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2011 DIGILAW 647 (JHR)

Dukhan Paswan v. State of Jharkhand

2011-07-12

JAYA ROY

body2011
JUDGMENT Jaya Roy, J.The appellant has filed this appeal for setting aside the Judgment of conviction and sentence dated 25.6.2009 in, S.T No. 124 of 2002 arising out of B.S.City P.S. Case No.163 of 1994, corresponding to G.R. Case No.748 of 1994 by the Ist Additional Sessions Judge, Bokaro, whereby the appellant has been convicted for the offence under Sections 324, 307/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to R.I. for ten years and to pay a fine of Rs.20,000/- for the offence under Section 307/34 I.P.C. and in default of payment of fine further under go S.I. for a period of two years and further sentenced to undergo R.I. for 5 years for the offence under section 27 Arms Act. All the sentence will run concurrently and the period already undergone as under-trial prisoner shall be set off against his sentence. 2. Prosecution case in brief is that the fardbeyan of the informant one Madan Mohan Sah son of Laxmi Sah, permanent resident of village Raghopur, P.S. Jurawanpur District Vaishali (Bihar) and presently residence at Muhalla Joshi Colony LakraKlanda ( near Khalsha School) Jhopari under P.S. B.S. City, District Bokaro is that on 10.7.94 while he was coming from his residence by his bicycle to Dundibagh Market, for marketing and reached at about 15.10 hours after Dugal Gate between over bridge and CEZ gate Golambar noticed that one motorcycle was coming behind him in slow speed, he turned and saw that three persons were ridding upon said motorcycle out of whom Dukhan Paswan accused appellant in middle who used to work as Khalashi in his department in operation Garriage of B.S.L. had a revolver in his hand from which he shot fire upon him which hit in his left side of the hand and bullet went out from left side of his stomach then he got down from his cycle and chased. Dukhan Paswan again shot fire towards him but it did not hit him. It is further alleged that culprits were ridding on black colour Rajdoot Motorcycle and the last digital number of which was 37. They turned motorcycle towards right side and fled away towards east CEZ gate. Dukhan Paswan again shot fire towards him but it did not hit him. It is further alleged that culprits were ridding on black colour Rajdoot Motorcycle and the last digital number of which was 37. They turned motorcycle towards right side and fled away towards east CEZ gate. The further case of the informant is that Dukhan Paswan (the appellant) was well known to him since he was working in his department and used to wear Kurta and Paijama and also keep slight beard. The other two persons were between 25-26 years old. Their height was about 5’5” and they were in simple dress. The reason behind fire as alleged by the informant is that Dukhan Paswan (accused/appellant) deals with the business of broker for sell and purchase of land. Dukhan Paswan had taken Rs.40,000/- (forty thousand) in the year 1991 from him for sell a piece of land at Chas. He further alleged that when the informant learnt about forged activity of Dukhan Paswan then he demanded back his earnest money whereupon Dukhan Paswan had given assurance that after sell of the land he will return the aforesaid money to him but long time had passed away then Dukhan Paswan falsely charged the informant consequently the informant was suspended on 9.9.93. Entire matter was enquired by enquiry committee thereafter the suspension of the informant was revoked on 24.5.94 consequently the informant again joined his service on 27.5.94. Thereafter, the informant again demanded earnest money thereupon Dukhan Paswan assured him to return the same on 20.7.94 but before the said date, Dukhan Paswan along with his two associates attempted to commit his murder by shot fire from revolver with intention to grab the said amount of Rs.40,000/- ( forty thousand) of the informant. 3. On the basis of the aforesaid fardbeyan, a formal F.I.R. was drawn and the present case has been registered against the accused appellant. After investigation, charge sheet has been submitted and after taking cognizance, the case was committed to the court of Sessions for trial. 4. The accused denied the charges levelled against him and his plea appears to be total denial of the occurrence and claimed himself to be innocent and have committed no offence rather he has falsely been implicated in this case due to enmity. 5. The prosecution has examined seven witnesses to prove its case. 4. The accused denied the charges levelled against him and his plea appears to be total denial of the occurrence and claimed himself to be innocent and have committed no offence rather he has falsely been implicated in this case due to enmity. 