Allowed

Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad v. The State Of Bihar

Patna HC1 Jul 2014CR. APP (DB)/1080/2012

Case brief

AI extract

What is this about?

The Patna High Court allowed two criminal appeals regarding murders. The court set aside convictions due to flawed police investigation, unreliable eyewitness testimony contradicted by the Investigating Officer, and the solitary appellant's defense counsel consistently maintained that appellants were wrongly implicated.

What did the court decide?

The convictions and sentences of the appellants were set aside. They were discharged and relieved of their bail bonds.

Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad… — Murder and Culpable Homicide | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.248 of 1989

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Against the judgment and sentence dated 11.04.1989, passed by Sri Bhagwan Prasad Singh, the learned 1^st Additional Sessions Judge, Aurangabad in S. Tr. No.06 of 1988/195 of 1987, arising out of Rafiganj P.S. Case No.79 of 1986 (G.R. No.161 of 1986)

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Chandradeo Paswan, son of Sidhan Paswan. 2. Lalu Dusadh @ Lalu Paswan, son of Bhagal Paswan. Both resident of village-Darmia Tola Baluganj, Police Station-Rafiganj, District-Aurangabad. .... .... Appellants. Versus The State of Bihar. .... .... Respondent. WITH

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

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Criminal Appeal (DB) No. 1080 of 2012

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Against the judgment dated 24.07.2012 and sentence dated 28.07.2012, passed by Sri Niranjan Singh, the learned Ad hoc Additional Sessions Judge-V, Aurangabad in S. Tr. No.197 of 1987/18 of 2010, arising out of Rafiganj P.S. Case No.79 of 1986 (G.R. No.161 of 1986)

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Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad, son of Late Tetar Paswan, resident of village-Khandwa, P.S.-Rafiganj, District-Aurangabad.

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.... .... Appellant.

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Versus The State of Bihar. .... .... Respondent. =========================================================== Appearance : For the Appellants : Mr. Arbind Kumar, Adv. Mr. Amrendra Kumar Singh, Adv. For the State : Mr. Ajay Mishra, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

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And

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HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Date: 01-07-2014

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Both these criminal appeals arise out Rafiganj

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P.S. Case No.79 of 1986 (G.R. No.161 of 1986). The two

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appellants of the first criminal appeal, i.e., Criminal Appeal (DB) No.248 of 1989, namely, Chandradeo Paswan and Lalu Dusadh @ Lalu Paswan and the sole-appellant of Criminal Appeal (DB) No.1080 of 2012, namely, Ramashish Paswan @ Sanjay Paswan @ Sanjay Dusadh were charge-sheeted in the case together but, apparently, as the sole-appellant of the second appeal (Criminal Appeal (DB) No.248/1989) absconded his trial was separated. In fact, the charge-sheet, being Charge-sheet No.35 of 1987 dated 31.07.1987, was against the two persons in custody and 11 absconders. Originally, in the trial, being Sessions Trial No.06 of 1988/195 of 1987, there were four accused persons, namely, Chandradeo Paswan, Lalu Dusadh @ Lalu Paswan, Bhola Paswan and Chandrup Chamar, the Sessions Court acquitted the later two in the first trial. It was the sole appellant, Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad who was tried and convicted in the later trial. Thus, as against charge-sheet in respect of 13 persons 5 persons have been tried in the two trials. The rest trials having been separated are at different stages.

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The two appellants in the first appeal have been convicted under Sections-148 and 302/149 of the

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Indian Penal Code (hereinafter in short „IPC‟), whereas the sole-appellant in the second criminal appeal has been convicted under Section-302/34 IPC and Section-148 IPC. They have been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for three years under Section-148 IPC and to run the sentences concurrently in respect of each of the offences.

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The first appeal arises out of judgment of conviction and sentence dated 11.04.1989 passed in Sessions Trial Case No.06 of 1988/195 of 1987 as passed by the 1^st Additional Sessions Judge, Aurangabad. The second appeal arises out of the judgment of conviction dated 24.07.2012 and sentence dated 28.07.2012 as passed by the Ad-hoc Additional Sessions Judge-V, Aurangabad in Sessions Trial No.197 of 1987/18 of 2010.

