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2013 DIGILAW 862 (PAT)

Shankar Paswan v. State of Bihar

2013-07-23

RAJENDRA KUMAR MISHRA, SHYAM KISHORE SHARMA

body2013
JUDGMENT : (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 24th September, 1990 passed in Sessions Trial No. 262 of 1987 by the learned 2nd Additional Sessions Judge, Bhagalpur whereby the appellants were found guilty for the offence punishable under sections 302 read with section 34 of the Indian Penal Code and each of them were sentenced to undergo imprisonment for life. They were further found guilty for the offence punishable under section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years. The sentences were ordered to run concurrently. 2. With regard to an occurrence of 7.00 PM on 24.7.1986 which led to killing of Hira Paswan, fard-beyan (Ext. 3) of Adhiklal Paswan (PW 2), the brother of the deceased, was recorded at 8.00 PM on the same day at Panjwara Out Post, wherein Adhiklal Paswan gave vivid details of the occurrence which led to killing of Hira Paswan. He went to the out post along with the corpus of deceased Hira Paswan and at that time he was accompanied by Sucha Paswan (PW 4), Niwas Paswan (PW 5), Prakash Paswan (PW 1). About the occurrence the informant stated that his brother Hira Paswan had been to attend the market and thereafter, he was returning at about 7.00 PM. At that time he was crossing by the side of house of accused Sardari, then he noticed scuffle between the informant’s Bhabhi Jangli Devi (PW 7)- tendered and another Bhabhi Masomat Yasoda Devi (not examined) with regard to grazing of maize by she goats. On account of that Sardari Paswan (appellant no. 2), Shankar Paswan (appellant No. 1), Anandi Paswan (acquitted), Ashok Paswan, Bhairo Paswan were quarrelling. Hira Paswan requested the accused persons and advised them not to quarrel and abuse and assault the women. On this Sardari Paswan asked his sons to assault, upon which Shankar Paswan who was having Bhala in his hand attacked which caused injury on the left temporal side of Hira Paswan who fell down and blood started coming out. After Hira Paswan fell down, he was assaulted through Bijar by Anandi Paswan, then Ashok Paswan assaulted on the chest by lathi. Others also assaulted. Indiscriminate assault caused instantaneous death. After Hira Paswan fell down, he was assaulted through Bijar by Anandi Paswan, then Ashok Paswan assaulted on the chest by lathi. Others also assaulted. Indiscriminate assault caused instantaneous death. The informant received injury in course of try to save his brother and he was assaulted by Anandi through Bijar. At the time of occurrence, Prakash Paswan (PW 1), Niwas Paswan (PW 5) and others were present and they were intervening and trying to settle the dispute. The fard-beyan resulted into formal FIR (Ext. 4) Banka Barahat P.S. Case No. 292 dated 25.6.1986 under sections 302/34 of the Indian Penal Code. The fard-beyan was received in the Court of learned C.J.M., Bhagalpur on 27.6.1986. Investigation commenced, place of occurrence was examined, inquest report of the dead body (Ext. 5) was prepared, some seizures of traditional weapons having blood stains were made, injury reports (Ext. 2 and 6) were procured, post mortem examination report (Ext. 1) was also obtained. The Police after investigation found the occurrence to be true and submitted chargesheet. The offence was triable by the court of Sessions, so after supply of police papers the case was committed to the court of sessions where charge under section 148 IPC was explained against Sardari Paswan, Shankar Paswan, Anandi Paswan and Bhairo Paswan. Charge under section 302 read with section 149 of the Indian Penal Code was explained to Sardari Paswan, Shankar Paswan, Anandi Paswan, Bhairo Paswan and Ashok Paswan. Ashok was further charged under section 147 of the Indian Penal Code, whereas, Sardari Paswan and Anandi Paswan were further charged under section 323 of the Indian Penal Code. Record of Bhairo Paswan and Ashok Paswan was split up on 17.5.1990. After the accused persons pleaded their innocence, the trial proceeded. 3. The defence of the accused persons was of false implication on account of enmity. 4. Before the trial court the prosecution has examined witnesses, they are: PW 1 Prakash Paswan is a FIR named witness and is Bhagina of the deceased, PW 2 Adhik Paswan is the informant and brother of the deceased, PW 3 Badri Paswan is nephew of the informant has been tendered by the prosecution. PW 4 Sucha Paswan is another FIR named witness and brother of the deceased. PW 5 Niwas Paswan is another FIR named witness and has been tendered and is Bhagina of the deceased. PW 4 Sucha Paswan is another FIR named witness and brother of the deceased. PW 5 Niwas Paswan is another FIR named witness and has been tendered and is Bhagina of the deceased. PW 6 Deep Narayan Paswan is seizure witness. PW 7 Jangli Masomat wife of the deceased has been tendered by the prosecution. Another lady PW 8 Fuda Devi Mosmat- sister of the deceased has also been tendered. PW 10 Baudhi Paswan Chowkidar has carried the dead body for autopsy. PW 11 was an independent witness, he has been declared hostile otherwise he is also a seizure witness. PW 9 Dr. Devendra Prasad held the autopsy on the dead body of deceased Hira Paswan and PW 12 has examined the injured- informant. PW 13 Jugal Kishore is the Investigating Officer. He has also scribed the fard-beyan. 5. The trial court after considering the evidence and after hearing the replies of the accused with regard to evidence explained to them under section 313 Cr. P.C., found not guilty to one Anandi who has also faced the trial with the appellants and these two appellants were found guilty against which this appeal has been preferred. 