Patna High Court
Pawan Paswan & Ors vs The State Of Bihar on 9 March, 2018
Author: Prakash Chandra Jaiswal
Bench: Ravi Ranjan, Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1032 of 2012
Arising Out of PS.Case No. -55 Year- 2002 Thana -null District- M ADHUBANI
===========================================================
Bidyanand Paswan S/O Jagarnath Paswan Resident Of Village- Navtal, P.S.- Murliganj, District- Madhepura .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s With =========================================================== Criminal Appeal (DB) No. 642 of 2012 Arising Out of PS.Case No. -55 Year- 2002 Thana -null District- M ADHUBANI ===========================================================
1. Pawan Paswan, Son of Jagannath Paswan
2. Hardeo Paswan, Son of Dayanand Paswan.
3. Jaganand Paswan, Son of Late Baijnath Paswan.
All are resident of village - Navtol, P.S.-Murliganj, District-Madhepura.
.... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With =========================================================== Criminal Appeal (DB) No. 851 of 2012 Arising Out of PS.Case No. -55 Year- 2002 Thana -null District- M ADHUBANI =========================================================== Sadanand Paswan S/O Late Baijnath Paswan, Resident of Village- Navtol, P.S- Murliganj, District- Madhepura .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance:
For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Advocate.
Mr. Mrigendra Pratap Singh, Advocate.
Mr. Shekhar Kumar Singh, Advocate.
Mr. Abhijeet Gautam, Advocate.
Mr. Raja Surendra Mohan, Advocate.
For the State : Mr. Ashwani Kumar Singh, A.P.P.
Mr. S. N. Prasad, APP.
Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 2/25 =========================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN And HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL) Date: 09-03-2018 Heard learned counsel for the appellants as well as learned APP for the State on these criminal appeals.
2. These criminal appeals have been preferred against the Judgment and Order of conviction dated 15.06.2012 and order of sentence dated 21.06.2012 passed by Ad hoc Additional District and Sessions Judge-II, Madhepura in Sessions Trial No. 182 of 2004 arising out of Murliganj P.S. Case No. 55 of 2002, whereby the learned trial court convicted the accused namely, Bidyanand Paswan and Sadanand Paswan for the offence punishable under Sections 148 and 302 of the Indian Penal Code and accused Hardeo Paswan, Pawan Paswan and Jaganand Paswan under Section 302/149 of the Indian Penal Code and sentenced the accused Bidyanand Paswan and Sadanand Paswan to undergo rigorous imprisonment for life and slapped them with the fine of Rs. 1000/- each for the offence punishable under Section 302 of the Indian Penal Code and further sentenced them to undergo S.I. for six months under Section 148 of the Indian Penal Code and sentenced the accused Hardeo Paswan, Pawan Paswan and Jaganand Paswan to undergo rigorous Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 3/25 imprisonment for life and also slapped them with the fine of Rs.
2000/- each under Section 302/149 of the Indian Penal Code. Both the sentences of Bidyanand Pawan and Sadanand Paswan were directed to run concurrently. In case of default of payment of fine, aforesaid accused persons were further sentenced to undergo S.I. for three months each.
