Jharkhand High Court
Basudeo Paswan vs The State Of Bihar (Now Jharkhand) on 6 July, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Criminal Appeal (D.B.) No. 160 of 1993 (R)
Against the judgment and order of conviction and sentence dated
16.09.1993 (order of sentence passed on 17.09.1993) passed by Sri Shyam
Deo Singh, Vth Additional Sessions Judge, Dhanbad in S. T. No. 300 of
1991.
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1.Basudeo Paswan
2.Deo Narayan Paswan
3.Gendhori Paswan
4.Darogi Paswan
5.Ramchandra Paswan ... ... Appellants Versus The State of Bihar (now Jharkhand) ... ... Respondent
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For the Appellant Nos. 2 & 4 : Mr. A. S. Dayal, Advocate
For the Appellant No. 5 : Mr. Birendra Kumar, Advocate
For the Respondent : Mr. Vishwanath Roy, A.P.P.
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Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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Heard Mr. A. S. Dayal, learned counsel for the appellant nos. 2 and 4, Mr. Birendra Kumar, learned counsel for the appellant no. 5 and Mr. Vishwanath Roy, learned A.P.P. for the State.
2. During the pendency of this appeal, the appellant no. 1 namely, Basudeo Paswan and the appellant no. 3 namely, Gendhori Paswan had expired on 16.12.2021 and 06.08.1994 respectively and accordingly vide order dated 21.04.2022, the appeal was held to have abated so far as appellant nos. 1 and 3 are concerned. This appeal therefore, survives so far as the appellant nos. 2, 4 & 5 are concerned.
3. This appeal is directed against the judgment and order of conviction and sentence dated 16.09.1993 (order of sentence passed on 17.09.1993) passed by Sri Shyam Deo Singh, Vth Additional Sessions Judge, Dhanbad in S. T. No. 300 of 1991 whereby and whereunder the appellants have been convicted for the offence under Section 302/34 of Indian Penal Code and have been sentenced to undergo imprisonment for life.
4. The Fard Beyan of Ashok Paswan was recorded on 02.04.1991 at 9:00 A.M. in which it has been stated that on 01.04.1991 at -2- about 8:30 A.M., Harihar Paswan @ Bishwanath Paswan was in an intoxicated state and after having dinner in the house of Sudeshwar Paswan, started demanding more liquor in front of the house of Srawan Yadav at which there was a quarrel and exchange of abuses between Harihar Paswan and Gendhori Paswan (original appellant no. 3 - since deceased). Basudeo Paswan (original appellant no. 1 -since deceased) who is the brother-in-law of Gendhori Paswan arrived at the scene, brought down Harihar Paswan to the ground and pressed his chest. It has been alleged that thereafter Ramchandra Paswan (original appellant no. 5), Darogi Paswan (original appellant no. 4) and Deo Narayan Paswan (original appellant no. 2) arrived at the scene and started assaulting Harihar Paswan with fists, kicks and lathis. He was taken to the house of Darogi Paswan, where the assault continued resulting in Harihar Paswan becoming unconscious. It has further been alleged that Darogi Paswan was urging the others to entrap Harihar Paswan in a case of dacoity. The informant and some other persons of the locality admitted the unconscious Harihar Paswan in Jealgora Hospital from where, he was referred for better treatment to Central Hospital, Saraidhela, Dhanbad. It has further been stated that the incident of assault was witnessed by Ramchandra Paswan, Srawan Yadav, Ramdeo Pasi, Kailash Paswan and others.
Based on the aforesaid allegations, Jorapokhar P. S. Case No. 110 of 1991 was instituted against Basudeo Paswan, Deo Narayan Paswan, Gendhori Paswan, Darogi Paswan and Ramchandra Paswan for the offences punishable under Sections 341/342/323/307/34 of Indian Penal Code. On conclusion of investigation, charge-sheet was submitted under Section 302/34 I.P.C. and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 300 of 1991. Charge was framed under Section 302/34 I.P.C. which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as 8 witnesses in support of its case.
