Sanjay Paswan vs The State Of Jharkhand
2023 Latest Caselaw 1484 Jhar

      Criminal Appeal (D.B.) No. 189 of 2013
                  with
      Criminal Appeal (D.B.) No. 278 of 2013

Against the judgment of conviction and order of sentence dated
20.02.2013 passed by Sri Chandra Bhushan Singh, learned Additional
Sessions Judge I, Sahibganj in connection with S. C. Case No. 76 of 2009.
                                  ---

Sanjay Paswan                                    ...     ...     Appellant
                                         (in Cr. Appeal DB No. 189 of 2013)

Manghu Mandal                                   ...    ...     Appellant
                                        (in Cr. Appeal DB No. 278 of 2013)
                      Versus
The State of Jharkhand                         ...      ...        Respondent

                          ---
For the Appellants        : Mr. Pankaj Kumar, Advocate
For the Respondent        : Mrs. Priya Shresha, Special P.P.
                        ---
                     Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
     HON'BLE MR. JUSTICE AMBUJ NATH
                        ---
C.A.V. on - 12.07.2022        Pronounced on - 05.04.2023

Heard Mr. Pankaj Kumar, learned counsel for the appellants and Mrs. Priya Shrestha, Special P. P. for the State.

2. Since both these appeals arise out of a common judgment, the same are being disposed of by this common order.

3. These appeals are directed against the judgment of conviction and order of sentence dated 20.02.2013 passed by Sri Chandra Bhushan Singh, learned Additional Sessions Judge I, Sahibganj in connection with S. C. Case No. 76 of 2009 whereby and whereunder the appellants have been convicted for the offences punishable under Sections 302/34 of I.P.C. and Section 27 of the Arms Act and have been sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/- each for the offence punishable under Section 302/34 of I.P.C. and in default in payment of fine to undergo simple imprisonment for six months. They have also been sentenced to undergo rigorous imprisonment for 7 years along with a fine of Rs. 5,000/- each for the offence under Section 27 of the Arms Act and in default in payment of fine to undergo simple imprisonment for one year. Both the sentences were directed to run concurrently.

4. The fard beyan of Meera Devi was recorded on 10.12.2007 in which it has been stated that she had two sons - Gautam Paswan and

Purushottam Paswan. Her husband Rajendra Paswan works as a Khalasi in PWI Railways. Her elder son Gautam Paswan does not do any work and had developed friendship with some anti-social elements namely, Manghu Mandal (appellant in Cr. Appeal DB No. 278 of 2013), Sanjay Paswan (appellant in Cr. Appeal DB No. 189 of 2013) and Guddu Singh. In spite of her repeated requests and reprimands, Gautam Paswan did not end his friendship with the said persons. It has been alleged that about 2 days back, a quarrel had taken place between Gautam Paswan and Sanjay Paswan. On 09.12.2007 at about 7:00 P.M., Sanjay Paswan, Manghu Mandal and Guddu Singh had come to his house, dragged her son Gautam Paswan and took him to an alley behind the house of Biren Tanti. She sent to save her son and saw Manghu Mandal and Guddu Singh catching hold of his son and all of a sudden Sanjay Paswan took out a pistol and fired at the temple of Gautam Paswan who fell down in a drain and the three accused persons thereafter assaulted him and fled away. Since it was night, the police could not be informed. The police came in the morning and the incident was disclosed to them.

5. Based on the aforesaid allegations, Borio (Jirwabari O.P.) P. S. Case No. 170 of 2007 was instituted against Sanjay Paswan, Manghu Mandal and Guddu Singh for the offences punishable under Sections 302/34 of I.P.C. and Section 27 of the Arms Act. On completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S. C. Case No. 76 of 2009. Charge was framed against the accused persons for the offences punishable under Sections 302/34 of I.P.C. and Section 27 of the Arms Act which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

6. The prosecution has examined as many as 11 witnesses in support of its case.

P.W. 1 - Basuki Nath Sah did not support the case of the prosecution and was declared hostile by the prosecution.

