Patna High Court
Sheo Chandra Paswan vs State Of Bihar on 2 April, 2019
Equivalent citations: AIRONLINE 2019 PAT 360, 2019 CRI LJ (NOC) 454
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.531 of 1994
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Sheo Chandra Paswan, Son of Deena Paswan, Resident of Village Rampur
Chaklda, P.S. Jandaha, District Vaishali.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
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with
Criminal Appeal (DB) No. 593 of 1994
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1. Lakhindar Paswan, Son of Sri Narain Paswan
2. Narain Paswan, Son of late Sundar Paswan
3. Surendra Paswan, Son of Sri Chhechhan Paswan
All resident of Village Loma Tanr, P.S. Tisiauta, District Vaishali
4. Nanhaki Paswan, Son of Sri Bhajjan Paswan, Resident of Village
Bijharauli, P.S. Tisiauta, District Vaishali
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Criminal Appeal (DB) No. 531 of 1994)
For the Appellant/s : Mr. Pratik Mishra, Advocate
For the State : Mr. Dilip Kumar Sinha, A.P.P.
(In Criminal Appeal (DB) No. 593 of 1994)
For the Appellant/s : Ms. Surya Nilambri, Amicus Curiae
For the State : Mr. S.C. Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA)
Date : 02-04-2019
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019
2/35
Both the above stated criminal appeals have been
preferred against the Judgment of conviction and sentence
Order dated 28.09.1994 and 30.09.1994 respectively passed
by learned 4th Additional Sessions Judge, Vaishali at Hajipur,
in Sessions Trial No. 171 of 1993/ 32 of 1993, arising out of
Tisiauta P.S. Case No. 27 of 1992, by which and whereunder
he convicted the appellants for the offences punishable under
Sections 380, 448 of the Indian Penal Code and 3/4 of the
Explosive Substance Act and, furthermore, appellant No. 1,
namely, Lakhindar Paswan and appellant No. 4, namely,
Nanhaki Paswan (in Cr. Appeal No. 593 of 1994) were,
separately, convicted for the offences punishable under
Section 302 of the Indian Penal Code, whereas remaining
appellants were convicted for the offences punishable under
Sections 302/149 of the Indian Penal Code. Furthermore,
appellant No. 1, namely, Lakhindar Paswan (in Cr. Appeal No.
593 of 1994) was separately convicted for the offence
punishable under Section 27 of the Arms Act. Accordingly,
appellant Nos. 1 and 4 (in Cr. Appeal No. 593 of 1994) were
sentenced to undergo rigorous imprisonment for life for the
offences punishable under Section 302 of the Indian Penal
Code whereas remaining appellants were sentenced to
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019
3/35
undergo rigorous imprisonment for life for the offences
punishable under Sections 302/149 of the Indian Penal Code
and, furthermore, all the appellants were sentenced to undergo
rigorous imprisonment for life for the offences punishable
under Section 3 / 4 of the Explosive Substance Act. No
separate sentence was awarded to appellant No. 1 (in Criminal
Appeal No. 593 of 1994) for the offence punishable under
Section 27 of the Arms Act and, similarly, no separate
sentence was awarded to the appellants for the offences
punishable under Sections 380 and 448 of the Indian Penal
Code. However, all the sentences were ordered to run
concurrently.
2. Since both the above stated appeals have
arisen out of common Judgment of conviction and Order of
sentence, accordingly, common Judgment is being passed in
both the above stated criminal appeals.
3. Briefly stated the prosecution case is that on
29.6.1992at 9.00 A.M. Parichhan Paswan, Son of Dhari Paswan of village Loma Tanr, Police Station Tisiauta, District Vaishali, gave his fard-e-beyan to P.W. 6 Ramshwar Prasad Singh, the then A.S.I. of Tisiauta Police Station, in injured condition at Jandaha Hospital, to this effect, that in previous Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 4/35 night at about 1.00 A.M. while he as well as his wife were sleeping in their house and his sons, namely, Raju Paswan (deceased) and Sadhu Paswan (P.W. 4) as well as one Ram Bilas Paswan were sleeping outside the house by the side of well, he heard sound of bomb explosion near his house and having heard the sound of bomb explosion, he came out from his house and saw that 6 - 7 miscreants were standing in front of his house and the aforesaid miscreants were carrying torch, Fasuli and one of the miscreants was carrying small pistol in his hand. He further claimed having seen the aforesaid miscreants, he got himself hide inside his house but in the meantime, Lakhindar Paswan appellant no. 1 (in Cr. Appeal No. 593 of 1994), Nanhaki Paswan (appellant No. 4 in Cr. Appeal No. 593 of 1994), Surendra Paswan (appellant No. 3 in Cr. Appeal No. 593 of 1994) and Narain Paswan (appellant No. 2 in Cr. Appeal No. 593 of 1994) entered into his room. He heard that one miscreant uttered to shoot him and fired upon him which hit on his left Panjara. He claimed that having sustained firearm injury, he got hide himself beneath the cot. The miscreants took away boxes from his room. The miscreants were searching the