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2013 DIGILAW 83 (PAT)

Rameshwar Paswan v. State of Bihar

2013-01-18

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. 1. Heard learned counsel appearing for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 30.11.2000 and sentence order dated 02.12.2000 passed by Sri Roshan Lall Sharma. 5th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 23 of 1990 by which and whereunder he convicted the appellant No.1 for the offences punishable under Section 307 of the Indian Penal Code and 27 of the Arms Act and, accordingly, he was sentenced to undergo seven years rigorous imprisonment for the offence punishable under Section 307 of the Indian Penal Code and to undergo three years rigorous imprisonment for the offence punishable under Section 27 of the Arms Act and furthermore he convicted the appellant No.2 under Section 323 of the Indian Penal Code and sentenced him to undergo four months rigorous imprisonment under the above stated section. The learned 5th Additional Sessions Judge, Nalanda at Biharsharif by the above stated impugned judgment acquitted the appellant No. 1 of the charge framed against him under Sections 427 and 379 of the Indian Penal Code and he also acquitted appellant No.2 of the charge framed under Section 427 of the Indian Penal Code and apart from this he acquitted the co-accused, Suklilal Paswan and Dipu Paswan of the charges framed against them for the offences punishable under Sections, 307, 427 of the Indian Penal Code and 27 of the Arms Act. 3. In brief, the prosecution case, is that on 04.03.1989, PW 5, namely, Sumatri Devi @ Shabitri gave her fardbeyan to S.I. of Noorsarai Police Station in injured condition at Noorsarai Hospital to this effect that on the same day at about 09:00 a.m. his son, namely. Birendra Paswan (PW 1.) had gone to take tuition by his bicycle and when he reached near the door of Sushil Paswan, the appellant No.2, Anjani Kumar @ Anjani Paswan and co-accused, Dipu Paswan snatched his bicycle and having got the aforesaid information, she went there to enquire about the above stated incident but appellant No. 1 and co-accused, Sukhlal Paswan assaulted her with lathi as a result of which she fell down there. She further stated that having seen the aforesaid incident, his son, Anil Paswan (PW 2.) came there and after that appellant No. 1 being armed with country-made gun, co-accused, Dipu Paswan being armed with gun and Sushil Paswan as well as appellant No. 2 being armed with lathi came there and appellant No. 1, namely, Rameshwar Paswan and two other accused, namely, Sukhlal Paswan and Dipu Paswan made firing which hit on her both legs as well as on both legs of her son, namely, Anil Kumar. She further stated that Sushil Paswan and appellant No.2 started assaulting her son with lathi. She further stated that her silver hasuli and other ornaments were snatched by appellant No. 1 and the aforesaid persons also demolished the khapra of her house. She further stated that one Bablu Ravidas and Sunita Kumari also sustained injury On account of above stated firing. The reason behind the alleged occurrence is said to be land dispute. 4. On the basis of aforesaid fardbeyan. Noorsarai P.S, Case No. 32 of 1989 was registered and accordingly, formal first information report was drawn against the appellants and three others for the offences punishable under Sections 147, 148, 307, 324, 427, 379 of the Indian Penal Code and 27 of the Arms Act. After investigation, police submitted charge-sheet against the appellants and two others and found the accusation untrue against first information report named. Sushil Paswan. 5. On being receipt of the chargesheet, cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. 6. The appellant No. 1 and two others namely, Sukhlal Paswan and Dipu Paswan were jointly charged for the offences punishable under Sections 307, 427 of the Indian Penal Code and 27 of the Arms Act whereas appellant No.1 was separately, charged for the offence punishable under Section 379 of the Indian Penal Code and also appellant No.2 was. separately charged for the offences punishable under Sections 307/34 and 427 of the Indian Penal Code. 7. In support of its case, the prosecution examined altogether eight witnesses and also proved formal first information report as Exhibit-1 fardbeyan as Exhibit - 2 and injury reports as Exhibit-3. The statements of appellants and others were recorded under Section 313 of the Cr.P.C. in which they completely denied the prosecution story. 7. In support of its case, the prosecution examined altogether eight witnesses and also proved formal first information report as Exhibit-1 fardbeyan as Exhibit - 2 and injury reports as Exhibit-3. The statements of appellants and others were recorded under Section 313 of the Cr.P.C. in which they completely denied the prosecution story. The appellants and other accused also got exhibited some documents in support of their defence to show the enmity between them and prosecution party. 8. The learned trial Court having considered the materials available on the record passed the impugned judgment of conviction and sentence order which has been challenged by the appellants before this Court. 9. Learned counsel appearing for the, appellants assailed the impugned judgment of conviction and sentence order arguing that prosecution witnesses have made. contradictory statements regarding the firing. He submitted that Exhibit-2 the fardbeyan of the informant, shows that appellant No.1 and two others namely. Sukhlal Paswan and Dipu Paswan had made firing causing injury to PW 2 as well as PW 5 and the aforesaid fact was supported by PW 1 who claimed himself to be an eye witness of the alleged occurrence but when the depositions of PW 2 and PW 5 were recorded. They changed the prosecution story and stated that it was only appellant No.1 who made firing causing injury to them. It is contended by him that the learned trial Court has relied upon the depositions of PW 1, PW 2, PW 3, PW 4, and PW 5, but over-looked the aforesaid contradiction. It is further contended by him that the learned trial Court has acquitted co-accused. Sukhlal Paswan and Dipu Paswan of the charges framed under Sections 307 of the Indian Penal Code and 27 of the Arms Act but convicted the appellant No. 1 for the above stated offences without giving the weightage to the aforesaid contradictions in the statements of prosecution witnesses. It is further contended by, him that the aforesaid contradictions create doubt about the manner of the occurrence and the appellant No. 1 is entitled to get the privilege of benefit of doubt. 