P.W. 1 - Ramdeo Pasi has not supported the prosecution case and accordingly has been declared hostile by the prosecution.
-3-P.W. 2 - Kailash Paswan, P.W. 3 - Srawan Yadav and P.W. 4 - Ramchandra Paswan have also been declared hostile by the prosecution.
P.W. 5 - Ashok Paswan is the informant and an eye-witness to the incident. He has deposed that on 01.04.1991 at about 8:30 P.M., he was near the Shiv Mandir, where he had seen the quarrel going on between Harihar Paswan and Gendhori Paswan. He has further deposed that Basudeo Paswan, Deo Naryan Paswan and Ramchandra Paswan had thrown Harihar Paswan on the ground and by climbing on his chest were assaulting him. He has stated that Darogi Paswan had assaulted Harihar Paswan with fists while Deo Narayan Paswan had hit him with a Khanti. They all had dragged Harihar Paswan to the house of Darogi, where he was once again assaulted. Harihar Paswan died in the Central Hospital, Saraidhela. The police has recorded his fard beyan in the Central Hospital and he had signed over it. The same had been proved and marked as Exhibit 1.
In cross-examination, he has stated that it was pitch dark near the place of occurrence and nothing was visible. The incident was disclosed to him by Srawan Yadav. He had not himself witnessed the occurrence and had informed about the occurrence to Sajni Devi.
6. P.W. 6 - Sajni Devi has deposed that Harihar Paswan is his brother-in-law. She has stated that the incident is about one year eight months back, when in the evening Harihar Paswan after having meal in her house was going towards the Shiv Mandir and as soon as he reached near the Mandir, Srawan Yadav playfully asked money from him for drinking coconut water. A quarrel flared up and the other accused persons who had arrived at the spot conjointly started assaulting Harihar Paswan. He was taken to the house of Darogi and this witness was following them at which Basudeo had abused her and threatened to assault her due to which she stopped following them. She has further stated that Harihar Paswan was being assaulted with small iron object and Basudeo had pressed his chest while keeping a brick over it. The accused persons thereafter fled away. Harihar Paswan was brought down from the roof by Srawan Yadav, Ramdeo Pasi, Kailash Paswan and Ashok Paswan.
-4-In cross-examination, she had stated that she had not disclosed to the police that Harihar Paswan was stumbling around in an inebriated state and when Harihar Paswan come to her house for having meal, there was no one else present. Her brother-in-law did not have a quarrel with Srawan Yadav. She has deposed that at the time of the incident, Kailash Paswan and Gendhori Paswan were sitting. When the incident had occurred, she was yelling for help, but no one came from the locality near the Shiv Mandir. She had stopped following the accused persons when she was threatened and saw the occurrence from a distance. She cannot say as to who had arrived during the fight since a crowd had gathered. She has stated that she was watching the incident by hiding near the boundary wall of Darogi Paswan.
7. P.W. 7 - Surajdeo Ram is the Investigating Officer who has proved the fard beyan which has been marked as Exhibit 1. He has also proved the formal FIR which has been marked as Exhibit 2. He had inspected the place of occurrence which is the boundary wall of the western side of the temple. The second place of occurrence is the house of the accused. On entering the house, there was a room without shed where Harihar Paswan was said to have been assaulted. From the second place of occurrence, he had seized an iron spade, blood stained earth, a slipper of the deceased and a small piece of iron. The seizure list was prepared in presence of independent witnesses - Gopal Paswan and Balmiki Paswan and the seizure list was proved and marked as Exhibit 4. On coming to know that Harihar Paswan had expired, he reached the Central Hospital, Saraidhela and prepared the inquest report which has been proved and marked as Exhibit 6. He had also obtained the Post Mortem Report. On conclusion of investigation, charge-sheet was submitted by him.
This witness has recorded the statement of Ramdeo Pasi, Kailash Paswan, Srawan Yadav and Ramchandra Paswan and all have stated in unison about the manner of assault committed upon Harihar Paswan by the accused persons.
In cross-examination, he has deposed that he had taken the statement of Sajni Devi, who had disclosed that Harihar Paswan was in -5- an intoxicated state and was wavering while walking. He has stated that the house of Darogi was not bounded by a wall.
