Shankar Paswan And Ors vs State Of Bihar
2022 Latest Caselaw 2909 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL APPEAL (DB) No.358 of 1993
======================================================

1. Awadesh Paswan, S/o Ramboren Paswan.

2. Ganesh Paswan S/o Lalse Paswan.

3. Lalse Paswan S/o Shamu Paswan.

4. Suresh Paswan S/o Sital Paswan.

5. Dinesh Paswan S/o Sital Pawan

6. Kailash Paswan S/o Bitan Paswan

7. Devendra Paswan S/o Siasaran Paswan All are resident of village-Lodipur, Mansoorpur, Police Station- Khushrupur, District- Patna.

... ... Appellants Versus State Of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 416 of 1993 ======================================================

1. Shankar Paswan son of Maran Paswan

2. Satyendra Paswan son of Siya Sharan Paswan Both resident of village- Lodipur Mansoorpur, Police Station- Khushrupur, District- Patna.

... ... Appellants Versus State of Bihar

... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 358 of 1993) For the Appellant/s : Mr. Ajay Kumar Thakur, Amicus Curiae Mr. Udbhav, Amicus Curiae For the Respondent/s : Ms. Shashi Bala Verma, APP (In CRIMINAL APPEAL (DB) No. 416 of 1993) For the Appellant/s : Mr. Ajay Kumar Thakur, Amicus Curiae Mr. Udbhav, Amicus Curiae For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date : 18-05-2022

The appellants in these two appeals have

challenged the judgment of conviction and order of sentence

dated 29.07.1993 and 31.07.1993 respectively passed by the

learned 9th Additional Sessions Judge, Patna in Sessions Trial

No. 60 of 1991 arising out of Khusrupur P.S. 22 of 1990

whereby and whereunder Shankar Paswan and Satyendra

Paswan (Appellants in Criminal Appeal (DB) No. 416 of 1993)

have been convicted and sentenced to undergo rigorous

imprisonment for life under Section 302 of the Indian Penal

Code and rigorous imprisonment for seven years for the offence

punishable under Section 27 of the Arms Act and Awdhesh

Paswan, Ganesh Paswan, Lalse Paswan, Dinesh Paswan, Suresh

Paswan, Kailash Paswan and Devendra Paswan (Appellants in

Criminal Appeal (DB) No. 358 of 1993) have been convicted

and sentenced to undergo rigorous imprisonment for life under

Section 302/149 of the Indian Penal Code and Devendra Paswan

has been further convicted and sentenced to undergo rigorous

imprisonment for seven years under Section 27 of the Arms Act.

2. The prosecution case is based on the fardbeyan of

Kauleshwar Paswan recorded by R.S. Dubey, Officer In-Charge Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

at Khusrupur Police Station on 11.03.1990 at 06:45 PM.

3. It has been stated by the informant that his cousin

brother, namely, Balram Paswan had gone out to the field

towards South from his house on 11.03.1990 at about 05:00 p.m.

to attend the call of nature. While returning when he came near

the khalihan of Prabhu Yadav, one Shankar Paswan took gun

from Kailash Paswan, loaded cartridges from his possession and

fired on Balarm Paswan from a short distance causing injury in

his abdomen. When Balram Paswan wanted to flee away,

Satyendra Paswan armed with gun, Nageshwar Paswan armed

with bhala, Devendra Paswan armed with gun, Kailash Paswan

armed with bhala, Ganesh Paswan armed with garasa, Suresh

Paswan armed with gun, Dinesh Paswan armed with garasa,

Awdhesh Paswan armed with garasa and Lalse Paswan armed

with garasa came there and surrounded him from all the sides.

On the exhortation given by Lalse Paswan that Balram was still

alive and he should be killed, Satyendra Paswan being armed

with gun fired from a short distance hitting Balram Paswan in

his thigh and belly as a result of which he was badly injured and

fell down.

4. It has further been stated by the informant that at

the relevant time, he was at the khalihan of Prabhu Yadav at a Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

short distance from the place of occurrence and was talking with

Jatan Paswan and Samundra Paswan. In the meantime, on

hearing the gun shot and the alarm raised by Balram Paswan, he

rushed towards the place of occurrence with Jatan Paswan and

Samundra Paswan. When he reached near the victim, Nageswar

Paswan who was armed with bhala gave a blow on his head in

order to kill him as a result of which he received bleeding injury

over his head. On the alarm raised by him, Samundra Paswan

and Jatan Paswan along with co-villagers Sahdeo Paswan,

Upendra Paswan and Surendra Paswan assembled and saw the

occurrence. On seeing them, the accused persons fled away. The

motive behind the occurrence is that there was a dispute in

respect of getting water from a hand pump installed by the

Government between two groups.