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We have heard the parties at length and perused the records. We deem it convenient to deal with the two appeals separately inasmuch as the evidences recorded were separate in the two Sessions trials though they arose out of the same case. Several witnesses have deposed in both the cases but their depositions are afresh.

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Criminal Appeal (DB) No.248 of 1989

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As noted above, in this appeal originally four persons were tried. In the sessions trial two accused persons were acquitted and two were convicted. Hence, this appeal is preferred against the judgment of conviction and sentence.

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The facts depict a very sorry state of affair. Sorry because it is not in dispute that 11 persons were brutally killed in the most inhuman manner. Their throats were slit. This was undisputedly in revenge to Parasdih carnage and the crime was perpetuated by over a hundred of persons, yet the manner in which the case was investigated and the manner in which the case prosecuted was just the opposite of the seriousness of the crime. The entire burden was thrown on the Court virtually forcing the Court to act as the investigator, prosecutor and delivering judgment seeking justice, which is not the role of the Court. It is first the responsibility of the investigating agency to carry out proper investigation and get to the truth of the matter and find the accused persons and then the job of the prosecutor to book them for the offence. The Court is only required to see that no innocent person is booked for a crime which he has not committed and ensure that the

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guilty are booked and punished but that is to be done upon the evidence that is brought on record by the prosecution, for that the Court cannot create evidence. The prosecution can bring on record only that evidence which is collected by the investigating agency on the basis whereof the charge-sheet is filed. In turn even the prosecutor cannot lead evidence which has not formed part of the investigation and, thus, the entire responsibility of a proper trial and conviction depends on a proper investigation. It is the investigation of crime by the police that lays the foundation, but, if the investigating agency does not try to get to the truth of the matter, neither the prosecution nor the Court can be blamed. Why we are saying this is that though mass murders were committed but the police or the investigating agency could only get allegedly one eyewitness to depose. There were other witnesses available but, in absence of any police protection, they refused to speak the truth. The result was that the truth and the person behind the murders were never investigated much less tired and, therefore, not punished. Admittedly, the crime was committed by over a 100 persons but the charge-sheet names only a handful. Is that possible? Is that true? Does it reject proper investigation? No, is the answer. The investigator took the short cut depending

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on merely statement of one witness and implicating the appellants, thus, denuding itself of the role of a true investigator. This is travesty of justice. We have highlighted this at the very beginning because we are disturbed in the manner in which this case has been handled by the State.

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Leaving the sermons apart, to the facts of the case. On 08.10.1986 at 12:45 pm the fardbeyan of Ambika Singh (P.W.9) was recorded by the Officer-in-Charge of Rafiganj Police Station. This is Ext.2. It is alleged that at about 7:30 pm on 07.10.1986 (the day before), while the informant was sleeping with his family, he heard the shout of wife of Heera Singh, who was an immediate neighbour, that there appeared to be some people outside the house of informant, P.W.9 Ambika Singh. Upon hearing this, the informant gets up and opens window facing outside and finds that a large number of people had assembled there including these appellants. They were shining torches because of which he could see and recognize some of the persons. He immediately shut the window, came to courtyard, picked up a ladder, leaving behind his family, climbed on the tilled roof and crossed over into the house of Heera Singh (P.W.8). He got down in the house of Heera Singh asked for keys of the

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door from the daughter of Heera Singh, opened the door and escaped. He went into the paddy field nearby and hide himself from there he saw the miscreants enter his house. They brought out his nephew, Bhutan Singh in the open near the „Bargad‟ tree, tied his hands and foot and then, while the two appellants of the first appeal held him, Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad, who is the appellant in the second appeal, cut his throat from the front. Thereafter, he heard the shout of ladies and found his other sons brought out and similarly killed. People were shouting slogans that they had taken revenge against the family of Bangali Singh and others who were responsible for Parasdih carnage. They were cadre of MCC and then they went away. Informant came out of his hiding and found his entire family, i.e., his wife, two sons, daughter, daughter-in-law and niece, all killed in similar fashion. Their bodies were lying in different places. He found that there were other people also killed in the neighbouring house. The sum of total people slaughtered was 11. He waited in the night and in the morning he sent his servant, Dukhan Yadav (P.W.1) to inform the police at Bhadura Police Out Post. Thereafter, the Officer-in-Charge of Rafiganj Police Station came and the statement was so recorded.

