Karu Paswan vs The State Of Bihar (Now Jharkhand)
2025 Latest Caselaw 1707 Jhar

Jharkhand High Court

Karu Paswan vs The State Of Bihar (Now Jharkhand) on 14 January, 2025

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

    [Against the judgment and order of conviction and sentence dated 17.06.1997
    (sentence passed on 20.06.1997) passed by Shri Sudarshan Upadhyay,
    learned 1st Additional Sessions Judge, Chatra in Sessions Trial No. 15/1996]
                     Cr. Appeal (D.B.) No. 129 of 1997 (R)
    1.   Karu Paswan, S/o Ram Shankar Paswan
    2.   Kurhan Paswan, S/o late Kanni Paswan
         Both residents of village Ara Atu, P.S. Simaria, District-
         Chatra                                      ... ... Appellants
                                    Versus
    The State of Bihar (Now Jharkhand)              ... ... Respondent
                                    With
                     Cr. Appeal (D.B.) No. 160 of 1997 (R)
    Kauleshwar Paswan                                      ... ... Appellant
                                  Versus
    The State of Bihar (Now Jharkhand)         ... ... Respondent
                                  ...........
    For the Appellants         : Mr. Rakesh Kumar Sinha, Adv.
                                     (In both cases)
    For the State                  : Mr. Abhay Kumar Tiwari, A.P.P.
                                     (In both cases)
                           PRESENT
           HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
               HON'BLE MR. JUSTICE ARUN KUMAR RAI
                              ...........
C.A.V. on 19/12/2024               Pronounced on 14/01/2025
Per Rongon Mukhopadhyay, J.

Heard Mr. Rakesh Kumar Sinha, learned counsel for the appellants and Mr. Abhay Kumar Tiwari, learned A.P.P. for the State.

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

3. These appeals are directed against the judgment and order of conviction and sentence dated 17.06.1997 (sentence passed on 20.06.1997) passed by Shri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra in Sessions Trial No. 15/1996, whereby and whereunder, the appellants have been convicted for the offence punishable u/s 302/34 of the IPC and have been sentenced to R.I. for life.

4. The prosecution case arises out of the fardbeyan of Pano Devi recorded on 17.02.1995 in front of the house of the informant, in which, it has been stated that around 10:00 A.M. she was cooking food in her house when Kauleshwar Paswan with a knife came and wanted to know about the whereabouts of the mother-in-law of the informant. In the meantime, Kurhan Paswan and Karu Paswan had also come. When the informant came out of her house she found her husband making a ploughing instrument near the house of her mother-in-law. The accused persons by hurling abuses at him had also enquired about the mother-in-law of the informant. It has been alleged that the accused persons in order to commit assault upon the husband of the informant chased him but he managed to flee away. The accused persons thereafter entered into the house of the mother-in-law of the informant namely, Asha @ Barhni and dragged her to the alley of Ramsagar Dusadh. The informant and the others pleaded with the accused persons to let off Barhni but they abused and directed them to leave the place. It has been alleged that the informant out of fear fled to an alley. It has also been alleged that Kauleshwar Dusadh assaulted the mother-in-law of the informant on her face with a knife while Kurhan Paswan assaulted near her ear with a Kudal and Karu Paswan made assault upon her with a shoe. The informant had seen the entire occurrence by hiding in an alley. When the informant came back to the place of occurrence she found her mother-in-law dead. The reason for the incident is that about three days back the brother of Kurhan Paswan who was suffering from paralysis had died and the mother-in-law of the informant was alleged to have caused such death by practicing witchcraft.

Based on the aforesaid allegations Simaria P.S. Case No. 11/1995 was instituted u/s 302/34 of the IPC. 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 Sessions Trial No. 15/1996. Charge was framed against the accused for the offence u/s 302/34 of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as eleven witnesses in support of its case.

6. P.W.1 (Barhan Sao) and P.W.2 (Mahendra Thakur) have been tendered by the prosecution.

7. P.W.3 (Md. Jahur) did not support the case of the prosecution and was declared hostile by the prosecution.

8. P.W.4 (Manjoor Khalifa) has been tendered by the prosecution.

9. P.W.5 (Nageshwar Paswan) is the son of the deceased who has stated that on 19.02.1995 at 10:00 A.M. he was preparing a ploughing instrument when Kuleshwar Paswan, Kurhan Paswan and Karu Paswan came to him and said that his mother is a witch. Kuleshwar had a knife while Kurhan had a Kudal with him. They were conversing that Naresh Paswan has died because of his mother and they will not leave his mother. When he wanted to speak he was assaulted with fists and slaps. He fled towards the west as he was chased by the accused persons and when they returned back he also returned behind them. He saw while hiding in the alley that his mother was dragged by the accused persons to the door of Karu and Kuleshwar had struck a tangi blow below the left eye of his mother and when she fell down Kurhan had assaulted near her right ear with a Kudal. Karu had assaulted his mother with a shoe. His mother on account of the assault died at the place of occurrence. The accused persons thereafter fled away. He has stated that the accused used to call his mother a witch and they held his mother responsible for the death of Naresh Paswan, the brother of Kurhan and this was the cause of the murder.