5. The informant further stated that as the victim

Balram Paswan was badly injured and was bleeding profusely,

he was carried on a cot by some members of his family to

Khusrupur Government Hospital where he was given primary

medical aid and sensing the seriousness of the injuries, the

doctor referred him to Patna. When Balram Paswan was being

taken towards Railway Station for being taken to Patna, he died.

Thereafter, the informant came together with the deceased at the Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

Police Station.

6. On the basis of the aforesaid fardbeyan, Khusrupur

P.S. Case No. 22 of 1990 was registered on 11.03.1990 at 06:45

p.m., under Sections 147, 148, 149, 302, 307, 324, 342 of the

Indian Penal Code (for short 'IPC') against Shankar Paswan,

Kailash Paswan, Satyendra Paswan, Nageshwar Paswan,

Devendra Paswan, Ganesh Paswan, Suresh Paswan, Dinesh

Paswan, Awdhesh Paswan @ Jhandu and Lalse Paswan and the

investigation was taken by the Investigating Officer.

7. On completion of investigation, charge-sheet was

submitted by the Investigating Officer against the accused-

appellants. After supplying the police papers as required under

Section 207 of the Code of Criminal Procedure (for short

'Cr.P.C.'), the learned Chief Judicial Magistrate committed the

case to the Court of Sessions for trial.

8. The Trial Court framed charges under Section 302

of the Indian Penal Code against all the accused-appellants for

committing murder of Balram Paswan. They were further

charged for the offence punishable under Section 302/149 of the

Indian Penal Code. The accused-appellants Shankar Paswan,

Satyendra Paswan, Denvendra Paswan and Kailash Paswan

were further charged for the offence under Section 27 of the Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

Arms Act.

9. During trial, altogether nine witnesses were

examined on behalf of the prosecution in order to bring home

the charges levelled against the accused persons.

10. Kauleshwar Paswan (P.W.6) is the informant of

the case. In his examination-in-chief, he did not say that

Shankar Paswan took gun from the hands of Kailash and loaded

cartridges. He stated that Shankar fired on Balram causing

injury in his abdomen after which Balram was shouting that

Shankar has shot at him. He stated that on the shouting,

Dharmdeo, Jageshwar, Sahdeo, Devki, Jagdeo, Sulendra and

Upendra came at the place of occurrence and had seen the

occurrence. He stated that the accused Satyendra, Devendra,

Suresh and Shankar were armed with gun whereas the accused

Lalse, Ganesh, Dinesh and Awdhesh were armed with garasa

and the accused Kailash and Nageshwar armed with bhala

surrounded Balram Paswan. Lalse stated that since he is still

alive, he should be killed. Thereafter, Satyendra fired causing

injury to Balram in his belly and thigh as a result of which he

fell down. When he went near Balram, Nageshwar assaulted

him with bhala causing injury on his head. He stated that he and

Balram were taken to Khusrupur Primary Health Centre. The Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

doctor provided first aid to Balram and said that he should be

taken to Patna. Since he was undergoing treatment, he continued

at Khusrupur Primary Health Centre. Later on, he came to know

that while being taken to Railway Station, Balram died. In Para-

3 of the examination-in-chief itself he stated that the Daroga Ji

had come to Khusrupur Primary Health Centre and recorded his

fardbeyan. He did not read and explain the fardbeyan to him and

took his thumb impression on it.

11. In cross-examination, he stated that he had never

said to the police that Shankar took gun from Kailash. He

admitted in Para-8 that in his fardbeyan on the basis of which

FIR was registered or in his previous statement, he had not

stated before police that Balram had gone to attend the call of

nature towards South of his house. He denied the defence

suggestion that he had not sustained bhala injury.

12. Jageshwar Paswan (P.W.1) stated in his testimony

that he was at his house when the incident took place. He stated

that he came out of his house on hearing the sound of firing. He

saw that Balram Paswan was shouting while holding his

stomach that Shankar had shot at him. Thereafter, all the

accused persons, namely, Shankar armed with gun, Satyendra

Paswan armed with gun, Devendra Paswan armed with gun, Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

Suresh Paswan armed with gun, Lalse Paswan, Awdhesh

Paswan @ Jhandu, Dinesh Paswan and Ganesh all armed with

garasa and Kailash Paswan and Nageshwar Paswan armed with

bhala surrounded the victim. Lalse Paswan stated that since the

victim was still alive, he should be killed. At this, Satyendra

Paswan shot at the victim and Nageshwar Paswan gave bhala

blow to the informant Kauleshwar. When the witnesses

assembled there, the accused persons fled away towards South.

