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2014 DIGILAW 934 (PAT)

Ram Balak Paswan v. State of Bihar

2014-09-01

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
JUDGMENT : (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The three appellants have filed this appeal being aggrieved by the judgment of conviction dated 16.07.1991 and sentence dated 18.07.1991 passed by the 4th Additional Sessions Judge, Aurangabad in Sessions Trial No. 28 of 1982/12 of 1987, whereby the three appellants have been sentenced to undergo rigorous imprisonment for life. They have been found guilty of offence punishable under Sections 302/34 of the Indian Penal Code (for short ‘I.P.C.’). Appellants no. 1 and 3 were also found guilty for offence punishable under Section 323 of the I.P.C. for having caused injury to informant Arun Paswan (P.W.5) and appellant no.2 was also found guilty for offence punishable under Section 323 of the I.P.C. for having caused injury to Sonamati Devi (P.W. 1), but no separate sentence was awarded to them under the said Section. 2. The trial court has convicted them on alleged basis of eye witnesses account of the incident. We have noted this only to show that seeing the evidence of the prosecution witnesses we find that none of the witnesses, who professed to be eye witnesses, are, in fact, eye witnesses and the whole story, as built up by the prosecution, is a cock and bull story. 3. The prosecution case is based upon the fardbeyan of one Arun Paswan (P.W.5), the son of the deceased Baislal Paswan as recorded by the Officer-in-charge of Goh Police Station, namely, Md. Zubair Khan (P.W.11) at 4P.M. on 26.07.1981. In the fardbeyan, it is alleged that at 8A.M. in the morning on 26.07.1981, the informant P.W.5 and the deceased had taken their buffaloes to Govardhan Sthan for grazing. While the buffaloes were grazing and they were sitting, the three appellants came there armed with lathi. They first assaulted the deceased (the father of the informant) and then the informant. His father dropped dead there itself. On shouts and alarm being raised, various villagers reached there. They tried to stop the assault, which did not abate. After the deceased died, the three accused persons took him to Bahuria Sthan and then they went to the house of the deceased and from the verandah thereof, brought a cot and put the body on the cot. On shouts and alarm being raised, various villagers reached there. They tried to stop the assault, which did not abate. After the deceased died, the three accused persons took him to Bahuria Sthan and then they went to the house of the deceased and from the verandah thereof, brought a cot and put the body on the cot. Reason for this assault was that a day prior to the occurrence i.e. on 25.07.1981 appellant no.2 Ramashray Paswan, whose sister is married to the brother of the wife of the deceased (P.W.1), had a quarrel with the wife of the deceased. They were closely related. As a sequence of this quarrel, appellant no.2 Ramashray Paswan had come and assaulted the wife of the deceased Sonamati Devi (P.W.1) with lathi on a day prior to the occurrence. After recording the fardbeyan, the Police prepared the inquest report at 5P.M. on 26.07.1981 and then sent the dead body for post-mortem to Aurangabad Sadar Hospital, where post-mortem was conducted at about 3P.M. on 27.07.1981. 4. In course of investigation, P.W. 7 Chhotelal Paswan and P.W.8 Deo Dutta Mishra made statements before the Magistrate under Section 164 of the Code of Criminal Procedure (for short ‘Cr. P. C.’), which would be dealt at the appropriate stage. After recording the fardbeyan, the Police allegedly raided the houses of the three appellants and from the house of appellant no.2 Ramashray Paswan allegedly one lathi was seized having some stains like blood stains. Let it be recorded at this stage itself that this lathi, though seized, was never sent for any forensic examination. It is merely the statement of the Investigating Officer (P.W. 11) that it had some stains like blood stains. Charge-sheet having been submitted, the case was committed to the court of session. Let it be recorded at this stage itself that this lathi, though seized, was never sent for any forensic examination. It is merely the statement of the Investigating Officer (P.W. 11) that it had some stains like blood stains. Charge-sheet having been submitted, the case was committed to the court of session. At the first instance, charge was framed on 19th December, 1985 against the three appellants under Section 302/34 of the I.P.C., evidence started to be recorded, thereafter, on the basis of evidence, that came on record, on 25.08.1987 additional charges were framed under Section 323 of the I.P.C. in respect of alleged assault on the informant P.W.5 Arun Paswan by the three appellants and then on 25.08.1987 itself the charge was framed against appellant no.2 Ramashray Paswan for having assaulted Sonamati Devi on 25.07.1981 at 6P.M. The charge was under Section 323 of the I.P.C. The witnesses, who had been examined on behalf of the prosecution, were re-examined. 