P.W. 2 - Meera Devi is the informant who has deposed that the incident is of one and half year back and it was around 7:00 P.M. when she was in her house. Her son Gautam Paswan was the only person who

was present in the house apart from her. She and her son were sitting when, Sanjay Paswan, Manghu Mandal and Guddu Singh came and forcibly took away her son. She rushed towards the drain situated adjacent to the house of Biren and saw Manghu Mandal and Guddu Singh catching hold of his son and Sanjay Paswan firing at the chest of her son. Her son died at the spot. He was also assaulted with fists and slaps. She has stated that the appellants thereafter fled away. In the morning, the police came, recorded her statement and took away the dead body of Gautam Paswan. She had identified her signature in the fard beyan which has been marked as Exhibit 1.

In cross-examination, she has deposed that she was in a live-in relationship with Rajendra Paswan. Her husband was Uma Nath Paswan who was working in the Railways and when he died in harness, her brother-in-law Rajendra Paswan secured his appointment. In the place of occurrence, there was no one except Gautam Paswan and herself. On the date of occurrence, she had not gone on a rick-shaw with Guddu in search of Gautam. She has stated that at the time when Guddu and Sanjay had dragged out her son, there was no one else present. After her son was shot, she started yelling and remained the entire night at the place of occurrence. She has stated that the house of Laxmi Mistri was adjacent to her house, but no one had come out.

P.W. 3 - Rajendra Paswan has stated that when the incident had occurred, he was at Taljhari. When he came back home, his wife disclosed that Sanjay Paswan, Manghu Mandal and Guddu Singh had dragged out Gautam Paswan, taken him to the alley near the house of Biren Mandal and shot him dead.

In cross-examination, he has deposed that Gautam Paswan was his foster son, though he does not have any papers to prove it.

P.W. 4 - Ved Prakash Ram and P.W. 5 - Rajan Thakur did not support the case of the prosecution and were accordingly declared hostile by the prosecution.

P.W. 6 - Dr. Madhurendra Nath Singh was posted as a Medical Officer in Sadar Hospital, Sahebganj and on 11.12.2007, he had conducted autopsy on the dead body of Gautam Paswan and had found the following:

"(i) On physical examination - right eye damage, left eye normal. Wound of injury 2" below left nipple. Blackening about 2" in radius around the wound of entry. Margin was inverted.

(ii) Wound of exit - ¼" in over back between 9 & 10 rib in between intercultural space. On opening chest cavity, both lungs full of blood. On opening abdomen cavity - left liver was punctured, stomach ruptured on both sides. Spleen pale, kidney pale, bladder empty.

(iii) On opening skull brain - brain normal."

The cause of death was opined to be due to fire arm injury from close range damaging the vital organs and causing haemorrhage. He has proved the post mortem report which has been marked as Exhibit 2.

P.W. 7 - Soyeb Ansari has been tendered by the prosecution. P.W. 8 - Birbal Pramanik has been declared hostile by the prosecution.

P.W. 9 - Pramod Kumar has proved the hand-writing of the Officer Incharge of Borio (Jirwabari O.P.) in the endorsement which has been marked as Exhibit 1/1. He has proved the formal FIR which has been marked as Exhibit 3.

P.W. 10 - Shyam Sundar Paswan has also been declared hostile by the prosecution.

P.W. 11 - Anil Kumar Dwivedi was Incharge of Jirwabari O. P. and on 10.12.2007, he had heard a rumour about a dead body lying in mohalla Kelabari Dhangarti. After making a station diary entry, he left for Kelabari with a police force. He had recorded the fard beyan of Meera Devi which culminated in the registration of Borio (Jirwabari O.P.) P. S. Case No. 170 of 2007. He has proved the fard bayen which has been marked as Exhibit 4. The forwarding report has been marked as Exhibit 4/1. The inquest report was prepared by Sub-Inspector of Police - J. J. Murmu. After preparation of the inquest report, the dead body was sent for post mortem. He had recorded the re-statement of the informant and had also inspected the place of occurrence which is at village Kelabari Dhangarti in the road near the boundary wall of Shrawan Kumar Mandal. There was a pole in the corner of the boundary wall near which the dead body of Gautam Paswan was found. In course of investigation, he had recorded the statements of Gayatri Devi, Shyam Sundar Paswan, Md. Anwarul, Rajendra Paswan, Shoib Ansari, Bindu Devi, Rajendra

Thakur, Birbal Pramanik, Dobha Oraon, Ved Prakash Ram and Basuki Nath Sah.

In cross-examination, he has deposed that in her fard bayen as well as in her re-statement, the informant had stated about her son developing friendship with anti-social elements.