3. Factual matrix of the case is that Murliganj P.S. Case No. 55 of 2002 was instituted under Sections 147, 148, 149, 447 and 302 of the Indian Penal Code against the accused, namely, Bidyanand Paswan, Pawan Paswan, Jaganand Paswan, Sadanand Paswan, Chakandhar Paswan, Hardeo Paswan, Devanand Paswan, Jaldhar Paswan on the basis of the fardbeyan of Jitendra Paswan, Son of Late Rajdeo Paswan, recorded by S.I. Harendra Prasad Choudhary of P.S. Murliganj, District-Madhepura on 27.07.2002 at 04:30 PM at village Nawtoll with the allegation in succinct that on 27.07.2002, he was taking rest on the chauki in the Baithaki room of his house as he was not well. At around 12:45 PM, his father namely Rajdeo Paswan arrived there to take meal from the field and was taking meal on the said chauki. His younger brother, namely, Amit Kumar was also sitting on the said chauki while his sister, namely, Poonam Devi was coming towards them fetching water for his father. As soon as his sister arrived near his father, in the meantime at around 1 PM abruptly Vidyanand Paswan, Pawan Paswan, Jaganand Paswan, Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 4/25 Sadanand Paswan and Chakradhar Paswan descended at the door. Vidyanand Paswan was armed with Garasa, Chakradhar with Dabiya, Sadanand with axe and others were armed with lathi. Vidyanand Paswan, Chakandhar Paswan, Pawan Paswan and Sadanand Paswan took his father on the door lifting him and shoved him on the ground. Then Baidyanath Paswan assaulted on his head by means of garasa, Chakradhar Paswan by means of dabiya and Sadanand Paswan by means of axe. When they rushed in his rescue, they also gave them chase to assault, so they kept standing at the door keeping mum. In the meantime, they witnessed Hardeo Paswan, Devanand Paswan and Jaldhar Paswan standing behind his door armed with arrow, bow and lathi. His father sustained cut injury in the mid of his head, left shoulder, in the mid of his back and on the right elbow. Sustaining injury, he fell senseless. Then accused persons left the scene. On their departure, they made alarm. Responding the same, his uncle Parmanand Paswan, Brahmdeo Paswan, Makhan Paswan and his brother Dular Chand Paswan who were working on the field rushed there and rushed the injured to Madhepura to accord him medical aid, but he succumbed to his injuries on the way near Jitapur. Then they regressed to their house and found the dead body of she goat dumped at his door by the accused persons. Bone of contention is said to be that there is land dispute for around two years between his father Rajdeo Paswan, Jaldhar Paswan and his family. This could not be Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 5/25 figured out despite Panchayati.
4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet under Sections 147, 148, 149, 447 and 302 of the Indian Penal Code against the accused Jaganand Paswan, Sadanand Paswan, Hardeo Paswan, Vidyanand Paswan and Pawan Paswan keeping investigation pending against Chakradhar Paswan @ Chakandhar Paswan. Subsequently, I.O. submitted final form against the said accused.
5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in the seisin of Ad hoc Additional Sessions Judge-II, Madhepura for trial.
6. Charge against the accused Jaganand Paswan, Hardeo Paswan and Pawan Paswan was framed under Sections 147 and 302/149 of the Indian Penal Code while charge against the accused Vidyanand Paswan and Sadanand Paswan was framed under Sections 148 and 302 of the Indian Penal Code. Charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence, the prosecution has examined altogether twelve prosecution witnesses namely, Dularchand Paswan as PW-1, Damodar Paswan as PW-2, Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 6/25 Informant Jitendra Paswan as PW-3, Makhan Paswan as PW-4, Amit Kumar as PW-5, Ranjana Devi as PW-6, Poonam Devi as PW-7, Parmanand Paswan as PW-8, Jai Narayan Paswan as PW-9, 2nd I.O. Brijnandan Singh who has submitted chargesheet as PW-10, Arun Kumar as PW-11 and Dr. Silwant Singh who has conducted the autopsy of the cadaver of the deceased as PW-12. Out of the aforesaid witnesses, PW-11 Arun Kumar happens to be formal witness. In documentary evidence, the prosecution has also filed and proved some documents.
8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be quite innocent. The accused persons neither adduced any ocular nor documentary evidence in buttress of their case.
9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred the aforesaid Criminal Appeals.
