IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.600 of 1996
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1. Sanjai Paswan, S/o Ramji Paswan, R/o Katghat, Topkhana Bazar, P.S.-
Kotwali, Munger.
2. Ramji Paswan, S/o Late Ram Kishun Paswan, R/o Katghat, Topkhana Bazar,
P.S.-Kotwali, District-Munger.
3. Binay Paswan, S/o Ram Prasad Paswan, R/o village-Katghat, Topkhana
Bazar, P.S.-Kotwali, District-Munger.
..... .... Appellants
Versus
State of Bihar ..... .... Respondent
with
Criminal Appeal (DB) No. 611 of 1996
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Om Prakash Paswan, S/o Late Ram Kishun Paswan, R/o village-Katghat,
Topkhana Bazar, P.S.-Kotwali, District-Munger.
.... .... Appellant
Versus
The State of Bihar .... .... Respondent
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Both the above appeals are against the judgment of conviction dated 27.11.1996
and order of sentence dated 28.11.1996 passed by 1st Additional Session Judge,
Munger in Sessions Case No.193 of 1996.
Appearance :
(in Cr.Appeal No.600 of 1996):
For the Appellants : M/s. Ajit K. Singh and D.N. Jha, Advocates.
For the Respondent : Mr. Shiwesh Chandra Mishra, APP.
(in Cr.Appeal No.611 of 1996):
For the Appellant : M/s. Shakil Ahmad Khan, Sr. Advocate, Jay
Prakash and Shailendra Kumar, Advocates
For the Respondent : Miss Shashi Bala Verma, APP.
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CORAM: HON‟BLE MR. JUSTICE NAVANITI PRASAD SINGH
HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH
———–
(Per: HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH)
———–
All the four appellants were charged under Section 302
read with Section 34 of the Indian Penal Code. The appellant Om
Prakash Paswan has been further charged under Section 302 of the
Indian Penal Code and 27 of the Arms Act. The learned 1 st
Additional Sessions Judge, Munger by judgment dated 27.11.1996
convicted them for the offence they were charged with and after
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hearing them on the point of sentence by his order dated
28.11.1996 sentenced appellant Sanjay Paswan, Ramjee Paswan
and Binay Paswan to undergo R.I. for life under Section 302/34 of
the Indian Penal Code. The appellant Om Prakash Paswan has
been sentenced to undergo R.I. for life under Section 302 of the
Indian Penal Code. He has further been sentenced to undergo R.I.
for five years under Section 27 of the Arms Act. In his case, no
separate sentence has been passed under Section 302/34 of the
Indian Penal Code. Both the sentences in the case of appellant Om
Prakash Paswan have been ordered to run concurrently.
2. The prosecution case in short as per fardbeyan of
Sunil Paswan recorded on 24.12.1994 at 5.15 p.m is that his
nephew Jagarnath Paswan was working as a labourer in the house
of Suresh Sinha. The appellants armed with firearm came there at
about 4.15 p.m. on 24.12.1994. Om Prakash Paswan is alleged to
have fired from his pistol causing injury in the waist of Jagarnath
Paswan. Jagarnath Paswan fell down. The informant together with
Kapildeo Paswan and Bhutto Paswan ran towards the place of
occurrence. The accused persons fled away towards south. The
victim Jagarnath Paswan was found in a precarious condition. He
disclosed that Om Parakash Paswan had caused gun shot injury
upon him and Ramjee Paswan, Sanjay Paswan and Binay Paswan
were accompanying him. The informant together with Bhutto
Paswan and Kapildeo Paswan carried the victim to hospital on a
rickshaw, but on way, even before reaching the hospital Jagarnath
Paswan succumbed to the injury. The informant claims that
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incident of occurrence was witnessed by other persons also. The
said fardbeyan was recorded by Sub-Inspector of Police, B. N.
Singh in Sadar Hospital, Munger at 5.15 p.m. on 24.12.1994. On
the basis of fardbeyan a formal First Information Report was
drawn on the same day at about 8.15 p.m. The case was
investigated and on conclusion of investigation, charge sheet was
submitted. The appellants were sent up for trial. The learned
Magistrate took cognizance of the offence. After supplying the
police papers in terms of Section 207 of the Criminal Procedure
Code, the case was committed to the court of sessions. All the four
accused persons were charged for having committed offence
punishable under Section 302/34 of the Indian Penal Code. The
accused Om Prakash Paswan had been further charged for the
offence punishable under Section 302 of the Indian Penal Code
and Section 27 of the Arms Act. The accused persons did not plead
guilty and claimed to be tried.