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Upon this fardbeyan being recorded, the Officer-in-Charge himself took up investigation. Dead bodies were sent for postmortem and he recorded the statement of various witnesses and, upon his return to the police station, at about 9:45 pm on 08.10.1986 the F.I.R. was formally registered as Rafiganj P.S. Case No.79 of 1986. It may be of some relevance to note that on the next day, i.e., 09.10.1986, the F.I.R. was sent by special messenger to the Court but the learned Sub-divisional Judicial Magistrate, Aurangabad sees the F.I.R. only on 10.10.1986, i.e., two days after the fardbeyan was recorded and almost three days after the incident. After investigation, on 31.07.1987 charge-sheet no.35 of 1987 was filed against two persons in custody, i.e., appellants, Chandradeo Paswan and Chandrup Chamar and 11 others including appellant, Lalu Dusadh and the appellant in the second appeal, Ramashish Paswan @ Sanjay Paswan @ Sanjay Dusadh being shown as absconder.

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The first thing to be noted that the evidence is consistent that there were over hundreds of people who were there. The investigation was carried for over nine months. Police could gather the name of only 13 persons. Surely, this cannot be bona fide, especially if we keep in mind

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that 11 persons of the village were slaughtered in the manner indicated above, it could not have been the endeavour of just 10 to 11 persons in respect of the first criminal appeal. The Sessions trial consisted for four persons, Chandradeo Paswan, Lalu Dusadh, Bhola Paswan and Chandrup Chamar. As noted earlier, the later two have been acquitted.

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On 22.12.1998 charges were framed against Chandradeo Paswan, Lalu Dusadh and Bhola Paswan for offence under Sections-148 and 302/149 IPC. Later, in this trial itself on 05.01.1989 similar charge was framed against Chandrup Chamar. The aforesaid four accused persons were put to trial as they pleaded innocent and required to be tried.

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In order to establish the charge prosecution has examined as many as 18 witnesses. Out of these 18, 7 witnesses are official witnesses, 2 are witnesses to the inquest. P.W.1 Dukhan Yadav is the servant of the informant, Ambika Singh P.W. 9. He was present in the house in another room when this entire occurrence took place. He was the person who had been sent on the next morning to the police outpost but he has not deposed as an eye-witness to the occurrence. He admits his presence but states that he had seen nothing. He was told the names of the assailants by his master,

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Ambika Singh (P.W.9). He admits that the criminals had come to kill him but when he disclosed that he was „Yadav‟ he was spared. In spite of this he does not name anyone or identify anyone. He is, thus, of no consequence.

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Learned counsel for the appellants rightly points out that he was sent to inform the police at about 6 am in the morning to Badhura police outpost which is only about a kilometer away but what happened thereafter is not explained because it is only at 12:45 pm that the Officer-in-Charge of Rafiganj Police Station comes to the place of occurrence. The bodies had been lying all around the house and the village since 7:30 pm of the last evening. The Officer-in-Charge, Ashok Kumar Singh, who is P.W.14, has stated that he did not come on any positive information but he has come on hearing rumours about the incident. The whole episode leaves a big question mark with the prosecution making no attempt to plug the hole.

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Then, we have P.W.2 Sanjay Kumar Singh, he is the nephew of the informant (P.W.9). He was present and the culprits spared his life not knowing him to be related to the informant but he was merely tendered by the prosecution and in his cross-examination all he says is that

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there are about 25 houses in the village. Again, though the criminals had confronted him, he does not choose to identify anyone.

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We then have P.W.3 Tilak Yadav, again a villager, who again states that he had seen nothing but only the dead bodies. He had heard the names of the assailants from the informant. Effectually, he is a hearsay witness. He could upon proper appreciation of evidence and investigation to be an eye-witness.

