Paramhansh Paswan Vs the State of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.598 of 2021

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Arising Out of PS. Case No.-269 Year-2009 Thana- JAMUI District- Jamui

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Paramhansh Paswan, Son of Kishun Paswan, Resident of Village- Adsar, Police Station- Jamui, District- Jamui.

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... ... Appellant

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Versus

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The State of Bihar

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Shyam Sah @ Shyam Kishore Sah, Son of Gendo Sah, Resident of VillageAdsar, Police Station- Jamui, District- Jamui.

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Ashok Sah @ Ashok Kumar, Son of Gendo Sah, Resident of Village- Adsar, Police Station- Jamui, District- Jamui.

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Rajendra Sah @ Gendo Sah, Son of Late Hari Sah, Resident of VillageAdsar, Police Station- Jamui, District- Jamui.

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... ... Respondents

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Appearance : For the Appellant/s : Mr. Prem Kumar Paswan, Advocate For the State : Ms. Shashi Bala Verma, APP

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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

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Date : 20-01-2025

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Heard learned counsel for the appellant. Learned Special P.P. for the State is not present.

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2. This appeal arises out of a judgment of acquittal dated 11.08.2021 (hereinafter referred to as the ‘impugned judgment’) passed by learned Additional Sessions Judge-I-cumSpecial Judge, SC/ST, Jamui (hereinafter referred to as the ‘learned trial court’) in SC/ST No. 28 of 2010 arising out of Jamui P.S. Case No. 269 of 2009, G.R. No. 1582 of 2009.

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3. By the impugned judgment, the learned trial court

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has been pleased to record a finding that the prosecution has not been able to prove its case. According to the learned trial court, the place of occurrence, manner of occurrence or the participation of the accused persons in the alleged occurrence could not be proved beyond all reasonable doubts, therefore, the materials present on the record are insufficient to warrant a conviction.

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Prosecution Case

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4. The prosecution story is based on a written application submitted by one Paramhans Paswan (PW-4) to the S.H.O. of Jamui Police Station. In his written application, the informant (PW-4) has alleged as under:-

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“On 12.09.2009 (Saturday) at 04:00 PM, he had parked his tempo in the tempo stand at Sikandara road. According to him, his co-villager Shyam Sah, son of Gendo Sah had parked his Magic vehicle near his tempo from before. His father Gendo Sah and brother Ashok Sah were also there. At this stage, Shyam Sah snatched the key of the tempo and when he asked for the same, Shyam Sah abused the informant and assaulted him to which the local staffs intervened, stopped the quarrel and got his key returned but accused Shyam Sah threatened him with dire consequences and left from there. After

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some time, the informant moved with his tempo to his home. At 04:30 PM when he reached on the road near Achahri on way to his home, he found that on road Shyam Sah had parked his vehicle and was present there with his father and brother. He has stated that as soon as he reached near the vehicle, Gendo Sah said “sala aa gya jaan maar kr fek do” . On this, Shyam Sah and Ashok Sah both armed with khanti and Gendo Shah armed with a danda assaulted him and tried to sink him in the water, by that time, his brother Manoj Paswan was returning after attending his duty from police station and he tried to save the informantappellant but he was also assaulted by the accused persons. The informant alleged that he and his brother both were assaulted and have received several injuries. He further alleged that Ashok Shah had taken out Rs.550/- which was his earning of the day and mobile phone and all the three accused had damaged his tempo. On hulla, local people had assembled and saved him from further assault. The accused persons called him in the name of his caste (‘ dusad ’).”

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5. The allegations were investigated and police submitted a chargesheet against the accused persons under Sections 341, 323, 325, 504, 506, 307/34 of the Indian Penal Code (in short ‘IPC’) read with Section 3(i) (x) of Scheduled

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Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short ‘SC/ST Act’). The learned Special Judge took cognizance of the offences on 30.11.2009 / 02.12.2009 under the Sections mentioned in the chargesheet. Thereafter, the charges were explained to the accused persons who denied the charges and claimed to be tried. Accordingly, the charges were framed on 28.11.2011.

