Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 177 (PAT)

Deo Paswan v. State of Bihar

2012-01-30

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 1. Both these appeals arise out of Sessions Trial No 146 of 2005 in which judgment was delivered by the Additional Sessions Judge I, Bhojpur at Ara on 15.07.2005 convicting the appellants under Section 302 of Indian Penal Code (IPC) for committing the murder of Purnamasi Paswan. The two appellants are father and son respectively in the two appeals. We have heard the learned counsels for the appellants in the two appeals and the learned Additional Public Prosecutor (APP) Shri Ashwani Kumar Sinha at length. 2. The prosecution case starts from the first information report (FIR) which was lodged in the early hours (6.15 am) on 24.03.2004 with regard to an incident that took place on the previous night at 8 pm on 23.03.2004. The Fardbayan on basis of which the FIR was lodged was the statement of Purnamasi Paswan who is the deceased. It was recorded at 3 am on 24.03.2004 at the Referral Hospital, Shahpur by Sub-Inspector (SI) Jagdish Prasad (PW 9) of Shahpur Police Station (PS). This Fardbayan has been exhibited as Exhibit-3. In the fardbayan, it is stated that when Purnamasi Paswan, the deceased was sitting in his timber shop in the evening, three persons that is Deo Pawan, his son Kesho Paswan, appellants armed with lathi and knife alongwith Mangru Paswan who was armed with bhala came there and assaulted him and from his person took out Rs 4,000/- and when upon alarm being raised, several villagers including Umesh Paswan (PW 1), Ayodhya Paswan (PW 4) and Ramu Paswan (not examined), Krishna Paswan (not examined) came, the miscreants ran away. In the Fardbayan, it is clearly stated that Mangru Paswan, one of the miscreants was standing separately and, as such, had not taken part in the assault. Upon this Fardbayan, case, interlia, under Sections 307 and 379 IPC was registered. Formal FIR is Exhibit-4. It appears that the informant died in course of treatment and as such the case was converted as to one under Section 302, IPC. Police investigated the case and submitted chargesheet against four persons that is appellant Deo Paswan, appellant Kesho Paswan and Mangru Paswan and Umesh Ojha. Formal FIR is Exhibit-4. It appears that the informant died in course of treatment and as such the case was converted as to one under Section 302, IPC. Police investigated the case and submitted chargesheet against four persons that is appellant Deo Paswan, appellant Kesho Paswan and Mangru Paswan and Umesh Ojha. Upon the case being committed to the Court of Session and the accused persons pleading not guilty, charges were framed against all the accused persons under Sections 302/34 and Section 379, IPC by the trial Court. Upon evidence being recorded, the trial Court acquitted Mangru Paswan and Umesh Ojha, inter alia, on the ground that so far as Mangru Paswan is concerned, even as per the Fardbayan, he did not take part in the assault and no substantial evidence came against him. So far as Umesh Ojha is concerned, he was acquitted, inter alia, on the ground that though he was known to the informant, he was not named in the FIR and his name was only subsequently introduced in course of investigation. It may be noted here that there is no appeal by either the State or from the informant side against these two persons. 3. In order to establish the charge, prosecution has examined nine witnesses. PW 1 admits to be the nephew of the informant who is the deceased. In his examination-in-chief, he states that upon hearing the cry for help, he rushed to the timber shop from the village and saw four people running away. He could identify Kesho Paswan and Umesh Ojha. He then discloses that when he asked Purnamasi Paswan, the informant disclosed the names of all the accused persons as the assailants. He found that his uncle had suffered grievous injuries on both his feet and his arms. He has been extensively cross-examined but his testimony has not been shaken. We then come to PW 2 Ramu Paswan who is also a nephew of the deceased. He again states that upon alarm being raised, he rushed to the spot and saw four persons running from the scene of crime being the four accused persons. His uncle was lying grievously injured. He was referred to Hospital where he ultimately died, the next day. He also states that Purnamasi Paswan disclosed to him the names of the four appellants and also stated that they had run away with his money. His uncle was lying grievously injured. He was referred to Hospital where he ultimately died, the next day. He also states that Purnamasi Paswan disclosed to him the names of the four appellants and also stated that they had run away with