articles in the room by flashing torch and in the light of torch, he had identified all the above Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 5/35 named persons. The miscreants came out from the room with looted box. He further claimed that when the miscreants left his room, he noticed that Ashok Paswan was standing near the dead body of his deceased son, who was killed by miscreants by the explosion of bomb as well as by giving Fasuli blow. The miscreants fled away towards western northern side. He further claimed that having seen the dead body of his son, he raised alarm and on his alarm, his villagers, namely, Jai Kishore Paswan (not examined), Chandeshar (not examined) and his son Sadhu Paswan (P.W. 4) and several other villagers came there. He further claimed that he disclosed the name of FIR named accused before the aforesaid persons. The reason behind alleged occurrence, as stated by informant Parichhan Paswan, was that one week prior to the alleged occurrence, the appellant No. 4 in Cr. Appeal No. 593 of 1994, namely, Nanhaki Paswan had entered the house of his brother Bhabhichhan Paswan with bad intention but he was caught by his deceased son as well as his another son Sadhu Paswan (P.W. 4) and, thereafter, Nanhaki Paswan (appellant No. 4 in Cr. Appeal No. 593 of 1994) was assaulted by fists and slaps by his deceased son as well as his son Sadhu Paswan (P.W. 4). He further claimed that the aforesaid Nanhaki Paswan Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 6/35 (appellant No. 4 in Cr. Appeal No. 593 of 1994) and other appellants had given threatening to kill his son.
4. On the basis of aforesaid fard-e-beyan of Parichhan Paswan, Tisiauta P.S. Case No. 27 of 1992 for the offences punishable under Sections 396 of the Indian Penal Code was registered on 29.6.1992 and on the same day formal first information report was drawn up at 10.30 A.M. against the appellants, except the appellant Sheo Chandra Paswan in Cr. Appeal No. 531 of 1994 and first information report and fard-e-beyan were put up before the concerned Chief Judicial Magistrate on 30.6.1992. P.W. 6, Rameshwar Prasad Singh, took the charge of investigation. Before completion of investigation, informant Parichhan Paswan succumbed to his injuries in course of his treawtment. However, after completion of investigation, P.W. 6 submitted charge-sheet against all the appellants for the offences punishable under Section 148, 149, 448, 324, 380, 302 of the Indian Penal Code, 27 of the Arms Act and 3 / 4 of Explosive Substance Act.
5. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.
6. In course of trial, prosecution examined Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 7/35 altogether 9 witnesses and also got exhibited postmortem report as well as other documents as documentary evidence. The statement of all the appellants were recorded under Section 313 of the Cr.P.C., in which they reiterated their innocence. No evidence was adduced by the appellants in support of their defence but from very perusal of statements recorded under Section 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, it is obvious that all the appellants denied the claim of prosecution and also claimed their false implication.
7. Learned trial court having relied upon the exhibit 2, the fard-e-beyan as well as testimonies of P.Ws. 2, 3, 4 and 5, convicted and sentenced the appellants, in the manner, as I have already stated above.
8. Sri Pratik Mishra, learned counsel appearing for the appellant in Cr. Appeal No. 531 of 1994 assailed the impugned judgment of conviction and sentence order, so far as it relates to appellants in Cr. Appeal No. 531 of 1994. He submits that except P.W. 2, Fudeni Devi, not a single prosecution witness including informant of the present case disclosed the name of the appellant in Cr. Appeal No. 531 of 1994. He further submits that the informant Parichhan Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 8/35 Paswan, who, subsequently, died after one week of the alleged occurrence as a result whereof his fard-e-beyan was treated by the learned trial court as his dying declaration, has given a detailed statement before P.W. 6 but deceased informant did not name the appellant, namely, Sheo Chandra Paswan in Cr. Appeal No. 531 of 1994 nor the wife of informant, who was examined as P.W. 3 has named the appellant in Cr. Appeal No. 531 of 1994. He further submits that so far as P.W. 2, Fudeni Devi is concerned, no doubt, she claimed that Langar Paswan was also along with other appellants at the time of commission of occurrence but at paragraph 11 of her examination, she admitted that she had only identified Lakhindar Paswan, Nanhaki Paswan, Surendra Paswan, Ashok Paswan, Chhechhan Paswan and she has not claimed to have identified the appellant Sheo Chandra Paswan and, therefore, the testimony of P.W. 2 in respect of appellant in Cr. Appeal No. 531 of 1994 is not reliable but the learned trial court only on the basis of above stated statement of P.W. 2 convicted and sentenced the appellant in Cr. Appeal No. 531 of 1994 which is not in accordance with law.
