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2018 DIGILAW 141 (PAT)

Baleshwar Paswan v. State of Bihar

2018-01-18

KISHORE KUMAR MANDAL, PRAKASH CHANDRA JAISWAL

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JUDGMENT : PRAKASH CHANDRA JAISWAL, J. This criminal appeal has been preferred against the judgment and order of conviction dated 22.03.2013 and order of sentence dated 23.03.2013 passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 09 of 2010, arising out of Sarairanjan (Ghataho) P.S. Case No. 108 of 2009, whereby the learned trial court convicted the appellant under Sections 302/34, 307/34, 394/34 and 120B of the Indian Penal Code (hereinafter in short referred to as the ‘IPC’) and sentenced him to undergo imprisonment for life and also slapped him with a fine of Rs.20,000/- under Section 302/34 of the Indian Penal Code and further sentenced to undergo imprisonment for life under Section 307/34 IPC and further to undergo imprisonment for life under Section 394/34 IPC and in default of payment of fine to undergo rigorous imprisonment for two years as additional sentence. All these sentences were directed to run concurrently. 2. The factual matrix of the case is that Sarairanjan (Ghataho) P.S. Case No. 108 of 2009 was instituted under Sections 302/307/394/120B/349 IPC against Sanjay Singh, Baleshwar Paswan, Vikash Singh, Chaukidar Mahendra Paswan and Govind Paswan on the basis of fardbeyan of one Pappu Singh, son of Late Durga Singh recorded by S.I. Shambhu Nath. S.H.O. of Ghataha O.P. on 07.06.2009 at 5:00 hours at Khajuri-Dalsinghsarai road near culvert in village Bahadurpur Armauli with the allegation in succinct that his father, namely, Durga Singh was the driver of Scorpio bearing registration no. WB-30/7860 hailing to Awatar Patel. He used to ferry the commuters on reserve from Hajipur Railway Station. On 06.06.2009 while he along with his father was standing with the vehicle on the Hajipur Railway Station in the wait of passenger two persons approached them and hired his vehicle in Rs.2500/- giving advance of Rs.1000/-. They proceeded with the vehicle from Hajipur Junction at 8 PM and arrived at Ramashish Chowk where two persons also boarded on it. Then, they proceeded with them towards Patori through Jandaha. One of the commuters was interacting with Sanjay Singh on the mobile and asked them to be ready as they are arriving at Harpur Bochaha. When they arrived at Harpur Bochaha, 10-12 persons were watching the television on the road in front of a shop in the said village. Then, they proceeded with them towards Patori through Jandaha. One of the commuters was interacting with Sanjay Singh on the mobile and asked them to be ready as they are arriving at Harpur Bochaha. When they arrived at Harpur Bochaha, 10-12 persons were watching the television on the road in front of a shop in the said village. Making their ways through them, they parked the vehicle in front of the house where three persons were sitting on a log of wood in their wait. The four persons arriving from Hajipur addressed them as Sanjay Singh, Vikash Singh and Baleshwar Paswan. One of them was donning ‘chekdar lungi’. They proceeded with the vehicle a bit ahead then one of them gave call in the name of Chaukidar Mahendra Paswan and Govind Paswan. The ‘lungi’ donning person entered into the house of Chaukidar Mahendra Paswan and stepped out in trouser and boarded the vehicle. Chaukidar Mahendra Paswan and Govind Paswan also arrived near the vehicle to drop him and then all the seven commuters arrived at Musrigharari. They dined at ‘Baba Dabha’ on N.H. located near Musrigharari and asked the informant and his father to drive them to Sarairanjan as they had to go to their sister. When their vehicle arrived at a desolate place at Sahbajpur at around 3:30 - 4 AM, one of them got the vehicle halted feigning to do vomiting. Then parking the vehicle on the road side, his father went for urination besides it while he remained in the vehicle. Then abruptly three of them caught hold his father and one gagged his mouth. When he tried to rush to his rescue two of the commuters caught hold of him and another commuters started assaulting him indiscriminately by means of ‘fasuli’ making him seriously injured. He any how escaped to the field getting him freed from their clutches and on the way, he listened moaning by his father. The aforesaid four accused persons committed murder of his father by slitting his neck and then all the seven accused persons left the scene taking the vehicle. 3. He any how escaped to the field getting him freed from their clutches and on the way, he listened moaning by his father. The aforesaid four accused persons committed murder of his father by slitting his neck and then all the seven accused persons left the scene taking the vehicle. 3. The aforesaid case was investigated by the police and the I.O. after inspecting the place of occurrence, recording the statement of the witnesses, making seizure of ‘hasia’ from the place of occurrence, obtaining the postmortem report of the deceased & the injury report of the informant submitted the charge-sheet against the accused Baleshwar Paswan, keeping the investigation pending against other accused persons and on perusing the case diary and charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions. 4. After commitment of the case and on transfer, finally the case came in seisin of 1st Additional Sessions Judge, Samastipur for trial. Charge under Section 302/34, 307/34, 394/34 and 120B IPC was framed against the accused. Charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 5. To substantiate its case, in ocular evidence the prosecution has examined altogether 11 prosecution witnesses, namely, Ramesh Singh as P.W.1, Umesh Singh as P.W.2, Babulal Rai as P.W.3, Ram Lal Mahto as P.W.4, Jitendra Singh as P.W.5, Mithilesh Kumar Singh as P.W.6, informant-Pappu Singh as P.W.7, I.O. Shambhu Nath as P.W.8, Dr. Uday Kumar Uddyan, who conducted the autopsy of the cadaver of the dead body of the deceased, as P.W.9, Dr. Jitendra Kumar, who examined the informant, as P.W.10 and Rajeshwar Prasad Singh as P.W.11. 