11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 7/25
12. It is submitted by learned counsel for the appellants that out of the aforesaid material witnesses, only PW-3 Jitendra Paswan, PW-5 Amit Kumar and PW-7 Poonam Devi are said to be eye witnesses of the occurrence while rest are hearsay witnesses. But the testimonies of the aforesaid PWs-3, 5 and 7 are full of contradiction with the prosecution case and their testimonies inter se and also between their testimony and testimony of other witnesses regarding the manner of occurrence, time of occurrence and part of the person of the deceased selected for assault etc., hence, in view of the aforesaid contradictions, the aforesaid three witnesses also do not appear to be worth credence and reliable and their testimonies cannot be based for conviction of the appellants. It is further submitted that as per the prosecution case, witnesses' account and inquest report, the deceased had sustained injury on his head, left shoulder, back and right elbow, but the doctor conducting the autopsy of the cadaver of the deceased has not found any injury on the back or right elbow of the deceased. More so, the doctor has found three incised wound on the head of the deceased against the case of the prosecution. Thus the ocular evidence also does not stand corroborated by the medical evidence. It is further submitted that as per the account of PW-7 Poonam Devi, the deceased had not started taking meal rather was about to take meal but the doctor conducting the autopsy of the deceased on 28.07.2002 at 09 a.m. has found digestive food material Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 8/25 in the stomach which goes to rule out the time of occurrence and occurrence as well. It is further submitted that as per the account of the informant (PW-3), after the murder of his father, he had rushed to Murliganj police station and informed the matter to the police, then the police arrived at the place of occurrence. But the fardbeyan of the informant was not recorded at the police station when for the first time he had given information of the occurrence to the police which must have been the first information report of the informant rather it was recorded at village Nawtoll at 04:30 PM i.e. after 03.30 hours of the occurrence which creates serious doubt about the prosecution case. It is further submitted that all the material witnesses examined by the prosecution are family members of the deceased and they are highly interested persons and no independent witness of the occurrence has been examined by the prosecution which also creates serious doubt about the prosecution case. Further submission of learned counsel for the appellants is that I.O. of the case has also not been examined by the prosecution and due to non-examination of the I.O., great prejudice has been caused to the appellants as contradiction between the statements of PWs given before the Court and that before the I.O. under Section 161 Cr.P.C. could not be corroborated. Due to non-examination of the I.O., place of occurrence also does not stand established by the prosecution. Thus prosecution has utterly and miserably failed to substantiate the Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 9/25 prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, appellants are entitled to be acquitted.
13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that PWs-3, 5 and 7 were present at the place of occurrence at the time of occurrence and they have consistently supported the prosecution case. The ocular evidence also stand corroborated by the medical as well as documentary evidence and learned lower court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence which is liable to be upheld and these appeals have no substance in it and are liable to be dismissed.
14. On perusal of the records, it appears that the prosecution has examined altogether eight material witnesses in substantiation of its case. Out of the aforesaid witnesses, PW-1 Dularchand Paswan, PW-2 Damodar Paswan, PW-4 Makhan Paswan and PW-8 Parmanand Paswan do not happen to be eye witnesses of the occurrence. As as per the fardbeyan of the informant itself, sustaining injury when the deceased fell senseless, accused persons left the scene and on their departure, the informant, his brother and sister made alarm. Responding the same, his uncle Parmanand Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 10/ 25 Paswan, Brahmdeo Paswan, Makhan Paswan and his brother Dularchand Paswan who were working in the field rushed there and rushed the injured to Madhepura to accord him medical aid. The aforesaid statement of the informant eloquently indicates that the aforesaid witnesses had arrived at the place of occurrence responding hulla made by the informant and others after culmination of occurrence and departure of the accused persons and had not seen the occurrence.
15. PW-2 Damodar Paswan who happens to be the father of the deceased, though has stated in his examination-in-chief about witnessing of the occurrence of assault by the appellants on the deceased, but in Para-10, 11 and 12 of his cross-examination, he has stated that he had listened hulla of assaulting and responding the same, he rushed to his house and found injury on the head, shoulder, waist and back of his son and he had not died by that time rather was taking his last breath. The aforesaid statement of PW-2 candidly indicates that the said witness has not witnessed the occurrence of assault on the deceased at the hand of the appellants rather had arrived at the place of occurrence responding hulla of assault and found his son lying on the ground sustaining injury. Moreover, in Para-15 of his cross-examination, he has also candidly stated that he had divulged to the police that when he rushed to his door and arrived there, he found his son seriously injured. Then they Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 11/ 25 immediately rushed him to Madhepura to accord him medical aid. Later on he listened that the accused persons had grievously injured his son Rajdeo Paswan assaulting him finding him alone. Thus aforesaid statement of PW-2 rules him out to be the eye witness of the occurrence.