The victim was taken to Khusrupur Primary Health Centre

where he was administered one or two injections. The

occurrence was witnessed by Devki Paswan, Jagdev Paswan,

Upendra Paswan, Samundra Paswan, Sahdev Paswan,

Dharmendra Paswan, Jatan Paswan, Surendra Paswan and

Kauleshwar.

13. In cross-examination, he admitted that he is cousin

brother of Balram. He further admitted that in respect of the

incident which took place on that day, the mother of the accused

Devendra, namely, Sitalwati Devi had instituted a case against

him and others which is pending before the court of Magistrate.

He admitted that only Samundra Paswan, Kauleshwar Paswan

and Jatan Paswan had arrived before him at the place of

occurrence. The rest of the witnesses came at the place of Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

occurrence after his arrival. He admitted that he saw only one

shot being fired upon Balram and only one bhala blow being

inflicted upon the informant. He denied the defence suggestion

that he had not stated before the police that Nageshwar had

inflicted bhala injury on Kauleshwar. He stated that he did not

see any bomb explosion or any injury caused to the victim by

explosion of bomb.

14. Upendra Paswan (P.W.2) stated that about 05:00

p.m. on the date of occurrence, he was at his home. He reached

at the place of occurrence after hearing the sound of firing. He

saw that Balram was holding his stomach and shouting that he

has been shot at by Shankar Paswan. He further stated that

Shankar, Satyendra Paswan, Devendra Paswan, Suresh Paswan

armed with gun, Nageshwar Paswan, Kailash Paswan armed

with bhala, Lalse Paswan, Ganesh, Dinesh and Awdhesh @

Jhandu armed with garasa surrounded Balram. Lalse Paswan

said that the victim was still alive and he should be finished. At

this, Satyendra Paswan armed with gun opened fire at the victim

which hit him on his belly and thigh. Nageshwar gave bhala

blow to Kauleshwar resulting into injury and oozing of blood.

He stated that the occurrence was witnessed by Shankar,

Dharamdev, Jageshwar, Kauleshwar, Devki, Samundar, Jagdev Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

and Surendra. According to him, the injured were carried to

hospital. Later on, he came to know that the injured Balram

died.

15. In cross-examination, he admitted that in respect of

the occurrence which took place on that day, Sitalwati Devi had

also instituted a case in which he and his brother Surendra had

been made accused. He stated that bhala was pierced in the head

of Kauleshwar. He also stated that when he came on hearing the

sound of firing, Kauleshwar, Jatan, Samundar were there from

before. He stated that the firing was made from a distance of 10-

12 feet. He further stated that on that day, he had not witnessed

any bomb explosion at the place of occurrence. He denied the

defence suggestion that because of enmity he had made a false

statement before the Court.

16. Dharmdeo Paswan (P.W.3) stated in his testimony

that about 05:00 p.m. on the date of occurrence, he was at his

home. On hearing sound of firing, he came at the khalihan of

Prabhu Yadav. He saw Balram Paswan holding his stomach and

shouting that he was shot at by Shankar Paswan. He stated that

Satyendra, Shankar, Suresh Paswan and Devendra Paswan all

armed with gun, Kailash and Nageshwar armed with bhala and

Lalse, Ganesh, Dinesh, Awdhesh @ Jhandu armed with garasa Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

surrounded Balram Paswan. Lalse said that as Balram was still

alive, he should be finished. At this, Satyendra fired on Balram

as a result of which he fell down. When Kauleshwar went to lift

him, Nageshwar assaulted him with bhala. He stated that both

the injured were carried to Khusrupur Primary Health Centre.

The doctor administered two injections to Balram and referred

him to PMCH. He further stated that when the victim Balram

Paswan was being taken from Khusrupur Primary Health Centre

to Patna, he died on the way. Thereafter, he went to the police

station where the fardbeyan of the informant was recorded

which gave rise to the present case. He denied that any case was

filed by Shitalwati Devi for the occurrence of the same.

17. He admitted in his cross-examination that he did

not say anyone that he had also witnessed the occurrence. He

stated that when he came after hearing sound of firing, Balram

was holding his belly. He was restless and profusely bleeding.

Blood had fallen on the ground. He stated that after sustaining

the second gun shot injury, he fell down. According to him, the

firing was made from a distance of 10 feet.