6. Out of the aforesaid witnesses P.W.1 to P.W.6 turned hostile, while P.W.11 happens to be formal witness who has proved the formal F.I.R. marked as Ext.6. In documentary evidence, the prosecution has also filed and proved several documents. 7. Statement of the accused was recorded under Section 313 Cr.P.C. The case of the defence is complete denial of the occurrence claiming himself to be quite innocent. The defence has not adduced any ocular evidence rather filed certain documents by way of documentary evidence. 8. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in earlier paragraph. 9. The defence has not adduced any ocular evidence rather filed certain documents by way of documentary evidence. 8. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in earlier paragraph. 9. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence, the convict has preferred this criminal appeal. 10. The point for consideration in this case is, as to whether the prosecution has been able to prove the charges leveled against the appellant beyond all shadow of doubt or not. 11. It is submitted by learned counsel for the appellant that the prosecution has failed to prove that the appellant ever boarded the aforesaid vehicle. The entire incident took place in the pitch dark night so it was impossible for the informant to witness the assailant of his father and the manner in which he was eliminated. It is further submitted that as per the prosecution case, there was no light in the village Harpur Bochaha and also at the place of occurrence and in the vehicle. It is also not the case of the prosecution that the deceased while stepping out of the vehicle for urination had put the headlight of the vehicle on so there was no source of identification of the appellant by the informant and as the appellant was sitting in the vehicle at the time of committing murder of his father and his father was urinating besides the vehicle where there was pitch dark night. He could not have identified the assailant of his father in such dark night without any source of identification. It is further submitted that as per the prosecution case four persons coming from Hajipur on the vehicle addressed the three persons sitting on the log of the wood in the village as Sanjay Singh, Vikash Singh and Baleshwar Paswan (appellant) but it is not the case of the prosecution that out of the aforesaid four accused persons who addressed the aforesaid three persons by the said name and to whom they addressed by a particular name. Moreover, as per the prosecution case, one of the said accused was donning the ‘chekdar lungi’ who after entering into the house of Chaukidar Mahendra Paswan stepped out donning trouser and sat on the front seat of the vehicle was Baleshwar Paswan but the prosecution has not disclosed as to how he came to know that the said person was appellant Baleshwar Paswan. Though as per the prosecution case, the appellant was sitting in the vehicle for couple of hours along with the informant and also dined in ‘Baba Dhaba’ but the informant has nowhere stated that he identified the appellant either in the vehicle or at the said ‘Dabha’ rather stated that he identified the appellant at the time of his apprehension and also identified him in the dock. The appellant was not put on T.I.P. Identification of the appellant for the first time at the time of his apprehension eloquently indicates that the appellant was got identified by the police to the informant at that time and on the basis of that he had identified him in the dock. So, it is not proper to place reliance on the evidence of the informant regarding his identification. It is further submitted that the police seized the two ‘hasia’ from the place of occurrence and ‘chekdar lungi’ from the house of the appellant but the said articles were not produced before the court as material exhibits and the said ‘hasia’ was not sent for forensic examination. Moreover, the ‘chekdar lungi’ allegedly seized from the house of the appellant was not put on T.I.P. Thus, there does not appear to be any corroborative evidence. It is further submitted that the only eye-witness of the occurrence is the informant of the case but for the want of identification of the appellant in the occurrence and any corroborative evidence, the prosecution has utterly and miserably failed to establish the complicity of the appellant in the occurrence. It is further submitted that the prosecution has also failed to prove any motive behind the occurrence. Thus, the prosecution has utterly and miserably failed to establish the prosecution case beyond all reasonable doubt. Hence, the appellant is entitled to be acquitted. 12. It is further submitted that the prosecution has also failed to prove any motive behind the occurrence. Thus, the prosecution has utterly and miserably failed to establish the prosecution case beyond all reasonable doubt. Hence, the appellant is entitled to be acquitted. 