Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1131 (PAT)

Daroga Paswan v. State of Bihar

2012-08-16

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. Mr. Arun Kumar Pandey appears in this case and submits that the client has taken the file and he has no instruction in this matter. This Court however, appoints him as Amicus Curiae to assist the Court. 2. This appeal is directed against the judgment and conviction and order of sentence dated 23.8.1994, passed in Sessions Trial No. 293 of 1992 arising out of Sahpur P.S. Case No. 158/91 by the 2nd Additional District & Sessions Judge, Arrah convicting the sole appellant to undergo R.I. for 10 years under Section 307 of the Indian Penal Code. 3. The prosecution case in short is that Daroga Paswan along with Sabha Paswan were digging a foundation beyond the lands allocated to them which led to the occurrence. Basawan Paswan tried to stop them, whereupon, Daroga Paswan assaulted Basawan Paswan the informant, and his brother Dahab Paswan by means of a sword. It is said that Sabha Paswan assaulted them with a lathi and Etbaro Devi also assaulted them with a spade that she was carrying. 4. There are five witnesses examined in this case. The defence has also led evidence and has come up with a case that the informant and his brother had assaulted them which led to the occurrence. He has filed a complaint which has been proved by D.W. 1 who is an advocate clerk and has stated that a complaint was filed in the Court which is marked as Ext. B. D.W. 2 is the doctor who examined Daroga Paswan and found three injuries all simple on his skull, thumb and upper arm. The injury on the skull was incised wound measuring 2”x1/4”x1/4”. The doctor also examined Etbaro Devi and found a swelling on the back near the lumber region. Sabha Paswan was also examined by the doctor and he found one incised wound on the head measuring 2”xscalp deepx1/2” and lacerated wound over the right arm and swelling on the right hand. D.W. 3 has proved the signature of Daroga Paswan on the complaint which has been marked as Ext. D. 5. On consideration of the prosecution case, the First Information Report and the defence version it appears that the occurrence had taken place in which both the parties were injured. D.W. 3 has proved the signature of Daroga Paswan on the complaint which has been marked as Ext. D. 5. On consideration of the prosecution case, the First Information Report and the defence version it appears that the occurrence had taken place in which both the parties were injured. The injuries on the informant and his brother were serious as compared to the injuries received by Daroga Paswan, Sabha Paswan and Etbaro Devi. In order to substantiate the case that it was the appellant and others who had started the dispute and attacked them, the prosecution has examined five witnesses. 6. This Court will begin with the evidence of the doctor, P.W. 5. The doctor had examined Basawan Paswan and found incised wounds on the head and one on the shoulder. Besides which there was an incised wound on the thumb. The doctor has found that injury nos.1 and 2 were deep and cut the scapular bone and skull. According to the doctor the injuries were grievous in nature. Dahan Paswan who was also injured had received injuries by means of a lathi which is supported by the doctor. In this manner, it appears that the doctor has found that there was injuries on both the informant and the brother which appear to be supported with the injuries as described in the First Information Report and evidence in Court. 7. It may be noted that the parties admit that they are closely related to each other inasmuch as Sabha Paswan is the uncle (Chacha) of Basawan Paswan, whereas, Daroga Paswan Son of Sabha Paswan is the cousin and Etbaro Devi is the wife of Sabha Paswan. The injured Dahan Paswan and Basawan Paswan are brothers being son of Lakhi Dusadh. It is also admitted by the parties that there was a land dispute between them which was the root cause of the occurrence. P.W. 1, Ram Ishwar Paswan is related to the accused as well as the informant. He claims that he came to the place of occurrence when he heard the sound of raised voices and saw Daroga Paswan assaulting Basawan Paswan with a sword. He also alleges that Sabha Paswan assaulted Basawan Paswan with a lathi on his back whereas Ekbaro Devi gave him a ‘Khurpi’ blow. He claims that he came to the place of occurrence when he heard the sound of raised voices and saw Daroga Paswan assaulting Basawan Paswan with a sword. He also alleges that Sabha Paswan assaulted Basawan Paswan with a lathi on his back whereas Ekbaro Devi gave him a ‘Khurpi’ blow. In the cross-examination he supports the prosecution version and he further states, that if he had not intervened the fight would have continued and in all probabilities Basawan Paswan would have been killed. According to him there was a lot of blood at the place of occurrence. It was stated that others persons had also come to the place of occurrence and they all took the two injured persons on a trekker to the hospital. According to this witness the sword had been surrendered in the hospital. This witness denies that a complaint case has been filed by Daroga Paswan in the Court of the Chief Judicial Magistrate. 