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6. In this case, the prosecution has examined altogether 7 witnesses and brought on record Exhibit – 1, which is the signature of the informant on the written complaint, Exhibit – 2 and 2/1 which are the injury reports. The names of prosecution witnesses are being mentioned hereunder in tabular

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form:-

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PW-1	Arjun Thakur
PW-2	Amirak Rajak
PW-3	ManojPaswan
PW-4	Paramhans Paswan(informant)
PW-5	Rinku Paswan
PW-6	Dr. AjayKumar
PW-7	Shatrudhan

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7. The defence examined one witness who has proved Exhibit 'A' and 'B'. Exhibit-'A' is the certified copy of protest petition, in which the informant of the counter case prayed for rejecting the police report and to allow him to prove his case by producing witnesses. Exhibit-'B' is certified copy of the

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fardbeyan of Jamui Mahila P.S. Case No. 284 of 2010. Further, Exhibit-C which is the certified copy of the formal FIR of Jamui Mahila P.S. Case No.284 of 2010 has been proved.

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Findings of the Learned Trial Court

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8. The learned trial court having examined the evidences available on the record in form of oral testimonies of the witnesses as well as the documentary evidences produced on behalf of the parties found material discrepancies with regard to the evidences on the point of place of occurrence, manner of occurrence and participation of the accused in the alleged occurrence. Hence, the accused persons have been acquitted of all the charges.

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Submissions on behalf of the Appellant

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9. Learned counsel for the appellant has assailed the impugned judgment. It is submitted that the learned trial court has committed error in evaluating the statement of the prosecution witnesses. Referring to the evidence of the Doctor (PW-6) who examined the injuries of Manoj Paswan (PW-3), learned counsel submits that PW-6 had found three injuries on the person of PW-3. Who had received lacerated wound on occipital area, 2” × 1/3” bone deep and blot clots were found present. PW-3 had also received injury on posterior lateral

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aspect of left forearm and blot clot was found present. Further, he had abrasion on posterior lateral aspect of right arm and blood clots were present.

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10. Learned counsel submits that similarly, PW-6 had examined injuries of PW-4 who is the informant of this case, on 12.09.2009 at 05:50 PM and found three injuries on his body. It is submitted that the learned trial court has disbelieved the evidence of PW-6 saying that no X-ray plate has been proved before the learned trial court. It is submitted that the learned trial has failed to appreciate the evidence that the injuries were caused on the body of PW-3 and 4 and no explanation was brought on behalf of the defence except the enmity between the informant and respondent nos. 2, 3 & 4.

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11. Learned counsel for the appellant submits that the manner of occurrence has also been duly proved by PW-1, PW2, PW-3, PW-4, PW-5 and PW-7 but the learned trial court has failed to appreciate the same.

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12. It is lastly submitted that the learned trial court has failed to appreciate the provision of Section 3 of the SC/ST Act and could not appreciate that the occurrence took place in full public view, therefore, the provision of the said Act would be attracted.

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Consideration

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13. We have perused the entire evidences available on

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the record as also the judgment of the learned trial court. In this case, Paramhans Paswan (PW-4) is the informant of the case. According to him, the first occurrence took place on 12.09.2009 at 04:00 PM. It was a Saturday. The informant had parked his tempo in the tempo stand at Sikandara road. According to him, his co-villagers Shyam Sah, son of Gendo Sah had parked his Magic vehicle near his tempo from before. His father Gendo Sah and brother Ashok Sah were also there. At this stage, it is stated in the written application of the informant that Shyam Sah took out the key of the tempo and when the informant asked for the same, Shyam Sah abused the informant and assaulted him. The local staffs intervened, stopped the quarrel and got his key returned. In this part of the occurrence, the place of occurrence is said to be the tempo stand where large number of persons including the stand staffs were present. The informant has not stated that Shyam Sah had abused him in his caste name. He has also not named the persons who had intervened and got the quarrel stopped but in course of his examination-in-chief, the informant (PW-4) has deposed that Shyam Sah had taken out the key of his vehicle and when he demanded the same, he abused

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him in his caste name. This is an improvement in his deposition.