18. Samundar Paswan (P.W.4) stated in his testimony

that the occurrence took place at about 05:00 p.m. At the

relevant time, he was sitting in the khalihan of Prabhu Yadav Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

along with Jatan Paswan and Kauleshwar Paswan. He saw that

Balram Paswan was coming from South and proceeding towards

his home. All of a sudden, Shankar shot at the victim Balram

Paswan. He began to cry seizing his stomach and he was saying

that he had been shot at by Shankar. He also stated that on

hearing the sound of firing and alarm raised by the victim, the

villagers assembled there. He stated that the victim Balram was

surrounded by Shankar Paswan, Satyendra Paswan, Devendra

Paswan, Suresh Paswan all armed with gun, Lalse Paswan,

Ganesh Paswan, Awdhesh Paswan @ Jhandu, Dinesh Paswan all

armed with garasa and Kailash Paswan and Nageshwar both

armed with bhala. Lalse exhorted that since the victim was still

alive, he should be finished. At this, Satyendra shot at the

victim. The bullet hit in his abdomen and thigh. When

Kauleshwar went to lift the victim, Nageshwar gave bhala blow

on his head. He stated that the occurrence was witnessed by

Jatan, Kauleshwar, Devki, Jageshwar, Dharmdev, Shahdev,

Upendra, Surendra and Jagdev. He stated that he along with

others shifted the injured to Khusrupur Primary Health Centre

where he was administered two injections. He died on the way

near Khusrupur Railway Station. Thereafter, the dead body was

taken to the police station.

Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

19. In cross-examination, he admitted that he has been

made accused in the case instituted by Shitalwati Devi. He

stated that in his previous statement, he had disclosed that he

was sitting together with Jatan and Kauleshwar in the khalihan

of Prabhu Yadav. He further stated that he had stated before the

police that Balram was coming from South after attending the

call of nature. He stated that he disclosed that all of a sudden,

Shankar opened fire causing injury to Balram. He stated that

after firing, the victim wanted to flee away towards his house

but he was surrounded. He stated that bhala was pierced into the

head of the Kauleshwar. He denied the defence suggestion that

he had given a false statement.

20. Jatan Paswan (P.W.5) stated that at about 05:00

p.m., on the date of occurrence, he was sitting together with

Kauleshwar and Samundar in the khalihan of Prabhu Yadav. He

saw that the victim was coming from the South after answering

the call of nature. He saw Shankar shot at Balram Paswan

hitting in his stomach. After sustaining the injuries Balram

Paswan caught hold of his belly and raised alarm that he had

been shot at by Shankar. On hearing the sound of firing and the

alarm raised by the victim, Dharmdev, Shahdev, Jagdev, Devki,

Upendra and Jageshwar came. After the victim was shot by Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

Shankar with fire arm, Lalse uttered that since the victim was

still alive, he should be killed. At this Satyendra fired hitting

Balram and when Kauleshwar went to lift him, Nageshwar hit

him with bhala in his head. He stated that the victim Balram fell

down. Subsequently, the accused persons fled towards South.

The victim was shifted to Khusrupur Primary Health Centre

where he was administered two injections and was referred to

Patna. While the victim was being carried to Patna, he died at

the platform of Khusrupur Railway Station. Then he was taken

to the police station. From the police station, the dead body was

brought to Patna along with the police constable.

21. In cross-examination, he admitted that the accused

Lalse Paswan had lodged a criminal case in 1986 against him

which is still pending. He stated that in his previous statement

before the police, he had said that when Balram was returning

home after attending the call of nature, Shankar took gun from

Kailash and loaded cartridges from his possession and fired. He

stated that Shankar and Kailash were arguing among themselves

that who will kill him. He stated that he had disclosed to the

Investigating Officer that Balram was shouting that Shankar has

fired at him. He further stated that after the accused persons left

the place of occurrence, he had disclosed the name of the Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

accused persons.

22. Dr. A.K. Yadav (P.W. 7) had conducted the

postmortem examination on the body of the deceased. He stated

in his testimony that on 13.03.1990, he was posted as an

Assistant Professor in the Department of Forensic Medicine,

Nalanda Medical College Patna. On that day, at 10:30 a.m., he

performed postmortem examination on the body of the deceased

Balram Paswan which was received at 03:30 p.m. on

12.03.1990 and found the following ante-mortem injuries:

(i) 10 splinter injuries of same size of about 2 mm diameter with blackening and inversion of margin. This was spread in the area of 5" diameter on upper part of right thigh. On removal of soft tissues, laceration of blood vessels tissues and blood clots were found.

(ii) 35 splinter injuries were found on the lower abdomen and waist in an area of 6" diameter between mid abdominal line and mid line between right armpit and right illiac crest. The size was same about 2 mm each. Margins were inverted and blackened. On removal of soft tissues underlying area was filled with blood and blood clots.

