Shankar Paswan vs The State Of Bihar (Now Jharkhand)
2022 Latest Caselaw 5199 Jhar

                                            Cr. Appeal (D.B.) No.223 of 1993
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  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr. Appeal (D.B.) No.223 of 1993
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[Against the Judgment of conviction and order of sentence dated 17.03.1993 (sentence passed on 22.03.1993) passed by Sri Ajay Kumar Srivastava, the then learned Additional Sessions Judge-II, Godda in connection with Sessions Case No.68 of 1988 / 26 of 1991, arising out of Meharma P.S. Case No.152 of 1987, corresponding to G.R. No.836 of 1987]

1. Shankar Paswan

2. Sudeen Paswan

3. Md. Fida Hussain @ Islam ... Appellants

-Versus-

The State of Bihar (Now Jharkhand) ... Respondent

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PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellants       : Mr. Ranjan Kumar Singh, Advocate
For the State            : Ms. Nehala Sharmin, A.P.P.
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C.A.V. On 10.08.2022                     Pronounced On: 22/12/2022

1. Heard Mr. Ranjan Kumar Singh, learned counsel appearing for the

appellants and Ms. Nehala Sharmin, learned A.P.P for the State.

2. This appeal is directed against the Judgment of conviction and

order of sentence dated 17.03.1993 (sentence passed on 22.03.1993)

passed by Sri Ajay Kumar Srivastava, the then learned Additional

Sessions Judge-II, Godda in connection with Sessions Case No.68 of

1988 / 26 of 1991, arising out of Meharma P.S. Case No.152 of 1987,

corresponding to G.R. No.836 of 1987, holding the appellants, Shankar

Paswan, Sudeen Paswan and Md. Fida Hussain @ Islam along-with

Ramu Paswan and Rita Mohan Shukla guilty of the offences under

Sections 302/34 & 323/34 of the Indian Penal Code for committing

murder of Mosai Paswan and voluntarily causing hurt to Chander Sah

and thereby, sentencing them to undergo imprisonment for life for the

offences under Sections 302/34 of the Indian Penal Code and rigorous Cr. Appeal (D.B.) No.223 of 1993

imprisonment for six months for the offences under Sections 323/34 of

the Indian Penal Code. Both the sentences were ordered to run

concurrently. Ramu Paswan and Rita Mohan Shukla were co-appellants

but died during the pendency of this appeal, as such, this appeal stood

abated against them.

3. The prosecution case was instituted on the basis of Fardbeyan of

the informant, Sokha Paswan, alleging therein that on the intervening

night of 28/29.12.1987, his father Mosai Paswan, who was a chowkidar

had gone to his duty and thereafter, did not return. On the next day

between 6-7 A.M., Laxman Mandal told him that his father was murdered

and his dead body was lying in village Alva Dhangarasi. The informant

rushed there and saw his father lying in a pool of blood. There were

several injuries on his head.

4. After investigation, police found the occurrence to be true and

submitted charge-sheet against the appellants on 02.03.1988, under

Sections 302/201/34 of the Indian Penal Code. Shri S.P.N. Singh, learned

Judicial Magistrate, Godda, after cognizance, committed this case to the

Court of Sessions on 07.06.1988, as it was exclusively triable by the

Sessions Court.

5. Charge was framed against the appellants under Sections 302/34 &

323/34 of the Indian Penal Code on 16.09.1992. The contents of the

charge was read over and explained to them in Hindi to which they

pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has adduced both oral

and documentary evidence.

7. Most. Modo (P.W.1) wife of the deceased, Lakho Devi (P.W.2) Cr. Appeal (D.B.) No.223 of 1993

daughter of the deceased, Sumrit Devi (P.W.3) another daughter of the

deceased, Ravindra Paswan (P.W.4) son-in-law of the deceased, Kedar

Sah (P.W.5), Jagdish Mandal (P.W.6), Sukari Devi (P.W.7) another

daughter of the deceased and Sita Ram Choudhary (P.W.8) are hearsay

witnesses.

Chandra Sah (P.W.9) is the solitary eye witness. He has supported

the prosecution case.

Sokha Paswan (P.W.10) is the informant of this case. He has stated

that on the date of occurrence, Laxman Mandal told him that his father

has been murdered. Chandra Sah also came and told him that appellants

and co-convicts had committed murder of his father.

Gajodhar Nath Mishra (P.W.11) is the Investigating Officer of this

case. He has proved the inquest report, which is Ext.1. He has proved the

place of the occurrence, which is the paddy field at the distance of 60

yards from the village. He seized two blood stained boulders and blood

stained mud from the place of occurrence. He has proved the seizure list,

which is Ext. 4. He has proved the site map of the place of occurrence,

which is Ext.5. He has further proved the injury report of Chandra Sah,

which is marked as Ext.6 and the postmortem report which is Ext.7.