5. The prosecution has examined seven witnesses to prove its case. Amongst them P.W.1 Durga Dutta Pandey as he has not supported to the prosecution case, he has been declared hostile. P.W.2 Raj Kumar Sah as hearsay witness as well as seizure list witness. PW.3 Ranjit Kumar son of the informant who is also hearsay witness, P.W.4 Nasiruddin Khan is also a hearsay witness and seizure list witness as well as the witness of fardbeyan of informant, P.W.5 Gyani Devi wife of the informant is also a hearsay witness of the occurrence, P.W.6 Madan Mohan Sah is the informant and victim of this case, P.W.7 Doctor Pankaj Sharma the Medical Officer who examined the victim and issued the injury report. Admittedly I.O. of the case has not been examined. The defence has examined two witnesses i.e. Ismil Ansari and Masum Khan. 6. The defence has brought a several documentary evidence to prove its case. Out of whom Exhibit-A to A-4 is signatures of the informant made on joint compromise petition and permission petition for compromise the present case. Marked-X for identification of the injury report, Exhibit-B Compromise petition, Exhibit-C fardbeyan of the Dukhan Paswan in G.R. Case No. 1020/03 corresponding to Marafari P.S. Case No. 70/03, Exhibit-D to D/4 the original deposition of prosecution witnesses recorded in G.R. Case No. 1020/03, Exhibit-E Signature of Ajeet Kumar Srivastava made on the order of suspension dated 9.9.93 Exhibit-F to F/1 signatures of Dukhan Paswan and informant dated 19.7.97 filed in G.R. Case No. 1020/93, Exhibit-G to G/1 compromise petition and petition for permission to compromise filed in G.R. Case No. 1020/93 and Exhibit-H petition of compromise and permission for compromise the case filed in S.T. 124/02 (present case). The accused/ appellant in his statement under section 313 Cr.P.C. has totally denied the allegation levelled against him. He has admitted that he had taken only 11000/- (Eleven thousand) rupees in advanced as earnest money but same was returned to the informant. Lastly, he has stated that in this case he has falsely been implicated due to previous enmity. 7. Mr. V.P. Singh the learned Sr. He has admitted that he had taken only 11000/- (Eleven thousand) rupees in advanced as earnest money but same was returned to the informant. Lastly, he has stated that in this case he has falsely been implicated due to previous enmity. 7. Mr. V.P. Singh the learned Sr. counsel for the appellant submits that except the victim P.W.6 there is no eye witness of the occurrence in this case. P.W.1 has been declared hostile as he was not supported the prosecution case. P.W.2 Raj Kumar Sah is neighbour of the informant. He has stated that he reached to the place of occurrence and thereafter to the Hospital but had not disclosed as to how he came to know about P.O. and from whom he came to know that informant had gone to the Hospital. P.W.3 Ranjit Kumar he is son of the informant but he is also a hearsay witness but he has not disclosed in his evidence that who informed him about the incident and how he came to know about the occurrence. He had specifically stated that there are public at the place of occurrence but none has been examined by the prosecution. Similarly P.W.4 Nasiruddin Khan who is neighbour, a hear-say witness but he has not disclosed in his evidence that as to how he came to know that Madan Mohan Sah was in the Hospital. He has admitted that he has given his statement for the first time of the court. P.W.5 Gyani Devi who is wife of the informant is also hear-say witness. P.W.7 the Doctor who had categorically stated that he never treated the informant and he issued the report on the basis of the Surgeon’s report who treated the informant. The surgeon who said to have been treated the informant, has not been examined by the prosecution and there is no explanation of the prosecution for his non-examination. P.W.2 and P.W.3 who are said to be witnesses of the seizure of clothes but admittedly no cloth has been produced before the trial court. Not only that, the seizure list was also not legally proved during the trial. P.W.2 and P.W.3 who are said to be witnesses of the seizure of clothes but admittedly no cloth has been produced before the trial court. Not only that, the seizure list was also not legally proved during the trial. The I.O. has also not been examined in this case and his non-examination prejudice the appellant very much as his examination could have disclosed about the place of occurrence also the manner of occurrence and further whether there was any blood on or near the place of the alleged occurrence and who informed him about the incident and how he came to know about the occurrence. Further, when the P.W.-3 had specifically stated that there were public at the place of occurrence but none has been examined by the prosecution. On the other hand, the defence has examined two witnesses who supported the story of compromise. 8. Mr. Singh has contended that the only eye witness in this case the informant i.e. the victim himself. Therefore, the evidence of the informant (P.W.6) should be trustworthy to convict a person. Mr. Singh has pointed out the following things for which the informant can not be believed:- (i)He was detected deposing on the basis of the chit of paper; (ii)He has stated in his evidence that he was going on cycle and when a look back he saw three persons on a motorcycle out of them he identified the appellant only who was sitting in the middle. According to him appellant fired at him which hit him on left side back and came out from the left side stomach. Thereafter he chased the accused persons but another round was fired which did not hit him. He boarded a tempo, then another tempo for reaching hospital. This story clearly shows that he had not received any serious injury, and if he had at all received any serious injury, he could not have chased the appellant. (iii)The informant has claimed that he identified the appellant sitting in the middle of the Motorcycle when he turned back from his cycle. (iv)The appellant has received injury on the left side which can not be possible unless the motorcycle came to his left but it is not case of the