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We then have P.W.4 Girja Singh who has deposed in the similar fashion as P.W.3. Tilak Yadav. We then have P.W.5 Janardan Singh and P.W.6 Mithilesh Singh, both of whom are sons of Jagarnath Singh, being nephew of the informant, Ambika Singh P.W.9. They are all there when these gruesome murders took place but all they deposed is that an incident took place, they found the dead bodies and they have witnessed the inquest report. They do not give any more information.

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We then have P.W.7 Rajendra Mistri. He is a young boy aged about 13 years. He is tendered. In his cross-examination, he clearly states that Chandradeo Paswan, Lalu Dusadh and Bhola Paswan worked for the informant,

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Ambika Singh (P.W.9). The Court wonders why he was tendered. The reasons are that he had, in course of investigation, given a statement under Section-164 Cr.P.C. before a Magistrate. Of what relevance that was is not understood. It has not been brought on record but when we looked into it and we found that all he says is that after the incident his father took him and left him at a different place. He did not know anything. All that is irrelevant for Trial Court. Now, in his cross-examination, he named three accused persons as being servants of the informant working in his agriculture field and further that there has been a dispute between the two in relation to land. Instead of furthering the prosecution in any manner it is as if he was brought by the prosecution to damage the prosecution case.

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We then have P.W.8 Heera Singh who is the nephew of P.W.9 Ambika Singh, the informant and a neighbour. We say he ought to have been very important witness because P.W.9 Ambika Singh, the informant, was his uncle and it is his house which is adjacent to the house of the informant through which the informant escapes. It is this P.W.8 Heera Singh, whose wife is the first person to call out the informant to see that people had assembled outside his

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house, but, curiously again, this person who could have been persuaded to give out the story and support the informant, if the prosecution so wanted, was merely tendered. He again destroys or demolishes the case of the prosecution by admitting in the cross-examination that he knows and recognized the appellants in the dark and they used to work as „Mazdoors‟ for the informant, P.W.9 Ambika Singh.

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We then have the informant P.W.9

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Ambika Singh. In his chief, he admits that there had been about hundreds of persons who had assembled in front of his house. Wife of Heera Singh had called him and asked him to look out. He now states that outside his window there was a lantern hanging and the miscreants were shining torches as well. He recognized from a hole in the window the appellants and four others being part of the unlawful assembly. He then narrates how by using a ladder he climbed on his tilled roof, crossed over the house of the Heera Singh and from there escaped to the paddy field and hides himself. He then states that the miscreants, after committing heinous crime of slaughtering his whole family, shouted slogans that they had taken revenge from the family of Bangali Singh and others for the Parasdih carnage and

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that they were members of MCC and then they went away. He then identifies his signature on the fardbeyan and identifies the appellants in the dock. In his crossexamination, he first admits that he sent his servant, Dukhan Yadav P.W.1, to inform the police at the police outpost in the morning only at about 6 am. He then admits giving the statement to the Officer-in-Charge, Ashok Kumar Singh P.W.14. He has been cross-examined extensively upon the source of identification. He insists that he has seen the miscreants when he opened the front window and then after shutting it through a hole in the window identified the appellants and others in the light of the lantern and the torches. He then admits that when he escaped from the house of Heera Singh no one chased him or saw him even though there were hundreds of people surrounding his house. It was cloudy dark night and it was drizzling. He states that he lay hidden in the paddy field for about 1½ hours. He states that it is only thereafter that the neighbours came. He admits that Parasdih is only about 4 to 5 miles away. He is clearly suggested that the appellants used to work for him in his field which he denies. He disputes that there is any land dispute between the parties. He has been

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given a suggestion that in fact Chandradeo Paswan and Bhola Dusadh are brothers and Lalu Dusadh is cousin. Their father was occupying certain lands which had been purchased by the informant and informant had managed to evict them and take possession and it is because of this private dispute that when such carnage took place the informant had named them. It was also suggested that in fact informant was not even present in the village when this occurrence took place. In his cross-examination, he was questioned about meaning of three words which he did not know. Those are the expressions taken from the F.I.R. This was only to suggest that the F.I.R. has been drawn up much later by or at the instance of some other person and names of these appellants were added. He is unable to give any explanation as to why for the entire night no steps were taken to inform the police outpost which was nearby (only about 1 km away) and even in the morning why no information was given at the police station and why the fardbeyan was being recorded after almost 19 hours of the occurrence. Let it be noted that the informant‟s story of identification of the appellants is based on three facts. Firstly, that he saw through the hole in the window in the

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front of his house. Secondly, there was a lantern outside the window and, thirdly, that the miscreants were using torches lighting up their faces. These are important because in absence of any one of these the whole identification and reliability thereof falls to the ground. We will deal with this when we come to the evidence of the Investigating Officer.