9. Learned Amicus Curiae, Ms. Surya Nilambari, appearing in Cr. Appeal (DB) No. 593 of 1994, Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 9/35 too, assailed the impugned judgment arguing that the learned trial court has not appreciated the evidences available on the record in its right perspective. Continuing her submission, she further argued that P.W. 6, Rameshwar Prasad Singh, reached at the place of occurrence at 6.00 A.M. on the alleged date of occurrence and at that time P.W. 3 and P.W. 4 were present at the place of occurrence but he did not record the statement of aforesaid prosecution witnesses rather he chose to go to the hospital and, thereafter, he claimed to have recorded the statement of deceased-informant Parichhan Paswan at 9.00 A.M. She submitted that P.W. 6, Rameshwar Prasad Singh, did not explain as to why he did not record the statement of P.W. 3, Pyari Devi, and P.W. 4, Sadhu Paswan, who were available on the place of occurrence and claimed themselves to be eye witnesses of the alleged occurrence. Therefore, the aforesaid delay in lodging the first information report creates doubt about the genuineness of the prosecution case.
10. She, next, submitted that P.W. 6, Rameshwar Prasad Singh, claimed that on 29.6.1992 at about 9.00 A.M., he recorded the fard-e-beyan of deceased- informant Parichhan Paswan. The fard-e-beyan of deceased- informant Parichhan Paswan has been marked as Ext. 2 and Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 10/35 the perusal of aforesaid Ext. 2 goes to show that deceased- informant made a very long statement. She further submitted that P.W. 3, Pyari Devi, at paragraph 24 of her cross- examination admitted that her husband Parichhan Paswan having sustained firearm injury became unconscious and there was nothing on the record to show that at the time of recording the fard-e-beyan of Parichhan Paswan, the aforesaid Parichhan Paswan had regained his consciousness. She further submitted that no doubt, for recording the fard-e-beyan of an injured person, it is not necessary to take certificate of a doctor about mental condition of that person but in the present case, the aforesaid Parichhan Paswan had sustained firearm injury on vital part of his body and P.W. 3 admitted that having sustained firearm injury, he became unconscious and, furthermore, it is the prosecution case that the alleged occurrence took place on 29.6.1992 at 1.00 A.M. and fard-e- beyan of Parichhan Paswan was recorded at hospital on 29.6.92 at 9.00 A.M.. Therefore, it was incumbent duty of P.W. 6 to take certificate from doctor about the mental condition of deceased-informant Parichhan Paswan before recording his fard-e-beyan. She further submitted that moreover, the nature of injury of deceased-informant Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 11/35 Parichhan Paswan goes to show that at the time of recording his so-called fard-e-beyan, he was not in a position to make such a long statement and, therefore, the fard-e-beyan of the deceased-informant Parichhan Paswan (Ext. 2) appears doubtful and no reliance can specially be placed upon the aforesaid fard-e-beyan of deceased-informant Parichhan Paswan.
11. She, next, submitted that P.W. 2, Fudeni Devi, claimed that a Lalten was burning on her door at the time of alleged occurrence and she identified the appellants in the light of the aforesaid Lalten but P.W. 6, Rameshwar Prasad Singh, did not find any Lalten on the door of P.W. 2, Fudeni Devi, nor he seized any Lalten. She, further, submitted that P.W. 3, Pyari Devi, and P.W. 4, Sadhu Paswan, claimed that they had identified the appellants in the light of torch flashed by the appellants at the time of alleged occurrence but it is very difficult to see the face of a person in the light of torch, if the aforesaid person is flashing torch and, therefore, the above stated claim of prosecution witnesses appears to be doubtful. She further submitted that, admittedly, alleged occurrence took place in mid night and at the time of alleged occurrence there was complete dark and there was no source of light Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 12/35 except the so-called Lalten as well as light of torch flashed by the appellants and, therefore, it is obvious that the prosecution witnesses could not see the faces of appellants.
12. She, next, submitted that the close scrutiny of evidence of prosecution witnesses goes to show that none of the prosecution witnesses had seen the actual killing of the deceased. She submitted that no doubt, the prosecution claimed that deceased Parichhan Paswan sustained firearm injury inside his house and P.W. 3, Pyari Devi, was present in the said house at the time of alleged occurrence but it is obvious that except the light of torch flashed by the assailants, there was no any other source of light and, therefore, it can easily be said that P.W. 3, Pyari Devi, also could not identify the assailants. Learned Amicus Curiae cited a decision reported in 2008 Volume 7 Supreme Court Cases 755 (Tamilselvan Versus State represented by Inspector of Police, Tamil Nadu) wherein it has been held by Hon'ble Apex Court at paragraph 9 of the aforesaid judgment as follows:-
"9. Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses could have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 13/35 pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses would have been partially blinded by the light of the torchlight, and would not have been able to identify anybody."
13. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that P.W. 2, Fudeni Devi, P.W. 3, Pyari Devi, and P.W. 4, Sadhu Paswan, claimed themselves to be eye witness of the occurrence and they, specifically, stated that it were appellants, who committed the murder of deceased persons of this case. He further submitted that according to prosecution case, alleged occurrence took place at about 1.00 A.M. and after the occurrence injured Parichhan Paswan was taken to hospital, where his fard-e- beyan was recorded at 9.00 A.M.. He further submitted that, admittedly, Parichhan Paswan died in course of his treatment and, therefore, the learned trial court rightly treated the fard-e- beyan of Parichhan Paswan as his dying declaration. He further submitted that P.W. 5, Dr. Indramani Singh, and P.W. 8, Dr. Sunil Kumar Singh, proved respective postmortem reports of deceased persons and the respective postmortem reports of deceased persons support the statement of witnesses. He further submitted that P.W. 6, Rameshwar Prasad Singh, Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 14/35 proved the place of occurrence and also seized blood stain earth and, therefore, prosecution succeeded to prove its case beyond all shadow of reasonable doubt and the learned trial court rightly relied upon the prosecution evidences.
14. Having heard the above stated contentions of the parties, I went through the records along with the lower court records.
15. The perusal of impugned judgment goes to show that the learned trial court having relied upon testimonies of eye witnesses P.W. 2, P.W. 3 and P.W. 4 as well as on the fard-e-beyan of deceased-informant, Parichhan Paswan, treating the same as dying declaration, convicted and sentenced the appellants passing impugned judgment.
16. Now, I shall scrutinise the testimonies of prosecution witnesses, keeping in mind, the arguments advanced on behalf of the appellants.
17. P.W. 1, Sheo Chandra Paswan, is a hearsay witness. This witness happens to be the son-in-law of deceased-informant Parichhan Paswan. This witness states that on the next date of alleged occurrence, he went to his Sasural and came to know about the alleged occurrence.
18. P.W. 7, Sitesh Kumar Choudhary, is a Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 15/35 formal witness, who has proved sanction order as Ext. 4. There is nothing important in the statement of this witness except that District Magistrate had passed sanction order to prosecute the appellants for the offences punishable under Explosive Substance Act.
19. Similarly, there is nothing important in the statement of P.W. 9, Anup Lal Singh, who claims that the father of the deceased-informant Parichhan Paswan had alias name as Lal Dhari Paswan.
20. P.W. 2, P.W. 3 and P.W. 4 claimed themselves to be eye witnesses of the alleged occurrence.
21. P.W. 5, Dr. Indramani Singh, claims that he held postmortem examination on the corpus of deceased Raju Paswan on 29.6.1992.
22. Similarly, P.W. 8, Dr. Sunil Kumar Singh, claims that he had held postmortem examination on the dead- body of deceased Parichhan Paswan on 6.7.1992.
23. P.W. 6, Rameshwar Prasad Singh, is investigating officer of this case. This witness claims that on 29.6.1992, he got an information that dacoity was committed in the village Loma Tanr and, in course of dacoity, one person was killed. This witness further stated that having got the Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 16/35 aforesaid information, he entered Sanha No. 517 and along with other police officials proceeded to village Loma Tanr and reached there at 6.00 A.M.. This witness further claims that he prepared inquest report of dead-body of deceased Raju Paswan and sent the dead-body to Hajipur Sadar Hospital for postmortem examination. This witness further claims that on the identification of P.W. 3, Pyari Devi, and P.W. 4, Sadhu Paswan, he inspected the place of occurrence. This witness describes the place of occurrence at paragraph 5 of his examination-in-chief. This witness states that the place of occurrence was a room of house of deceased-informant. He found two cots towards north side of the room. He further states that there was no door in the aforesaid room. This witness further states that towards north-east corner of the house of deceased informant, there was a well, which was surrounded by platform. This witness found corpus blood on east side of the aforesaid platform. This witness also found blood at the door of above stated room. This witness further claims that after inspection of place of occurrence, he went to Jandaha State Hospital and recorded the fard-e-beyan of deceased-informant Parichhan Paswan, who having found his fard-e-beyan true and correct, put his thumb impression on the Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 17/35 said fard-e-beyan. This witness proved the fard-e-beyan of deceased-informant as Ext. 2. This witness further states that on the basis of above stated fard-e-beyan (Ext. 2), he registered the case and took the charge of investigation. He also claims that he recorded the further statement of deceased- informant and obtained postmortem report of deceased Raju Paswan. He further states that deceased-informant Parichhan Paswan was referred to Patna Medical College and Hospital from Jandaha Hospital on 30.6.1992 but he succumbed to his injuries on 6.7.1992 and, thereafter, he got postmortem report of informant-deceased and after completion of investigation, he submitted charge-sheet. On being cross-examined by the defence, this witness admitted that when he reached near the well, he found the dead-body of deceased Raju Paswan lying on the cot and there was blood on the cot, which was seized by him. This witness also admitted that brother of deceased Raju Paswan was present there, when he reached at the above stated well but he recorded the statement of brother of deceased Raju Paswan later on. He also admitted that he did not measure the distance of well and room of the deceased-informant. He further admitted that he found blood at the door of above stated room and he also found blood inside the room. He Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 18/35 claims that he had seized the blood lying inside the room but did not send the said blood for examination. This witness further states that he recorded the statement of P.W. 3, P.W. 4 and others on the alleged date of occurrence and the statement of aforesaid persons were recorded by him at village Loma Tanr. He further admits that he recorded the statements of deceased-informant Parichhan Paswan at 9.00 A.M. and after that recorded the statements of other witnesses.
