Allowed

Rajendra Paswan and Ors. v. the State of Bihar

Patna HC24 Jul 2013CR. APP (DB)/518/1990

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a life imprisonment sentence for murder. The court held that the judgment of conviction was unsustainable due to procedural lapses, non-examination of a material defence witness, and failure to produce seized weapons and forensic evidence.

What did the court decide?

Judgment of conviction and sentence set aside; appellants acquitted; discharged from bail bonds.

Rajendra Paswan and Ors. Vs the State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.518 of 1990

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Against the judgment of conviction and order of sentence dated 26/27^th November, 1990 respectively passed by Chandra Shekhar Lal, the learned Sessions Judge, Begusarai in Sessions Case No. 23 of 1989.

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===========================================================

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1. Rajendra Paswan, son of Sundu Paswan. (dead)

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Nunulal Tanti, son of Ladu Tanti. (dead)

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Fulena Paswan, son of Mohan Paswan.

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Ramakant Paswan, son of Jageshwar Paswan.

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Dinesh Paswan, son of Nawalki Paswan.

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Ram Kumar Paswan, son of Ram Pratap Paswan. (dead)

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Ram Pratap Paswan, son of Mohan Paswan.

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Ram Kishore Paswan, son of Mohan Paswan. (dead)

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All are residents of village Naullal, Police Station – Bhagwanpur, District – Begusarai.

.... .... Appellants

Versus

The State of Bihar

.... .... Respondent

=========================================================== Appearance: For the Appellants : Mr. S.R.C. Pandey, Advocate. For the Respondent : Mr. Ajay Mishra, APP.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA

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and

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HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 24-07-2013

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Appellants Fulena Paswan, Ramakant Paswan,

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Dinesh Paswan and Ram Pratap Paswan have been convicted under Section 302/149 of the IPC and each of them have been sentenced to undergo R.I. for life by the learned Sessions Judge, Begusarai on 26/27^th of November, 1990 in connection with Sessions Trial No. 23 of 1989, arising out of Bhagwanpur P.S.

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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Case No. 39 of 1986.

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2. Succinctly stated the prosecution case is that Kedar Singh P.W. 6 gave his fardbeyan (Ext. 3), at the Dera of Ram Badan Singh P.W. 2 of village Naula at 08.00 a.m. that in the preceding night he was sleeping at his Dera which was situated towards west of Dera of Ram Badan Singh. His son Suresh Singh (the deceased) was sleeping in the Dera of Ram Badan Singh P.W. 2. At about midnight Suresh Singh cried that he is being killed. On cry of Suresh Singh, the informant rushed to the Dera of Ram Badan Singh and saw some persons escaping in the flash light of torch. The escaping persons were Ram Kishun Paswan, Ram Pratap Paswan, Fulena Paswan and Ram Kumar Paswan. The informant’s son was found soaked with blood. Ram Badan Singh P.W. 2 and Balram Singh P.W. 3 told the informant that the accused persons have put pistol on them also. Besides aforesaid names some more persons were present but they were not identified by the informant. Ram Kishore Paswan @ Ram Kishun Paswan (dead), Ram Pratap Paswan, Fulena Paswan and Ram Kumar Paswan (dead), four persons namely Rajendra Paswan (dead), Nunulal Tanti (dead), Ramakant Paswan and Dinesh Paswan were also present with them. The motive of the occurrence was that on the eve of Holi, a dance was

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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organized which was objected to by the informant’s son Suresh Singh. Second reason was that informant’s another son namely Dinesh Singh was killed prior to this occurrence and the deceased Suresh Singh suspected the involvement of Fulena Paswan, Ram Kumar Paswan and others. Suresh Singh (the deceased) used to tell that he would revenge it with blood. The fardbeyan was witnessed by Gopal Sharan Singh (not examined) and Chandra Bhushan Singh P.W. 7 and the formal FIR (Ext. 4) was registered. Investigation commenced and inquest report of the dead body (Ext. 6) was prepared. Blood was seized and seizure list was prepared. Post-mortem report was obtained. The occurrence was investigated into and the statement of witnesses was recorded. Police found the case to be true so charge sheet was submitted. The court took cognizance and the case was committed to the court of Sessions, where charge under Section 302/149 of the IPC was framed against the appellants and four more persons.

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3. Before the trial court the prosecution examined Mahesh Singh as P.W. 1, Ram Baban Singh P.W. 2, Balram Singh P.W. 3, Dr. P. Mishra P.W. 4, Sunil Singh P.W. 5, Kedar Singh P.W. 6, Chandra Bhushan Singh P.W. 7 and I.O. Rajendra Pd. Yadav P.W. 8. On behalf of defence one Bhadari

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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Devi was examined as D.W. 1. The defence exhibited statement of Kajo Singh recorded under Section 164 of the Cr.P.C. as (Ext. A).

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4. The trial court after considering the evidence and after hearing the accused as well as the prosecution came to the conclusion that the prosecution has succeeded in proving the charge against the accused persons beyond shadow of all reasonable doubts.