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The next two witnesses are P.W.10 Dr. Chandrashekhar Prasad and P.W.11 Dr. Hanuman Ram. We may as well take up P.W.17 Dr. Narayan Pandit. They are formal witnesses proving their postmortem reports of 11 dead persons. The only common thing is that it is the front of the throat of all the 11 persons that is found to be cut leading to their death.

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We then have P.W.12 Bhim Kumar Singh. He is the person who is said to have called out from outside the house to Ambika Singh to open the door. He is an agnate and immediate neighbour but again he could have been an eyewitness provided he was given due assurance of protection but he is merely tendered by the prosecution. In his crossexamination, he clearly states that he knows the accused persons in the dock from before. He could have been eyewitness if he was properly persuaded by the investigating

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agency as he was in their custody for over an hour still he does not name any body or identify anybody. He states that the criminals were standing at the door from before. He had escaped being slaughtered because he falsely disclosed to the miscreants that he did not belong to the village.

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Learned counsel for the defence/ appellants rightly pointed out that this witness, being related to the informant, having admitted that he was with the miscreants for almost an hour, he does not name the appellants, which could only show that appellants were not with the miscreants.

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Then, we have P.W.13 Himanshu Shekar Pandey, Judicial Magistrate, who is said to have recorded the statement under Section-164 Cr.P.C. of Rajendra Mistri (P.W.7), the young boy, and his uncle Mahabir Mistri (P.W.18) under Section-164 Cr.P.C. but with what purpose this Magistrate has been examined is not understood. We have noted earlier the statements under Section-164 Cr.P.C. as made by the two witnesses has not been brought on record legally through the witness who had made deposition though they were examined. Of what use the Section-164 Cr.P.C. statements is, is also not understood. Both these witnesses were hearsay witnesses. What was the investigating agency or

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the prosecution trying to establish.

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At this juncture, it may be convenient to refer the evidence of P.W.18 Mahabir Mistri. He is the uncle of P.W.7 Rajendra Mistri, the boy. He deposes that father of Rajendra Mistri had brought the boy and left with him saying that the carnage had taken place in the village in which 11 persons have been slaughtered and he had heard the names of various persons but does not name these appellants. He admits having made statement under Section-164 Cr.P.C. but that statement is not proved through him. We wonder what was the purpose of that statement and what prosecution was trying to achieve.

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We then propose to deal with another formal witness, i.e., P.W.16 Ram Chandra Sah, who is the SubInspector of Police of Rafiganj Police Station and he only identifies the signature on F.I.R. He has been brought only to prove that it is he who has registered the case and drew the F.I.R. in the police station.

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That leaves only two witnesses, i.e., P.W.14 Ashok Kumar Singh, who is the Investigating Officer and P.W.15 Aditya Prasad who concluded the investigation and submitted the charge-sheet. P.W.14, Ashok Kumar Singh

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is a very important witness being the Investigating Officer. In his chief, he states firstly that the police outpost Bhadura is just about a kilometer from the village. This is of some importance because even though the incident had taken place at about 7:30 in the evening, no one from the village attempted to go to this police outpost immediately after the incident or thereafter till the next morning when allegedly P.W.1 Dukhan Yadav, the servant of the informant, P.W.9 Ambika Singh was allegedly sent there. Police personnel did come but they waited. They have not been examined. Thereafter, it was this Investigating Officer, not upon any definite information but upon rumour, came to this village which is about 15 kms. from the police station. He came to the village at about 12:45 pm on 08.10.1986. The occurrence took place at 7:30 pm on 07.10.1986. He then admits recording the statement of the informant. He then identifies the places where he found the dead bodies. He admits having drawn up inquest reports. Now, he is cross-examined. In his chief itself he admits that the house of the informant is in the centre of the village which is the primal place of occurrence. This is of some importance because as per the statement of the informant he saw people, being dragged from his house and slaughtered, from a paddy