5. The witness being P.W.1, who had been examined earlier, was recalled and cross-examined again. She is Sonamati Devi, wife of the deceased. She claims to be an eye witness, but in her chief itself, she says that while she was cooking in her house, she heard shouts of `kill-kill’. She then goes to the place of occurrence and finds that her husband and her son both were lying unconscious. She finds her husband then dead. She states that Deodutt Mishra, Rajjan Paswan, and Ramdeo Sah, being P.W.8, P.W.3 and P.W.2, respectively, were at the place of occurrence. She then states that accused persons had carried the deceased to Bahuria Sthan and put him on a cot for taking him for cremation. She then states that a day earlier she had a quarrel with her Bhojai being the sister of appellant no. 2 Ramashray Paswan, because of which Ramashray Paswan had come and assaulted her. In her cross-examination, she states that the place of occurrence is 500 to 700 yards from her house. There are two bye-lanes (Gali) between her house and the place of occurrence. There are houses on all sides of her house. From the conjoint reading of her chief and her cross-examination, it is evident that while she was cooking in her house, she heard shouts of ‘kill-kill’. That itself is doubtful looking to the manner in which house is situated. There are houses on all sides of her house. From the conjoint reading of her chief and her cross-examination, it is evident that while she was cooking in her house, she heard shouts of ‘kill-kill’. That itself is doubtful looking to the manner in which house is situated. Therefore, when she went, she rightly found her husband and her son having been beaten up and lying unconscious there. She is obviously not an eye witness. 6. Another thing noticeable is that in the F.I.R. it is stated that the accused persons carried the deceased to Bahuria Sthan from Govardhan Sthan, where the occurrence allegedly took place. They went to the house of the deceased, then picked up a cot from the verandah and placed him on that cot. This, in itself, is quite a funny state of affairs as to how the villagers, who are present, would have permitted such a thing to happen and how the accused persons could have done such a thing after having killed the deceased. However, P.W. 1, the wife of the deceased, now says that the accused persons were trying to carry the body of her husband for cremation, which is not the case of the prosecution in the F.I.R. Suggestion is given to this witness that P.W. 8 Deodutt Mishra has a son, who is a village Doctor and he was asked to treat the deceased earlier. He had died as a consequence of some injuries sustained elsewhere. She admits that she had been beaten up a day prior to the incident by appellant no.2 Ramashray Paswan, but she had not informed any body about the same. She denied the suggestion that the deceased had been in jail earlier for cases of theft and dacoity. Thus, it is evident that she is not an eye witness as she claims. 7. P.W. 2 Ramdeo Sah is a co-villager of the deceased. His name finds place in the F.I.R. as being witness to the occurrence. But, on examination of his deposition in Court, we find that he states that he had gone to the place of occurrence after hearing shouts that Baislal had been killed. This admission by this witness clearly shows that he is not an eye witness to the occurrence. His name finds place in the F.I.R. as being witness to the occurrence. But, on examination of his deposition in Court, we find that he states that he had gone to the place of occurrence after hearing shouts that Baislal had been killed. This admission by this witness clearly shows that he is not an eye witness to the occurrence. In cross-examination, he states that no one from neighbourhood had gone to the place of occurrence, except him, which again falsifies everything because in the F.I.R. itself it is stated that there were also some neighbours, who had gone to the place of occurrence, including this witness. In paragraph 11 of his cross-examination, he admits that Baislal had once gone to jail when he had quarrel with the Police. In paragraph 14 of his cross-examination, he states that Arun Paswan (informant) and the son of the deceased, who had gone with the deceased for grazing of buffaloes, in fact, had come later. Not only this creates doubt about the presence of this witness (P.W.2) at the place of occurrence when the occurrence took place but it creates doubt about the very presence of the informant at the place of occurrence. In paragraph 16 of his cross-examination, he then states that there were others also, who came and informed him that Baislal had been killed. This clearly shows that he was never present at the place of occurrence when the occurrence took place. His evidence cannot be accepted as trust worthy in any manner. 8. P.W. 3 is Rajjan Paswan. He is a witness named in the F.I.R. In his cross-examination, he admits that he was at his home cooking break-fast, when he heard that Baislal had been killed. He goes thereafter. Thus, he is not an eye witness as he professes to be. He creates further confusion, but reiterates one fact that the accused persons had brought Baislal from Govardhan Sthan to Bahuria Sthan, where they put him on a cot, brought from the verandah of Baislal. He then makes another disclosure, which falsifies the entire prosecution story, when he says that having killed Baislal, the appellants then assaulted Arun Paswan (informant). Thus, this witness is not at all an eye witness and his testimony is also untrustworthy. 