In cross-examination, he has deposed that there are several houses near to his house. He had seen the accused for the first time from a distance of 15 degs. He had stated before the Police the manner of occurrence and the role played by each of the accused. About 6-7 years prior to the death of his mother his father was murdered on the allegation of practicing witchcraft.

10. P.W.6 (Md. Jalil) has stated that he had gone to the shop of Jainul and on hearing a commotion he had gone to the house of Nageshwar Paswan where he found the dead body of Barhni Devi, the mother of Nageshwar lying on the ground. He had come to know about the assailants and the manner of assault from the wife and nephew of Nageshwar. He has proved his signature and the signature of Hanif on the seizure list of Kudal which have been marked as Exhibits-1 and 1/1 respectively. He has also proved his signature and the signature of Md. Hanif upon the inquest report which have been marked as Exhibits-2 and 2/1 respectively.

11. P.W.7 (Pradip Kumar Paswan) has stated that he was in his house along with his mother Kaushalya Devi and grandmother Barhni Devi @ Asha Devi and it was around 10:00 A.M. when Kauleshwar Paswan, Karu Paswan and Kurhan Paswan came with Kauleshwar Paswan having a knife in his hand and they threatened his uncle of eliminating the entire family since the mother of Nageshwar was a witch. The accused persons had thereafter assaulted Nageshwar with fists and slaps. Nageshwar fled away and he was chased by the accused persons who could not catch him and they returned back to his house. All the three accused had entered into his house and dragged his grandmother outside to the door of Karu where Kauleshwar gave one knife blow on her cheek and his grandmother fell down. Kurhan had assaulted near her right ear with the blunt portion of a Kudal. Karu assaulted her with his shoes and facing such concerted assaults his grandmother died at the spot. The accused persons had thereafter fled away.

In cross-examination, he has deposed that the houses of Karampal Paswan, Puran Paswan, Narayan Paswan and others are in the vicinity of his house and he does not know as to whether these persons were in their houses at the time of the incident or not. The first time he had seen the accused was from a distance of 50 yards. He was at that point of time outside his

house in the alley with his uncle Nageshwar Paswan. Since the accused persons had issued threats he hid himself in the cowshed and when he came out of the cowshed he had seen his grandmother being dragged by the accused persons. The assault continued upon his grandmother for about 6-7 minutes. The Kudal used in the assault was lying in the alley.

12. P.W.8 (Kuleshwar Paswan) has stated that he was in his house along with his grandmother and his father was outside peeling wood when Kauleshwar, Kurhan and Karu came armed and started assaulting his father who fled away. The accused persons failed to apprehend his father and they came back and entered into his house and dragged out his grandmother to the door of Karu where Kauleshwar assaulted her with a knife near the left eye and when she fell down Kurhan gave a Kudal blow near her right ear and Karu gave blows with shoes and feet and resultantly his grandmother died. When the accused persons were dragging his grandmother outside, he was in his house along with his brother Pradip.

In cross-examination, he has deposed that he and the others had raised alarm once the accused persons left at which Jodhi Sao, his mother Pano Devi, his aunt, Jalil and others had come.

13. P.W.9 (Md. Hanif) has identified his signature on the seizure list and inquest report which have already been marked as Exhibit-1/1 and 2/1.

14. P.W.10 (Pano Devi) is the daughter-in-law of the deceased Asha Devi who has stated that her mother-in-law was in her house while she was in her house. Kauleshwar had come searching for her mother-in-law and she disclosed that her mother- in-law is in the old house. All the three accused went to the place where her husband was peeling woods and they slapped and chased him away. All three thereafter went to the house of her brother-in-law where Kauleshwar committed an assault with a knife just below the left eye of her mother-in-law while Kurhan

assaulted her with the blunt portion of a Kudal on her right cheek. Karu kicked her on her abdomen. Her mother-in-law died at the spot. She had seen the occurrence by hiding herself in a corner in the house of Karu. The accused persons by alleging that her mother-in-law is a witch committed her murder.

In cross-examination, she has deposed that she had answered the accused from inside her house. She had thereafter come out of her house and she had witnessed the incident by standing near the main door. She had gone to Simaria P.S. alone where her statement was recorded.

15. P.W.11 (Jagdish Choubey) was the Officer-incharge of Simaria P.S. and on 17.02.1995 he had recorded the fardbeyan in the house of the informant at Araatu. He has proved the fardbeyan which has been marked as Exhibit-3. The formal FIR has been proved and marked as Exhibit-4. The endorsement in the fardbeyan has been marked as Exhibit-5. He had taken over investigation of the case after which he had recorded the restatement of the informant. He had inspected the place of occurrence and seized blood soaked earth and blood stained Kudal for which a seizure list was prepared. He has proved the seizure list which has been marked as Exhibit-6. He has also proved the inquest report and the challan by which the dead body was sent for postmortem examination which have been marked as Exhibit-7 and Exhibit-8 respectively. The place of occurrence is the mud tiled house of the deceased Asha @ Barhni from where she was dragged to the house of Karu Dushad. The dead body was lying in front of the house of Karu Dushad and there was blood on the ground. He has stated that on completion of investigation he had submitted charge-sheet.

