Saheb Kumar Paswan @ Saheb Paswan ... vs State Of Bihar
2023 Latest Caselaw 3672 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.8 of 1996
======================================================

1. Saheb Kumar Paswan alias Saheb Paswan, son of Chalitar Paswan

2. Chariter Paswan, son of Banarsi Paswan

3. Doman Paswan, son of Saukhi Paswan (vide order dated 13.07.2023, appeal against appellant Nos. 2 and 3 stands abated) All residents of village Maheshkhut, P.O.-Gogri, (Maheshkhut), District- Khagaria.

... ... Appellants Versus The State of Bihar

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

For the Appellant/s    :    Mr.Amish Kumar, Amicus Curiae
                            Dr. Prabhakar Thakur, Advocate
                            Mr. K.C.Jha, Advocate
For the Respondent/s   :    Mr. Bipin Kumar, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 10-08-2023

Heard Mr. Amish Kumar, learned Amicus Curiae for the

appellant No. 1 and learned A.P.P. for the State.

2. This criminal appeal has already been abated against the

appellant Nos. 2 and 3, as both of them died during pendency of

this appeal.

3. The present criminal appeal has been preferred in the

year 1996, i.e. around 27 years, against the judgment of

conviction and the order of sentence dated 17.11.1995 passed by

Sri R.P. Chaudhary, 1st Addl. Sessions Judge, Khagaria in Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

Sessions Case No. 127 of 1994, arising out of Gogri P.S. case No.

251/93 whereby and whereunder the appellant No. 1 has been

convicted for the offence under Section 302 of the Indian Penal

Code (hereinafter referred to as " the I.P.C.") and Section 27 of

the Arms Act and sentenced to undergo rigorous imprisonment

for life under Section 302 of I.P.C. No separate sentence has been

awarded under Section 27 of the Arms Act.

4. The prosecution case as per the fardbeyan of informant

Nand Lal Paswan recorded by S.I. S.D.Singh of Mahesh Khunt

(Gogari) Police Station at 1.00 a.m. in the office of Singh

Transport is that the informant has his house in village

Meheshkhunt which is adjacent north to the Assam Road. In the

adjacent east of his house, the informant has a field in which he

had grown potato during the relevant time and adjacent east to

that potato field, there is house of Doman Paswan. The informant

further stated that 5 days prior to the alleged date of occurrence,

one Bimla Devi, daughter of Doman Paswan and wife of Chalitra

Paswan had thrown excreta of her son in the potato field of the

informant which was objected by the informant on which

accused Saheb Kr. Paswan, son of Bimla Devi came over there

and caught hold of his hair and assaulted him. On hulla, the

members of the family of the informant and the neighbouring Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

people came over there and pacified them. On the next day, a

Panchayati was convened in which Sarpanch Satya Narayan

Paswan and Naga Paswan etc., participated and they asked both

the parties to maintain peace but accused Saheb Kr. Paswan,

Chalitra Paswan and Doman Paswan disobeyed the direction of

the Panch and came to the shop of the informant in the night of

16th and 17th of December, 1993 at 10.30 p.m. and shot fire at

his father namely Bharat Paswan due to which he died. The

informant's father was sleeping at the shop along with informant

and his younger brother Sanjay Paswan who awoke on hearing

the sound of firing and in the light of lamp, saw that the bullet

hit on the frontal part of head of informant's father and blood

started oozing. The informant further stated that the accused

Saheb Paswan having country made pistol in his hand was

standing near the head of Bharat Paswan and accused Chalitra

Paswan and Doman Paswan were also standing there. After the

firing, the informant's father could not say anything and all three

accused fled away. The accused persons also threatened the

informant and his brother that if they would reveal the matter to

any one, they would be killed. Once the accused persons left the

place, the informant informed the nearby people about the

incident and thereafter went to home and informed the family Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

members viz. Umesh Paswan, Bhola Paswan, Yogendra Paswan

etc., who came to the place of occurrence and saw the dead body

of Bharat Paswan.

5. On the basis of fardbeyan of the informant, Gogari P.S.

case No. 251/1993 was registered under Sections 302/34 of the

I.P.C. and Section 27 of the Arms Act and investigation was

taken up. On completion of the investigation, a charge-sheet was

submitted and accordingly cognizance was taken. Charges were

framed under Sections 302/34 of the I.P.C. and Section 27 of the

Arms Act against appellant No. 1 to which he pleaded not guilty

and claimed to be tried.