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field which is a bit of an unexplained contradiction. Now, coming to his cross-examination. The first question he is put is that though the fardbeyan was allegedly recorded on the afternoon of 08^th of October, 1986, when and how it was sent to the Court of Chief Judicial Magistrate he is unable to answer. This is of some significance because the counsel for the appellants points out that though the fardbeyan was recorded on the 08^th of October, 1986 at 12:45 pm, it was registered at 9:15 on the same evening at Rafiganj Police Station, it did not reach the Court on the next day when it was sent. It was seen by the Court of Sub-divisional Magistrate only on the 10^th of October, 1986. This delay has not been explained. The suggestion being the change in the fardbeyan. In fact, the suggestion is that actually the fardbeyan was recorded much later. It was not even recorded on 08^th of October, 1986. He admits that in course of investigation he had taken the statement of the wife of Heera Singh. This is of some significance. She has not been examined as witness. It is she who had shouted and informed the informant that there were people outside his house. It is her house through which the informant escapes. Now, is a startling disclosure? As noted earlier, the identification was totally dependent upon three facts

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as alleged by the informant. There was a window in the front of the house through the hole of which he saw the miscreants and identified the accused. There was a lantern hanging outside and the accused persons were using torch. This Investigating Officer is asked about the window and he clearly deposes that there is no window in the house opening in the front. If that be so then the informant‟s assertions of a window with hole falls to the ground. If there are no window then what he opened and how he saw the miscreants cannot be explained. Then, the Investigating Officer admits that he was not shown any lantern much less given any lantern which was source of light on that night. If these two statements of informant are not supported or corroborated rather falsified then the whole story of the informant identifying appellants falls to the ground. There cannot be any positive identification much less reliable identification. Further the story set up by the informant of his escape using a ladder to climb on the roof is also not substantiated inasmuch as the Investigating Officer says that he was not shown any ladder. These statements of the Investigating Officer would, thus, demolish the whole theory or even presence of the informant much less his identification or his escape. Further, the Investigating Officer not having

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been shown the place in the paddy field where the informant was hiding because after the informant hides there in the paddy field surely some paddy plants ought to have been destroyed or damaged. The Investigating Officer thus having successfully damaged the case of the prosecution with regard to identification of the appellants and even their involvement making the entire testimony of the informant, who is said to be sole eye witness, doubtful.

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In our view, we cannot persuade ourselves to uphold the convictions. The only other witness remaining to be dealt with is P.W.15 Aditya Prasad, the 2^nd Investigating Officer. He is not important because he concluded the investigation and formally filed the chargesheet.

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Thus seen, such a big carnage took place in a village of about 25 houses wherein from two houses 11 persons were taken out and slaughtered not very late in the night, yet the investigating agency cannot find a single reliable eye-witness even though the police outpost was a kilometer away. They were not informed soon after the crime. The Officer-in-Charge of Rafiganj Police Station came not on information but on rumour. The fardbeyan itself is recorded

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after 19 hours and apart from the informant no other witness gets up to name or identify the miscreants. All they referred is that it was members of MCC taking revenge for Parasdih carnage in which Bangali Singh and others related to the informant were involved. The prosecution witnesses admit that the appellants had land dispute with the informant. The appellants were known to everybody. The appellants were from the same village. The appellants used to work for the informant. No one but the informant names the appellants whose testimony itself is doubtful because he has seen the appellants through the window but no window exists. He is said to have been hiding and seeing of the people being slaughtered by the appellants from near his house. As per the Investigating Officer, his house is in the centre of the village and it is curious that when hundreds of people are surrounding the informant‟s house, slaughtering the people no one sees the informant escape from the house and remain in hiding within visible distance and going totally undetected for over 1½ hours. These are issues which create doubt upon the veracity or correctness of implication of the appellants in this crime.