Intestine were found ruptured and lacerated at places. The underlying blood vessels and omentum were also found lacerated and filled with blood and blood clots and splinters were collected as far as possible, cleaned, sealed and handed over Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

to the constable.

(iii) 7 splinter injuries of 2 mm diameter were found on the lower part of the right chest in the area of 4" diameter. The margins were blackened and inverted. On removal of skin underlying intercostal muscles. Diaphgram and liver were found lacerated and the underlying area was filled with blood and blood clots. Splinters were collected, cleaned and sealed and handed over to the constables.

23. He opined that the injury no. 1 was simple and

caused by smooth bore firearm. The injury nos. 2 and 3 were

grievous and dangerous caused by smooth bore firearm from the

range of about 12 meters distance. The injuries were caused due

to more than one shot. The cause of death was haemorrhage and

shock. The time elapsed since death was within 24 to 36 hours

from the time of postmortem examination. He proved the

postmortem report in his writing and signature which was

marked as Exhibit-1.

24. In cross-examination he admitted that usually

splinters are used in bombs. He stated that in country made

shots splinters are used. He admitted that he had not seen such

type of country made splinter shots. He admitted that he is not

an expert of ballistic. He stated that the injuries may be possible Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

by two or three shots. He stated that the blackening of margin of

skin is possible in case of departure of the splinters or bullets

irrespective of the range of firing. It may be possible from 12,

20 or 30 meters. He stated that he has deposed on the basis of

his personal experience which is not based on books. He stated

that it is wrong to say that blackening is not possible in a case of

firing from the range of 12 meters. Blackening of the margin of

wounds is due to smoke of the gun powder and charring due to

flame and also temperature of the pellets or splinters. He

admitted that in Modi's Medical Jurisprudence, it is stated that

in case of firing beyond the range of six feet, blackening of

margin of wound may not be possible. He stated that rigor

mortis in the month of March vanishes after 24 hours and

decomposition process starts. He stated that it is not correct to

say that his opinion regarding the splinters being fired by the

smooth bore firearm and blackening of margin of wounds is

against the opinion of the authors of Medical Jurisprudence.

25. Dr. Basudeo Prasad Verma (P.W.8) was posted at

Khusrupur Primary Health Centre as Medical Officer on

11.03.1990. On that day, he examined Kauleshwar Paswan and

found one lacerated wound 2 ½" x 1 ¼" over the left side of

scalp. He stated that the injury may be possible by hard and Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

blunt substance such as blunt portion of bhala. He opined that

the nature of injury was simple and was caused within six hours.

He proved his writing and signature on the injury report which

was marked as Exhibit-2.

26. In cross-examination, he stated that the injury was

not possible due to fall. However, he admitted that lacerated

wounds are possible on coming in contact with any hard and

blunt surface.

27. Shiv Shankar Singh (P.W.9), a constable has

proved the formal FIR in the writing of C.D. Singh, which was

marked as Exhibit-3. He stated that he knew R.S. Dubey, a Sub-

Inspector of Police, posted at Khusrupur. He also knew his

writing. He stated that the fardbeyan was in the writing of Mr.

Dubey. The fardbeyan was marked as Exhibit-4. He stated that

the case diary of Khusrupur P.S. Case No. 22 of 1990 was in the

writing of C.D. Singh. The entire case diary was marked as

Exhibit-5.

28. In cross-examination, he stated that he does not

know the full name of R.S. Dubey. He admitted that he is not in

possession of any of his writing. He further admitted that he

does not possess anything written by C.D. Singh. He does not

know in which police stations he had been posted. He stated that Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

he is not aware as to whether C.D. Singh is alive or dead.

29. After the examination of the prosecution witnesses,

the statements of the accused-appellants were recorded under

Section 313 of the Cr.P.C. In their respective statements, the

accused-appellants claimed that they did not commit any crime.

30. The defence did not lead any evidence on their

behalf.

31. After holding the trial and hearing the parties, the

trial court convicted and sentenced the appellants in the manner

stated in the opening para of this judgment.

32. Being aggrieved by the impugned judgment of

conviction and order of sentence, the appellants have preferred

these two appeals.

33. Mr. Thakur, learned amicus curiae submitted that

the earliest version given to the police by the informant has been

suppressed in the present case. He contended that the manner,

time and place of occurrence were not proved by prosecution

with cogent and reliable evidence. The witnesses examined in

this case have deposed falsely with intention to implicate the

accused-appellants. The informant did not support the manner of

occurrence as stated by him in the FIR while being examined

before the court. He completely changed his version. The other Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

witnesses who were examined in this case have also

contradicted the manner of occurrence as narrated in the FIR.