his money. This witness was also cross-examined by the accused persons but the testimony remains unshaken. PW 4 is Ayodhya Paswan, the son of the deceased-informant. He also states that at about 8 pm on 23.03.2004 when his father was at the timber shop and he had come to his home to take dinner, he heard the cries of his father. He rushed there on hearing the cries and saw the four accused persons there. He found Deo Paswan assaulting his father with a lathi, Kesho Paswan assaulting his father with knife. He found Umesh Paswan and Mangru also there. On seeing people coming there, the miscreants escaped. His father disclosed to him that the four persons assaulted him. He has admitted that his father was first taken to Shahpur Referral Hospital where his Fardbayan was recorded and then he was taken to Sadar Hospital, Ara where he ultimately died. He again was cross-examined by the accused persons without his testimony being shaken. Then we come to PW 5 Dukhni Devi, the wife of the deceased-informant being mother of Ayodhya Paswan. She is clearly a hearsay witness and not of much help. We then come to Nand Kumar Paswan (PW 6) who is another son of the informant but he admits that he had heard about the persons involved in the incident and had informed his mother accordingly. He is also a hearsay witness. PW 7 is Lal Bahadur Paswan yet another son of the deceased-informant who again is a hearsay witness but he testifies to the extent that when he reached the place of crime, his father, the deceased-informant disclosed the names of the four miscreants who had assaulted him. PW 8 is Dhanjee Ojha who is an independent witness but a hearsay witness. PW 3 is Dr Subhash Chandra Paswan who was the Deputy Superintendent of Sadar Hospital, Ara who conducted the post mortem examination. He has proved Exhibit-2, the post mortem report. Suffice to say that he has noticed several grievous injuries on both the feet below the knee of the deceased and on both the hands of the deceased. PW 3 is Dr Subhash Chandra Paswan who was the Deputy Superintendent of Sadar Hospital, Ara who conducted the post mortem examination. He has proved Exhibit-2, the post mortem report. Suffice to say that he has noticed several grievous injuries on both the feet below the knee of the deceased and on both the hands of the deceased. There are no injuries on the chest or abdomen or at the back of the deceased. There was only one injury that is injury No 9 which is red lacerated wound 3”x1/4”xbone deep on the posterior superior part of head. In his opinion, the death was caused due to shock and excessive bleeding. Now we come to PW 9, the Investigating Officer. We may note that the witnesses were questioned as regards their statement made in course of investigation but when the Investigating Officer was examined as PW 9, no contradictions, worth noticing, were obtained. Defence could not, in the cross-examination, dislodge the veracity and the validity of the statement recorded of the informant who subsequently died. In other words, the statement, as recorded of the informant and the names given therein, has not at all been discredited in any manner in course of the cross-examination. 4. Learned counsels for the appellants submit that the trial Court erred in treating the statement of the informant to be virtually a dying declaration. It was not recorded in presence of a Magistrate or under orders of a Magistrate. In our view, the contention is to be recorded only to be rejected. This position has been dealt in detail by the Apex Court, as cited by Shri Ashwani Kumar Sinha, learned APP, in the case of Kulwant Singh and others –Versus- State of Punjab, 2004 Supreme Court Cases (Cri) 1441 and, in particular, paragraphs-35 to 40 of the reports which are quoted hereunder : 35. Section 32 of the Indian Evidence Act, 1872 nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words, no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration. The fact that the investigating officer from the beginning intended to take the statement of Partap Singh is not in dispute. The fact that the investigating officer from the beginning intended to take the statement of Partap Singh is not in dispute. The endorsement made by the doctor in Ext PQ/1 and Ext PR/1 would clearly show that he had not been found fit to make such statement. Only on the fifth day i e 18-6-1987, the statement of Partap Singh could be recorded. 36. Section 32 of the Indian Evidence Act also does not state that a dying declaration should be made only in expectation of death and in that view of the matter, the fact that Partap Singh died on 26-6-1987 after a period of one week is of no consequence. Explanation I to Sub-section (1) appended to Section 32 specifies that when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death where cause of death of that person’s death comes into question would be a relevant factor. 