6. Now, this Court has to see as to whether the trial court has correctly appreciated the evidence and finding recorded by the trial court needs interference of this Court or not. 7. Before taking up the occular evidence, it would be appropriate to discus the medical evidence. 8. PW 12 was posted at Govt. State Dispensary as Civil Assistant Surgeon on 24.7.1986 and on that date he examined Adhik Lal Paswan and has found one abrasion 3’ x ½’ on the left side of chest. He has also complained about body-ache. The injury was simple in nature and caused within 48 hours. The injury was caused by hard blunt substance. In cross-examination, he has described that the Bijar is a pointed weapon as well as the hard blunt substance. He in his cross-examination clarified that injury of PW 2 (informant) has not been caused by Bijar. Another medical evidence which has come on the record is the evidence of PW 9, Dr. Devendra Prasad, who has conducted post mortem examination upon the dead body of Hira Paswan on 25.7.1986 at 2.00 PM and has found following ante-mortem injuries:- (i) one incised wound over left temporal region of 2” x ½” x bone deep. Another medical evidence which has come on the record is the evidence of PW 9, Dr. Devendra Prasad, who has conducted post mortem examination upon the dead body of Hira Paswan on 25.7.1986 at 2.00 PM and has found following ante-mortem injuries:- (i) one incised wound over left temporal region of 2” x ½” x bone deep. The upper portion of mendibuler bone was cut into two parts, (ii) one incised wound over left forearm on posterior aspect of 2”x ½’ x ½’, (iii) One incised wound over back on left side of 1 ½” x ¼’ x ¼” and (iv) one incised wound over right side of chest of ½” x ¼’ x0.2”. On dissection there was extensive blood clot under the scalp over the upper portion of the head. There was linear fracture in the left parital bone of skull. There was extensive extra duceal blood clots. The death was caused due to shock and haemorrhage on account of above mentioned injuries especially injury no. (v). Injury nos. (i) to (iv) were caused by some sharp cutting weapons such as edge of Bhala and Bijar and injury no. (v) was caused by hard blunt substance such as lathi. Death was within 24 hours. 9. This evidence has proved that Hira Paswan made a violent death on account of injuries given to him by Anandi caused by hard blunt substance. 10. Now, it has to be seen as to whether the occular witnesses have deposed to the extent to link the offender with the offence. 11. PW 2 Adhik Lal Paswan is the informant and is the brother of Hira Paswan deceased. He has stated that he had been to Panjwara Hat along with Hira Paswan. At 7.00 PM both were returning and reached near the house of Sardari Paswan, then he noticed that a quarrel was going on between the wife of Hira Paswan and Sardari Paswan. Both were quarrelling and hurling abuses. She goat of his Bhabhi has grazed the maize of Sardari and that was the reason for which abuses are being hurled. At that place Sardari Paswan, Shankar Paswan, Anandi Paswan, Ashok Paswan and Bhairo Paswan were present and they were also participating in the exchange of abuses. Both were quarrelling and hurling abuses. She goat of his Bhabhi has grazed the maize of Sardari and that was the reason for which abuses are being hurled. At that place Sardari Paswan, Shankar Paswan, Anandi Paswan, Ashok Paswan and Bhairo Paswan were present and they were also participating in the exchange of abuses. Hira requested them against fighting over such petty matter and he has promised to compensate the loss but Sardari Paswan instigated Shanker to assault on which Shankar gave Bhala blow upon the temporal region of Hira Paswan. Blood came out and later on others also assaulted. Ashok assaulted by lathi. This witness being the family members wanted to help the injured but in that process the informant was given Bijar blow upon the chest by Anandi. The informant also received injury. The injured died and with the help of Chowkidar the dead body was taken to Panjwara where his fard-beyan was recorded. He has admitted about lodging of a case by Sardari against him. Subsequently this witness was recalled and he in subsequent statement, in paragraph 3, has stated that he could not see as to who assaulted from what. Regarding evidence of other witnesses he stated that they came later, meaning thereby, their arrival was after death of Hira Paswan. He could not explain as to whether Hira Paswan fell down after the assault of Shankar or not. After this witness was called for re-examination, he has made another case and that case has exonerated the accused persons not only that but all version of the prosecution has made new case altogether which has not come either in the evidence of PW 2 before this Court or in his statement made before the Investigating officer. 