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2015 DIGILAW 583 (PAT)

Ghamandi Paswan v. The State of Bihar

2015-04-09

GOPAL PRASAD, I.A.ANSARI

body2015
JUDGMENT I. A. ANSARI Under the judgment, dated 27.08.1993, passed, in Sessions Trial No. 904 of 1987/163 of 1988, by learned Additional Sessions Judge, IX, Patna, the appellants, Ghamandi Paswan and Madhesh Paswan, stand convicted under Section 302 read with Section 34 of the Indian Penal Code. Following their conviction, the accused-appellants have been sentenced to suffer imprisonment for life. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as under: (i) Deceased, Jamuna Prasad Yadav, a resident of village Jarkha, was father of the informant, Satyendra Kumar Yadav (P.W. 3). (ii) On 03.07.1987, at about 08.00 A.M., Jamuna Prasad Yadav, accompanied by his son, Satyendra Kumar Yadav, was sprinkling ganaura (a kind of manure) on his agricultural field taking the said manure from a field situated on the west of his house. In the meanwhile, accused Awadhesh Paswan (since deceased), accused Ghamandi Paswan and Madhesh Paswan, came to the field, where the informant, Satyendra Kumar Yadav, was present with his father, Jamuna Prasad Yadav. The accused tried to stop the informant’s father from scattering ganaura on the said plot of land. Informant’s father, Jamuna Prasad Yadav, responded to the resistance, which had been offered by the accused aforementioned, by saying that he was scattering his own ganaura in the field. Noticing the adamant attitude of Jamuna Prasad Yadav, accused Awadhesh Paswan gave a blow by means of garasa (a sharp-edged weapon), on the head of the informant’s father and exhorted his brothers, namely, Ghamandi Paswan and Madhesh Paswan, to assault Jamuna Prasad Yadav, whereupon Ghamandi Paswan and Awadhesh Paswan gave one blow each on Jamuna Prasad Yadav by means of lathis. While the blow, given by accused Ghamandi Paswan, fell on the eye-brows of the informant’s father, the blow, given by accused Madhesh Paswan, fell on the right shoulder of the informant’s father. (iii) As the informant raised hulla, his co-villagers started coming and all the three accused took to their heels. In injured condition, Jamuna Prasad Yadav was taken to Paliganj Hospital, where the doctor treated the injured. (iii) As the informant raised hulla, his co-villagers started coming and all the three accused took to their heels. In injured condition, Jamuna Prasad Yadav was taken to Paliganj Hospital, where the doctor treated the injured. On receiving the information about the fact that on being assaulted, Jamuna Prasad Yadav was lying injured at Paliganj Hospital, police reached there and recorded, in writing, the statement of Jamuna Prasad Yadav’s son, Satyendra Kumar Yadav (P.W. 3), as fardbeyan and treating the said fardbeyan as First Information Report, Paliganj Sigori Police Station Case No. 114 of 1987 was registered, under Sections 307/323/324 of the Indian Penal Code, against accused Ghamandi Paswan, Madhesh Paswan and Awadhesh Paswan. (iv) On 04.07.1987 as Jamuna Prasad Yadav died, Section 302 of the Indian Penal Code was also added to the case aforementioned. 3. During investigation, police held inquest over Jamuna Prasad Yadav’s dead body, which was also subjected to post mortem examination, and, on completion of investigation, charge sheet was laid, under Section 302 read with Section 34 of the Indian Penal Code, against accused Ghamandi Paswan, Madhesh Paswan and Awadhesh Paswan. 4. At the trial, when a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against the accused aforementioned, they all pleaded not guilty thereto. 5. In support of their case, prosecution examined as many as 6 (six) witnesses. The accused were, then, examined under Section 313 (1) (b) of the Criminal Procedure Code and, in their examinations aforementioned, the accused persons denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. 6. During the trial, accused Awadhesh Paswan died and the trial proceeded against the remaining two accused, namely, Madhesh Paswan and Ghamandi Paswan. 7. Having, however, arrived at the finding that accused, Ghamandi Paswan and Madhesh Paswan, had been proved guilty of the charge under Section 302 read with Section 34 of the Indian Penal Code, the learned trial Court convicted them accordingly. Following their conviction, sentence has been passed against the convicts, Ghamandi Paswan and Madhesh Paswan, as mentioned above. 8. Aggrieved by their conviction and the sentence passed against them, the convicts, Ghamandi Paswan and Madhesh Paswan, have preferred this appeal. 9. We have heard Mr. Following their conviction, sentence has been passed against the convicts, Ghamandi Paswan and Madhesh Paswan, as mentioned above. 8. Aggrieved by their conviction and the sentence passed against them, the convicts, Ghamandi Paswan and Madhesh Paswan, have preferred this appeal. 9. We have heard Mr. Praveen Kumar, Advocate, appearing as Amicus Curiae, and Ajay Mishra, learned Additional Public Prosecution, appearing for the State. 10. While considering the present appeal, what is to be noted is that for some unexplained reason, the doctor and the Investigating Officer were not examined in the present case. The post mortem report has, however, been proved by P.W. 6, who claims to have identified the signature of Dr. N.K. Singh. The said post mortem examination took place, on 04.07.1987, at 02.30 A.M., and, on external examination it was found as follows: “(i) Stitched wound “V” shape over right region 4” x 4½” long each side of “V” shaped wound, i.e., presence of a congested tuber drainage tube over right side of postal region. On dissection A rectangular piece of bone 3” x 2½”was excised from right side of skull excising of frontal, i.e., right postal bone, or right side of frontal bone, presence of extra cranial blood clots over right side and subdual haemotoma over right side of parietal region and frontal region. All tissues were congested, left side empty and right side full of dark fluid blood, stomach contain creamy colour fluid and in the opinion of the doctor the cause of death was head injury.” 