8. P.W. 8 - Dr. Rai Sudhir Prasad was posted as a Professor of Forensic Medicine in Patliputra Medical College, Dhanbad and on 04.04.1991, he had conducted autopsy on the dead body of Harihar Paswan @ Bishwanath Paswan and had found the following ante- mortem injuries:
(i) "Bruises measuring 1" x 1/2" and 1" x 1/2" on left cheek, 3/4" x 1/3", 3/4" x 1/4" and 1/4" x 1/4" over left side of forehead, 3" x 2½ " on back of left side of head, 3/4" x 1/3" and 3/4 " x 1/4" on front of left upper arm, 1" x 1/2" over left shoulder.
(ii) Lacerated wound measuring 3/4" x 1/4" scalp deep on top back of head 1/4" x 1/6" skin deep over left eyebrow.
(iii) Bruises 1 ½ " x 1" on top of front of left side of abdomen 1" x 1/2"
on front of left lower frank of abdomen 1" x 1/2" on back of left elbow 1/3" x 1/3" and 1/4" x 1/4" on front of left side of chest and 1" x 1/2" on front of right flank of abdomen.
(iv) Abrasions 4" x 1/2" x 3" x 1/2" and 2" x 1/4" on outer surface of top right thigh.
(v) On dissection massive blood clots was seen over the muscles of the chest on front. Sternum was completely broken into two pieces and right fifth rib was fractured on the front. Pericardial sac contained blood. Both lungs were ecchymosed. Stomach was half filled with decomposed rice and dal. "
The death occurred due to shock, haemorrhage and respiratory distress resulting from above injuries.
The injury no. (i), (ii) & (iii) were caused by hard and blunt weapon and injury no. (iv) by hard and rough substance. He has proved the Post Mortem Report which has been marked as Exhibit 6.
In cross-examination, he has stated that on dissection, no injuries were found on skull and brain. He has stated that all the injuries were not possible by falling in a drain.
9. The accused persons were examined under 313 Cr.P.C. in which they have denied the allegations levelled against them.
10. Mr. A. S. Dayal, learned counsel for the appellant nos. 2 & 4 has submitted that the prosecution has failed to bring home the charge levelled against the appellant. As per the fard beyan of the informant, -6- the presence of Ramchandra Paswan, Srawan Yadav, Ramdeo Pasi and Kailash Paswan has been noted, but none of these persons have supported the case of the prosecution. Even P.W. 5, who is the informant has categorically stated that it was pitch dark when the assault had taken place and the incident was disclosed to him by Srawan Yadav. Mr. Dayal has submitted that though P.W. 5 has not been declared hostile by the prosecution, but his evidence has degenerated the case of the prosecution. It has also been submitted that none of the witnesses have stated that P.W. 6 was present at the place of occurrence and her version of the incident seems to be fraught with doubt.
11. Mr. Birendra Kumar, learned counsel for the appellant no. 5 apart from adopting the arguments of Mr. A. S. Dayal has added about apparent contradictions in the evidence of P.W. 6 when considered with the evidence of P.W. 7, as P.W. 6 has stated that she had witnessed the incident by hiding near the boundary wall of Darogi Paswan, but the evidence of P.W. 7 clearly disproves such assertion as P.W. 7 has stated that the house of Darogi Paswan was not bounded by a wall.
12. Mr. Vishwanath Roy, learned A.P.P. has strongly relied upon the evidence of P.W. 6 and has submitted that though she is the solitary eye-witness, but her evidence is reliable and trustworthy. She had followed her brother-in-law when he was being assaulted by the accused persons and both part of the occurrence were witnessed by her. Mr. Roy, learned A.P.P. further submits that the medical evidence also corroborates the manner of assault. He has referred to the case of "Vahula Bhushan @ Vahuna Krishnan Vs. State of Tamil Nadu"
reported in (1989) Suppl. 1 SCC 232. As regards the common intention of the accused persons are concerned, learned A.P.P. has submitted that the same is palpable from the evidence of P.W. 6 and in such context, reference has been made to the case of "Jasdeep Singh @ Jassu Vs. State of Punjab" reported in (2022) 2 SCC 545.