Dr. Vijay Kumar Bhagat (P.W.12) has performed the postmortem

on the dead body of the deceased, Mosai Paswan. He has identified the

injury report of Chandra Sah, which was already marked as Ext.6. He has

further identified the postmortem report, which was already marked as

Ext.7.

8. The statements of the appellants were recorded under Section 313

of the Code of Criminal Procedure. The defence is general denial of the Cr. Appeal (D.B.) No.223 of 1993

occurrence and false implication.

9. On the basis of the evidence both oral and documentary, learned

court below held the appellants guilty and sentenced them accordingly.

10. Mr. Ranjan Kumar Singh, learned counsel for the appellants has

submitted that the prosecution case is entirely based upon solitary

evidence of Chandra Sah (P.W.9), who has claimed to be an eye witness.

It was submitted that the statement of this witness cannot be relied upon

as he went missing after the occurrence and there is vital contradiction in

the statement of other witnesses. As per prosecution case, Chandra Sah

told about the occurrence to the informant before lodging of the F.I.R. but

it was instituted against unknown persons. It was also submitted that

doctor who has performed the postmortem of Mosai Paswan and

examined the witness Chandra Sah, have not been examined, causing

great prejudice to the case of the appellants. On these grounds, it was

prayed that this appeal be allowed and appellants be acquitted from

charge.

11. Ms. Nehala Sharmin, learned A.P.P has submitted that Chandra Sah

(P.W.9) has categorically stated that the appellants had inflicted several

blows by heavy bolder on the head of the deceased due to which he

succumbed to his injuries. It was further submitted that the prosecution

has been able to prove its case against the appellants beyond all

reasonable doubts and as such, this appeal be dismissed.

12. Now, it has to be ascertained whether the prosecution has been able

to prove its case against the appellants beyond all reasonable doubts.

In order to come to the aforesaid findings, it has to be ascertained:-

(i) Whether the deceased Mosai Paswan had died homicidal death ?

(ii) Whether the statement of Chandra Sah (P.W.9) can be relied upon?

Cr. Appeal (D.B.) No.223 of 1993

(iii) Whether the appellants had caused homicidal death of the deceased Mosai Paswan?

13. It is the case of the prosecution that deceased Mosai Paswan died homicidal death.

Most. Modo (P.W.1) has stated that on Hulla that her husband has

been murdered, she went to the place of occurrence. She saw the dead

body of her husband Mosai Paswan, lying in the field of Khurshid Alam.

Head of her husband was crushed and his body was lying in a pool of

blood. His clothes were also drenched in blood. Lakho Devi (P.W.2) has

stated that on "Hulla", she went to the place of occurrence and saw the

dead body of her father. His head was crushed by a stone. Sumrit Devi

(P.W.3) has also stated that on "Hulla" she went to the field of Khurshid

Alam and saw the dead body of her father. His head was crushed by a

stone and clothes were drenched in blood.

Ravindra Paswan (P.W.4) is the son-in-law of the deceased. He has

stated that he had seen the dead body of his father-in-law. His head was

crushed by a stone.

Sokha Paswan (P.W.10), the informant has stated that he saw the

dead body of his father. His head was crushed by a stone.

Gajodhar Nath Mishra (P.W.11) is the Investigating Officer of the

case. He has prepared the inquest report, which is Ext.1. From perusal of

the inquest report (Ext.1), it appears that dead body of Mosai Paswan was

lying in the field of Khurshid Alam. His head was crushed by a heavy

stone.

14. From perusal of the postmortem report, it appears that there was

depressed compound fracture of the skull on the left and back side of the

head of the deceased. As per the postmortem report, the death was due to Cr. Appeal (D.B.) No.223 of 1993

shock and brain hemorrhage as a result of injuries mentioned in the

postmortem report. It has been stated in the postmortem report that the

form of original postmortem report was not available, as such, the

postmortem report was prepared in the plain paper.

15. From the aforesaid oral and documentary evidence, it appears that

aforesaid witnesses have stated that the head of the deceased Mosai

Paswan was crushed by a heavy stone. The same cannot be self inflicted

or accidental. The oral testimony of the witnesses on this point is

corroborated by the findings in the inquest report as well as in the

postmortem report.

Accordingly, we come to the finding that the deceased Mosai

Paswan had died a homicidal death.

16. The case of the prosecution is that the appellants had caused the

homicidal death of the deceased by crushing his head by a heavy stone.

The occurrence was witnessed by witness Chandra Sah.