8. Dahan Paswan was also injured in the occurrence. He has supported the prosecution version of the occurrence and has described the manner in which he and his brother were assaulted. The motive of the occurrence has also been supported by this witness. According to this witness his elder brother the informant on receiving the injury had fainted. P.W. 1 Ram Ishwar Paswan had bandaged the injury with a piece of cloth before taking Basawan Paswan to the hospital. According to this witness the accused persons had removed the sign of blood from the place of occurrence. Attention of this witness has been called to the statement regarding his evidence under Section 161 of the Code of Criminal Procedure. He states that he told the Investigating Officer that there was a motive for the said occurrence. 9. P.W. 3 Basawan Paswan supports the case as made out in the First Information Report. At paragraph 2 he admits the relationship of the parties and has stated that there has been no partition on paper between them. He denies the suggestion that Banwari Ram one of the brothers had gifted his share of the property to Daroga Ram and that by virtue of that gift Daroga Ram was making the construction. He has not been able to describe the Khesra and Khata of the land where the appellant and others were laying down the foundation. He denies the suggestion that Banwari Ram one of the brothers had gifted his share of the property to Daroga Ram and that by virtue of that gift Daroga Ram was making the construction. He has not been able to describe the Khesra and Khata of the land where the appellant and others were laying down the foundation. This witness denies that the appellant and the others were treated at the same hospital before he reached the hospital. 10. P.W. 4 is the Investigating Officer of this case. As usual he has not made any attempts to seize the weapons purportedly utilized in this occurrence. He has not noted in the case diary whether or not he found blood at the place of occurrence. However, he supports the fact that he visited the place of occurrence and did not find any signs that an attempt had been made to dig a foundation for construction of a hut at the place of occurrence. He has also stated specifically that neither of the parties had produced any document with regard to the lands in question. It may be important to note here that Ram Ishwar Paswan, Daroga Paswan and Basawan Paswan have not stated the motive for the occurrence. They had merely stated that Daroga Paswan and others had assaulted them with various weapons as described in the First Information Report. 11. Learned counsel for the appellant on the basis of the aforesaid evidence submits that although it may be true that an occurrence had taken place in which both parties were injured, the motive of the occurrence has not been established in this case, and as such the Court could not have held that the appellant was the aggressor in his case. It is further submitted that if the motive for the occurrence is not established then the entire prosecution case would fail. 12. Having considered the evidence in this case led by both the appellant and the prosecution, it cannot be denied rather it is admitted by both the parties that an occurrence took place in which there was exchange of assault between the parties. Even though the motive becomes doubtful in view of the evidence of the Investigating Officer that P.Ws. 12. Having considered the evidence in this case led by both the appellant and the prosecution, it cannot be denied rather it is admitted by both the parties that an occurrence took place in which there was exchange of assault between the parties. Even though the motive becomes doubtful in view of the evidence of the Investigating Officer that P.Ws. 1, 2 and 3, the three witnesses to the occurrence did not disclose the motive for the occurrence, it cannot be denied that there was an assault and as such the manner of occurrence stands established in the facts of this particular case. Having held that there was an occurrence in which the appellant had assaulted Basawan Paswan and Dahan Paswan, this Court cannot acquit the appellant of the charges under Section 307 of the Indian Penal Code. However, considering that both the parties are closely related to each other and that two decades had passed since the occurrence had taken place, I alter the sentence to the period already undergone with a direction to Daroga Paswan to deposit a fine of Rs. 3,000/- to be paid to Basawan Paswan and Rs. 2,000/- to Dahan Paswan, the two injured persons in this case. In case the fine is not paid, Daroga Paswan will have to undergo R.I. for one year. The Trial Court may issue notice to Daroga Paswan and to the informant. The appellant is directed to pay the said fine within a period of four months on valid service of notice. This appeal is dismissed with alteration of the sentence. The appellant would be discharged from the liability of the bail bond furnished earlier in this case subject to payment of fine to both the injured.