24. P.W. 5, Dr. Indramani Singh, states that on 29.6.1992, he held postmortem examination on the dead- body of deceased Raju Paswan and found following injuries:-
(I). Lacerated wound on right side of back outer and lower aspect 8"x4/6" x abdominal cavity with irregular blackened charred margins. The underline peritorium into pieces. Secumascendis colan and loops of small intestine present. Omentum and inferior surface of liver are massively lacerated. Blood and blood clots were found in abdominal cavity.
(II). Lacerated wound with irregular blackened and charred margins on outer aspect of right thigh upper portion 4"x3"x1". This wound is surrounded by multiple small blackened irregular burnt spots.
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 19/35 (III). Incised wound on outer aspect of thigh on lower portion 1 ½"x ½"x ½".
He opined that injury Nos. 1 and 2 were caused by explosive materials, whereas, injury No. 3 were caused by sharp cutting weapon.
25. Similarly, P.W. 8, Dr. Sunil Kumar Singh, claims that he conducted postmortem examination on dead- body of deceased Parichhan Paswan on 6.7.1992 and found following antemortem injuries:-
(I). One penetrating wound 1"x ½" x abdominal cavity with margin blackened and lacerated was found over lateral aspect of left side of the chest 8" below axilla and 8 ½"
left of middle.
(II). One vertical stitch wound of 7" in length was found right side of front of abdomen ½" right of mid line.
(III). One transverse stitch wound of 3" length was found over left side of abdomen starting from No. (II). On dissection left 8" rib was found fractured. All abdominal cavity was full of pus. All visceras were congested. Right side of the heart was full and left side was empty. The death was due to septieaemic shock secondary to abdominal injury. In the opinion of the Doctor, injury No. 1 was caused by firearm.
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 20/35
26. P.W. 2, Fudeni Devi, claims herself to be eye witness of the alleged occurrence. She states that the occurrence took place at about 1.00 A.M. and at that time she was at her parental home. She further claims that she was sleeping in her house and woke up having heard the sound of explosion of bomb outside of her house. She further claims that she saw the appellant Nanhki Paswan flashing torch and the aforesaid appellant Nanhki Paswan pierced Hasuli into the abdomen of Raju Paswan and took out intestines of deceased Raju Paswan. She further claims that appellant Lakhindar Paswan shot fire on the chest of her uncle deceased Parichhan Paswan and after that appellants Nanhki Paswan and Lakhindar Paswan fled away with a box. She further claims that one Langar Paswan was also with them. She claims that deceased Raju Paswan died on the place of occurrence, whereas her uncle Parichhan Paswan was taken to Patna. She further claims that she had identified appellants Lakhindar Paswan, Nanhki Paswan, Surendra Paswan, Ashok Paswan and Chhechhan Paswan. She also claims that one month prior to alleged occurrence, while she was sleeping in her house, appellant Nanhki Paswan having entered in her house made attempt to outrage her modesty, upon which she narrated the Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 21/35 aforesaid incident to her uncle Kamal Paswan and her father Bhabhichhan Paswan and at that time deceased Raju Paswan and P.W. 4, Sadhu Paswan, were sleeping near the well and the aforesaid persons had given 5-6 slaps to appellant Nanhki Paswan. She further claims that the aforesaid persons asked for a Panchaiyati but Chhechhan Paswan, Bilash and Narain persuaded the appellant Nanhki Paswan not to attend any Panchaiyati and, thereafter, Nanhki Paswan used to give threatening to kill deceased Raju Paswan. On being cross- examined, she stated that deceased Raju Paswan was his cousin brother. She also stated that house of Parichhan Paswan is adjacent east to her house. She also admitted that at the time of alleged occurrence, her father, uncle and brothers were in the house but they did not sustain any injury in the aforesaid occurrence. She further admitted that her father, uncle and brothers did not come outside the house when bomb was exploded. She further stated that the bomb was exploded at the door of deceased Parichhan Paswan, but she again stated that bomb was exploded on the well. She further claimed that deceased Raju Paswan became unconscious and at that time she saw the appellants fleeing with Baksa. She also claimed that informant Parichhan Paswan was conscious and disclosed Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 22/35 the name of assailants before her as well as her uncle Kamal Paswan, her father Bhabhichhan Paswan, Chandra Shekhar Manjhi, Jodhan Manjhi, Ram Bilash Paswan as well as P.W. 3, Pyari Devi. She further claimed that she had seen the appellants Nanhki Paswan and Lakhindar Paswan carrying Baksa from the distance of two Laggis. She also claimed that a Lalten was burning at her door, when the occurrence took place. She also admitted that Jai Kishun and Chandeshwar Manjhi chased the appellants but they managed to flee away from there.