9. P.W. 4 is Dr. He then makes another disclosure, which falsifies the entire prosecution story, when he says that having killed Baislal, the appellants then assaulted Arun Paswan (informant). Thus, this witness is not at all an eye witness and his testimony is also untrustworthy. 9. P.W. 4 is Dr. Sriniwas Prasad, who gave injury report in respect of P.W.1 the wife of the deceased for injuries, which she had sustained on 25.07.1981, a day prior to the incident and in respect of P.W. 5, son of the deceased and the informant, for the injuries sustained by him on 26.07.1981. If we look to the time mentioned in the injury reports, that creates enough doubts. As noted above, the assault on P.W. 1 by appellant no.2 was on 25.07.1981.The killing of the deceased and the assault on the informant (P.W.5), the deceased son, was at 8A.M. on 26.07.1981. The injury report of P.W.5, as prepared by this Doctor P.W.4 at State Dispensary at Goh, is at 10P.M. on 26.07.1981 itself, but of his mother (P.W.1), it is prepared at 10.35A.M. on 27.07.1981. All the injuries are simple injuries, swelling and bruises, except one on the person of the lady, which could have been caused by hard blunt substance like lathi. If we see this, there appears to be no sequence of the injury reports with the deposition of the Investigating Officer (P.W.11), who states that immediately upon recording of the fardbeyan, he referred both the injured persons for preparing injury reports. This apart, neither the requisition of Investigating Officer nor what he had noted thereon, had been brought on record. 10. P.W. 5 Arun Paswan is the informant and son of the deceased. In his chief, he states that he and his father had taken their buffaloes for grazing towards Govardhan Sthan. While the buffaloes were grazing and they were sitting near Govardhan Sthan, the accused persons came there and started assaulting his father and, thereafter, him also. He ran away towards the village. His father dropped dead. Accused persons took the body of his father to Bahuria Sthan, then brought up a cot from his verandah and put the body on the cot. He proves the fardbeyan and the inquest. He admits in his cross-examination that all his family members were in the village. He ran away towards the village. His father dropped dead. Accused persons took the body of his father to Bahuria Sthan, then brought up a cot from his verandah and put the body on the cot. He proves the fardbeyan and the inquest. He admits in his cross-examination that all his family members were in the village. In his cross-examination, he further admits that he was grazing his buffaloes with his father and all the fields around it had paddy seedlings. When asked whether he was conscious or not, he states that he was conscious all along, whereas, his mother (P.W.1) has categorically stated that when she went to Govardhan Sthan, where the incident took place, she found that the informant (her son) was lying there unconscious. He then later in his cross-examination developed story further. He states that the accused persons, after killing his father, dragged his body to Bahuria Sthan and then brought up a cot and put it on the cot. In paragraph 20 of his cross-examination, he states that immediately after the incident Darogajee came and took statement. That is a blatant lie; inasmuch as the incident took place at 8A.M. and the fardbeyan was recorded at 4P.M. From this, it is clear that either the incident did not take place at 8A.M. as alleged or the fardbeyan was not recorded at 4P.M., but much earlier, which fardbeyan is not being brought on record. He then denies the suggestion that his father had taken settlement of some lands near Govardhan Sthan from the Government, which was opposed by the villagers and the appellants, pursuant to which it was cancelled and that actually was the dispute. He admits that even though his mother was beaten up a day prior to the occurrence, but he had not got her treated. He denies the suggestion that the deceased had actually been injured elsewhere and was being treated by son of Deodutt Mishra (P.W.8) secretly, in course of which he died and only out of enmity the appellants were implicated. The evidence of this witness again does not inspire confidence; inasmuch he states that when the accused persons started assaulting, he ran away, which is totally in conflict with the fardbeyan and evidence of other witnesses. 11. We then come to the evidence of P.W.6 Lakshmi Narayan. The evidence of this witness again does not inspire confidence; inasmuch he states that when the accused persons started assaulting, he ran away, which is totally in conflict with the fardbeyan and evidence of other witnesses. 11. We then come to the evidence of P.W.6 Lakshmi Narayan. He is, admittedly, a hear-say witness, who has signed the seizure list and the F.I.R. 12. We then have P.W.7 Chhotelal Paswan. He is the nephew of the deceased. He comes with a very interesting facet of the occurrence. He states that a day earlier to the incident, he had seen the three accused persons on the terrace of the house of one Ram Balak Paswan. They were talking amongst themselves. He could hear from the road that they were discussing that next morning they would kill the deceased. He then states that he went to the deceased in the evening and told him that the accused persons intended to kill him next day in the morning. The deceased did not take it seriously. This is the statement he made in course of investigation, which was recorded under Section 164 of the Cr.P.C. as well. If this was so then it was never mentioned in the fardbeyan. It was never mentioned by the wife of the deceased or by the son of the deceased. It is a cock and bull story, set up only to implicate the accused persons. He again denies of having knowledge that the deceased had ever been imprisoned for being an accused in a case of dacoity. He is not an eye witness. 