed to the Court of Sessions for trial. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. 3. The prosecution in support of its case examined altogether nine witnesses, PW1 is Kamlesh Paswan, PW2 is Ramchandra prasad, he is a formal witness who has proved the first information report, PW3 is jamuna Devi, she claimed to be an eyewitness of the case. 3. The prosecution in support of its case examined altogether nine witnesses, PW1 is Kamlesh Paswan, PW2 is Ramchandra prasad, he is a formal witness who has proved the first information report, PW3 is jamuna Devi, she claimed to be an eyewitness of the case. PW4 is Jagdeo Paswan, pw5 is Chandrika Paswan, PW6 is Mithlesh paswan, informant of the case PW7 is kusumi Devi, PW8 is Lakshmi Das. He claimed to be the eyewitness of the case. PW 9 is Pachakauri Ram, IO of the case. 4. Pw1 Kamlesh Paswan has stated that on the date of occurrence at 5 p. m. he was at his house and he heard hulla coming out from the house of Mithlesh Paswan. He came out of his house and saw Ganesh paswan, Rama Paswan, Sajiwan Paswan tripit Paswan, Nanhak Paswan, Pannalal das, Umesh Das, Karoo Das, Bhuneshwar das, Ramdeo alias Ramlal Das, Sheolal Das, rambali Mistri, Sukhu Mistri came and ganesh caught hold of Mithilesh (PW6 ). Panna Lal and Tripit started assaulting. Jagdeo Paswan the father of Mithlesh paswan was assaulted by Sukhu Paswan and Sukhu Paswan ordered to set on fire the house and then Ganesh Paswan set on fire the house by match box. Thereafter they also damaged the cow shed of the informant. The appellants also took away some grains kept in the cow shed. According to him the accused persons were about 100 to 200 in number. Thereafter the accused persons fled away. 5. Pw3 Jamuna Devi has stated that on the date of occurrence at 5 p. m. she was at his house. She heard hulla and thereafter she saw that 20-30 persons came to the house of the informant. Among them she recognised the thirteen appellants. She has further stated that appellant Ganesh caught hold of Mithlesh and appellant Tripit and panna Lal assaulted the informant mithlesh by lathi. Sukhu assaulted the father of Mithlesh by lathi. Thereafter Sukhu ordered Ganesh to set on fire. Then Ganesh set on fire the house of informant. The accused persons also damaged the cow shed of the informant. PW4 Jagdeo Paswan father of the informant has stated that on the date of occurrence at about 5 p. m. when he heard hulla he came out of his house. He saw the appellants standing there. Then Ganesh set on fire the house of informant. The accused persons also damaged the cow shed of the informant. PW4 Jagdeo Paswan father of the informant has stated that on the date of occurrence at about 5 p. m. when he heard hulla he came out of his house. He saw the appellants standing there. He has stated that Ganesh Paswan caught hold of Mithlesh and appellant Panna Lal and tripit assaulted the informant by lathi. They also assaulted the father of the informant by lathi. He has also stated that on the order of appellant Sukhu Ganesh set on fire the house of the informant. The appellants also demolished the cow shed and took away some grains kept in the cow shed. 6. Pw5 Chandrika Paswan has also supported the case of the prosecution and has named all the accused persons. He has stated that Ganesh caught hold of Mithlesh and Panna Lai and Tripit assaulted him by lathi and Sukhu assaulted Jagdeo by lathi and on the order of Sukhu Ganesh set on fire the house of the informant and the accused persons demolished the cow shed. 7. Pw6, Mithlesh Paswan, the informant has stated that on 19.3.1986 at 5 p. m. while he was standing at his house all the accused persons came armed with weapons and gun. They started abusing. Accused Ganesh caught hold of him and Panna Lal and Tirpit assaulted him with lathi. Appellant Sukhu paswan assaulted his father with lathi. According to him on the order of Sukhu paswan, Ganesh set the house on fire. They also demolished his cow shed and took away some grains and wrist watch. He gave his fardbeyan Ext.2. He went to the hospital but due to strike in the hospital he was not treated. PW 8, Lakshmi Das has stated that he saw about 100 persons came in the house of Mithlesh Paswan. He identified Ganesh paswan, Rama Paswan, Tripit Paswan, sajiwan Paswan, Panna Lal Das, Umesh das, Karu Das, Bhuneshwar Das and rambali Mistri. According to him, the accused persons started demolishing the house of the informant. Some persons also set on fire the house of the informant. They also took away some articles from his house. 