27. P.W. 3, Pyari Devi, is wife of informant-
deceased Parichhan Paswan. This witness claims that the occurrence took place at about 1.00 A.M. and at that time, she along with her husband and daughter was sleeping inside her house. She further claims that she as well as her husband and daughter woke up on the sound of explosion of bomb and in the light of torch she saw the appellants, who were armed with weapon. She further claims that appellant Lakhindar Paswan shot fire on her husband, which hit at left chest of her husband. She further claims that the appellants snatched her Hasuli and took away Baksa containing cash. She states that she came out of the house and, in the light of torch, she saw Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 23/35 Sadhu Paswan, who disclosed that appellant Nanhki Paswan killed deceased Raju Paswan piercing Hasuli into his abdomen. She further claims that appellant Nanhki Paswan had made attempt to outrage modesty of P.W. 2, Fudeni Devi, for which deceased Raju Paswan had slapped him and that was the reason, appellant Nanhki Paswan was carrying grudge against deceased Raju Paswan and committed his murder. She further claims that her husband was taken to Patna for treatment but died after eight days of the alleged occurrence. This witness states in her cross-examination, at para 12, that her statement was recorded at police station after one day of the alleged occurrence. She further admitted that no case had been lodged regarding the incident of outraging the modesty of P.W. 2 nor any written complaint was made regarding the threatening given by appellant Nanhki Paswan. This witness, at paragraph 18 of her cross-examination, admitted that when her husband sustained firearm injury he was sitting and she was also sitting by side of her husband. This witness further admitted, at paragraph 24 of her cross-examination, that her husband having sustained firearm injury fell down on ground and became unconscious. This witness further admitted, at paragraph 37 of her cross-examination, that she took her Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 24/35 husband to Jandaha Hospital and in the next morning her husband was taken to Patna. She further stated that statement of her husband was recorded at Jandaha Hospital but her statement was not recorded in Jandaha Hospital.
28. P.W. 4, Sadhu Paswan, is son of informant-
deceased Parichhan Paswan. This witness claims that on the alleged date of occurrence at about 1.00 A.M., he was sleeping near the well and one Ram Bilash Paswan was also sleeping there. This witness further claims that on the east platform of the aforesaid well deceased Raju Paswan was sleeping. This witness further states that he woke up on hearing the sound of bomb explosion and, thereafter, saw appellant Nanhki Paswan, Narain Paswan and Surendra Paswan. This witness claimed that Nanhki Paswan torn the abdomen of deceased Raju Paswan by means of Hasuli and after that he started fleeing towards village raising alarm and when he returned back, he found the deceased Raju Paswan dead. This witness further claims that his mother (P.W. 3) disclosed that Lakhindar Paswan had shot fire at left chest of his father. This witness further states that at about 2.00 A.M., his father was taken to hospital but after eight days of the alleged occurrence, his father died at Patna Hospital. This witness, too, states that Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 25/35 prior to alleged occurrence, appellant Nanhki Paswan had made attempt to outrage the modesty of P.W. 2 and deceased Raju Paswan had given 2 to 4 slaps to appellant Nanhki Paswan, who, later on, threatened Raju Paswan to kill him and that was a reason, the appellants committed the alleged crime. On being cross-examined by the defence, this witness admits that except appellant Nanhki Paswan, the remaining appellants are his agnates and there was no previous enmity between his family members as well as the above stated appellants, who are his agnates. This witness further admits that after the incident of outraging the modesty of P.W. 2, Fudeni Devi, neither he nor deceased Raju Paswan had met the appellant Nanhki Paswan. This witness further admits in his cross- examination that deceased Raju Paswan as well as he were sleeping on separate cots and there was distance of one lagga between the above stated two cots. This witness further claims that when Nanhki Paswan pierced Hasuli to deceased Raju Paswan, he fled away towards the village but he was not chased or followed by any of the appellants. This witness further states, at paragraph 33 of his cross-examination, that no blood had fallen on the cot and bed-sheet rather the blood was fallen on platform on the well. This witness further claims Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 26/35 that he had seen that Nanhki Paswan gave 5-6 Hasuli blows into the abdomen of deceased Raju Paswan. This witness further admits, at paragraph 33 of his cross-examination, that when he returned back on the place of occurrence, he found the abdomen of deceased Raju Paswan in torn condition and also found him dead. This witness further admits that after returning on the place of occurrence, he went inside his house and talked his mother and at that time his father was in conscious state. This witness further states that in next morning, his statement was recorded by police at his house and he further admits that he had not gone to the hospital along with his father.
29. On careful scrutiny of the prosecution evidence, it is proved beyond all shadow of doubts that deceased Raju Paswan sustained injuries caused by explosive substance as well as sharp cutting weapon and on account of the aforesaid injuries, he died on the alleged date of occurrence. Similarly, it is established beyond all shadow of doubts that deceased Parichhan Paswan died on 6.7.1992 on account of septicaemic shock secondary to abdominal injury and he had sustained one firearm injury on his left side of his chest. Moreover, death of both the aforesaid persons is not in Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 27/35 dispute and the only difference between the prosecution and appellants is that the prosecution claimed that it were appellants, who committed the murder of both the aforesaid persons, whereas appellants claimed their innocence and false implication.