prosecution. Furthermore, the informant has received injury from back which shows he might not had seen the appellant. (iv)The appellant has received injury on the left side which can not be possible unless the motorcycle came to his left but it is not case of the prosecution. Furthermore, the informant has received injury from back which shows he might not had seen the appellant. (v)The informant has made a false statement before the Court as he initially denied about the compromise of the case but the later he admitted his signature on Vakalatnama of Joint compromise petition i.e. Exhibit. A to A/4. (vi)The informant also made false statements that Madhu had supported the incident before the Police but he is dead but the case diary shows that in fact no person named Madhu ever examined by the I.O. (vii)The Story of giving loan or advance to the appellant as put forward by the informant is not acceptable in view of the fact that he had specifically said in paragraph 8 that he had no friendship with the appellant rather had enmity. Therefore the P.W. 6 who is the only eye witness and the victim also cannot be believed or relied at all. 9. Mr. Singh has further submitted that defence has examined two witnesses who have totally supported the defence version and supported the story of compromise. It is also submitted that not a single person who was at the place of the occurrence or any of the tempo driver has been examined to support the informant’s case. Furthermore, the I.O. has not been examined who can very well explain whether he found blood or any sign or mark of firing at the place of occurrence. It has also come that the witnesses had admitted the criminal case lodged by the appellant against the informant in which the informant was acquitted on the basis of the compromise made with the appellant. 10. Mr. Manish Kumar Jha, the learned counsel of the informant has submitted that the informant who was examined as P.W.6 and who are the victim also, has fully supported the prosecution case and he is fully truthful and trustworthy witness as he never attempted to deny any thing with the regard to previous enmity between him and the accused appellant. Mr. Manish Kumar Jha, the learned counsel of the informant has submitted that the informant who was examined as P.W.6 and who are the victim also, has fully supported the prosecution case and he is fully truthful and trustworthy witness as he never attempted to deny any thing with the regard to previous enmity between him and the accused appellant. He has further submitted that the P.Ws.2 to 5 have fully corroborated the evidence of the P.W.6 as they have stated that when they reached to the hospital and enquired from the informant as to who had assaulted him, the informant told them that it was the accused/appellant who fired on him. According to him, the defence cannot take advantage for none production of material Exhibit as there is oral evidence of ocular witnesses who have stated that cloths worn by injured was blood stained. Furthermore, the medical evidence fully supported the case of the prosecution. 11. It is further submitted that the nature of injury can not be taken up as defence to claim that since injuries were simple in nature, no offence under Section 307 I.P.C. is made out. It is also submitted that for constituting offence under Section 307 I.P.C. dominant intention is to be seen. In the instant case, assault was made by fire arm and two bullets were fired, one of which hit the informant on vital part of the body, such assault can not be held to be advantageous to the accused. 12. The only question to decide the case whether the prosecution has proved its case beyond reasonable doubt. No doubt, except the informant who was the victim also, there is no other eye witness of the alleged occurrence. The witnesses as P.Ws. 3, 4 and 5 are hearsay witness but they could not explain that how they have came to know that the informant has been admitted to the Hospital and reached to the hospital. Therefore, scrutiny the evidence of the sole eye witness who is the informant and the victim also is very necessary. After going through the evidence of the P.W.6, I find that Mr. Singh has rightly pointed out that conviction cannot be based on the evidence of such witness who cannot be said at any stretch a trustworthy witness. Therefore, scrutiny the evidence of the sole eye witness who is the informant and the victim also is very necessary. After going through the evidence of the P.W.6, I find that Mr. Singh has rightly pointed out that conviction cannot be based on the evidence of such witness who cannot be said at any stretch a trustworthy witness. Even the surgeon, who treated the informant, has not been examined by the prosecution and there is no explanation for his non-examination. The I.O. has also not been examined by the prosecution who can only explain whether there was any blood on or near the place of occurrence or any mark or sign of firing at the place of occurrence. On the other hand, the defence witnesses have supported the story of compromise. Thus, there are numbers of infirmities in the prosecution case and the prosecution has failed to prove its case beyond all reasonable doubt. For all these reason as discussed above, in my opinion, the appellant is entitled for benefit of doubt. I therefore, set aside the conviction and sentences passed upon the appellant. The appeal is therefore, allowed, and the appellant is discharged from the liability of his bail bonds.