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14. Further, this Court finds that the two persons who are said to have intervened and stopped the quarrel, namely, Dhaniji and Veragiji have not been examined by the prosecution. In his examination-in-chief, PW-4 has not stated that at the first place of occurrence Gendo Sah and Ashok Sah were also present. Although several independent witnesses are supposed to be present at the bus stand where the occurrence took place but not a single independent witness has been examined to support the prosecution case with regard to the first occurrence which is said to be the genesis of the second occurrence. Learned counsel for the appellant has admitted in course of hearing that so far as the genesis of the occurrence is concerned, it is said to be the first occurrence but there is no independent witness to support the same.

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15. In the second part of his written application which is the basis of the first information report, the informant states that at 04:30 PM when he reached on the road near Achahri on way to his home, he found that on road Shyam Sah had parked his vehicle and was present there with his father and brother. He has stated that as soon as he reached near his vehicle, Gendo Sah said “sala aa gya jaan maar kr fek do” . On this, Shyam

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Sah and Ashok Sah both armed with khanti and Gendo Sah armed with a danda assaulted him and tried to sink him in the water, by that time, his brother Manoj Paswan was returning after attending his duty from police station and he tried to save the appellant, he was also assaulted by the accused persons. The informant alleged that he and his brother both were assaulted and have received several injuries. He also alleged that Ashok Sah had taken out Rs.550/- which was his earning of the day and mobile phone and all the three accused had damaged the tempo. He has stated that on hulla , local people had assembled and saved him from further assault. At the end, he had stated that the accused persons called him in the name of his caste (‘ dusad ’). In course of trial, Paramhans Paswan (PW-4) has proved his signature on the written application which has been marked Exhibit ‘1’. From the endorsement made on the application, it appears that one Ramavatar Paswan, son of Shri Narayan Paswan, village Simeria, Vikrampur, PS+DistrictJamui is the writer of the application but he has not been examined, the written application and formal FIR have not been exhibited in course of trial.

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16. In his examination-in-chief, the informant has further improved and stated that Gendo Sah said “sala dusad aa

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gya ise marke khatam kar do” . He further said that “gadi kharid liya hai to bada samjhne lga hai” . He had stated that Gendo Sah was armed with a danda , Ashok Shah had a khanti and Shyam Sah had a rod and they took him to Achahri river while beating him. Ashok Sah fractured his head, then his brother Manoj Kumar who was returning from Jamui Police Station to his house and when he came to save him, all the three assaulted him and injured his head. He has stated that the application was written by Manoj Paswan. In his crossexamination, he has stated that his brother Manoj Paswan was posted as Chaukidar in police station for 4-5 years from before and his brother had good relationship with the police officers. He was suggested by the defence that at the relevant time of occurrence, Anandi Das was Dy.SP, he, the Inspector and the Doctor were Paswans. PW-4 claimed his unawareness on this. He has stated that after his vehicle was damaged, he had not got any survey done by the Insurance Company and the tempo was not brought to the police station. According to him, 10-12 persons had come at the place of occurrence in which the covillagers Manoj Singh, Charitra Mahto, Binod, son of Lewari were there. No Manjhi had come. He had disclosed the names of these persons to Darogaji. In paragraph ‘16’ of his cross-

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examination, PW-4 has stated that at the tempo stand, the vehicles are lined up in queue and in a dispute over the passengers, the key of his vehicle had been snatched. In this matter, accused Shyam Kishore had lodged a case against him and his brother whose case number is 1722C/2010 and he was aware of the same. The said case was pending in court.