12. On the other hand, learned A.P.P. for the State, advocating the correctness and validity of the impugned judgment and order of conviction and sentence submitted that the informant, who happens to be the son of the deceased and also injured of the case, has fully supported the prosecution case and has also identified the appellant both at the place of occurrence as well as in the dock as one of the commuters of his vehicle and assailant of his father who later on escaped with his vehicle after committing murder of his father along with other accused persons in furtherance of common intention and the learned lower court, after correctly appreciating the facts of the case and material available on record, has rightly passed the impugned judgment and order of conviction and sentence, which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 13. From perusal of the evidence of the prosecution, it appears that the only witness who came forward to support the prosecution case is the informant-Pappu Singh (P.W.7) himself as all other material witnesses, namely, P.Ws.1 to 6 examined by the prosecution turned hostile. Informant claims to have identified the appellant in the occurrence for the first time at the time of his apprehension and he has also indentified the appellant in the court. As per the prosecution case and account of the informant four accused persons coming from Hajipur in the vehicle of the informant addressed three accused persons including the appellant sitting on the log of the wood in the village Harpur Bochahaha as Sanjay Singh, Vikash Singh and Baleshwar Paswan (appellant). One of them was donning the ‘chekdar lungi’, who entering into the house of Chaukidar Mahendra Paswan stepped out of it donning the trouser and boarded the said vehicle on the front seat of the same. They dined at ‘Baba Dhaba’ on N.H. located near village Musrigharari and thereafter proceeded further but on the way at a desolate at Sahbajpur at around 3:30-4:00 AM, one of them got the vehicle halted feigning to do vomiting. They dined at ‘Baba Dhaba’ on N.H. located near village Musrigharari and thereafter proceeded further but on the way at a desolate at Sahbajpur at around 3:30-4:00 AM, one of them got the vehicle halted feigning to do vomiting. Then parking the vehicle on the road side, his father went for urination while he remained sit in the vehicle. Then abruptly three of them caught hold his father and one gagged his mouth and they committed murder of his father. The aforesaid aspect of the case indicates that the appellant was travelling in the vehicle along with the informant for quite some time and he had also dined in ‘Baba Dhaba’ on the way to the place of occurrence but the informant has not claimed to have identified the appellant either in the vehicle or at the ‘Dhaba’ rather at the time of apprehends ion of the appellant by the police for the first time. 14. Though four accused persons coming from Hajipur on the vehicle of the appellant named three accused persons sitting on the log of the wood in village Harpur Bochahaha as Sanjay Singh, Vikash Singh and Baleshwar Singh (appellant) but it is not the case of the prosecution as out of the aforesaid four accused persons who had addressed the aforesaid accused persons by the said name and also to whom they/he had addressed with a particular name. When the vehicle arrived in the said village it was 3:30 - 4:00 AM in the month of June, 2013 and it was dark night at that time and as per the statement of the informant, as given by him in his examination-in-chief, there was no light in the village and at that place at that time so there was no source of identification of the appellant there in such a dark night. 15. 15. As per the prosecution case and the statement of the informant his father halted the vehicle on road side on feigning one of the commuters to do vomiting and stepped out of the vehicle for urination besides it and the informant was sitting in the vehicle at that time but neither it is a case of prosecution nor the informant has stated that his father put the headlight of the vehicle on during that time and he has also not claimed to have identified the appellant in the light of the vehicle there, so the million dollar question arises as to how the informant identified one of the accused persons as the appellant gagging the mouth of his father at the time of committing his murder. 16. Though the informant in para-3 of his examination-in-chief has stated that one of the accused was donning the ‘chekdar lungi’ and later changed it entering into the house of Chaukidar Mahendra Paswan and stepped out donning the trouser, he was appellant-Baleshwar Paswan but there is no such case of prosecution in the written report and the said statement of the informant appears to be afterthought. As per the account of the informant made in para-19 of his cross-examination, there was no light in front of the house where vehicle was parked and there was also no light in the house of Chaukidar Mahendra Paswan and Govind Paswan and there was no light in the vehicle itself. The informant has not also specifically stated that out of the aforesaid accused persons, it was the appellant-Baleshwar Paswan who was wearing the ‘chekdar lungi’ and later changed the dress entering into the house of Chaukidar Mahendra Paswan. Moreover, the informant has not stated as to how he has named the aforesaid person as Baleshwar Paswan as the four persons coming from Hajipur in the vehicle has neither addressed any particular person out of three person sitting on the log of wood in the village Harpur Bochahaha as Baleshwar Paswan and it was dark night of 3:30-4:00 AM of the month of June and there was no light in the said village. 17. 