6. During the trial, the prosecution examined altogether ten

witnesses, namely, PW1 Bhola Paswan, PW2 Dhaneshwar

Paswan, PW3 Umesh Prasad Singh, PW4 Sanjay Kumar Paswan,

PW5 Nand Lal Paswan (informant), PW6 Yogendra Paswan,

PW7 Umesh Paswan, PW8 Shanker Dayal Singh (I.O.), PW9

Purusottam Kumar Sinha (doctor who conducted post-mortem of

the deceased) and PW10 Shyam Lal Saroj (Judicial Officer who

recorded statement of Court Witnesses under Section 164

Cr.P.C.). Prosecution has also produced exhibits as Ext. 1

(signature of informant on fardbeyan), Ext.1/1 signature of

Witness Umesh Paswan on the statement u/S 164 Cr.P.C., Ext. 2 Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

(fardbeyan), Ext. 3 (formal F.I.R), Ext. 4 (signature of I.O. on the

Surtehal report), Ext. 5 (signature of I.O. on the post-mortem ),

Ext. 6 (post-mortem report), Ext. 7, 7/1, 7/2 and 7/3(signature of

Court witnesses namely Umesh Paswan, Yogendra Paswan,

Sanjay Kumar Paswan and Bhola Paswan on their statement u/S

164 Cr.P.C.). Four Court witnesses viz. CW1 Umesh Paswan,

CW2 Yognedra Paswan, CW3 Sanjay Kumar Paswan, CW4

Bhola Paswan were also examined by the Court. The defence has

neither produced any witness nor produced any documentary

evidence in support of its case. Thereafter, the statement of the

appellant No. 1 was recorded under section 313 of the Cr.P.C.

After conclusion of the trial, the learned Trial Court convicted

and sentenced the appellant No. 1 in the manner indicated above.

7. Learned Amicus Curiae for the appellant has submitted

that the case of prosecution suffers from several infirmities which

having been overlooked by the learned trial Court while passing

the judgment under appeal and, therefore, the impugned

judgment is not sustainable in the eyes of law. It has been

submitted that there is no eye-witness as to the manner of

occurrence in the present case except for PW 6. It has been

argued that the presence of PW 6 at the place of occurrence is

also doubtful, taking into account the evidence of informant (PW Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

5). Learned counsel further submitted that PW 2, PW 3 and PW 7

have not supported the case of the prosecution case and were

declared hostile during the trial. It has been further contended

that there are glaring inconsistencies in the evidences of PW 4,

PW 5 and PW 6 regarding the source of identification. Rather, no

source of identification as such has been seized and brought on

record as material exhibit. Further, the learned counsel argued

that prosecution has not brought on record any seizure list with

respect to articles seized from the place of occurrence. Moreover,

the articles seized were not sent for scientific examination by the

investigating officer. Therefore, causative link required to

connect the appellant to the present offence is found to be

missing. The learned counsel for the appellant thus contended

that the prosecution has miserably failed to adduce any direct or

circumstantial evidence so as to prove beyond reasonable doubts

the involvement of the appellant in the occurrence. Therefore, it

is argued that there are severe lacunae in case of the prosecution

and the chain of circumstances does not unerringly point towards

the guilt of the appellant. The finding of the learned trial Court is

bad in law, wrong on facts, bereft of legal reasoning, devoid of

merit and the judgment of conviction and order of sentence are fit

to be set aside.

Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

8. Learned A.P.P. appearing for the State, on the other hand,

has rebutted the arguments advanced by learned Amicus Curiae.

It has been submitted that the judgment of conviction and order

of sentence under challenge require no interference as the

prosecution has been able to prove the case beyond all reasonable

doubts. It has been contended that the witnesses have been

consistent in their depositions and there does not remain any

lacuna in case of the prosecution. The minor inconsistencies in

the testimony of the witnesses cannot be a ground to reject their

evidence as a whole. Further, it has been submitted that presence

of PW 6 cannot be doubted as he was present at his shop situated

close to the place of occurrence. The learned A.P.P. argued that

the prosecution witnesses had identified the appellant in the light

of lamp and as such there were no inconsistencies regarding the

source of identification. Furthermore, latches on the part of the

investigating officer are no ground to disbelieve the prosecution's

case. Accordingly, it is contended that the guilt of the appellant

has been satisfactorily proved by the evidence adduced during

the course of trial and there does not remain any hiatus in the

chain of circumstances. Hence, there is no infirmity in the

judgment of conviction of the learned trial Court. Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

9. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough

examination of the entire material available on the record, the

following issues arise for consideration in the present appeal:

I. Whether the prosecution has been able to

establish beyond reasonable doubt the participation of

the appellant in the alleged occurrence considering the

fact that the source of identification in which the

appellant was claimed to be identified has neither been

seized nor been produced as material exhibit?

II. Whether the prosecution has proved the

presence of PW 6, who contends to be the sole

eyewitness, at the place of occurrence beyond

reasonable doubt?

III. Whether the non-examination and non-

production of the articles seized from the place of

occurrence, for which seizure list was made but not

brought on record, renders prosecution story doubtful?

10. With reference to issue no. I, as formulated above,

upon perusal of entire material available on record, we find that

the alleged occurrence took place around 10:30 P.M.at night. It is

found that PW 5 (informant), PW 4, and the deceased (father of Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

the informant) were sleeping inside their shop on a wooden bed

i.e. chowki at the time of the occurrence. PW 5, in his deposition,

has stated that he identified the appellant in the light of the lamp

which was burning in the shop. On the contrary, PW 4 has

deposed that he identified the appellant in the light of the electric

bulb. However, the Investigating Officer (PW 8), in his evidence,

asserted that he did not find any electric bulb burning at the shop

except for an oil lamp. Additionally, PW 6 also confirmed in his

deposition that an oil lamp was indeed burning in the shop.