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17. From the pattern of cross-examination of this witness, it would appear that the defence suggested PW-4 that about 10 days back, the son of his brother Manoj had fallen ill and to take his son to Biharshariff, the informant had hired the vehicle of the accused for a sum of Rs.1800/- out of which Rs.300/- was given and when the rest amount was asked for, the present case was lodged. In paragraph ‘9’ of his deposition, PW4 has stated that Manoj had arrived 25 minutes after his arrival.

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18. To support his case, prosecution has examined Manoj Paswan (PW-3). On perusal of his examination-in-chief, it would appear that he has not stated anything about the first occurrence. He had also not seen the second occurrence at the time when his brother (PW-4) was being assaulted. In his examination-in-chief, he has stated that when he reached near Achahri Puliya, he found that Rajendra, Ashok and Shyam Sah had been assaulting his brother Paramhans by drowning him in

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the water. He asked the accused persons not to assault his brother on which Rajendra Sah abused him in his caste and mother name and thereafter, Rajendra Shah and Ashok Shah assaulted him by khanti . At this stage, it is worth pointing out that the informant (PW-4) has stated in his examination-in-chief that Shyam Shah was having a rod in his hand whereas Manoj Paswan (PW-3) has stated that Shyam Sah was having a khanti and had assaulted him on his head. He has stated that after the occurrence, he had gone to the police station with his brother and had disclosed the information whereafter they were referred to Jamui Hospital. He has further stated that the accused persons had also lodged a case against him in which he was on bail and in the said case, his brother Paramhans and Ramakant Paswan were also accused. The defence suggested him that he was a Chaukidar and his halka no. 21/5 in which his village is also falling. To this extent, he has admitted the fact. The defence further suggested that because he is a Chaukidar, he had falsely implicated several other persons and he had lodged one case against one Chogo Yadav which was later on found false. PW-3 denied this suggestion. PW-3 has stated that his brother had a three-wheeler vehicle but he cannot say the registration number of the said vehicle. He cannot say from whom the said vehicle

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was purchased, when was the same sold and to whom the vehicle has been sold. The defence suggested that his brother had no vehicle and he was making a false statement which PW3 denied. He has stated that his statement was recorded by Police on 12.09.2012 at 07:00 PM, his statement was also recorded in Hospital and at the police station. PW-3 has taken name of Amirak Rajak as the person who arrived at the place of occurrence. He also took name of one Rinku of village Adsar which is at a distance of 1 km. In paragraph ‘13’, he has given the description of the place of occurrence. According to him in North there is field of Sanjay Yadav, in South-plot of Jasim Miya, in East-Choti Puliya and in West-Ahar. Ahar is ‘ gairmajarua aam ’ and there were water in the Ahar up to neck level. In this water, Shyam Sah and Ashok Sah were drowning his brother. His brother had drank water and his abdomen had swollen, he had also vomited and blood was oozing out of his nose. PW-3 had also seen blood fallen on the road and Darogaji had also seen the blood. He denied the suggestion that his claim that blood was there on the road is false. He has stated in his cross-examination that the place of occurrence is adjacent to the road. He had entered into the water to save his brother and till the time, his brother was in the water, he had not received any

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injury. They had come out of the water and went to the police station.

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19. On perusal of the evidence of PW-3, it appears that when he reached near the puliya , he found that his brother was being drowned. He had not seen the occurrence on the road. He had reached there after about 25 minutes of the start of the second occurrence and he has stated that the place of occurrence is adjacent to the road. Till the time, his brother was in the water, he had not received any injury and after coming outside the water, they had gone to the police station. PW-4, who is the informant of this case, has stated that accused persons had taken him to Achahri river but PW-3 has nowhere stated either in his examination-in-chief or in his cross-examination about the existence of any Achahri river. In paragraph ‘13’ of his crossexamination, he has given the description of the place of occurrence but he does not mention any river in the boundary of the place of occurrence.

