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2011 DIGILAW 583 (JHR)

Ganeshi Paswan v. State of Jharkhand

2011-06-30

JAYA ROY, R.K.MERATHIA

body2011
JUDGMENT (1) BOTH the appeals were heard together and are being disposed of by this common judgment. (2) BOTH these appeals arise out of the common judgment of conviction dated 17-1-2004 and order of sentence dated 19-1-2004 passed by the learned 7th Additional Sessions Judge, Fast Track Court No. 4, Godda in Sessions Case No. 50 of 1998/220 of 2003 convicting the appellants under Section 302/34 of the Indian Penal Code and sentencing them to undergo R.I. for life and also imposing fine of Rs. 5,000/- each and in default in payment thereof, R.I. for one year. The prosecution case in short is that the informant Jaykant Paswan. son of Shankar Paswan (deceased), gave a fardbeyan on 27- 7-1997 at about 1.00 a.m. before the police alleging therein that on 26-7-1997 at about 4.30 a.m. his father Shankar Paswan- Chaukidar No. 3/4 along with other chaukidars were on duty at Doihat. The informant had been to hat to purchase vegetables. The appellants had also been to hat. The father of the informant was returning to village at about 6.30 p.m. from hat. When he reached about 300 yards south-east on the pitch road, he found that the appellants were also following him. The informant also purchased vegetables quickly and started for his house, having a torch in his hand. On the way, it is alleged that the informant heard sound of 'bachchao-bachchao'. He ran towards the place from where sound was coming. When he reached near Belabandh, he saw his father lying on the ground in the injured condition. Then, he started running towards the village with his torch and in the light of his torch, he saw the appellants at the distance of 25 yards. The appellant Ganeshi Paswan had dagger in his hand and the appellant Horil Harijan was armed with lathi. Then he returned to his father and found several injuries of dagger and lathi on his person. In the low voice, he told the informant that the appellants had assaulted him with dagger and lathi and he died then and there. There was none at the place of occurrence and therefore, the informant rushed towards his village and told his family members and villagers about the occurrence. (3) THREE accused persons including one Rajendra Ravidas alias Paswan were put on trial. There was none at the place of occurrence and therefore, the informant rushed towards his village and told his family members and villagers about the occurrence. (3) THREE accused persons including one Rajendra Ravidas alias Paswan were put on trial. Rajendra Ravidas alias Paswan was acquitted of the charges by the trial Court and the appellants were convicted and sentenced as aforesaid. (4) LEARNED counsel appearing for the appellants, in both the appeals, assailed the impugned judgment of conviction and sentence as passed by the trial Court, on various grounds. In short, it is submitted that the evidence of PWs 4 and 5, who claim to be eyewitnesses to the actual occurrence and assault, is contradictory on vital and material aspects with the evidence of PW 14-informant and PW 15-investigating officer. It is further submitted that the appellants deserve the benefit of doubt and in any event, the appellant-Horil Harijan has remained in jail for a total period of more than 11 years and the appellant-Ganeshi Paswan has remained in jail for more than 14 years. On the other hand, the State counsel supported the impugned judgment of conviction and sentence. (5) WE find force in the submission of the learned counsel appearing for the appellants that they deserve the benefit of doubt. PWs 1, 3, 6 and 13 have been declared hostile. PW 2 is a formal seizure list witness. PWs 7, 8, 10, 11 and 12 are hearsay witnesses. Conviction of the appellants is based mainly on the statement of PW 14-informant who claims to be the eye-witness to the occurrence, PW 15 is the investigating officer, PW 4-Jagdish Mandal and PW 5-Sukho Mandal also claim to be the eye-witnesses to the occurrence. PW 9 is the doctor who conducted the post-mortem examination on the dead body of the deceased. (6) ACCORDING to PW 14, when he heard the cry of his father (deceased), he reached to the place of occurrence and saw in the light of his torch that his father was lying on the ground in the injured condition. He saw that the appellant-Ganeshi Paswan having dagger in his hand and the appellant-Horil Harijan having lathi in his hand were fleeing away from the place of occurrence. In the evidence, the informant (PW 14) inter alia said that there was no other person near the place of occurrence, either towards the village or towards the hat. He saw that the appellant-Ganeshi Paswan having dagger in his hand and the appellant-Horil Harijan