He contended that the six witnesses who were examined as

eyewitnesses in this case have contradicted each other giving

different version. He further contended that P.Ws. 1, 2 and 3 are

non-FIR witnesses and the persons who are mentioned as

witness in the FIR have not been examined in this case.

Therefore, an inference can be drawn that the witnesses

mentioned in the FIR did not agree to support the case of the

informant. Hence, the non-FIR witnesses were brought to

support the case of the prosecution. He contended that falsity of

the prosecution case would be evident from the medical

evidence of the doctor who held the postmortem examination on

the body of the deceased. The doctor said that he found three

splinter injuries on the body of the deceased surrounded with

blackening. He argued that splinters are used in a substance

which can be made to explode like bomb. Finding of splinters in

all the injuries which were the cause of death of the deceased

would clearly indicate that it was a death caused due to bomb

explosion. He further contended that the doctor was not truthful

while deposing before the court would be manifest from the fact

that he said that blackening of margin of wound is possible if Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

firing is made from a distance of 12, 20 and 30 meters. The said

opinion of the doctor is contrary to it Modi's Medical

Jurisprudence and Medical Jurispurendence authored by other

experts who have said that there would be no blackening of

margin if the firing is done beyond six feet. He further

contended that in the instant case, though the informant claims

that he sustained bhala injury, the injury report (Exhibit-2)

would clearly show that the injury found on the person of the

informant was caused by a hard and blunt substance.

34. On the other hand, Ms. Shashi Bala Verma, learned

Additional Public Prosecutor for the State submitted that the

prosecution has led reliable evidence before the court on the

basis of which the Trial Court has rightly held the appellants

guilty of committing murder of Balram Paswan. There are

altogether six eyewitnesses to the occurrence and barring minor

discrepancies in their evidence, there is nothing to doubt the

prosecution case. It is well settled that minor discrepancies or

minor contradictions cannot form basis to discard the otherwise

reliable evidence. She further contended that the medical

evidence fully corroborates the prosecution case. The doctor has

rightly said that splinters are used in local cartridges and the

injuries found on the person of the deceased were caused by Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

smooth bore firearm. The injury found on the skull of the

informant has also been corroborated by medical evidence. The

doctor who examined the informant rightly said that the injury

might have been caused by the blunt portion of the bhala.

35. We have head Mr. Ajay Kumar Thakur, learned

amicus curiae and Ms. Shashi Bala Verma, learned Additional

Public Prosecutor for the State and carefully perused the

records.

36. The fardbeyan (Exhibit-4) would indicate that the

informant gave his statement before R.S. Dubey, Officer In-

Charge of Khusrupur Police Station at Khusrupur Police Station

at 06:45 p.m. on 11.03.1990 but while leading evidence the

informant (P.W.6) stated in his examination-in-chief that Daroga

Ji came to the Khusrupur Primary Health Centre and recorded

his statement. It is not known what happened to the statement of

the informant recorded by the police officer at Khusrupur

Primary Health Centre.

37. The fardbeyan of the informant Kauleshwar

Paswan on the basis of which the FIR was registered would

indicate that the contents of the fardbeyan was read over by Mr.

R.S. Dubey and explained to him and finding them to be true

and correct, he put his thumb impression. However, in his Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

testimony, the informant stated that the Police Officer who

recorded his fardbeyan did not read its contents and took his

thumb impression over it. In the fardbeyan, the informant stated

that the accused-appellant Shankar Paswan took gun from

Kailash Paswan, loaded cartridges from his possessions and

fired on Balram Paswan but while being examined in the court

he stated that he had not said that Shankar Paswan took gun

from Kailash Paswan and fired on Balram Paswan rather he had

said that Shankar fired on Balram Paswn. Thus, the informant

himself has created doubt about the genuineness of the

fardbeyan and its contents on the basis of which the FIR was

instituted.

38. We further find from the testimony of the witnesses

as also the FIR that the deceased Balram Paswan was first taken

to Khusrupur Primary Health Centre on a cot where the doctor

provided him treatment but there is no evidence of the treatment

provided to the victim at Khusrupur Primary Health Centre.

39. P.W. 3 stated in his evidence that seeing the serious

condition of Balram Paswan after providing him initial

treatment, the doctor referred him to Patna for better treatment

and while being taken to Patna he died at the platform of the

Khusrupur Railway Station. Thereafter his dead body was Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

brought to the police station where the fardbeyan of the

informant was recorded by R.S. Dubey at 06:46 p.m. on

11.03.1990. On the contrary, the informant stated in his

examination-in-chief that he and the injured Balram Paswan

were taken to Khusrupur Primary Health Centre where Balram

Paswan was administered two injections by the doctor and was

advised to be taken to Patna looking at his serious condition. He

further stated that he was treated at Khusrupur Primary Health

Centre. He remained there when the victim Balram Paswan was

being taken to Railway Station. Subsequently, he came to know

that Balram Paswan died.