17. The informant, responding to the court question that as to whether he had for the first time named the accused Baleshwar Paswan in the occurrence and identified before the court, has stated in para-10 of his cross-examination that he had identified Baleshwar Paswan (appellant) earlier also on the date of his apprehension. He has also identified Baleshwar Paswan in course of recording his statement before the Court but the appellant was not put on T.I.P. Hence, the aforesaid aspect of the case eloquently indicates that appellant was got identified by the informant by the police before his deposition in the court at the time of his arrest and on the basis of the said identification he has identified him in the court. The aforesaid statement of the informant itself also rules out identification of the appellant by the informant during the course of occurrence. 18. From perusal of the record, it appears that the appellant was apprehended and produced before the Magistrate for the first time on 09.07.2009 and, thereafter, on several occasions in the Magistrate Court before commitment of case and also before the Sessions Court preceding to recording his statement before the Court. Thus, the informant had ample opportunity to identify the appellant. The informant appears to have identified the appellant in the court during his examination-in-chief on 13.04.2010. The appellant was not put on T.I.P. Hon’ble Apex Court in Anil Kumar @ Pintu Vs. State of Bihar (Now State of Jharkhand) reported in 2008 (2) Crimes 139 (SC) has been pleased to rule that in case where accused is not known to the witness, ordinarily, the identification of an accused for the first time in court should be corroborated by previous identification in the test identification parade. We do not find any extra-ordinary reason for accepting the evidence of the witness on the question of identification of the accused persons for the first time in court. This being the position, it is not possible to place reliance on the evidence of said witness. 19. Though the informant has stated in para-3 of his examination-in-chief that one of the commuters of the vehicle got the vehicle halted feigning to do vomiting and his father after parking the vehicle stepped out of it from it for urination. This being the position, it is not possible to place reliance on the evidence of said witness. 19. Though the informant has stated in para-3 of his examination-in-chief that one of the commuters of the vehicle got the vehicle halted feigning to do vomiting and his father after parking the vehicle stepped out of it from it for urination. Then four accused persons caught hold him up and the accused Baleshwar Paswan gagged his mouth and they committed murder of his father but as discussed by me hereinabove that there was no light at the aforesaid place and it was dark night of 3:30 – 4:00 AM in the month of June and is also not the case of the informant that his father had put the headlight of the vehicle on at the time of stepping out from the vehicle for urination, so there was no source to identify the appellant-Balehswar Paswan as one of the accused person gagging the mouth of his father preceding his murder. Though the appellant was with the informant in the vehicle for couple of hours and also dined at ‘Baba Dhaba’ but informant has not stated that he had identified the appellant either in the vehicle or at the ‘Baba Dhaba’ rather has stated to have identified the appellant at the time of his arrest for the first time. The informant has also not disclosed the age and feature of the appellant as disclosed by him about other four accused persons boarding his vehicle at Hajipur, as he had no occasion to see the appellant for the want of light to enable him to identify the appellant during the course of occurrence. Thus, the informant has utterly and miserably failed to identify the appellant as one of the accused persons in the occurrence and the statement of the informant that he had identified the appellant during the occurrence appears to be not reliable and worth credence. 20. Two sickles allegedly used in the occurrence were seized by the I.O. at the p lace of occurrence and ‘chekdar lungi’ was seized by the I.O. from the house of the appellant-Baleshwar Paswan but the said sickle was not sent to Forensic Science Laboratory for its examination and the said sickle and ‘chekdar lungi’ was not put on T.I.P. Thus, there appears to be no corroborative evidence in support of the prosecution case. 21. 21. Though it is settled principle of law that the accused can be convicted on the evidence of solitary eye witness of the occurrence, if it is found unblemished and untainted on careful and cautious scanning and scrutiny of his evidence. But, as discussed by us hereinabove, the evidence of the informant, who happens to be the solitary eye-witness of the occurrence, does not appear to be worth credence and reliable and he has utterly and miserably failed to identify the appellant as the person involved in the occurrence. 22. Considering the facts and circumstances of the case and the discussion made by us hereinabove, we find and hold that the prosecution has utterly and miserably failed to substantiate the case and the guilt of the appellant beyond all reasonable doubt by adducing consistent, cogent and reliable evidence. Hence, the appellant is entitled to get benefit of doubt. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower court is set aside and the appellant is acquitted of all the charges levelled against him giving him benefit of doubt. As the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. 23. Accordingly, this appeal is allowed. I agree. Kishore Kumar Mandal, J.