10. It is further contended by, him that the aforesaid contradictions create doubt about the manner of the occurrence and the appellant No. 1 is entitled to get the privilege of benefit of doubt. 10. Learned counsel for the appellants further submitted that the prosecution witnesses have not only contradicted on the point of manner of occurrence but they have also made contradictory statements on the point of place of occurrence and therefore, the prosecution could not succeed to prove the manner and place of occurrence beyond all shadow of reasonable doubts. He further submitted that Investigating Officer of this case has not been examined by the prosecution and therefore, appellants and other accused could not get opportunity to draw the attention of the Investigating Officer in respect of the contradictory statements of the prosecution witnesses. He further submitted that the most competent and important witnesses, namely, Bablu Ravidas and Sunita Kumari were not examined nor any injury reports of aforesaid so-called two injured were brought on the record by the prosecution. So, non-examination of the aforesaid two independent witnesses as well as non-production of their injury reports also creates doubt about the genuineness of the prosecution story. 11. Learned counsel for the appellants further submitted that the alleged occurrence took place in the year 1989 and the impugned judgment was pronounced on 30.11.2000 and at the time of pronouncement of impugned judgment appellant No. 1 was aged about seventy years. Now, near about 13 years have already been passed after pronouncement of impugned judgment and presently, the appellant No.1 is aged about 82 to 83 years. So, no purpose would be served, if appellant No. 1 is sent to jail to serve out his sentences. 12. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that all the material witnesses including the two injured of this case have supported the prosecution story and apart from this, the doctor who had examined the injured, has also proved the injury reports of injured of this case and, therefore, the learned trial Court has rightly convicted the appellant No. 1 under Sections 307 of the Indian Penal Code and 27 of the Arms Act and similarly, appellant No.2 has also rightly been convicted under Section 323 of the Indian Penal Code. 13. 13. On perusal of record, it is clear that PW 1 Birendra Paswan, PW 2 Anil Paswan, PW 3 Janki Devi, PW 4 Janardan Paswan and PW 5 Sumatri Devi @ Shabitri, the informant of this case, are witnesses on the point of occurrence. So far as PW 6 and PW 7 are concerned, they are formal witnesses and they have proved formal first information report as well as fardbeyan as Exhibit-l and Exhibit-2. respectively Similarly, PW 8 is a medical officer who proved the injury reports of PW 2 and PW 5. 14. PW 1 in his examination in chief specifically stated that appellant No.1 and two others namely Dipu Paswan and Sushil Paswan opened fire of their guns causing injury to his mother (PW 5.) his brother (PW 2) and one Bablu Ravidas and Sunita Kumari. This witness also stated that his bicycle was snatched near the house of Dipu Paswan whereas the occurrence of firing took place near his house. PW 2 has stated in his examination in chief that only Rameshwar Paswan appellant No. 1 made firing causing injury to him and others whereas PW 3. Janki Devi stated that appellant No.1. Rameshwar Paswan and Sukhlal Pawan had opened fire causing firearm injury to her mother and others PW 4. namely Janardan Paswan confined the allegation of firing only against appellant No. 1 and similarly PW 5 who is informant of this case confined the allegation of firing against appellant No.1. Rameshwar Paswan. Therefore, it is clear that prosecution witnesses have contradicted to each others on the point of making firing and in my view the aforesaid contradiction is not of minor nature rather it goes to the route of the prosecution case because prosecution failed to establish this fact as to who had caused firearm injury to injured persons of this case and admittedly on the same set of evidence and having relied upon the statements of aforesaid witnesses the learned trial Court has acquitted two co-accused persons of the charges framed under Sections 307 of the Indian Penal Code and 27 of the Arms Act and. Therefore, I am of the opinion that appellant No. 1 is also entitled to get the privilege of benefit of doubt. 15. Therefore, I am of the opinion that appellant No. 1 is also entitled to get the privilege of benefit of doubt. 15. Exhibit-2, the fardbeyan of the informant shows that she specifically stated in her fardbeyan that when she reached near the house of Sushil Paswan to enquire this fact as to why bicycle of her son was snatched the appellant No. 1 and Sukhlal Paswan assaulted her with lathi but when she deposed before the Court. She stated that when she went to enquire about the incident of snatching of bicycle appellant No. 2 assaulted her with lathi and. Therefore, it is explicit clear that the informant herself contradicted her fardbeyan and in my view no reliance can safely be placed on the aforesaid statement of PW 5. 16. On the basis of aforesaid discussions. I am of the opinion that prosecution could not succeed to prove the charges framed under Sections 307 of the Indian Penal Code and 27 of the Arms Act against the appellant No. 1 and charge framed under Section 323 of the Indian Penal Code against appellant No. 2 beyond all shadow of reasonable doubts and both the aforesaid appellants are entitled to get the privilege of benefit of doubt. 17. Accordingly, this criminal appeal is allowed and the impugned judgment of conviction dated 30.11.2000 and sentence order dated 02.12.2000 are hereby set aside and the appellants are acquitted of the charges framed against them. Both the appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.