40. Thus, apparently, when Balram Paswan died and

his body was taken to the Police Station, the informant was not

accompanying him rather he was being treated at Khusrupur

Primary Health Centre.

41. Under the circumstance, it is not understandable as

to how Mr. R.S. Dubey has made endorsement at the top of the

fardbeyan of Kauleshwar Paswan that it was recorded by him at

Khusrupur Police Station.

42. Apparently, either the fardbeyan on the basis of

which the FIR was registered is a fabricated document or the

informant is not a truthful witness. The mystery could have been Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

clarified if Mr. R.S. Dubey who had recorded the fardbeyan and

taken up the investigation initially would have been examined

during trial. His non-examination without any plausible

explanation would clearly make the fardbeyan and the formal

FIR on the basis of which the foundation of the case was laid a

suspicious document.

43. When we look a the medical evidence, we find that

Dr. A.K. Yadav (P.W.7), who performed the autopsy found

splinter injuries on the person of the deceased Balram Paswan.

He proved the postmortem report which was marked as Exhibit-

1. A perusal of the Exhibit-1 would demonstrate that it was

Awadhesh Mishra, a Home Guard who was accompanying with

the corpse and had identified the deceased. The said Home

Guard Awadhesh Mishra was not examined during trial.

44. It is not known what happened to the splinters

which were collected, cleaned, sealed and handed over by P.W.7

to the Home Guard.

45. In cross-examination, P.W.7 admitted that usually

splinters are used in bombs. He stated that in country made

shots splinters are used. He further admitted that he had not seen

such type of country made splinter shots. There is no evidence

that the splinters were sent to ballistic expert. There is nothing Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

to suggest that cards or wads or pellets were recovered from the

place of occurrence.

46. It would be pertinent to note here that altogether

three injuries were found on the person of the deceased. P.W. 7

stated in his evidence that injury no. 1 was simple. It was caused

by smooth bore firearm. He stated that injury nos. 2 and 3 were

grievous and were caused by smooth bore firearm from the

range of about 12 meters distance. He found the margins of

injuries inverted and blackened.

47. Though, he stated that it is wrong to say that

blackening is not possible in case of firing from the range of 12

meters, he admitted that according to the Modi's Medical

Jurisprudence, blackening of margin of wound beyond the range

of 6 feet may not be possible.

48. P.W. 2 Upendra Paswan and P.W. 3 Dharmdeo

Paswan stated in their testimony that firing was made from a

distance of 10-12 feet whereas the informant stated in his

testimony that the first shot was fired from 15 feet. He further

stated that the accused surrounded the deceased in a circle of 20

hands. The opinion of the doctor that injury nos. 2 and 3 on the

person of the deceased was caused by firearm from range of

about 12 meter distance is not consistent with the oral evidence Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

of the eyewitnesses. There is great discrepancy in the oral

evidence relating to distance from which shots were fired and

the evidence of the medical expert. The opinion of the doctor

that blackening of margin of skin is possible in case of gun shots

are fired from a distance of 12, 20 or 30 meters is bereft of any

logic or objectivity. As per the Medical Jurisprudence and

Toxicology authored by Modi, if a firearm is discharged very

close the body or in actual contact, subcutaneous tissues over an

area of two or three inches around the wound of entrance are

lacerated and surrounding skin is usually scorched and

blackened by smoke and tattooed with unburnt grains of

gunpowder or smokeless propellant powder. The adjacent hairs

are singed and the cloths covering the part are burnt by the

flame. If the powder is smokeless, there may be a greyish or

white deposit on the skin around the wound. Blackening is

found, if a firearm like a shotgun is discharged from a distance

of not more than three feet and a revolver or pistol is discharged

within about two feet. In the instant case, the doctor who

performed the autopsy opined that injuries were caused by

smooth bore firearm from range of 12 meter. P.W. 2, P.W. 3 and

the informant stated that firing was made from a distance of 10

to 15 feet. In case of firing from 10 to 15 feet by smooth bore Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

shotgun as stated by P.Ws. 2 and 3 and the informant or in case

of firing from a range of 12 meter as stated by the doctor who

conducted the autopsy blackening of margin of wound would

not have been possible.

49. Further, the doctor who conducted the autopsy did

not find any wound of entry or wound of exit. He did not rule

out the possibility of splinter injury in case of bomb explosion.