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20. This Court further finds that when PW-3 was examined on 30^th November, 2010, he named Amirak Rajak and others of village Adsar who had come to the place of occurrence. He has also mentioned about one Rinku of village Adsar but when PW-4 was examined, he has stated in his cross-

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examination that 10-12 persons had come at the place of occurrence in which Manoj Singh, Charitra Mahto, Binod Singh, son of Lewari who are the residents of village Achahri had come and had disclosed the name of these persons to Darogaji. Thus, not only the presence of PW-3 as an eye-witness to the second occurrence becomes doubtful, it appears that at a belated stage, he has introduced two persons, namely, Amirak Rajak and Rinku of village Adsar as witnesses in this case. He himself is a Chaukidar and maintains good relationship with the officers, therefore, his deposition has to be examined with all circumspection and care. He has given a different place of occurrence from that of PW-4.

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21. This Court finds that in this case one Arjun Thakur has been examined as PW-1. He is a labourer. PW-1 has stated that at the relevant time between 04:30/05:00 PM, he was returning from Lohra village after giving invitation and he had seen that Paramhans, Gendo Sah, Ashok Sah and Shyam Sah were quarreling and hurling abuses. This witness has not stated in his examination-in-chief that Gendo Sah, Ashok Sah and Shyam Sah were abusing the appellant in his caste name. He has also not stated that these witnesses were armed with danda , khanti and rod. In his cross-examination, when he was asked

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that to whom in village Lohra, he had given invitation, this witness said that he cannot say the name. He has also stated that he cannot say that who assaulted whom by which weapon. It is evident from the deposition of the PW-1 that he had not seen Manoj Paswan (PW-3) present at the place of occurrence. This witness had deposed for the first time in court and he has clearly stated that prior to his deposition, he had not given any statement earlier.

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22. Amirak Rajak (PW-2) has stated that he was coming from his field to Achahri Mor and Paramhans Paswan came there with his vehicle and got down. He said that he had been beaten. This witness has stated that Shyam Sah, his brother and Gendo were assaulting him. He has stated that he accused who was standing in the dock had a khanti in his hand but he was forgeting his name. He has further stated that the other accused were holding lathi in their hand. From the examinationin-chief of this witness, it appears that he claims himself a chance witness, he is a resident of another village and according to him, he did not identify the accused in the dock and about others too he has stated that they were holding lathi in their hand. In his cross-examination, he has stated that he works as a labourer at Mumbai and he was residing at Mumbai for 10-12

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years whereafter he had come to his village for his marriage and after marriage, he had again gone to Mumbai. In paragraph ‘16’ of his deposition, he has stated that he had come for the first time to depose and prior to this, he had not deposed as a witness. According to him, the occurrence had taken place for 15-20 minutes and when he reached at the place of occurrence, no person was present there. He had seen the occurrence from a distance of 20 feet. He was suggested that his name has been introduced as a witness in collusion with the police and he had falsely deposed.

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23. To this Court, it appears that neither PW-1 nor PW-2 may be placed in the category of reliable witnesses.

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24. Rinku Paswan (PW-5) is a resident of village Adsar in the District of Jamui. He has given a different story in his examination-in-chief. According to him, the occurrence took place at 07:00 PM. He was at Kachahari road, he saw that Tata Magic was standing on the road and quarrel was taking place. Gendo Sah had stopped the tempo and started assaulting Pramod Paswan. Ashok Sah also assaulted Manoj Paswan. Manoj Paswan and Pramod both fell into Pine ( nala ) and the accused persons were drowning them. They were also abusing him. In his cross-examination, PW-5 has stated that his maternal

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grandfather is Chitsahay Paswan and Chitsahay Paswan has been residing in his nanihal . His original village is Arla Laxmipur. He had met on 2 or 4 occasions with Paramhans and Manoj. He did not remember the day, month and year of the occurrence. Regarding the place of occurrence, this witness has stated that the place of occurrence is butted and bounded as follows: in North-field of Beju Yadav, in South-field of Shamim Miya, in East-West-Road, in West to Shamim Miya whose house is there, he cannot say. According to him, the occurrence took place for one hour and during this period, many people had assembled.