16. PW-2 in Para-13 of his cross-examination has stated that his grand sons, namely, Parmanand Paswan, Dularchand Paswan, Inarchand Paswan and Amit Kumar who were on the field had arrived at the place of occurrence after departure of the accused persons. The aforesaid statement of PW-2 also rules out Dularchand Paswan (PW-1), Amit Kumar (PW-5) and Parmanand Paswan (PW-
8) to be the eye witness of the occurrence. PW-1 Dularchand Paswan has also stated in Para-16 and 17 of his cross-examination that when he was at his field, there was hulla and people were making hulla and crying. When he arrived at his door, his father had fallen senseless by that time. In Para-23 of his cross-examination, he has further stated that when he arrived at his door, the accused persons had left the scene by that time. The aforesaid statement of PW-1 also rules him out to be eye witness of the occurrence. PW-7 Poonam Devi in Para- 13 of her cross-examination has also ruled out the presence of PW-1 and PW-8 at the place of occurrence at the time of occurrence and witnessing of the occurrence by them as in the said para, she has stated that her brother Dularchand (PW-1), uncle Parmanand (PW-8) Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 12/ 25 and many other villagers had arrived at the place of occurrence after the occurrence.
17. Attention of PW-1 Dularchand Paswan and PW-8 Parmanand Paswan towards contradiction in their statements recorded before the Court and that before the I.O. under Section 161 Cr.P.C. has been drawn by the defence in Para-19 of the cross- examination of PW-1 and in Para-4 of the cross-examination of PW- 8 regarding listening of the occurrence of assault by the accused persons later on and not witnessing of occurrence of assault upon the deceased by the appellants but I.O. of the case has not been examined by the prosecution to corroborate the aforesaid contradiction. But from perusal of the statement of the aforesaid witnesses recorded by I.O. under Section 161 Cr.P.C. and that given before the court, it appears that the aforesaid witnesses have given altogether contradictory statement regarding aforesaid aspect of the case and has taken altogether different stand in the court. Hence, in view of the aforesaid contradiction, the aforesaid two witnesses do not appear to be worth credence and reliable. Likewise attention of the informant has been drawn by the defence towards the contradiction between the statement given before the Court and that given before the I.O. under Section 161 Cr.P.C. in Para-40 of his cross- examination regarding arrival of Parmanand Paswan, Brahmdeo Paswan, Chakradhar Paswan and Mulchand Paswan at the place of Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 13/ 25 occurrence responding hulla made by him after departure of the accused persons and all of them rushed his father to Madheprua for treatment. But I.O. has not been examined by the prosecution to corroborate the aforesaid contradiction while from perusal of the case diary, it appears that the informant has taken altogether different stand before the Court than given before the I.O. under Section 161 Cr.P.C. regarding aforesaid aspect of the case. Hence the aforesaid aspect of the case also creates serious doubt about the credibility of the said witness.
18. When the I.O. of the case is not examined by the prosecution and the attention of the witnesses has already been drawn towards their earlier statements and the Investigating Officer could not be brought to give his evidence, then in my considered opinion, the Court can peruse the case diary and find out as to whether or not the attention of the witnesses towards their previous statements were correctly drawn and to satisfy itself as to whether or not they had given similar statement before police. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. The Second party of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 14/ 25 would come recording about the inspection of place of occurrence making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. The latter part of the case diary cannot be used by the Court unless the Investigating Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that. However the first part of the case diary consists, as already noted, the statement recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portion of the statement of the witnesses to which the attention of the witnesses was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now, the question is, whether that portion of the case diary can be looked into by the Court and used in the trial to aid the Court in reaching at a correct decision when the Investigating Officer is not brought before the Court. Sub-Section (2) of Section 172 of Cr.P.C. provides that the Court cannot only call for the case diary but may also use such diary to take aid in such trial. If the Court only has the power to look into the case diary and whatever it peruses to keep it only in mind and Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 15/ 25 then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the intention of the legislation. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the court cannot use any portion of the case diary as evidence. In view of the aforesaid proposition of law and in view of the contradiction between the statements of the aforesaid witnesses, as recorded before the court and that given before the I.O. under Section 161 Cr.P.C., the testimonies of the said witnesses given before the court do not inspire my confidence to hold the conviction of the appellants relying upon the same.