13. Now we come to the evidence of P.W.8 Deodutt Mishra. He is a witness to the seizure of lathi from the house of appellant no.2 Ramashray Paswan. He is also one of the witnesses, who had given a statement under Section 164 of the Cr.P.C. earlier, wherein he had stated that he had seen the appellants assaulting the deceased. He states the same thing in the court and also states that after this witness found the deceased being dead, his son (P.W.5) was also assaulted. This is totally different and in divergent to what is stated in the fardbeyan. In the cross-examination, he states that he had seen the deceased lying dead at Govardhan Sthan. He found the son of the deceased (P.W.5) also lying injured at that place when he came there. This is totally different and in divergent to what is stated in the fardbeyan. In the cross-examination, he states that he had seen the deceased lying dead at Govardhan Sthan. He found the son of the deceased (P.W.5) also lying injured at that place when he came there. This clearly shows that he was, in fact, not an eye witness. When he arrived at the place of occurrence, the incident had already been over. Suggestion is also given to him that his son acts as village Doctor, which he denied. In our view, the manner, in which this witness has deposed, does not inspire confidence. He clearly states that when he reached the place of occurrence, he had found both the deceased and his son (informant) lying there, which clearly disputes his claim of being an eye witness. 14. P.W. 9 is Dr. Kamla Kant Singh, who conducted the post-mortem examination of the deceased Baislal Paswan. It is pertinent to note that he conducted the post-mortem at 3.05P.M. on 27.07.1981. He clearly states that the death of the deceased had occurred within 24 hours and not later than 24 hours. If we see the fardbeyan, death of the deceased had taken place at 8A.M. on 26.07.1981 and the post-mortem was conducted at 3P.M. on 27.07.1981. If the period is not more than 24 hours, it does not match with the time as mentioned in the fardbeyan. The evidence of some of the witnesses was that the accused was dragged from Govardhan Sthan to Bahuria Sthan and then put on a cot. The Doctor, when confronted, says that none of the injuries found appertained to injuries caused by dragging. 15. P.W. 10 is Achutanand Paswan, the younger son of the deceased. Again in his cross-examination, he admits that having heard hulla that his father had been killed, he rushes to the place of occurrence. Thus, he is clearly not an eye witness. He creates a further confusion or suspicion when he states that only one person from his house used to graze the buffaloes. He again states that the dead body of his father had been dragged from Govardhan Sthan to Bahuria Sthan by the accused persons. He admits that there was a well near the place of occurrence, where right through the day people of the village were present to take water. He again states that the dead body of his father had been dragged from Govardhan Sthan to Bahuria Sthan by the accused persons. He admits that there was a well near the place of occurrence, where right through the day people of the village were present to take water. Still it is surprising that independent villagers do not turn up either to save the deceased or catch hold of the assailants. In fact, none of them turns up to give any evidence. He creates further confusion when he states that his mother and his brother (informant) arrived at the place of occurrence after he arrived. This clearly demolishes the prosecution case because he himself admits that he had come at the place of occurrence on being told that his father had been killed. If that be so, then according to him the informant and his mother came at the place of occurrence much thereafter. Thus, none of them are eye witnesses. A suggestion is also given to him that the son of Deodutt Mishra (P.W.8) is a village Doctor and was treating his father, which he accepts to the extent that he is a village Doctor. 