11. There is nothing in the evidence on record to show whether the injury, which had been sustained by the said deceased, was sufficient, in the ordinary course of nature, to cause death of a person or not? 12. Be that as it may, what is relevant to note in the findings of the doctor is that there was one stitched “V” shaped wound on the right temporal region of the deceased and there was no other injury found on the said dead body. It is also not discernible from the findings of the doctor if this injury was sufficient to cause death in ordinary course of nature. 13. It is also not discernible from the findings of the doctor if this injury was sufficient to cause death in ordinary course of nature. 13. Bearing in mind the nature of medical evidence on record, when we turn to the evidence of P.W. 3, we find that according to his evidence, on 03.07.1987, at 08.00 A.M., he was present with his father in their field and his father was scattering ganaura in the field. It is in the evidence of the informant (P.W. 3) that the three accused, namely, Ghamandi Paswan, Awadhesh Paswan and Madhesh Paswan, came there and tried to stop his father, Jamuna Prasad Yadav, from scattering the ganaura and in response thereto, Jamuna Prasad Yadav said that he would sow the seeds there. Angered by the response of Jamuna Prasad Yadav, accused Awadhesh Paswan gave a blow, with his garasa (a sharp-edged weapon), on the head of Jamuna Prasad Yadav and accused Ghamandi Paswan and accused Madhesh Paswan assaulted Jamuna Prasad Yadav by means of lathis. It is also in the evidence of P.W. 3 that his father sustained injuries at the hands of the said three accused persons. 14. Broadly in tune with the evidence of P.W. 3 is the evidence of PW 1 (Mannu Lal Yadav) and PW 2 (Gayani Prasad). 15. From a combined reading of the evidence of the witnesses, who have claimed to be eye witnesses, what transpires is that it was accused Awadhesh Paswan, who had given a blow by means of garasa on the head of the said deceased. As far as remaining accused persons are concerned, though they had given multiple blows on the said deceased, the First Information Report attributes one blow by accused, Ghamandi Paswan, on the right eye-brow of the said deceased by means of lathi and another blow by accused Madhesh Paswan by lathi on the right shoulder. 16. Apart from the fact that the evidence, on record, does not tally with the initial information, which had been given to the police, it is also imperative to note that the medical evidence, on record, does not support the ocular evidence inasmuch as the doctor found only one stitched wound on the head and no wound was found either near the eye brow of the said deceased or on his shoulder. Medical evidence, thus, not only belies the description of the occurrence given by the prosecution witnesses, but also creates serious doubt as regards the involvement of all the accused persons. 17. Bearing in mind the principles governing the concept of joint liability as Section 34 envisages, when we turn to the facts of the present case, what attracts our eyes, most prominently, is that the evidence, on record, clearly shows that the assault on Jamuna Prasad Yadav was not premeditated; rather, the assault on Jamuna Prasad Yadav took place at the spur of the moment, when Jamuna Prasad Yadav refused to stop scattering ganaura in the field. 18. According to the post mortem report, since it was the head injury, which had caused the death of Jamuna Prasad Yadav, and the head injury, according to the evidence on record, was attributable to accused Awadhesh Paswan (since deceased), it clearly follows that if the ocular evidence, as adduced by the prosecution, is true, it was accused Awadhesh Paswan, who had given the solitary blow on the head of the deceased, which proved fatal, there being no other injury found on the said dead body attributable to any of the present two appellants and, hence, Section 34 of the Indian Penal Code could not have come to the aid of the prosecution, when there is no reliable and safe evidence to hold that Jamuna Prasad Yadav was assaulted by Awadhesh Paswan in furtherance of the common intention of all the accused. 19. Coupled with the above, it is also noticeable that there is nothing in the evidence on record to show that accused Awadhesh Paswan was stopped from giving further blows by means of garasa on Jamuna Prasad Yadav. 20. Situated thus, it will be wholly unreasonable to draw an inference that Awadhesh Paswan intended to cause death of Jamuna Prasad Yadav inasmuch as Awadhesh Paswan (since deceased) could have given, in the face of the evidence on record, many more blows by means of garasa on the person of Jamuna Prasad Yadav. 21. At any rate, in the face of the evidence on record, there is no escape from the conclusion that no offence of murder was proved to have been committed by the accused-appellants in furtherance of their common intention. 22. 21. At any rate, in the face of the evidence on record, there is no escape from the conclusion that no offence of murder was proved to have been committed by the accused-appellants in furtherance of their common intention. 22. Because of what has been discussed and pointed out above, we find that the evidence, adduced by the prosecution, was grossly short of the standard of proof, which is insisted in a criminal trial, and in the face of the evidence adduced in the present case, the accused-appellants ought to have been accorded, at least, benefit of doubt. 23. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused–appellants are held not guilty of the offence, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 24. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand accordingly discharged. 25. Let the Amicus Curiae be paid a fee of Rs. 5,000/-. 26. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court, along with the Lower Court Records.