13. We have heard the rival submissions and have also gone through the Lower Court Records.
The narration of the incident in the fard beyan of the informant (P.W. 5) reveals an active and concerted participation of all the accused persons in committing assault upon Harihar Paswan @ Bishwanath -7- Paswan. The incident as per the fard beyan was witnessed by the informant as well as Ramchandra Paswan, Srawan Yadav, Ramdeo Pasi and Kailash Paswan. The fard beyan of the informant does not make any reference to the presence of Sajni (P.W. 6). However, during trial the eye- witnesses account have been greatly diminished as P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have been declared hostile by the prosecution and so far as the evidence of P.W. 5 is concerned, he in his cross-examination has deposed that it was dark and nothing was visible. He has admitted to have not witnessed the incident and learnt about the same from Srawan Yadav. P.W. 5 though was not declared hostile, but his evidence has negated his eye-witness account as chronicled in his fard bayan. The only evidence of substance of witnessing the incident seems to be that of Sajni (P.W. 6). She had seen the initial act of assault upon Harihar Paswan by the accused persons as well as the subsequent acts by hiding behind the boundary wall of Darogi Paswan. But the surrounding circumstances of the case does put a spanner in her claim of being an eye- witness. It is noticeable that her presence had not been marked by the informant in his fard beyan though, the informant had named several other persons. P.W. 6 in her evidence has stated about a crowd gathering when the assault was going on, but not a single name has been spelt out by her. P.W. 6 was rebuked and threatened when she was following the accused persons, but unperturbed she continued to see the assault by hiding behind the boundary wall constructed by Darogi Paswan. The evidence of P.W. 7 indicates that P.W. 6 has merely stated before him that Harihar Paswan was in a drunken state and was stumbling while walking. It does not appear from the evidence of P.W. 7 that she had stated about witnessing the incident. While describing the place of occurrence, P.W. 7 has categorically mentioned that the house of Darogi Paswan was not bounded by a wall which contradicts the version of P.W. 6 of witnessing the incident from behind the boundary wall. The informant (P.W. 5) in his cross-examination has stated that due to darkness, nothing was visible. The conduct of P.W. 6 also seems to be quite noticeable. Her cross-examination depicts that she did not seek help when the assault was being committed. A reaction in a given situation varies from individual to individual depending upon the -8- complexities of the situation. Due to the psychological and emotional impact and other relevant factors the human brain sometimes become perplexed and may not react in a given situation, but the evidence of P.W. 6 appears to have garnered no such perplexities. Her evidence seems to suggest that she was accompanying the deceased considering the finer details of the entire episode she had divulged which apparently seems to be an improved version. She never called for any assistance as stated by her, though she had followed the accused persons till the house of Darogi Paswan. This conduct of P.W. 6 is not a natural human conduct.
14. On considering the labyrinth of the evidence, we conclude that P.W. 6 is not an eye-witness to the occurrence. Once we have held thus - the judgments relied upon by the learned A.P.P. do not have any significance so far as the present appeal is concerned.
The learned trial court has overtly relied upon the evidence of P.W. 6 without analyzing the same meticulously and thus committed an illegality in convicting the appellants under Section 302/34 I.P.C. and sentencing them accordingly.
15. In our considered view, the judgment and order of conviction and sentence dated 16.09.1993 (order of sentence passed on 17.09.1993) passed by Sri Shyam Deo Singh, Vth Additional Sessions Judge, Dhanbad in S. T. No. 300 of 1991, whereby and whereunder appellants have been convicted for the offence under Section 302/34 of Indian Penal Code and have been sentenced to undergo imprisonment for life is not sustainable in the eye of law as the prosecution has failed to prove its case beyond all reasonable doubt and accordingly the same is hereby set aside.
16. This appeal stands allowed.
17. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) Jharkhand High Court at Ranchi The 6th day of July, 2022 R.Shekhar/NAFR/Cp.3