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5. Eight persons Rajendra Paswan, Nunulal Tanti, Fulena Paswan, Ramakant Paswan, Dinesh Paswan, Ram Kumar Paswan, Ram Kishore Paswan @ Ram Kishun Paswan and Ram Pratap Paswan were held guilty but during appeal Rajendra Paswan, Nunulal Tanti, Ram Kumar Paswan and Ram Kishore Paswan @ Ram Kishun Paswan died and the four appellants remain here.

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6. The defence of the accused was of false implication. The appellants claimed to be agricultural labourers. Suresh Singh was unmarried man having illicit relationship with D.W. 1 and she has begotten two sons through him. The relatives were perturbed about the matter as Suresh Singh wanted to transfer his land to his sons.

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Now, this Court has to see as to whether the

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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prosecution has succeeded in proving the charge against the accused persons/appellants beyond shadow of all reasonable doubts or not.

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8. P.W. 1 is son of the informant who has stated that his statement was not recorded by the police. P.W. 2 is FIR named witness and the place of occurrence was his Dera. P.W. 3 is Balram Singh is another FIR named witness. P.W. 4 has held the autopsy over the dead body. P.W. 6 is the informant of the case. P.W. 7 is attesting witness of the FIR.

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9. Evidence of the doctor goes to show that on 09.04.1986, at 05.05 P.M. he held post-mortem upon the dead body of Suresh Singh, Son of Kedar Singh and found the following injuries:

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(I). Incised wound on the posterior part of

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the right side of the skull measuring 3”x3”. On further dissection it was found that it had damaged and cut the posterior and lower part of occipital bone and also lacerated brain matter along with its meaninges.

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(II). Incised wound 1” lateral to first wound 1 ½”x ½”x½”.

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(III). Incised wound over the right cheek 1”x ½” x skin deep.

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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(IV). Incised wound over the right side of

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the forehead ½”x ½” x skin deep.

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(V). Incised wound ½” lower to this fourth

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injury measuring ½”x ½” x skin deep.

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(VI). Incised wound over the right side of

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the mandible 1” x ½” x bone deep.

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(VII). Incised wound in front of the chest 1”x ½” x skin deep.

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(VIII). Incised wound on the right hand on the front part 1” x ½” x skin deep.

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(IX). Incised wound on the left hand on its back 1½” x 1” x skin deep.

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(X). Incised wound on the left hand finger in its middle finger ½” apart ½” x ¼” x skin deep.

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(XI). Incised wound in front of the right leg 2” below the knee and 2” below the first there was another incised wound. The first measured 1½” x ½” x skin deep.

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Injuries were caused by sharp cutting weapon. The evidence of the doctor conclusively proves that Suresh Singh (the deceased) met a homicidal death.

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10. Once it has been proved that death was

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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culpable homicide amounting to murder then it has to be seen whether the prosecution has been succeeded in roping the accused with the offence or not.

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11. P.W. 6 has stated that he was sleeping along with his son Mahesh Singh P.W. 1 and on cry of Suresh Singh (the deceased) he woke up. He was holding a torch. He saw 8-10 persons escaping and they were identified as Ram Kishun Paswan, Ram Pratap Paswan, Fulena Paswan and Ram Kumar Paswan. Ram Badan Singh P.W. 2 and Balram Singh P.W. 3 were there and both have told that they have identified Rajendra Paswan (dead), Nunulal Tanti (dead), Ramakant Paswan and Dinesh Paswan. The informant’s son had enmity with the accused persons as the dance was organized. Earlier the informant’s son Dinesh Singh was killed and Suresh Singh was suspecting that the accused persons were instrumental in his killing. He has stated to the Officer-in-Charge that Mahesh Singh (P.W.1) was sleeping along with him. He further elaborate his evidence wherein he has stated that Chalitar Singh the informant’s brother went to police station and narrated the entire occurrence. Chalitar Singh was made aware with the entire occurrence. Chalitar Singh (not examined) came along with the officer-in-charge. It was suggested to the informant that the police after investigation has

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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found the case to be true against Shivji, Ram Kumar and Balram and the accused persons were found not guilty but the informant has expressed his ignorance about the suggestion. The informant has been supported by other witnesses P.W. 1 Mahesh Singh who is not a witness named in the FIR but has deposed as an eye witness. He has stated that he was released after remaining 2 – 3 days in custody in this month. He has disclosed a new thing that one Birbal Singh had informed the police about the occurrence and thereafter his statement was recorded. His brother Suresh Singh was unmarried. He has stated that he has shown his torch to police. P.W. 2 is the person on whose Dera the killing was made. He has stated that the accused persons were armed with Bhala, Garasa, Hasua and Pistol and they brutally murdered Suresh Singh on a dark night. One Kajo Singh was apprehended and his statement was recorded before the court. He has claimed identification in the torch light but the torch was not shown to police. P.W. 3 Balram Singh woke up on the call of Ram Badan Singh P.W. 2. His brother Kajo Singh has given statement before police.