30. It is obvious from perusal of evidences adduced on behalf of the prosecution that only P.W. 2, P.W. 3 and P.W. 4 claimed themselves to be eye witnesses of the alleged occurrence and P.W. 2 claims that she had seen the appellant Nanhaki Paswan piercing Hasuli into the abdomen of deceased Raju Paswan in the light of torch carrying by appellant Nanhaki Paswan. Furthermore, she claimed that one Lalten was burning at her door when the occurrence took place. Furthermore, I find that this witness claimed that one Langar Paswan was also with appellant Nanhaki Paswan and Lakhindar Paswan. It is not in dispute that the appellant Sheo Chandra Paswan has alias name as Langar Paswan. It is pertinent to note here that the deceased-informant Parichhan Paswan had given a long statement disclosing each and every events but the name of appellant Sheo Chandra Paswan @ Langar Paswan does not appear in the fard-e-beyan (Ext. 2) of the deceased-informant. Apart from this, except P.W. 2, none Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 28/35 of the so-called eye witnesses have named the appellant Sheo Chandra Paswan in their respective statements. Therefore, except the statement of P.W. 2, there is nothing against appellant Sheo Chandra Paswan.
31. Admittedly, P.W. 3 was inside her house when the assault on deceased Raju Paswan was made. She claims that she had identified the appellants in the light of torch flashed by the appellants. P.W. 3 has admitted in her examination-in-chief that she learnt about the killing of deceased Raju Paswan from P.W. 4, Sadhu Paswan, therefore, it is obvious from the aforesaid admission of P.W. 3 that she had not seen the actual killing of deceased Raju Paswan.
32. P.W. 4, Sadhu Paswan, claimed to have seen the actual killing of deceased Raju Paswan and has also claimed that at the time of alleged occurrence he, too, was sleeping on the platform of well and the deceased was also sleeping on the platform of the well but this witness does not disclose the source of light. As I have already discussed that P.W. 2 claimed to have seen the occurrence in the light of torch carrying by appellant Nanhaki Paswan as well as in the light of Lalten, which was burning at his door. Similarly, P.W. 3 claimed to have identified the appellants in the light of Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 29/35 torches flashed by the appellants but P.W. 4 has, nowhere, stated the source of light rather this witness has admitted in his deposition that he fled away from the place of occurrence and when he returned back to the place of occurrence, the appellants had already fled away. This witness further claimed that no blood was fallen on the cot on which deceased was sleeping, whereas P.W. 6 stated that he had found blood on the cot on which the deceased was sleeping. Furthermore, admittedly, P.W. 6 did not find any Lalten on the door of P.W. 2 nor he seized any Lalten. It is also admitted position that the alleged occurrence took place at about 1 A.M. and there was dark night at the time of occurrence. The P.W. 2, P.W. 3 and P.W. 4 have, nowhere, claimed that they, too, were carrying torches in their hands and they identified the appellants in the light of torches flashed by them rather they claimed that they had identified the appellants in the light of torches flashed by the appellants. The aforesaid claim of prosecution witnesses does not appear to be convincing because if a person flashes light from its torch, the light flashed by the torch shall cover a very small area and it will be difficult to see the face of the person, who flashes the torch from his front side. Therefore, in the aforesaid circumstance, the claim of P.W. 2 and P.W. 3 Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 30/35 that they had identified the appellants in the light of torches flashed by the appellants appears to be doubtful and does not inspire confidence to this Court.
33. It is admitted case of the prosecution that the alleged occurrence took place at 1.00 A.M. and the deceased was taken to hospital at 2 A.M.. Furthermore, P.W. 6 has admitted that he reached at the place of occurrence at 6.00 A.M. having got information of dacoity. P.W. 4 has also admitted that having got information of daocity and murder of one person he had made Sanha entry. P.W. 4 has also admitted that he when reached at the place of occurrence, he met P.W. 3 and P.W. 4 and as per disclosure and identification of P.W. 3 and P.W. 4, he inspected the place of occurrence but it is surprising enough that he did not record the statement of P.W. 3 and P.W. 4, particularly, in the circumstance, when P.W. 3 and P.W. 4 were present over the place of occurrence and they were competent to disclose about the alleged occurrence as both the aforesaid witnesses claimed themselves to be eye witnesses. P.W. 6 has not explained the reason of not recording the statement of P.W. 3 and P.W. 4, at the place of occurrence and as to why he chose to go to Jandaha Hospital for recording the fard-e-beyan of deceased-informant, who, Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 31/35 admittedly, had sustained serious firearm injury.