3. The prosecution in order to prove its case has
examined in all 11 witnesses. Out of them P.W.-1, Kapildeo
Paswan, P.W.-2, Bhutto Paswan, P.W.-3 Suresh Kumar Sinha and
P.W.11, Sukhdeo Mistry have been declared hostile by the
prosecution. P.W.-5 Mahendra Prasad Mandal has been tendered
for cross-examiantion. P.W.-9 Brajnandan Singh is the
investigating officer of the case. P.W.-10 Sri V.K. Mishra is the
Judicial Officer, who had recorded statement of Kapildeo Paswan
(PW.-1), Bhutto Paswan (P.W.-2), Sunil Paswan (P.W.-4) under
Section 164 of the Code of Criminal Procedure. P.W.-7 is Dr. P.M.
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Sahay, who held post mortem examination on the dead body of
Jagarnath Paswan. P.W.-4 Sunil Paswan is the informant. P.W.-6
Meena Devi is wife of the deceased Jagarnath Paswan and P.W.-8
Amin Paswan is a co-labourer, who was working at the relevant
time in the house of Suresh Sinha along with the deceased.
4. From the first information report itself, it is
apparent that after hearing sound of firing P.W.-4 together with
Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) went to the
place of occurrence and saw the accused persons fleeing away. In
his deposition also P.W.-4 Sunil Paswan has stated that he along
with Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) went
near the place of occurrence. It may be noted here that P.W.-1
Kapildeo Paswan and P.W.-2 Bhutto Paswan have been declared
hostile by the prosecution and they have not supported P.W.-4, the
informant.
5. It would further appear from the evidence of
P.W.4 in court that he was grazing cow at a distance of 25-30
yards from the place of occurrence at the time of occurrence and
from there he saw the firing by the accused Om Prakash Paswan.
This fact has not been mentioned in the first information report.
This fact for the first time was introduced by P.W.4 in his
statement recorded under section 164 of the Code of Criminal
Procedure on 19.1.1985. This is a very important point to establish
presence of P.W.4 near about the place of occurrence. The
importance of this fact is also for the reason that had this fact been
disclosed to the investigating officer (P.W.9), he would have made
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an objective finding in this regard. The investigating officer
(P.W.9) has stated in his deposition that he did not notice any sign
of grazing of cattle near the place of occurrence. The investigating
officer has categorically stated that the informant did not state
before him in his further statement that at the place of occurrence
he was grazing cow.
6. P.W.8 Amin Paswan is an important witness. He
was working as a labour in the house of Suresh Sinha where the
deceased was also working at relevant point of time. He has stated
that when he reached near the deceased after hearing the gun shot
he was in an unconscious state. He had received gun shot injury.
He was breathing but was not able to speak. He was carried to
hospital by co-villagers including Sunil Paswan (P.W.4). He died
subsequently. He did not hear the name of the assailant being
spoken. He saw many persons fleeing away after alleged firing. He
identified all the accused persons, who were present in the dock.
He claims to identify Meena Devi (P.W.6) too. He further claims
to have seen Meena Devi on that date. In cross-examination this
witness has stated that he was known to the accused persons since
his childhood. Thus, being known to the accused persons he has
not divulged their name among the miscreants, who were allegedly
seen fleeing away after occurrence. If this witness is to be
believed, participation of the appellants in the crime is ruled out.
7. Meena Devi (P.W.6) is wife of the deceased. She
is also a very important witness. Her husband was done to death.
In her deposition she has stated that in the evening she came to
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know that her husband was killed. She went to the place where
occurrence had taken place. When she reached at the place of
occurrence, her husband was unconscious. He was taken to
hospital by Sunil Paswan, Kapildeo Paswan and Bhutto Paswan.
She has stated in her examination-in-chief that she could not know
the name of the accused who had committed the crime. In cross-
examination this witness has stated that when she reached near her
husband, he was surrounded by labourers. Sunil Paswan, Kapildeo
Paswan and Bhutto Paswan came there about l5-20 minutes after
arrival of this witness and they took her husband to hospital on a
Rickshaw but on way to hospital he died. It is important to note it
here that P.W.6 and P.W.8 have not been declared hostile. From
the evidence of these two witnesses it becomes clear that Sunil
Paswan (P.W.4) was not present at the time when Jagarnath
Paswan was shot dead. He reached subsequently and by the time
he reached the victim was unconscious. Thus, there was no
occasion for the victim to have disclosed the name of any of the
accused persons.
8. At this stage, I may usefully refer to paragraph 9
of judgment of the Supreme Court in this case of Raja Ram Vs.
State of Rajasthan as reported in (2005) 5 SCC 272, which is
quoted hereunder:-
“But the testimony of P.W.-8 Dr. Sukhdev
Singh, who is another neighbour, cannot
easily be surmounted by the prosecution. He
has testified in very clear terms that he saw
P.W.-5 making the deceased believe that
7unless she puts the blame on the appellant and
his parents she would have to face the
consequences like prosecution proceedings. It
did not occur to the Public Prosecutor in the
trial court to seek permission of the court to
heard (sic. declare) P.W.-8 as a hostile witness
for reasons only known to him. Now, as it is,
the evidence of P.W.8 is binding on the
prosecution. Absolutely no reason, much less,
any good reason, has been stated by the
Division Bench of the High Court as to how
P.W.-8‟s testimony can be sidelined.”