8. Pw9,I. O. of the case has stated in his evidence that he took up the investigation of the case and recorded the statement of the witnesses. According to him, the accused persons started demolishing the house of the informant. Some persons also set on fire the house of the informant. They also took away some articles from his house. 8. Pw9,I. O. of the case has stated in his evidence that he took up the investigation of the case and recorded the statement of the witnesses. He also inspected the place of occurrence. He found thatched house of the informant was burnt. He has given full description of the place of occurrence. However, he has also stated that PW1 Kamlesh paswan had not stated before him that panna Lal and Sukhu Paswan assaulted the father of the informant. He has further stated that he had not stated before him that on the order of Sukhu Paswan, Ganesh Set on fire the house of the informant. Similarly he has further stated that PW3, Jamuna devi had not stated about setting on fire by ganesh on the order of Sukhu and also did not say that Ganesh caught hold of Mithlesh and thereafter Panna Lal and Tripit assaulted mithlesh. PW9 has further stated that PW4 Jagdeo Paswan father of the informant had not stated before him that on the order of Sukhu Paswan appellant ganesh set on fire the house of his son, mithlesh. He has further stated that PW 4, jagdeo had also not stalted about the assault on Mithlesh by the accused Panna Lal and Tirpit rather he had taken the names of Prabhu, Devendra, Shoraj Das, Tirpit Das and Chote Das who set on fire the house of the informant. PW9 has also stated that pw5 had not stated before him that Ganesh set on fire on the order of Sukhu. He also did not say that Panna Lal and Tirpit paswan had assaulted the informant and sukhu Paswan assaulted Jagdeo Paswan, father of the informant. According to him, he recorded the statement of many villagers of different castes and community. 9. Learned counsel for the appellants has submitted that the Court below has committed error by relying on the evidence of the prosecution witnesses, namely, kamlesh Paswan (PW1), Jamuna Devi, (PW3), Jagdeo Paswan (PW4) and chandrika Paswan PW5 as they had given contradictory evidence and had developed the story of prosecution during trial before the Court. The evidence of PW9,1. O. totally falsified the testimony of PWs 1,3,4 and 5. The evidence of PW9,1. O. totally falsified the testimony of PWs 1,3,4 and 5. It has been further submitted that the Court below should have considered the evidence of PW9, IO regarding the statement made by the witnesses during investigation. It has also been submitted that in this case the manner of occurrence has not been proved and there is general and omnibus allegation against a mob of 100/200 persons. Lastly it has been submitted that this case is based on solitary evidence of PW6, the informant. 10. Considering the submission of the learned counsel that the prosecution witnesses pws 1, 3, 4 and 5 have developed the prosecution story to support the version of the informant during trial it appears that during investigation they have not specifically mentioned about the overt act done by the accused persons. As such, their evidence is not reliable and the are not trustworthy. From the record it transpires that it is a case of solitary evidence of the informant who has only supported the case of the prosecution. From the story of prosecution it is clear that a mob of 100/200 persons came and set on fire the house of the informant and also they demolished his cow shed. From their evidence it appears that the prosecution fails to prove the overt act attributed to the appellants. As such it could not be ascertained that who set on fire the house of the informant and also who damaged his cow shed. It has also not been specifically stated that who looted away the grains kept in the cow shed. Thus, the prosecution could not prove its case beyond all reasonable doubts That apart, in this case the evidence of the witnesses is not free from doubts, the case is based on solitary evidence of the informant who is inimical to the appellants, as such, it would not be safe to convict the appellants on solitary evidence of the informant. The appellants deserve benefit of doubt. Accordingly, this appeal is allowed. The judgment of conviction of the learned Court below is set aside and the appellants are acquitted of the charges levelled against them. They are directed to be set at liberty. Appeal allowed.