19. From perusal of the testimony of PW-4 Makhan Paswan who happens to be brother of the deceased and PW-6 Ranjana Devi who happens to be bhabo of the deceased, it appears that the aforesaid two witnesses are also not eye witnesses of the occurrence as in the fardbeyan itself, the informant has stated that Makhan Paswan (PW-4) had arrived at the place of occurrence responding hulla made by him after departure of the accused persons from the place of occurrence and PW-4 has stated in Para-1 and 2 of his examination-in-chief that at the time of occurrence, he was working in his field, he rushed to the door of Rajdeo Paswan responding hulla and found him badly injured there. He also witnessed Vidyanand Paswan armed with garasa, Sadanand Paswan Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 16/ 25 with Kulhari and Chakradhar Paswan armed with dabiya and Pawan Paswan, Jaganand Paswan and Hardeo Paswan each armed with lathi there, but he has not even whispered about witnessing of occurrence of assaulting the deceased by the aforesaid accused persons. Moreover, in quite contradiction to the aforesaid statement, he has stated in Para-4 of his cross-examination that when he arrived at the place of occurrence, he witnessed the accused persons escaping from there. In para-3 of his examination-in-chief, he has further stated that he learnt there that the aforesaid accused persons made Rajdeo Paswan injured by assaulting him. In Para-9 of his cross- examination, he has stated that when he arrived at the place of occurrence, he found Rajdeo Paswan lying injured on the ground. Thus, the aforesaid statement of PW-4 goes to indicate that he had not seen the occurrence of assault though he has stated that he had learnt about the hand of the appellants in the occurrence, but he has not disclosed the name and identity of the source of information and none has come forward to corroborate the factum of divulgence of the aforesaid fact to him. Hence, the aforesaid witness appears to be hearsay witness and more so, his evidence as hearsay witness is also not admissible in evidence for want of any corroboration. Though PW-6 Ranjana Devi has made an abortive bid to support the prosecution case in her examination-in-chief but from perusal of Para-9 of her cross-examination, it appears that on the date of Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 17/ 25 occurrence when she arrived at her house taking grass, she listened hulla made by Poonam Devi, Chander Paswan and Amit Paswan about assaulting and responding the hulla when she rushed there, she found injury on the head, neck and shoulder of Rajdeo Paswan and he was senseless. The aforesaid statement of PW-6 candidly rules her out to be the eye witness of the occurrence. As as per the aforesaid statement, when she arrived at the place of occurrence responding hulla, she found the victim injured and senseless there, meaning thereby she had not witnessed the occurrence of assaulting the deceased by the appellants.
20. PW-5 Amit Kumar who was allegedly present at the place of occurrence and was sitting on the chauki on which the deceased was also sitting and taking meal has also made an abortive bid to support the prosecution case as an eye witness of the occurrence in his examination-in-chief, but PW-2 Damodar Paswan who happens to be father of the deceased has ruled him out to be eye witness of the occurrence by stating in his cross-examination that when he arrived at the place of occurrence responding hulla, he found the victim injured there and he learnt about assaulting of his son by the accused persons later on and after his arrival, his grand sons including PW-5 arrived at the place of occurrence which means that the aforesaid witness had arrived at the place of occurrence after departure of the accused persons from the place of occurrence and Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 18/ 25 had not witnessed the occurrence.
21. From perusal of the testimony of PW-2, it appears that Amit Kumar (PW-5) was not present at the place of occurrence at the time of occurrence rather had arrived at the place of occurrence responding hulla after departure of the accused persons from there, but from perusal of the fardbeyan given by the informant and his statement examined in the case as PW-3 and also that of PW-7 Poonam Devi, it appears that the aforesaid witnesses have divulged that Amit Kumar was sitting on the chauki at the place of occurrence at the time of occurrence and witnessed the occurrence but aforesaid material contradiction between the statement of PW-2 who happens to be father of the deceased and grand father of PWs-3, 5 and 7 and that of the PW-3 and PW-7 regarding presence of Amit Kumar (PW-
5) at the place of occurrence at the time of occurrence and witnessing the occurrence by him creates serious doubt about the credibility and veracity of the fardbeyan as well as testimonies of PWs-3 and 7. Moreover as per prosecution case, the deceased was taking meal sitting on the chauki at the time of occurrence but the informant PW- 3 in his statement recorded before the Court has not whispered about taking meal by the deceased at the time of occurrence. The aforesaid omission made by the informant appears to be vital in nature and stands in quite contradiction to his fardbeyan, while PW-7 in quite contradiction to the aforesaid prosecution case has stated in Para-8 of Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 19/ 25 his cross-examination that her father had not yet started taking meal while PW-5 and PW-6 in Para-1 of their respective examination-in- chief have stated that Rajdeo Paswan was taking meal sitting on chauki at the time of occurrence. The aforesaid contradiction between the prosecution case and statement of witnesses and also between the statements of witnesses inter se regarding said material aspect of the case goes to seriously shatter the credibility of the aforesaid two witnesses namely, Jitendra Paswan (PW-3) and Poonam Devi (PW-7). More so from perusal of the testimony of PW- 1 and PW-2, it appears that they had not stated about presence of PW-3 and 7 at the place of occurrence at the time of occurrence.