12. PW 1 is the FIR named witness. He has stated that Shankar Paswan gave a Bhala blow which caused injury upon the right temporal region of Hira Paswan and on the impact of Bhala he fell down. Thereafter, Anandi struck on the stomach of Hira by Bijar. Sardari struck upon the back portion of Hira and Bhairo gave a Bhala blow upon the left hand. Injury attributed to Ashok Paswan is by lathi. This witness was subsequently recalled and after his recall, he made a new case and stated that Bhairo gave Bijar blow. 13. PW 4 is another named witness of the fard-beyan. Sardari struck upon the back portion of Hira and Bhairo gave a Bhala blow upon the left hand. Injury attributed to Ashok Paswan is by lathi. This witness was subsequently recalled and after his recall, he made a new case and stated that Bhairo gave Bijar blow. 13. PW 4 is another named witness of the fard-beyan. He has supported the initial version given by PWs 2 and 1 when he was examined initially, but when he was recalled, he also gave another version. He stated that he has not gone to the place of occurrence at the time of occurrence and after the accused persons re-camped after assault, then only he went there. Therefore, that witness has subsequently came at the place of occurrence and not a witness of the occurrence. His evidence is altogether to be a blanket on the prosecution version with regard to manner of assault etc. 14. If the evidence is analyzed, then it is apparent that witnesses have changed their evidences at different stages. PW 4 on being recalled has stated that he came after the accused persons fled away. PWs 1 and 2 have also stated new case after they were recalled for their evidence. Regarding manner of occurrence, there are conflicting evidence and the conflict has wider magnitude and both are of such nature that it is not possible to re-conciliate them. Initial occular version was that Shankar Paswan assaulted, that perhaps was made main assailant. The doctor gave another version that death was not on account of assault attributed to Shankar Paswan rather the injury attributed to Ashok who is not before us. Others have also assaulted. Their case primarily against Ashok which was not before us. The surprising fact of the occurrence is that the Investigating Officer has gone to the place of occurrence but he could not found any blood which he stated in paragraph 11 of his evidence. Non-finding of blood at the place of occurrence makes the case doubtful as all the witnesses have stated in initial version that there was copious blood at the place of occurrence. There is no evidence that either the blood was washed out or it was destroyed to temper the evidence etc. Non-finding of blood at the place of occurrence makes the case doubtful as all the witnesses have stated in initial version that there was copious blood at the place of occurrence. There is no evidence that either the blood was washed out or it was destroyed to temper the evidence etc. The Investigating Officer reached soon after the occurrence and non-finding of blood at the place of occurrence creates doubt that as to whether place of occurrence which was narrated by the informant and witnesses was the same which was shown to the Investigating Officer. Therefore, the prosecution has failed to establish the place of occurrence. 15. The trial court has considered in detail about the seizures made by the Investigating Officer. The Investigating Officer has stated that he has seized the weapons containing blood which was alleged to have been used in the assault but the Investigating Officer could not explain as to why these important material exhibits were not sent for chemical examination to show that it was human blood. That was not even produced before the Court and that is why the trial court disbelieved the seizure and we are in conformity with the trial court so far as it relates to seizure of weapons are concerned. 16. Learned counsel for the appellant submitted that in view of the conduct of the witnesses wherein they have changed their versions at different stages cannot be relied upon. There is no explanation as to why the seized weapons were not sent for chemical examination and the person who has given fatal blow has not been brought before the Court. It has also been submitted that entire fabrication is compounded from non-compliance of mandatory provision under section 157 of the Cr.P.C. as the fard-beyan was recorded on 24.7.1986 and there is no reference as to why it was not transmitted to the court on the next date. The FIR was received in the court on 26.7.1986 for which there is no explanation. 17. Learned APP has supported the judgment and stated that initial version of the witnesses may be treated to be true. 18. The witnesses who have been relied upon by the prosecution were recalled and after their recall, they made out a new case and they have tried to fix the liability to someone and exonerate others when they were recalled. Learned APP has supported the judgment and stated that initial version of the witnesses may be treated to be true. 18. The witnesses who have been relied upon by the prosecution were recalled and after their recall, they made out a new case and they have tried to fix the liability to someone and exonerate others when they were recalled. Simple interpretation is that the witnesses have stated different things at different occasions. The occurrence was one and duty of the prosecution was to bring the evidence as seen by the witnesses and not as imagined by the witnesses. It appears that the occurrence as seen has not been brought on the record because if the witnesses would have seen the occurrence, then they would have remained consistent and the only one version would have come. But it appears that the witnesses have not seen the occurrence, that is why they have given different version at different times and it can be said that such version could be based on their imagination and they are not reliable and trustworthy witnesses upon which the accused persons can be held guilty. 19. In view of the conflicting evidence of the witnesses, it could not be safe to hold the appellants guilty. If the testimony of the witnesses once is doubted, then benefit of doubt goes to the accused not to the prosecution. 20. Accordingly, the appellants are acquitted. The judgment of conviction and order of sentence is set aside and this appeal is allowed. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.