17. Chandra Sah (P.W.9) is the solitary eyewitness of the case. He has

stated that on the date of occurrence at about 8-9 P.M, he had gone to

meet call of nature when he saw 5-6 persons sitting in a field. At that

point of time, Islam came to him and took him to them. He has stated that

Shankar Paswan, Sudeen Paswan, Rita Mohan Shukla, Ramu Paswan and

another persons were sitting there. He also saw Mosai Paswan with the

appellants. The appellants fell the deceased on the ground and crushed his

head by a big heavy stone. The appellants also tried to assault him but he

somehow managed to flee from there. Thereafter, the appellants came to

his shop and again took him to the place of occurrence with an intention

to commit his murder. However, on seeing a passing vehicle, the Cr. Appeal (D.B.) No.223 of 1993

appellants receded from there and this witness again fled away. He had

stated that he narrated the occurrence to Sokha Paswan in the morning of

the next day. In his cross examination, he had stated that he did not raise

"Hulla" when he fled to his shop for the first time.

Occurrence took place in the intervening night of 28/29.12.87.

Fardbeyan of the informant Sokha Paswan was recorded on 29/12/87 at

9.00 A.M. Sokha Paswan (P.W.10) has stated that on the next morning,

Laxman Mandal and Chandra Sah came to him and told him that the

appellants had murdered his father. Thereafter, he went to the place of

occurrence. In his fardbeyan, he has stated that Laxman Mandal told him

between 6 to 7 A.M. that the dead body of his father was lying in a field.

It is not mentioned in the fardbeyan that Chandra Sah told him about the

occurrence in the morning. Had Chandra Sah told him about the

occurrence, the F.I.R would have been registered against the appellants as

named accused. As already stated, F.I.R. has been registered against

unknown persons. Gajodhar Nath Mishra (P.W.11) has stated that this

witness had not told him that Chandra Sah told him about the complicity

of the appellants.

18. Gajodhar Nath Mishra (P.W.11) had stated that he had examined

the witness, Chandar Sah (P.W.9) on 31.12.1987, i.e., after three days

from the date of occurrence. He has further stated that on 29.12.1987, he

had tried to locate Chandar Sah but he was not present in his house. On

31.12.1987, Chandar Sah came to him and showed him his injuries. There

were injuries on the back of this witness. He has proved the injury report

which is Exhibit-6.

It is apparent from the statement of Gajodhar Nath Mishra (P.W.11) Cr. Appeal (D.B.) No.223 of 1993

that Chandra Sah was missing from his house on the next day. His

statement was recorded after 03 days, though Chander Sah (P.W.9)

has stated that he was present in his house and moved freely in the village

narrating about the occurrence.

Most. Modo (P.W.1) has stated in her cross-examination that

when she went to the place of occurrence, Chandra Sah was present there.

He narrated about the complicity of the appellents in the presence of

"Mukhiya" and "Sarpanch". She has stated that there was enmity between

"Mukhyia" and appellants due to village politics. Ravindra Paswan

(P.W.4) is the son-in-law of the deceased. He has stated that when he

went to the place of occurrence, Chandra Sah told him and the informant

at 6.30 A.M. about the complicity of the appellants. Despite of this fact,

F.I.R. was lodged against unknown persons. Chandar Sah (P.W.9) has in

his cross examination told that after sunrise, he went to the house of the

deceased and told the family members of the deceased about the

occurrence. Thereafter, he went home and remained there. He has also

stated that he never went to the place of occurrence in the morning. This

is contrary to the statement of the winesses on this point that Chander Sah

(P.W.9) told them about the occurrence at the place of occurrence.

19. From perusal of injury report of Chandar Sah (P.W.9), which is

Exhibit-6, it transpires that he had sustained four bruises on the back, two

bruises on the left arm and two bruises on the right arm. The age of

injuries have been stated to be more than 48 hours. He was examined on

31/12/87 at 2.00 P.M. According to Chandra Sah, occurrence took place

on 28/12/87 between 8 to 9 P.M. He was examined after 65 hours from

the time of occurrence, whereas the injury report suggests the age of Cr. Appeal (D.B.) No.223 of 1993

injuries to be more than 48 hours. Non-examination of the doctor who

had medically examined him has, thus, prejudiced the case of the

appellants, as the latitude of time of injury is very wide. None of the

witnesses have stated that they had seen injury on the person of this

witness.

From the aforesaid discussion, it is apparent that the very presence

of the witness Chander Sah (P.W.9) at the place of occurrence has come

under the cloud of suspicion. As such, his statement cannot be relied

upon.

20. From the aforesaid facts and circumstances, we are of the opinion

that the prosecution has failed to prove its case against the present

appellants that they had committed the homicidal death of the deceased,

Mosai Paswan beyond all reasonable doubts.

21. The impugned Judgment of conviction and order of sentence

passed by the learned court below is, hereby, set aside.

22. This appeal stands allowed.

23. Pending Interlocutory application, if any, also stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.) Jharkhand High Court, Ranchi Dated : 22/12/2022 N.A.F.R./BS