9. The ratio of the aforesaid case is that a
prosecution witness, not supporting the prosecution case, if not
declared hostile, defence can rely upon evidence of such witness
and it would be binding on the prosecution. Here, in the present
case, neither P.W.-6 nor P.W.-8 has been declared hostile by the
prosecution. The defence relies on the testimony of P.W.-6 and
P.W.-8. The result would be that the presence of P.W.-4 the
informant (Sunil Paswan) near the place of occurrence at the time
of occurrence would be completely ruled out.
10. It is submitted on behalf of the appellants that
there had been absolutely no motive for the accused persons to
commit murder of Jagarnath Paswan. Nothing has been brought on
record to show any sort of animosity in between Jagarnath Paswan
and the accused persons. It is true that motive is not required for
establishing a case of murder. When there is no motive alleged
prosecution is not required to prove motive but in this case P.W.4
has alleged in the first information report that Jagarnath Paswan
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was his nephew and as such he was killed by the accused persons.
In such circumstance, the prosecution should have thrown some
light to show as to why the accused persons would have committed
murder of nephew of the informant. It is submitted that the
deceased, Jagarnath Paswan, was not nephew of Sunil Paswan nor
he was in any way related to P.W.4. It is worthy to note it here that
P.W.4 has admitted in cross-examination that Jagarnath Paswan
came in the childhood and he started living with Ramchandra
Paswan. Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) are
sons of said Ramchandra Paswan. Ramchandra Paswan is in no
way related to Nandlal Paswan father of P.W.4. The prosecution,
therefore, has failed to prove and establish any motive to commit
murder of Jagarnath Paswan at the hands of the accused persons.
11. On the other hand, the defence has filed a series
of documents to show that Jagarnath Paswan, the deceased was a
veteran criminal. He was indulged in criminal activities. He had
criminal associates. He had married a muslim lady, who was sister
of a renowned criminal Anwar Mian, who was killed in police
encounter. It is submitted on behalf of the appellants that these
facts have also transpired in the deposition of witnesses including
P.W.4. Even P.W.6, wife of deceased has admitted that she is
sister of Anwar Mian. The investigating officer in paragraph 21 of
his deposition has also admitted the fact that on the instruction of a
senior officer he had enquired about a criminal antecedent of the
deceased and had found that he was accused in Kotwali P.S. Case,
3 of 1994 registered for the offence under sections 399/402 of the
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Indian Penal Code, Kotwali P.S. Case No.424 of 1994 registered
for the offence under section 307/34 of the Indian Penal Code,
Kotwali P.S. Case No.424 of 1994 registered for the offence under
section 307/34 of the Indian Penal Code and section 27 of the
Arms Act, Kotwali P.S.Case No.282 of 1992 registered for the
offence under sections 25 and 26 of the Arms Act. The
investigating officer has also admitted that he received instruction
from supervising authority to enquire the factum as to whether the
deceased had married the sister of Anwar Mian.
12. Learned counsel for the appellants thus submits
that since the deceased himself was a man of criminal antecedent
he might have been killed in a different manner by some of his
enemies and they have falsely been implicated by the informant.
Learned counsel for the appellants advancing his argument in this
regard has also stated that there was a very strong motive for false
implication of the accused persons as P.W.4, Sunil Paswan, was
having enimical relationship with them. The defence has exhibited
several documents. This includes Ext.‟L‟ and Ext.‟L/1‟ which are
certified copies of the deposition of appellants, Om Prakash
Paswan and Binay Kumar Paswan in Sessions Case No.483 of
1993 which was being tried for the offence under section 307 of
the Indian Penal Code and the Arms Act. In that case Om Prakash
Paswan had received gun shot injury at the hands of Sunil Paswan
(P.W.4) and his family members. The defence has also brought on
record Ext. „C‟ which is a formal first information report, Ext. „D‟
is fardbeyan and Ext. „H‟ is certified copy of chargesheet of
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Kotwali P.S.Case No.420 of 1992. The said case after commitment
was numbered as S.C. No.483 of 1993. The defence has also
brought on record Ext.„H‟ which is a certified copy of complaint
petition of case no.312C of 1993 in which Nandlal Paswan father
of Sunil Paswan (P.W.4) is the complainant and Om Prakash
Paswan, Binay Paswan and Sanjay Paswan are accused mentioned
in the complaint petition. This case relates to murder of Sushil
Paswan son of Nandlal Paswan. The defence has brought on record
Ext.„F‟ and Ext.„G‟ which are formal first information report and
written report of Kotwali P.S. Case No.369 of 1995 in which
Manglesh son of Om Prakash Paswan was kidnapped and a case
was instituted by Ram Balak Paswan, the brother-in-law of Om
Prakash Paswan. The defence has also brought on record Ext.„K‟
which is a copy of information petition no.825(J) of 1992 filed on
17.6.1992 by appellant, Om Prakash Paswan against Sunil Paswan
and his family members. From perusal of these documents it is
apparent that there was existing enmity between the informant
Sunil Paswan (P.W.4) and the accused persons. It is important to
note it here that in none of these cases Jagarnath Paswan figured
either as an accused or as informant or as a witness. Thus, it is
argued on behalf of the appellants that there existed very strong
motive for the informant to implicate the appellant in a false case
in order to settle the old score taking advantage of the situation.