7. The statements of the accused persons were recorded under Section 313 Cr.P.C. in which both have denied their involvement in the murder.

8. Mr. Pankaj Kumar, learned counsel for the appellants has submitted that the evidence of P.W. 2 is the basis for conviction of the appellants. It has been submitted that the conduct of P.W. 2 also seems to be not a natural conduct as even though, her son was shot in front of her eyes, but she instead of screaming for help, kept herself rooted in the place of occurrence for the entire night. The place of occurrence was not a lonely place, but not a single witness from the adjoining areas turned up making the testimony of P.W. 2 more vulnerable to challenge.

9. Mrs. Priya Shrestha, learned Special P.P. for the State has submitted that the evidence of P.W. 2 though a solitary eye-witness evokes trustworthiness as the defence has failed to elicit any contradictions from her and her testimony appears to have been corroborated by the findings in the post mortem report.

10. We have heard the learned counsels for the respective parties and have also perused the lower court records.

11. Out of 11 witnesses examined by the prosecution, P.W. 2 is the solitary eye-witness to the occurrence. Her evidence reveals that the appellants and Guddu Singh had come to her house, dragged out her son Gautam Paswan, took him to an alley and while Gautam Paswan was made immobile by Manghu Mandal and Guddu Singh, Sanjay Paswan had shot at him resulting in his instant death. The evidence of P.W. 2 has not been corroborated by any ocular evidence. The testimony of P.W. 2 therefore has to be scrutinized with more circumspection. When we decipher the sequence of events as narrated by P.W. 2, we find that the act of the appellants of entering into the house of P.W. 2 signaled their intention, but it seems that P.W. 2 neither tried to prevent them from such act nor had raised any alarm. When she reached the alley, she

purportedly saw the firing made upon her son by the appellant Sanjay Paswan and except yelling, she made no attempt to seek assistance or to catch hold of the miscreants. P.W. 2 is the mother of the deceased and her conduct on both occasions amplifies the doubts appearing in her testimony. It was around 7:00 P.M. when the occurrence had taken place. Neither the first place of occurrence nor the second place of occurrence was uninhabited as from the evidence of P.W. 2 and P.W. 11, it is manifest that there were adjoining houses, but even then none came for assistance, although as per P.W. 2, she was wailing when her son was shot at. The distance of the place of occurrence from the police station is 3 kms., but even then no attempts were made by the P.W. 2 to inform the police.

12. In the case of "Amar Singh Vs. State (NCT of Delhi)" reported in (2020) 19 SCC 165, it has been held as follows:

"17. This case primarily hinges on the testimony of sole eyewitness, Parminder Singh PW 1, brother of the deceased. As already discussed above, conviction can be based on the testimony of a single eyewitness so long he is found to be wholly reliable. In the light of the settled legal principles we proceed to examine the testimony of Parminder Singh PW 1 and also his conduct at the time of the incident.

18. According to his own testimony on the fateful night at about 10.00 p.m., the three brothers (Parminder Singh PW 1, Amar Singh PW 11 and deceased Devinder Singh alias Ladi) left the mother's house for their respective houses. Parminder Singh and Amar Singh were walking a few paces ahead of Devinder Singh alias Ladi when they heard him shouting "Bachao-Bachao"; when they turned around they found three persons attacking their brother Devinder Singh alias Ladi. Accused Inderjeet Singh was armed with a knife while accused Amar Singh and Shiv Charan were armed with hockey sticks. He further stated that he recognised all the three accused from before and when they tried to intervene, all the three persons aimed their weapons at them and threatened to kill. Due to assault Devinder Singh alias Ladi fell down on the ground and became unconscious and thereafter the accused persons fled from the place. He also stated that while they were taking care of the injured brother, the police van arrived at the spot in which Devinder Singh alias Ladi was removed to the hospital where he was declared brought dead. During the cross-

examination, he stated that the entire incident barely lasted five minutes and they did not make any complaint to the police but the police came of its own after about 15 minutes of the incident. He had also admitted in the cross-examination that he did not inform his mother though she was living nearby. He also stated that he and his brother Amar Singh went to the hospital with injured Devinder Singh alias Ladi in the PCR van. He also stated that he

informed the doctor who examined Devinder Singh alias Ladi as to the manner in which he sustained injuries. He also stated that Devinder Singh alias Ladi sustained injury on his head on account of hockey-blows, however, he did not bleed from his head.