In cross-examination, he has deposed that it is incorrect to say that Pano Devi had got recorded her fardbeyan in the Police Station. The blood stained Soil and Kudal were not sent for forensic examination. Nageshwar Paswan had not stated before him about the three accused persons entering into his courtyard

and he was witnessing the incident from behind the house of his mother and that his mother was inside the room from where Kauleshwar had dragged her outside. He had stated that when he returned he had seen his mother lying in a pool of blood in front of the house of Karu. Pradip Kumar Paswan had stated before him that the deceased was a witch. The witness Kaleshwar had not stated before him about a knife blow being given on the left eye of his grandmother.

16. Two witnesses were examined as Court witnesses.

17. C.W.1 (Brahmdeo Yadav) has proved the postmortem report which has been marked as Exhibit-9 with objection.

18. C.W.2 (Dr. Shyam Nandan Singh) has identified the postmortem report which has earlier been marked as Exhibit-9.

19. The statements of the accused were recorded u/s 313 Cr.P.C., in which, they have denied their complicity in the murder.

20. It has been submitted by Mr. Rakesh Kumar Sinha, learned counsel for the appellants that the prosecution has miserably failed to prove its case against the appellants. The allegations against the appellants have been developed in course of trial and all the material witnesses belonging to the same family have given a parrot like version which is all the more reason for doubting the veracity of their evidence. None of the independent witnesses have supported the involvement of the appellants and in fact the false implication of the appellants can be gauzed by the fact that the father-in-law of the informant was murdered earlier by casting a similar insinuation of practicing witchcraft. There also appears to be a grave doubt as to in which place the fardbeyan was recorded which could be deciphered from the evidence of P.W.10 and P.W.11.

21. Mr. Abhay Kumar Tiwari, learned A.P.P. for the State has submitted that P.W.5, P.W.7, P.W.8 and P.W.10 are the

eye-witnesses to the occurrence and barring a few minor contradictions they have withstood the test of cross-examination.

22. We have heard the learned counsel for the respective parties and have also perused the Trial Court Records.

23. The incident as alleged is said to have taken place in broad daylight when the assailants had dragged Barhni Devi @ Asha Devi and committed her murder. The fardbeyan reveals that the same was recorded at village Araatu near the house of the informant. P.W.11 who is the Investigating Officer has clearly stated about the fardbeyan having been recorded at the place of occurrence. P.W.10 has deposed about running to the Police Station which appears to be situated at a distance of 5 kilometers from the place of occurrence and getting her fardbeyan recorded. P.W.5 has stated that he had also gone to the Police Station on a bicycle and the report had already been given by his wife (P.W.10) at the Police Station. He however has admitted that the report was not written in his presence. When the incident as claimed by P.W.5 and P.W.10 had occurred in the vicinity of their presence, the visit by P.W.5 and P.W.10 to the Police Station separately to report about the incident seems to be doubtful. Moreover, P.W.5 is silent as to where he has put his thumb impression on the fardbeyan and all these features would suggest that the fardbeyan has been recorded near the place of occurrence. Even in either of the circumstances the veracity or otherwise of the contents of the fardbeyan have neither been doubted nor have been denied. It is no doubt true that none of the eye-witnesses are independent witnesses but that by itself would not demolish the case of the prosecution as it is to be seen as to whether such eye-witness account is cogent, consistent and free from any doubt or not. The evidence of P.W.5, P.W.7, P.W.8 and P.W.10 though depict some minor contradictions specially with respect to the informant (P.W.10) whose presence at the time of the assault has been negated by P.W.8 but on an overall conspectus of the case their evidence leaves no room for doubt about the deceased Barhni Devi

having been assaulted with Knife, Kudal and Shoes which resulted in her death. The identity of the appellants as the assailants have clearly been established which is also cemented by the findings recorded in the postmortem report. Though Mr. Sinha, learned counsel for the appellants has drawn our attention to the postmortem report whose findings according to Mr. Sinha reveals only postmortem injuries and not antemortem injuries but we negate such submission based on the cause of death opined by the Doctor. At the same time, we cannot but notice that the postmortem report has been prepared in a most casual manner giving rise to such confusion regarding the fact as to whether the injuries are postmortem or antemortem. This confusion having been set at rest and the evidence of the eye-witnesses being consistent regarding the intention of the appellants to act in furtherance of a common intention to do away with the life of the mother-in-law of the informant, we do not find any reason to interfere in the impugned judgment and order of conviction and sentence dated 17.06.1997 (sentence passed on 20.06.1997) passed by Shri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra in Sessions Trial No. 15/1996 and consequently we dismiss these appeals.

24. Since the appellants are on bail they are directed to surrender before the learned trial court immediately and forthwith to serve out the rest part of their sentence.

(Rongon Mukhopadhyay, J.)

(Arun Kumar Rai, J.)

High Court of Jharkhand at Ranchi Dated, the 14th day of January, 2025.

A. Sanga/-