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12. The investigating officer had gone and found plenty of blood. He has seized blood stained Gamcha, soil and spade and prepared seizure list (Ext. 5) but these were not sent for

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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chemical examination and he has stated that because he was transferred so it was not sent. He has stated that the torch was not produced.

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13. The learned counsel for the appellants has submitted that the police has initially submitted the charge sheet against four persons who were discharged and the police later on implicated innocent persons for ulterior motive. It has also been submitted that identification of escaping persons under imaginary source of light is not acceptable. There is no explanation as to why the torches which were only source of identification of the accused persons in the dead night were not seized and produced as material exhibit. It has also been submitted that some witnesses have stated that five persons were seen and others have stated that only four persons were there. Ram Badan Singh and Balram Singh were sleeping along with the deceased but there is no explanation as to how a number of persons came and committed the offence without any voice. Brother of Balram Singh, Kajo Singh has given statement under Section 164 of the Cr.P.C., wherein he has stated that three persons were involved in murder those persons including Balram Singh. However, subsequent statement under Section 164 of the Cr.P.C. was there and for the reasons best known to the prosecution that why Kajo Singh was

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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not examined as a witness. The entire trial was illegal as no case diary or police papers were supplied to the appellants and that has caused prejudiced. D.W. 1 has stated during trial that Ram Badan Singh, Mahesh Singh and two others had called Suresh Singh and Suresh Singh was subsequently killed. During investigation all the accused persons named in the FIR were let off and not sent up for trial as I.O. and superior officer submitted the charge sheet against Balram Singh, Shivji Singh and Ram Kumar under Section 302/34 of the IPC and they were committed to the court of Sessions. On 03.01.1989, the public prosecutor filed a petition under Section 319 of the Cr.P.C. to summon eight accused persons named in the petition and they were summoned on the same date. Real culprits were discharged under Section 227 of the Cr.P.C. Summoned accused persons were to be tried along with the chargesheeted accused persons but there was no compliance of Section 201 of the Cr.P.C. as no notice was furnished to the accused persons and discharged to utter violation. On this score, Section 207 of the Cr.P.C. has a mandatory provision and that was completely given a go-bye.

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14. P.W. 1 and 5 are not named in the FIR. These witnesses were not examined under Section 161 of the Cr.P.C. Their names are not in the column of witnesses in the charge

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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sheet and their evidence was retained. P.Ws. 7, 8 and 4 are formal witnesses. Only three witnesses namely P.Ws. 2, 3 and 6 remain material witnesses.

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15. Learned APP had supported the judgment and stated that the role of the accused persons and evidence brought on the record conclusively proved that they were involved in commission of the offence.

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16. Certain glaring facts are apparent on the record. The accused persons were summoned under Section 319 of the Cr.P.C. and they were not supplied with the police papers which was mandatory provision under Section 207 of the Cr.P.C. P.W. 1 and 5 are not named in the FIR and they were not examined under Section 161 of the Cr.P.C. but were examined as eye witness to the occurrence. One Kajo Singh has given statement under Section 161 of the Cr.P.C. before police and under Section 164 of the Cr.P.C. before the Magistrate which has already been marked and accepted on behalf of defence but he has not been examined. His version was altogether different and had he been examined as a material witness then the entire prosecution case would have become doubtful. Non-examination of Kajo Singh in the circumstance has remained mystry and it was mandatory for the prosecution to examine him and also

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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explanation should have been given as to why Kajo Singh was not produced as a witness on behalf of the prosecution.

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17. The I.O. has stated regarding seizure of Gamcha but it is surprising that he did not take any step for getting Gamcha or spade examined by Forensic Science Laboratory so that it could at least prove that it was a human blood. Gamcha was seized but not produced as material exhibit. There is no explanation as to why the Gamcha was not produced.

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18. The accused persons have been described to be armed with various weapons including pistol but not even one witness has stated about the spade injury which proved fatal for the deceased. It is not explained as to spade came from where and who used it. Non-production of torch is another circumstance which has remained to be explained when the occurrence is of the night then investigation becomes paramount in proving the charge because unless satisfactory source of light is shown to be present then identification cannot be said to have been fully exhibited. The torch was shown but it was not produced. This also goes to the root of the matter and creates a doubt regarding veracity of the prosecution case. Once a doubt is created then the accused persons became entitled to be acquitted after being granted benefit of doubt.

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Patna High Court CR. APP (DB) No.518 of 1990 dt.24-07-2013

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19. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed and the appellants are acquitted of the charges. The appellants are already on bail hence they are discharged from the liabilities of their respective bail bonds.

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(Shyam Kishore Sharma, J.)

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(Rajendra Kumar Mishra, J.)

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KKSINHA/N.A.F.R.

Rajendra Paswan and Ors. v. the State of Bihar

Case brief

What is this about?

What did the court decide?

Rajendra Paswan and Ors. v. the State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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