16. Then we have P.W. 11 Md. Zubair Khan, the Investigating Officer, who recorded the fardbeyan of the informant (P.W.5). He states that he received information at about 2.20P.M. on 26.07.1981 in regard to an incident that had taken place at 8A.M. Thereafter, he came to the village and recorded fardbeyan at about 4P.M. on the same day. He then prepared the inquest report and thereafter searched the house of the three appellants and found nothing incriminating except a lathi having stains like blood stains on it from the house of appellant no.2 Ramashray Paswan. He then states that seeing the alleged injuries on the person of the informant and his mother, he prepared the inquest reports and then sent them to Doctor for preparation of injury reports on 26.07.1981. So far as injury report of the informant is concerned, the same was prepared at 10P.M. on the same day, but so far as injury of his mother is concerned, injury report was prepared at 10.35A.M. on the next day by the same Doctor, which remained unexplained. So far as injury report of the informant is concerned, the same was prepared at 10P.M. on the same day, but so far as injury of his mother is concerned, injury report was prepared at 10.35A.M. on the next day by the same Doctor, which remained unexplained. He admits that the lathi, he had seized, allegedly had stains like blood stains, but he did not send it for any forensic examination; meaning thereby the fact whether it was blood stain or any other stain was merely his opinion. He admits that he was taken to the place of occurrence by P.W.8 Deodutt Mishra. 17. From the aforesaid prosecution witnesses, in our opinion, it appears that though several of them have claimed to be eye witnesses and this plea had been accepted by the trial court, but on close scrutiny we find it otherwise. Even so far as the informant is concerned, there are so many contradictions and one may wonder whether he was there at all or for that matter whether the incident actually took place as being sought to be established by the prosecution. The informant states that having seen his father being beaten up, he ran away. He came back and then he was also beaten up. He did not lose consciousness; meaning thereby he was seeing everything what was happening there. His mother (P.W.1) states that when she came, she found both her husband and the informant (P.W.5) lying there unconscious. It does not stand to reason. The mother (P.W.1) is cooking in the house, which is inside the village, yet she professes to be an eye witness. She admits that one has to cross two bye-lanes (Gali) to reach the place, where incident took place. Then the most ridiculous fact, which all the witnesses, who professed to be eye witnesses, state is that the appellants having killed the deceased, took him from Govardhan Sthan to Bahuria Sthan and there they brought a cot from the verandah of the deceased and put him on the cot. Then the most ridiculous fact, which all the witnesses, who professed to be eye witnesses, state is that the appellants having killed the deceased, took him from Govardhan Sthan to Bahuria Sthan and there they brought a cot from the verandah of the deceased and put him on the cot. It is most unnatural and unbelievable sequence, where so many villagers having allegedly seen the commission of the crime, no one would try and stop all that what was happening and why would the accused persons carry the body of the deceased to a different place near the village, would bring a cot from the deceased house and place the deceased on that cot. These stories make the prosecution case virtually unbelievable and untrustworthy. 18. At this stage, we would also notice the suggestions. The consistent suggestion of the defence has been firstly that the deceased had been a person having criminal record. He had been sent to jail. The accused persons or some of them had been witnesses in some of the cases against him. Therefore, it was suggested that there is possibility that in one of his such exploits he had been beaten up elsewhere and he had come home in injured state. The village Doctor Ram Pravesh, son of Deodutt Mishra (P.W.8) had been treating him, but he succumbed to his injuries. Then to settle the enmity and the scores, this story was spun. P.W. 8 Deodutt Mishra gets up as an eye witness because he had to save his son from being implicated as village Doctor. At first instance, every prosecution witness denied that son of P.W. 8 Deodutt Mishra used to work as village Doctor, but then some witnesses did accept it. 19. We now may look into positive evidence brought on behalf of the defence. They have examined three witnesses, who are immediate neighbours of the deceased. They said that in the night previous to the date of occurrence i.e. in the night of 25.07.1981, they had seen the son of P.W. 8 Deodutt Mishra, the village Doctor, having come to the house of the deceased. They also went there and found the deceased lying injured. The village Doctor gave him an injection and some medicines and then in the morning they heard that the deceased had died. It is thereafter that the story was spun by the prosecution. They also went there and found the deceased lying injured. The village Doctor gave him an injection and some medicines and then in the morning they heard that the deceased had died. It is thereafter that the story was spun by the prosecution. Inspite of repeated suggestions by the defence in regard to this, the prosecution did not take any step to remove the doubts by examining the son of P.W.8 Deodutt Mishra. He was kept away. He was the person, who could have best explained his conduct. 20. Keeping the aforesaid facts in our mind, we have no option but to hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts. The witnesses are untrustworthy and not worthy of reliance and credence. We, therefore, allow this appeal and set aside the judgment of conviction and sentence passed against all the three appellants by the trial court. The appellants are acquitted of the charges levelled against them and they are discharged from the liability of their bail bonds.