No effort was made by the prosecution to ascertain as to

whether the injuries were caused by gun shot or bomb

explosion. The splinters recovered by the doctor and handed

over to the constable were not sent to ballistic expert in order to

ascertain as to whether they were discharged from the gun shots

or bomb explosion.

50. We are mindful of the fact that non-seizure or non-

sending of the weapons of assault, cartridges and pellets to

ballistic expert for examination may not be fatal to the

prosecution case, if the ocular testimony is found credible and

cogent. However, in the present case, neither the oral testimony

of the witnesses is found credible nor the oral evidence is duly

corroborated by medical evidence.

51. When we look at the evidence in respect of the

injury caused to the informant, we find that it is the consistent Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

case of the prosecution right from the beginning that it was

Nageshwar who had inflicted bhala injury in the scalp of the

informant which caused serious injury. It is well known that

bhala is a weapon consisting of a shaft, usually of wood, with a

sharp pointed head of iron or steel. Dr. Basudeo Prasad Verma

(P.W.8) who examined the informant at Khusrupur Primary

Health Centre found a lacerated wound measuring 2 ½" x 1 ¼"

over his left side of scalp. According to him, the injury was

caused by a hard and blunt substance such as blunt portion of

bhala.

52. It is not the case of the prosecution that the assault

was made by Nageshwar on the head of the informant by the

blunt portion of bhala. On the contrary, P.W. 2 admitted in his

evidence that bhala was pierced in the head of Kauleshwar. The

doctor did not find any incised or penetrating or puncture wound

on the skull of the informant. The injury found on the person of

the informant is not in sync with the allegation made in the FIR

or the evidence adduced during trial.

53. Another important aspect of the matter is that the

witnesses examined during trial have consistently stated that

after receiving the gun shot injury, the deceased Balram Paswan

bleeded profusely. However, there is no evidence as to whether Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

blood or blood stained earth was found and seized at the place

of occurrence. The cot on which the victim was carried to

Khusrupur Primary Health Centre was not produced. The

weapon of the crime was also not seized.

54. The cloud hovering around the prosecution case

could have been cleared by the Investigating Officer to a great

extent. He was a material witness because he had investigated

the case, recorded the statement of witnesses, went to the spot

for objective findings and prepared the case diary. He was

required to appear before the court during trial and explain the

truth. The witnesses examined during trial are not consistent.

The informant himself has doubted and disputed the facts

narrated in the fardbeyan recorded by one R.S. Dubey, who had

initially investigated the case. Neither R.S. Dubey who recorded

the fardbeyan and initially investigated the case nor the

subsequent Investigating Officer C.D. Singh was examined

during trial.

55. Though, it is a settled principle of law that non-

examination of the Investigating Officer is not fatal for

prosecution in each and every case, under the facts and

circumstances of the present case, we are of the opinion that due

to non-examination of the Investigating Officer serious Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

prejudice has been caused to the defence.

56. Thus, on consideration of the entire evidence, we

are of the opinion that the prosecution has failed to prove its

case beyond reasonable doubts against the appellants.

57. The appeals are allowed. The impugned judgment

of conviction dated 29.07.1993 and the consequent order of

sentence dated 31.07.1993 passed by the learned 9 th Additional

Sessions Judge, Patna in Sessions Trial No.60 of 1991 arising

out of Khusrupur P.S. Case No. 22 of 1990 are set aside.

58. The appellants, namely, Awadesh Paswan, Ganesh

Paswan, Lalse Paswan, Suresh Paswan, Dinesh Paswan, Kailash

Paswan and Devendra Paswan (in Criminal Appeal (DB)

No.358 of 1993) and Shankar Paswan and Satyendra Paswan (in

Criminal Appeal (DB) No.416 of 1993) are acquitted of the

charges levelled against them.

59. Since the appellants, namely, Awadesh Paswan,

Ganesh Paswan, Lalse Paswan, Suresh Paswan, Dinesh Paswan,

Kailash Paswan and Devendra Paswan (in Criminal Appeal

(DB) No.358 of 1993) are on bail, they are discharged from the

liabilities of their bail bonds whereas the appellants Shankar

Paswan and Satyendra Paswan (in Criminal Appeal (DB)

No.416 of 1993) who are in custody are directed to be set at Patna High Court CR. APP (DB) No.358 of 1993 dt.18-05-2022

liberty forthwith unless their detention is required in any other

case.

(Ashwani Kumar Singh, J)

( Arvind Srivastava, J) rohit/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          21-05-2022
Transmission Date       21-05-2022