22. From perusal of testimony of the informant (PW-3) as given by him in Para-5 of his examination-in-chief, it appears that in the said para he has stated that besides him, his uncle Parmanand Paswan, brother Dularchand Paswan, grand father Damodar Paswan, his sister Poonam Devi, Amit Kumar, Makhan Paswan and others had seen the occurrence. The aforesaid statement of the informant stands in quite contradiction to the fardbeyan of the informant as well as statement of PW-2 Damodar Paswan as as per the fardbeyan of the informant, Parmanand Paswan, Makhan Paswan and Dularchand Paswan had arrived at the place of occurrence after the occurrence and departure of the accused persons from there and as per the account of PW-2 Damodar Paswan, when he had arrived at the place Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 20/ 25 of occurrence he found his son injured there and after his arrival Parmanand Paswan, Amit Kumar and others had arrived there.
23. As per the prosecution case, Makhan Paswan had arrived at the place of occurrence responding hulla after departure of accused persons from there and as per the statement of Ranjana Devi PW-6, when she arrived at the place of occurrence responding hulla, she found the victim injured and senseless, but in quite contradiction to the aforesaid statement of the said witnesses, PW-7 has stated in Para-13 of her cross-examination that her aunt Ranjana Devi and Makhan Paswan were present at the place of occurrence at the time of occurrence. Aforesaid contradictory statement between the prosecution case and statement of witnesses also creates serious doubt about the credibility of the said witness. Thus in aforesaid aspect of the case, I find and hold that the informant PW-3 and PW-7 Poonam Kumari are not reliable, worth credence and credible witnesses and their testimonies do not inspire our confidence to hold conviction of the appellants relying upon the same.
24. The informant (PW-3) in Para-13 and 14 of his cross-examination has stated that he had rushed to the P.S. Murliganj to inform the police and divulged the occurrence to the S.I., then the S.I. had rushed to his village which means that the informant had divulged the occurrence to the police on the police station immediately after the occurrence arriving there which must have Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 21/ 25 been the first information of the occurrence given to the police, but no fardbeyan was recorded by the police rather his fardbeyan was recorded at village Nawtoll at 04:30 PM. Moreover, from perusal of the record, it appears that information of the occurrence was sent to the police station on 27.07.2002 at 06:30 PM, but F.I.R. was sent to the Court after two days i.e. on 29.07.2002. Moreover, aforesaid F.I.R. was received by ACJM, Madhepura on the said date while the order sheet indicates receiving of the same by SDJM, Madhepura. Prosecution has not assigned any plausible reason to explain the aforesaid delay in sending the F.I.R. to the Court. The aforesaid aspects of the case create serious doubt about the prosecution case.
25. As per the prosecution case as stated by the informant in his fardbeyan, Vidyanand Paswan assaulted on the head of the deceased by means of garasa, Chakradhar Paswan by means of dabiya and Sadanand Paswan by means of Kulhari. The informant in his examination-in-chief has stated that Vidyanand Paswan assaulted on the head of his father by means of garasa, Sadanand Paswan assaulted on his back by means of Kulhari while Chakradhar Paswan started slitting his hand by means of dabiya but other witnesses have not specifically divulged the part of the person of the victim selected for assault by each of the accused persons, while PW-1 has stated that he had witnessed bleeding injury on the head, shoulder, hand and back. PW-2 has stated that Rajdeo Paswan (deceased) had sustained Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 22/ 25 injury on his head. PW-5 has stated that his father had sustained injury on his head, hand and back. PW-8 has stated in Para-4 of his cross-examination that he had seen serious injury on his head, stomach and shoulder. Thus, the aforesaid witnesses have given inconsistent statement regarding part of the person of the deceased sustained injury in the assault. But from perusal of the Post mortem report, it appears that the Doctor has found three incised wound on the skull and one incised wound on the shoulder. He has not found any injury on the back, hand and stomach as per the ocular evidences. Moreover, as per the prosecution case, Vidyanand Paswan assaulted on the head of the deceased by means of garasa. It is not the case of the prosecution that he gave three garasa blow on his head while the doctor has found three incised wound on the head of the deceased. Thus, the aforesaid contradictory inconsistent ocular evidence regarding injury, manner of occurrence also does not stand corroborated by the medical evidence.