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No doubt heinous and gruesome crime was committed but apparently no one was interested in

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prosecuting or proceeding against the persons who actually perpetuated the crime. It is only for the purposes of record of closing the case that the appellants were wrongly pursued. Thus, this appeal has to be allowed and the conviction of the two appellants has to be set aside and they are discharged from their liability of bail bonds.

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In this appeal the solitary appellant was

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charged under Section-148 read with Section-302/34 of the Indian Penal Code. From the fardbeyan, as noted earlier, it would be seen that it is alleged that this is the appellant who cut the neck of some of the deceased. He was seen with the miscreants as per the statement of the informant, Ambika Singh who was P.W.9 in the earlier appeal and is P.W.4 in the present appeal. When this informant was examined in this trial as P.W.4, being Ambika Singh, he gives a different version though maintaining the name of the known or identified accused persons. He now states that his son, Pramod Singh called out from outside that “force from Aurangabad had come as such to open the door”. Informant then saw through the door the miscreants including the accused persons and he by using a ladder climbed on to the house of one Indradeo Singh

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whose son is an Advocate and escaped. In his crossexamination, he admits that he has deposed earlier in relation to this matter. Obviously, this was to draw attention of the witness of his earlier deposition and fardbeyan in Court where he had stated that it was the wife of Heera Singh who had called out and he saw through the hole of the window the miscreants. As noticed in the earlier appeal, his earlier story is that by using a ladder, he climbed on his tilled roof, crossed over the house of the Heera Singh and from there escaped to the paddy field and hides himself. He now changes the story escaping through the house of Indradeo Singh. Similarly his earlier version was that he has seen the miscreants through the window. Now, he changes it that he saw them through the door which was obvious change because the Investigating Officer in the earlier appeal had clearly stated that there was no window. This time he clearly admits the motive of the offence was revenge against the family members of Bangali Singh, who was alleged to be master mind in Parasdih carnage in which seven persons were killed. In regards to information given to the police, this time he states that he had informed the police at about 7 am in the morning about the carnage. This is totally in conflict with his own statement in the earlier trial

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where he had said that he has sent his servant, Dukhan Yadav (P.W.1 in earlier appeal) to inform the Bhadura police outpost. He further deposes that police from the Bhadura police outpost came and returned. This is obviously to explain the delay which explanation is coming for the first time. The Officer-inCharge, as noted earlier, had clearly stated in his deposition as P.W.14 in the earlier trial that he had received no information. He had only heard rumours and came to enquire. Another interesting admission in cross-examination, as made by this informant, who claims to be the solitary eye-witness, is in paragraph-22 in his cross-examination where he admits that his house was totally surrounded by the miscreants. It is not explainable that if this was the fact then how he managed to escape and remain undetected all along watching the gruesome act. The last nail in the coffin is his statement in paragraph-24 of the cross-examination where he admits that he had given the fardbeyan after a lot of consultation and deliberation with his well wishers and villagers. This explains why there was an inordinate delay of about 19 hours in recording the fardbeyan in such a serious matter where 11 persons including the entire family of the informant was brutally killed. In the last paragraph of his cross-examination, upon Court question, he

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states that he had seen this appellant, Ramashish Paswan @ Sanjay Paswan cut the neck of his nephew, Bhutan from a distance of about 5 to 6 yards. He admits that he had not seen anyone else being killed.

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Learned counsel for the sole-appellant presses stress and states that if he was hiding 5 to 6 yards away how a mob of over hundreds of people who had come with clear intention to kill him and the entire family did not spot him and how he could manage to hide for such a long time from such close vicinity which clearly shows that in fact he was not present.