having lathi in his hand were fleeing away from the place of occurrence. In the evidence, the informant (PW 14) inter alia said that there was no other person near the place of occurrence, either towards the village or towards the hat. Whereas, PWs 4 and 5 has said that they saw the occurrence and were asked by the appellants to sit nearby at the distance of 15 ft from the place of occurrence. It has also come in the evidence that near about the time of occurrence, people used to return from hat in groups. PW 14 has also said that when he went to the village, the appellant-Ganeshi Paswan was abusing in filthy language. Pws 4 and 5 have inter alia said that the appellants and Rajendra Ravidas alias Paswan (since acquitted) had taken liquor at the hat and while returning, the appellant-Ganeshi Paswan asked for betel at the betel shop, but the shop owner expressed his inability to give betel. When this witness, the appellants and others started returning to their houses, the appellant-Ganeshi Paswan started abusing the Sarpanch-Mangal Singh in filthy language on which, Shankar Paswan (deceased) intervened which was protested by the appellants and other accused Rajendra Ravidas alias Paswan (acquitted). Thereafter, the appellant-Ganeshi Paswan assaulted Shankar with his dagger due to which he fell on the ground. When other persons wanted to run away, they were threatened by the appellants due to which they sat at the distance of about 15 ft. After killing Shankar, appellants while returning to their village asked PWs 4 and 5 not to say anything about the occurrence to the villagers. After assault, Shankar cried for help and when the informant (PW 14) came there, the appellants started running to their houses which was seen in the light of torch by the informant. There were some talk between the deceased and the informant. PWs 4 and 5 have further said that they were kept at the police station for 4-5 days on suspicion and they also gave statement under Section 164, Cr.P.C. PW 5 has inter alia said that when the appellant- Ganeshi Paswan started abusing the Sarpanch, the deceased protested to it. On which, Shankar (the deceased) hit Ganeshi with umbrella. PWs 4 and 5 have further said that they were kept at the police station for 4-5 days on suspicion and they also gave statement under Section 164, Cr.P.C. PW 5 has inter alia said that when the appellant- Ganeshi Paswan started abusing the Sarpanch, the deceased protested to it. On which, Shankar (the deceased) hit Ganeshi with umbrella. Thereafter, the appellant- Ganeshi assaulted the deceased with dagger and the appellant-Horil assaulted the deceased with lathi causing his death. After about 5 minutes of the occurrence, PW 4 came and after about 10 minutes, the informant came. The informant has not stated about the presence of PWs 4 and 5 either in his fardbeyan or in his deposition, though they said that they were sitting at the distance of about 15 ft. from the place of occurrence. It is difficult to believe that the informant did not notice them, who were his relatives and they did not disclose the occurrence to PW 14 who is said to have reached at the place of occurrence after the occurrence. The fardbeyan was recorded after about five hours of the time of occurrence, but the manner of occurrence as stated by the PWs 4 and 5 was not disclosed in the FIR. (7) THE doctor who conducted the postmortem examination on the dead body of the deceased, has found the following ante-mortem injuries on the body of the deceased. 1. Uncountable number of bruises over face and scalp of varying sizes and shapes. 2. Two incised wounds over the face on left lateral side each 3 cm apart obliquely placed each of size 6cm x 2cm x 2.5cm. 3. One lacerated wound over parietal area of scalp left side 6cm x 2cm x 1cm. Regarding the cause of death, the doctor has opined that it was due to shock and hemorrhage ultimately leading to C.R. failure. (8) THUS, there appears vital contradictions in the evidences of PWs 4 and 5 with PW 14 on material aspects. In our opinion, the appellants deserve the benefit of doubt. In the result, these appeals are allowed. The judgment of conviction and order of sentence, as passed by the trial Court against the appellants in sessions case No. 50 of 1998/220 of 2003, is hereby set aside. The appellants are acquitted of the charges. They are in custody. In our opinion, the appellants deserve the benefit of doubt. In the result, these appeals are allowed. The judgment of conviction and order of sentence, as passed by the trial Court against the appellants in sessions case No. 50 of 1998/220 of 2003, is hereby set aside. The appellants are acquitted of the charges. They are in custody. They are directed to be released forthwith, if not wanted in any other case. Order accordingly.