37. PW 9, the investigating officer Hukam Singh has proved the statement of Partap Singh. He deposed that he was fully conscious when he made the statements which were read over to him. In that view of the matter, the said statements are admissible under Section 32 of the Indian Evidence Act. 38. The statement of PW 1 in no unmistakable terms shows that the condition of Partap Singh was very serious. 39. In Ramawati Devi v State of Bihar this Court observed: (SCC pp 214-15, para 7) “A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved.” 40. In Tehal Singh v State of Punjah this Court negatived the contention that a dying declaration should be made only in expectation of death, stating: (SCC p 404, para 5) “We do not also see any force in the suggestion of Dr Chitale that the statement of Harmel Singh was not made in expectation of death and was, therefore, not entitled to weight. Apart from the fact that Section 32 of the Evidence Act does not require that a statement should be made in expectation of death, it is clear from the evidence that the condition of Harmel Singh was serious at that time. In the requisition made by the medical officer to the police it has been clearly mentioned that the condition of Harmel Singh was serious. The very circumstance that Dr. Pasricha advised that Harmel Singh should be removed to Bhatinda Hospital for better treatment clearly indicates that the condition of Harmel Singh was serious.” 5. From the evidence on record rather one thing is clear. The prosecution case that, upon witnesses having assembled, Purnamasi Paswan disclosed to them the names of the accused persons is clearly established. It is equally established that he was in a position to make those statements. The Fardbayan of Purnamasi Paswan being the last statement of the deceased stands proved. Even though the FIR/Fardbayan is not a substantive piece of evidence, upon being corroborated by independent evidence, in our view, it is sufficient to establish the charge of a criminal assault by the appellants upon the deceased-informant. 6. Learned counsels for the appellants then argued that as per the Fardbayan, appellant Deo Paswan was armed with a lathi, appellant Kesho Paswan was armed with a knife and Mangru Paswan was armed with a spear. They had ample time to kill the informant if they had so intended. The injuries, as found and certified by the doctor with exception of one on the head, were on all the extremities. They had ample time to kill the informant if they had so intended. The injuries, as found and certified by the doctor with exception of one on the head, were on all the extremities. There was no attempt to assault on the mid section of the deceased. This would establish that in fact there was no intention to kill. We have considered this aspect of the matter and considering the nature of injuries, as found in the post mortem report, the submission must be accepted. If the appellants had intended to kill Purnamasi Paswan, it was easy for them to have done it at the place of occurrence itself. They would not have broken his legs below the knees, injured his arms below the elbow with a singular assault on the head and then run away. They were armed with lethal weapons like spear, knife but those were not used to inflict the fatal wounds. He died nevertheless because of shock and excessive bleeding. In our view, it would be a case which would be covered not under Section 302, IPC but under Section 304, IPC because the intention was to cause such bodily injury which could have caused death but without any intention to cause death in which case the maximum punishment would be ten years. This would be a case of culpable homicide not amounting to murder and not punishable as murder under Section 302, IPC. 7. Thus, while upholding the conviction of the appellants, we convert the conviction from Section 302, IPC to that under Section 304, IPC 8. Now we must consider the question of sentence. The trial Court, having convicted them under Section 302 IPC, awarded them with sentence of life imprisonment. We have noticed earlier that the two appellants in the two appeals are father and son. Thus, having come to this finding on the facts and circumstances, we are of the view that having converted the sentence of the appellants under Section 304 IPC, a sentence of seven years rigorous imprisonment would serve the ends of justice giving due regard to the period already undergone. We reduce the sentence of life imprisonment to seven years rigorous imprisonment. 9. With this modification in the conviction and sentence, the appeals stand dismissed.