13. It is also argued that P.W.1 and P.W.2 were sons
of Ramchandra Paswan who had brought up the deceased,
Jagarnath Paswan. In that way the deceased was more close to
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P.W.1 and P.W.2 but they have not supported the case put forward
by Sunil Paswan (P.W.4) regarding murder of Jagarnath Paswan.
It is further argued on behalf of the appellants that I.O. (P.W.9) has
not properly investigated the case. According to his evidence he
had seized blood stained earth but there is no seizure list on record.
There is no seizure list of bullet which was taken out from the
body of the Jagarnath Paswan. The doctor, who conducted
postmortem examination, has stated that he had found one bullet
lodged in left lung tissue of the deceased which was sealed and
signed and handed over to the police. The I.O. on the other hand
has stated that he had received pellet in sealed cover from the
doctor but he did not prepare any seizure list. The I.O. has also
stated that he did not remember as to whether any blood-stain was
found on the cloth of the deceased or not. He did not remember as
to whether there was any hole in the cloth which the deceased was
wearing. He has admitted the fact that he had mentioned nothing in
this regard in the inquest report. These lapses on the part of the
Investigating Officer are fatal to the prosecution case. It is also
argued that the I.O. did not find any blood-stain at the place of
occurrence. The appellants, thus, submit that the prosecution has
miserably failed to bring home the charges. The case rests on the
sole testimony of Sunil Paswan (P.W.-4). He is neither trustworthy
nor reliable and dependable.
14. The defence has produced three witnesses.
D.W.-1 is Rajendra Sharma, D.W.-2 is Mahendra Mandal and
D.W.-3 is Sitaram Prasad. They have proved several documents
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which have been marked as exhibits-„A‟ to N/1.
15. Having heard the parties what emerges in the
present case is that the case primarily hinges on the testimony of a
single eye-witness Sunil Paswan P.W.-4. Indeed, the conviction
can be based on the testimony of single eye-witness and there is no
rule of law or evidence which says to the contrary provided the
sole witness passes the test of reliability. So long as the single eye-
witness is a wholly reliable witness, the Courts have no difficulty
in passing conviction on his testimony alone. However, where the
single eye-witness is not found to be a wholly reliable witness, in
the sense that there are strong circumstances which may show that
he has interest in the prosecution then the courts generally insist
upon some independent corroboration of his testimony, on material
particulars, before recording conviction. Here, in the present case,
in view of the discussions made hereinabove, what is found is that
the corroboration furnished by the prosecution from the mouth of
P.W.-6 and P.W.-8 is negative in character in so far as the
involvement of the appellants are concerned. In other words, they
completely exonerate the participation of the appellants in the
alleged murder. They are prosecution witnesses. They have not
been declared hostile. Their evidence would be binding on the
prosecution. The evidence of Sunil Paswan is not corroborated in
any manner by any other witness.
16. In the instant case, the testimony of solitary eye-
witness P.W.-4, who was on inimical terms with the appellants
from before is full of infirmities and improbabilities as noticed
13
hereinabove. In the circumstance, the testimony of P.W.-4 cannot
be considered as reliable. It is true that on the evidence adduced
the deceased had been proved to have been killed. However, for
that reason alone, the appellants cannot be held guilty of murder
when the testimony of P.W-4 was far from reliable. The learned
trial court was thus, clearly in error in convicting the appellants on
the sole testimony of the informant. For the reasons recorded, the
conviction of the appellants cannot be sustained.
17. Accordingly, judgment and order of conviction
and sentence passed in Sessions Trial No. 193 of 1996 passed by
1st Additional Sessions Judge, Munger, is, hereby, set aside. The
appellants are discharged from the liabilities of their bail bonds.
(Ashwani Kumar Singh, J.)
Navaniti Prasad Singh, J. I agree
(Navaniti Prasad Singh, J.)
Patna High Court,
The 27th September, 2011.
Md.S./AFR