34. It is well known that delay in lodging the first information report and recording the statements of witnesses under Section 161 of the Cr.P.C. are not always fatal to the prosecution case but if the circumstances create doubt due to non-recording of fard-e-beyan and statement of witnesses, promptly, the said infirmity becomes fatal to the prosecution case. In the case of Ganesh Bhavan Patel & Anr Vs. State of Maharashtra reported in 1979 AIR 135, the Apex Court of this country has held that delay in recording the statements of eye witnesses may not, by themselves, amount to be a serious infirmity in the prosecution case. But they may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced.
35. In the present case, no doubt the fard-e-
beyan of deceased-informant is said to have been recorded after eight hours of the alleged occurrence but according to the P.W. 6 himself, when he had reached over the place of occurrence at 6 A.M., P.W. 3 and P.W. 4 both were present on the place of occurrence but even then he did not record the Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 32/35 statement of aforesaid prosecution witnesses and went to Jandaha Hospital to record the statement of informant- deceased. The aforesaid circumstance clearly creates doubt, in the mind of Court, as to why the statement of P.W. 3 and P.W. 4 were not recorded by P.W. 6. Moreover, P.W. 6 claimed that on the next date of alleged occurrence, he recorded the statement of P.W. 3, P.W. 4 and others witnesses at their village but P.W. 3 states that her statement was recorded by P.W. 6 at Police Station. The aforesaid contradiction also suggests that P.W. 6 did not make a fair investigation.
36. P.W. 6 claimed that he recorded fard-e-
beyan of deceased-informant at 9 A.M. at Jandaha Hospital. The fard-e-beyan of deceased-informant has been marked as Ext .2. The perusal of Ext. 2 goes to show that a very long and detailed fard-e-beyan was given by deceased-informant. Further Ext. 2 reveals that in the said fard-e-beyan each and every events including the cause of action is said to have been disclosed by the deceased-informant. The aforesaid fard-e- beyan was recorded in presence of Jodhan Manjhi and Jai Kishun Paswan, who put their thumb impression on Ext. 2 but, admittedly, Jodhan Manjhi and Jai Kishun Paswan were not examined by the prosecution.
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 33/35
37. It is obvious that P.W. 4 admitted in her cross-examination that informant Parichhan Sahani having sustained firearm injury fell down on earth and became unconscious and subsequently, within one hour of the alleged occurrence he was taken to Jandaha Hospital. P.W. 8, who had conducted postmortem examination on the person of deceased confirmed firearm injury on the left chest of informant Parichhan Paswan. He had also found rib of informant Parichhan Paswan fractured. Therefore, it is obvious from perusal of testimony of P.W. 8 that informant Parichhan Paswan had received firearm injury on his chest which had caused fracture of his rib and the conjoint reading of admission of P.W. 4 regarding unconsciousness of informant Parichhan Paswan as well as testimony of P.W. 8 goes to show that the informant Parichhan Paswan had sustained serious injury and that was the reason he was immediately taken to hospital. There is nothing on the record to show as to when informant Parichhan Paswan regained his consciousness and as to whether he was in condition to make such a long and detailed statement before P.W. 6. It is true that it is not necessary to take certificate from a doctor about the health and mental condition of statement maker before recording the Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 34/35 fard-e-beyan of an injured but in the present case, admittedly, the informant Parichhan Paswan had sustained firearm injury on his chest and, according to the statement of P.W. 4, he became unconscious having sustained firearm injury and, therefore, in the aforesaid circumstance, it was the duty of P.W. 6 to take certificate from the concerned doctor as to whether informant Parichhan Paswan was in a position to make statement or not. But admittedly, the P.W.6 did not take any certificate from the concerned doctor and the doctor, who had first attended informant Parichhan Paswan at Jandaha Hospital has not been examined so that the aforesaid doctor could say that informant Parichhan Paswan was in position to make a statement before the police. However, it is not expected from an injured having serious firearm injury on his chest to make such a long and detailed fard-e-beyan just after eight hours of the occurrence. Apart from this, as I have already stated that Jodhan Manjhi and Jai Kishun Paswan, who are said to have witnessed the fard-e-beyan of deceased informant Parichhan Paswan, have not been examined and, therefore, it is difficult to rely upon so-called fard-e-beyan of informant Parichhan Paswan and I am of the opinion that the so-called fard-e-beyan (Ext. - 2) of informant is not doubt-
Patna High Court CR. APP (DB) No.531 of 1994 dt.02-04-2019 35/35 free.
38. To sum up, in my view, the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the appellants are entitled to get benefit of doubt.
39. On the basis of aforesaid discussions, both the above stated criminal appeals are allowed and the impugned judgment of conviction and sentence order are, hereby, set aside. The appellants are acquitted of the charges giving benefit of doubt to them. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds.
40. Let the copy of first page and last page of this judgment be handed over to learned Amicus Curiae Ms. Surya Nilambari, Advocate, so that she may claim her remuneration before the competent authority.
(Hemant Kumar Srivastava, J)
Rajendra Kumar Mishra, J: I agree
Spd/- ( Rajendra Kumar Mishra, J)
AFR/NAFR AFR
CAV DATE 19.2.2019
Uploading Date 02.04.2019
Transmission Date 02.04.2019