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25. Dr. Ajay Kumar (PW-6) had examined the injured

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and found the following injuries:-

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“I examined Manoj Paswan s/o Kishun Paswan, Village Arsar, P.S.+District-Jamui and found following injuries on his person examined on 12.09.2009 at 06:05 PM:

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Lacerated wound on occipital area. 2” × 1/3”× bone deep, blood clotted present. Advised X-ray.

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Abrasion on posterior lateral aspect of left forearm. Blood clot present.

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Abrasion on posterior lateral aspect of right forearm. Blood clot present. One abrasion 1/2” × 1/3”.

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I examined Paramhans Paswan, s/o Kishun Paswan, Village Adsar, P.S+District-Jamui on 12.09.2009 at 05:50 PM found following injuries:

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Lacerated wound on right parietal area. 3 ½”×1/2”× scalp deep. Blood clot present around the wound.

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Advised X-ray skull epilateral.

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Pain and swelling on upper and lower lips.

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Body Pain.

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26. He has proved Exhibit ‘2’ and ‘2/1’ respectively. He was cross-examined by the defence. He had deposed both the injured for X-ray but neither X-ray plate nor X-ray was present before the court. He has stated that injury nos. 2 and 3 of Manoj Paswan are not inflicted. Swelling may occur by biting of insect. All injuries of Paramhans are superficial. Both these injuries cannot be by insect. Injury no. 1 on both the persons can be by falling on hard and blunt substance. PW-6 was suggested that his report was a table report and not scientific to which he denied. From the evidence of the Doctor (PW-6), it appears that though he prepared the injury report and has given the size of the lacerated wound and abrasion but neither X-ray report nor X-ray plate of the injured could be proved before the court.

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27. Shatrudhan (PW-7) is the I.O. of this case who has stated that he had not mentioned anything in his investigation regarding the damage of the tempo. He had not mentioned tempo number. He had not recorded the statement of Dhaniji and Veragiji. According to him, the second place of occurrence is a ditch in front of the village Achahri, Adsar Road which is situated West to the road. He had not mentioned the boundary of

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the second place of occurrence. PW-7 has given the boundary of the first place of occurrence only.

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28. In their Section 313 CrPC statement, the accused persons have stated that they have been falsely implicated because of the dispute on account of hiring charges of the vehicle.

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29. Upon close scrutiny of the entire prosecution evidences available on the record, we find that in this case PW1, PW-2 and PW-5 are only chance witnesses, their depositions are not consistent and they cannot be put in the category of reliable witnesses. So far as PW-3 is concerned, he is a Chaukidar in the local police station within whose jurisdiction the village is situated. He maintains good relationship with the police officials. According to PW-3, he reached the place of occurrence after about 25 minutes, therefore, he is not an eyewitness to the second occurrence. Regarding the first occurrence, he has himself stated that he is not a witness to the same. The place of occurrence according to the I.O. (PW-7) is a ditch in which water has accumulated and the same is situated West to the road but different prosecution witnesses have given different description of the place of occurrence. Regarding the manner of occurrence and the weapon and hand of the accused

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persons also the prosecution witnesses are not consistent.

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30. We find that the learned trial court has duly examined the entire prosecution evidences and has reached to a conclusion that the prosecution has failed to prove the charges against the accused persons. The findings of the learned trial court and the reasonings provided therein cannot be said to be perversed.

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31. In such circumstance, keeping in view the principles governing a case of acquittal, we are of the view that this Court sitting in appeal need not interfere with the judgment of the learned trial court.

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32. This appeal is dismissed.

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(Rajeev Ranjan Prasad, J)

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(Ramesh Chand Malviya, J)

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Anandkumar/ Sushma-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	29.01.2025
Transmission Date	29.01.2025

Paramhansh Paswan v. the State of Bihar

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Paramhansh Paswan v. the State of Bihar

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