26. From perusal of the record, it appears that occurrence is of 1 PM and it took place at the door of the informant and all the witnesses examined by the prosecution are family members of the deceased. As per statement of informant, besides the witnesses, several other persons arrived at the place of occurrence and witnessed the occurrence. As per PW-4 and PW-7, many villagers were also present at the place of occurrence, but no Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 23/ 25 independent witness has been examined by the prosecution and no plausible reason has been assigned for their non-examination which creates serious doubt about the prosecution case.
27. As per the prosecution case, besides the deceased, informant Jitendra Paswan, his brother Amit Kumar and sister Poonam Devi were present at the place of occurrence and there is animosity between the parties over property dispute and the accused persons, eight in number, descending at the place of occurrence only assaulted the deceased and none else though they were variously armed with the deadly weapons and there was no intervening circumstance. The aforesaid aspect of the case also creates serious doubt about the prosecution case.
28. I.O. of the case has not been examined by the prosecution to establish the place of occurrence, finding of the food stuff and utensil at the place of occurrence, finding of the blood there and recovery of the incriminating weapons. Due to non-examination of the I.O., place of occurrence does not stand established by the prosecution.
29. It is the case of the prosecution that property dispute is pending between the deceased Rajdeo Paswan, accused Jaldhar Paswan and his family members for two years preceding to the occurrence. PW-1 Dularchand Paswan has stated in Para-6 of his examination-in-chief that there is property dispute between his father Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 24/ 25 and the accused persons. In Para-9, 10 and 13 of his cross- examination he has stated that there is property dispute between his father Rajdeo Paswan and accused persons for two-three years back and the accused persons had forcibly occupied his land. They had filed a case under Section 307 of the Indian Penal Code against them earlier to the case under hand which is pending. PW-3 Jitendra Paswan has stated in Para-24 of his cross-examination that Jagarnath Paswan has lodged Session Case No. 98 of 2002 under Section 307 of the Indian Penal Code against them earlier to this case which is still pending. PW-4 has stated in Para-13 of his cross-examination that the accused persons have filed a case under Section 307 of the Indian Penal Code against him earlier to the case under hand. PW-7 has stated in Para-10 of her cross-examination that there was a land dispute between her father and the accused persons and PW-8 has stated in Para-2 of his cross-examination that accused persons had lodged a case under Section 307 of the Indian Penal Code against them which is still pending. The aforesaid prosecution case and statement of witnesses eloquently indicates that there is animosity between the parties. Animosity cuts both the edge. But in view of the aforesaid contradiction between the prosecution case and the statement of witnesses and statement of witnesses inter se, non- corroboration of the ocular evidence by medical evidence, unexplained delay in sending the F.I.R. to the court and non- Patna High Court CR. APP (DB) No.1032 of 2012 dt.09-03-2018 25/ 25 examination of any independent witness and I.O., false implication of the appellants at the hand of the prosecution cannot be ruled out.
30. In the aforesaid facts and circumstances of the case, We find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellants are acquitted from the charges levelled against them giving them benefit of doubt. As the appellant Vidyanand Paswan is in custody, he is directed to be released forthwith, if not wanted in any other case while as the appellants Pawan Paswan, Hardeo Paswan, Jaganand Paswan and Sadanand Paswan are on bail, they are discharged from the liability of their bail bonds. Accordingly, aforesaid three appeals stand allowed.
(Prakash Chandra Jaiswal, J) Dr. Ravi Ranjan, J: I agree.
Mishra/- (Dr. Ravi Ranjan, J) AFR/NAFR A.F.R. CAV DATE 22-02-2018 Uploading Date 09.03.2018 Transmission 09.03.2018 Date