19. The unnatural conduct of Parminder Singh PW 1 and Amar Singh PW 11 the two brothers of the deceased which we have noticed from record is that though they claim to be present at the time of occurrence, no attempt was made by them to save their brother from assault. Though PW 1 has tried to explain in his examination-in-chief that when they tried to intervene and save their brother Devinder Singh alias Ladi all the three accused persons aimed their weapons at them and threatened that in case they intervened they would also be killed. It may be relevant to notice that Amar Singh PW 11 neither in statement-in-chief nor in his cross-examination by the prosecution after being declared hostile stated about any efforts made either by him or by PW 1 Parminder Singh to save their brother Devinder Singh alias Ladi when he was attacked. On the contrary, PW 11 stated in his examination-in-chief that he was not able to run because of his spinal injury. In the cross-examination he categorically stated that he never told the police that when they tried to rescue, accused Inderjeet Singh brandished the knife and accused Amar Singh and Shiv Charan brandished hockey towards them threatening to kill anyone who comes to rescue Devinder Singh alias Ladi. He also denied in the cross-examination having ever being given any statement to the police that he had identified the culprits or accused Inderjeet Singh has stabbed with knife and accused Amar Singh gave hockey-blows and the front portion of the hockey had broken because of assault and the 3rd accused Shiv Charan also gave hockey-blows.

20. The assailants were only armed with hockey sticks and a knife and not with any firearms. It seems very unnatural that two brothers present on the spot will not even make slightest attempt to intervene and try to save the other brother being assaulted, merely on the threat extended by the assailants armed with hockey sticks and a knife. This unnatural conduct totally against natural human behaviour casts a serious doubt of shadow on the presence of eyewitness on the spot at the time of occurrence. Moreover, the facts stated by PW 1 Parminder Singh in this regard, as already discussed above, have not been corroborated by the other brother Amar Singh PW 11.

21. The other unnatural conduct of two brothers PW 1 and PW 11 just after the incident again makes their presence on the spot extremely doubtful. There was a medical clinic of Doctor Bhardwaj just nearby the place of incident and the first endeavour of the two brothers would have been to take injured brother to the clinic for immediate medical aid or try and get some medical aid from the clinic of Doctor Bhardwaj. Admittedly, according to the statement of Parminder Singh PW 1 PCR van arrived after about 15 minutes. During this period no effort was made to either take the injured brother to the clinic or to call Doctor Bhardwaj for some first aid. This is totally against normal human behaviour.

22. Further no effort is alleged to have been made to either shift the injured to any hospital or even inform the police. It is highly unnatural that two real brothers made no efforts to save the life of

third brother who was severely injured if they were present at the place of the incident. The PCR van is stated to have arrived after 15 minutes on the basis of information given by some unknown person regarding a person lying injured in front of Qumayun Hotel. PW 20 lady constable Renu in her evidence stated that on the fateful night she was posted at PCR van when at about 10.27 p.m. an unknown person made a call to inform that one man was lying unconscious near Qumayun Hotel, Defence Colony which was registered as DD No. 493. It was on the information given by an unknown, the PCR van reached at the site of the incident and shifted the injured to AIIMS where he was declared brought dead."

13. The conduct of a witness is also of paramount significance, moreso when the entire fate of the prosecution case hinges upon such evidence, as in the present case P.W. 2 is the solitary eye-witness, but her conduct as noted above has created a dent in the reliability of her evidence and in such circumstances the benefit of doubt must be extended to the appellants.

14. Thus on consideration of the entire facets of the case, we are of the considered view that the learned trial court had committed an error in putting undue reliance on the testimony of P.W. 2 and as a consequence thereof, we hereby set aside the impugned judgment of conviction and order of sentence dated 20.02.2013 passed by Sri Chandra Bhushan Singh, learned Additional Sessions Judge I, Sahibganj in connection with S. C. Case No. 76 of 2009. These appeals are allowed.

15. Since the appellant Sanjay Paswan is in custody, he is directed to be released immediately and forthwith, if not wanted in any other case. So far as the appellant Manghu Mandal in Criminal Appeal (DB) No. 278 of 2013 is concerned, he is on bail and as a consequence of the appeal being allowed, he is discharged from the liabilities of his bail bonds.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.) Jharkhand High Court at Ranchi The 5th day of April, 2023 R.Shekhar/NAFR/Cp.3