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In our opinion, the change of stands, as made by this witness, from his earlier stand about escaping, about seeing, about the place where he was hiding and the manner in which the fardbeyan was drafted after due deliberation totally makes this witness unreliable. If that be so, it is not necessary to go into the evidence of other witnesses. We may merely note that some of them had deposed earlier. For example, P.W.1 Heera Singh he had been merely tendered earlier. He was the immediate neighbour through his house the informant had earlier claimed to escape and escaped. He was the person whose wife has called out to the informant at the

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first instance. This witness now says that seeing the miscreants he hide himself for over an hour. He did not see anything or anybody. He could not identify anybody. He states that police had come in the morning. It is later that he had seen the dead bodies. He does not support the earlier story of the informant and now virtually becomes of no help. P.W.2 Sanjay Kumar Singh, the nephew of the informant. He is P.W.2 in the earlier trial also. It is curious that he states that he was at the door of the informant for a long time but he is unable to identify anybody because he was subsequently locked in the informant‟s house. He refuses to identify anybody. P.W.3 is Girija Singh who was P.W.4 and a hearsay witness in the earlier trial. He says that his house was locked from outside. He saw nothing. He was declared hostile. As noted earlier, P.W.4 Ambika Singh in this trial is P.W.9, the informant, whose evidence we discussed earlier. P.W.5 Sahdeo Prasad is a formal witness who proves the postmortem report. P.W.6 is Rajendra Mistri, the boy, who had been in the earlier trial examined as P.W.7. In the earlier trial, he has been tendered but here declared hostile. In this trial, P.W.7 Dr. Chandrashekhar Prasad, P.W.8 Dr. Hanuman Ram and P.W.9 Dr. Narayan Pandit are the three doctors who had performed

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the postmortems and were examined as P.Ws.10, 11 & 17 in the earlier trial. P.W.10 is Sheo Bachan Sharma, who is an Advocate Clerk, a formal witness, who has proved the signature of the Investigating Officer on the F.I.R. P.W.11 Maharaja Singh is again a formal witness, being an Advocate Clerk, who has proved the diary written in the hand of Investigating Officer, Ashok Kumar Singh.

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Regrettably, none of the Investigating Officer has been examined in this trial. Thus, upon the evidence that has been led, there is again a solitary witness, the informant, P.W.4 Ambika Singh, who was earlier examined as P.W.9. As noticed above, he has not only changed his escape,

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he has changed the story of seeing through window. Now, he admits that there is no window but a door through which he saw.

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For the reasons as noticed earlier, in respect of this appeal, we are unable to convince ourselves that he is a truthful witness in relation to the appellant. Even the defence has not denied the death of 11 persons or the brutal murder of 11 persons, but, as apparent from this informant‟s own statement, it was a revenge or retaliation by MCC to the Parasdih carnage by the relations of the informant, it has not

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even been suggested by the prosecution at any point of time that the appellant was a member of MCC or in any way associated with the militants.

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For the reasons aforesaid, we cannot allow the conviction to stand. The conviction and the sentence of this sole-appellant in this appeal is set aside. The appellant is discharged from his liability of bail bond.

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Before we close, we wish to make

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another observation as seen above in the first trial. The accused persons were tried for an offence under Section-302 IPC with the aid of Section-149 IPC. In this trial, the Court has charged the sole-appellant under Section-302 IPC with the aid of Section-34 IPC. Firstly, the evidence of the prosecution clearly shows that the appellant would have been charged under Section-302 IPC independently as well. Why we have noted this is that it appears that the Courts are unaware of the distinction as between Section-149 and Section-34 IPC. Section-34 IPC talks of common intention. Section-149 talks of unlawful assembly with common object. The distinction is well defined yet the Courts mistake one for the other. For applicability of Section-34 IPC the only necessary thing is that there must be a common intention amongst more than one

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person but for applicability of Section-149 IPC it is a case of vicarious liability where first there has to be an unlawful assembly, meaning thereby, assemblance of five or more persons whose object would be unlawful. They may not share the common intention. They have a common object. Then, irrespective of the role played by any individual for the crime committed by any of the member of the mob, all of them become vicariously liable, though the act or the criminal act was not contemplated to be done. We are noting this only as for guidance to the Courts in this State. The Courts must be careful while framing charge because charge is the basis for prosecution and a notice to the accused persons to defend himself.

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Accordingly, both the appeals are allowed. The convictions and sentences set aside. All the appellants are relieved of their bail bonds.

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(Navaniti Prasad Singh, J.)

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Trivedi/AFR U

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(Jitendra Mohan Sharma, J.)

Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad v. The State Of Bihar

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Ramashish Paswan @ Sanjay Paswan @ Sanjay Dushad v. The State Of Bihar

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