Apparently, there is a material contradiction between the

evidence of PW 4, on one hand and PW 5 and PW 6 on the other

hand with regard to the source of identification. We take note of

the fact that PW 4 and PW 5 despite witnessing the appellant

under the same circumstances provided inconsistent accounts in

their depositions regarding the source of identification.

Moreover, it is found that no source of identification, i.e., the

lamp itself, has been seized by the investigating officer (PW 8),

nor has it been produced as material exhibit, which further

strengthens the doubt against the prosecution. At this juncture,

we would gainfully rely on the decision of the Hon'ble Supreme

Court in the case of Kapildeo Mandal &Ors. vs State of Bihar Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

reported in (2008) 16 SCC 99, wherein the Hon'ble Apex Court

in paragraph 19 has observed the following: -

"19. ....The incident happened at 11 o'clock in the night. The witnesses have stated that they have seen the incident and recognised the appellants either in the torchlight or in the lantern light which was burning at their house. It has come in evidence of the witnesses as well as the investigating officer that neither the torch nor the lantern was seized by the investigating officer during the course of investigation, nor were they produced before the court. In the circumstances, it is difficult to believe that the appellants have been identified in the torchlight or in the lantern light."

Therefore, applying the aforesaid view of the Hon'ble

Supreme Court in the given facts and circumstances of the case

as discussed above, we are of the considered opinion that the

evidence regarding the identification of the appellant is not

sufficient so as to connect the appellant to the said offence.

Accordingly, the issue no. I is decided in negative.

11. With reference to issue II, a thorough examination of

the ocular evidence provided by PW 5 becomes necessary. The

presence of PW 6 at the place of occurrence stands falsified in

light of the testimony of PW 5. In his deposition, PW 5 clearly

stated that PW 1, PW 6, and PW 7 arrived at the place of

occurrence within fifteen minutes after the incident took place.

Furthermore, upon scrutinizing fardbeyan wherein PW 5 has

categorically mentioned that after the accused persons fled the Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

place of occurrence, he immediately informed people present in

nearby hotel, and Singh Transport Office. Subsequently, he went

home and informed family members and PW 1, PW 6, and PW 7,

who then came to the place of occurrence and saw the deceased.

Hence, it appears from the evidence of the informant that PW 6

came to the spot on being informed by him. However, PW6, in

his deposition has stated that he witnessed the incident while

working at his own shop and reached the spot after the appellant

fled away. Therefore, it appears from his deposition that none has

informed him about the alleged incident. Thus, it is evident that

severe contradiction is present in the evidence of PW 5 and PW

6. It is well settled law that there should not be any major

inconsistency or contradiction in the testimony of an eyewitness

and it must be free from blemish and devoid of any ambiguity,

uncertainty and loopholes. It has been observed by the Hon'ble

Supreme Court in the case of Sadhu Ram & Another vs The

State of Rajasthan (2003) 11 SCC 231 that:

"It is no doubt true that the conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case the court must be satisfied that implicit reliance can be placed on the testimony of such a witness and that his testimony is so free of blemish that it can be acted upon without insisting upon corroboration.

The testimony of the witness must be one, which Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

inspires confidence and leaves no doubt in the mind of the court about the truthfulness of the witness." Thus, in the light of the evidence of PW 5, we find that the

prosecution's assertion about PW 6 being present at the place of

occurrence at the time of incident appears doubtful.

Accordingly, the issue no. II is decided in negative.

12. Now with regard to the issue no. III, the attention of this

Court was drawn towards the testimony of Investigating Officer

(PW 8), who stated in his deposition that he made the seizure of

cap, pellet, and blood-stained soil from the place of occurrence.

However, upon a minute perusal of the material available on

record, it has surfaced that the prosecution has not brought on

record any seizure list contended to be prepared in connection

with the present case. On the contrary, it emerges from the

deposition of the PW 8 that neither was the seizure list made a

part of the case diary, nor has any seizure list been ever produced

during the course of trial. There is conspicuous absence of any

statement by any of the prosecution witnesses to the effect that

they witnessed the preparation of seizure list. Also, there is

failure of the prosecution to examine the seizure witnesses, if

any. Furthermore, it is found that the blood-stained soil , pellet,

and cap, which are contended to have been seized by the I.O.

were not sent for scientific examination. As such, the causative Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

link required to connect the appellant to the present offence is

found to be missing. Such latches on part of the prosecution

causes a hiatus in the chain of circumstances and consequently,

the benefit of such a botched-up investigation carried out in a

perfunctory manner and badly conducted trial ultimately goes in

favour of the appellant. However, it's important to note that when

investigating police's default is so flagrant that it speaks volumes

about their irresponsible attitude and utter disregard for

established cannons of criminal procedure, the same cannot be

brushed aside.

In the case of Sidhartha Vashisht @ Manu Sharma versus

State (NCT of Delhi) (2010) 6 SCC 1, the Hon'ble Supreme

Court observed that :

"The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."

Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

In light of the discussions made above, such latches on the

part of the prosecution creates a serious doubt regarding the

truthfulness of the prosecution case and the appellant will be

entitled to get benefit of doubts.

Accordingly, issue no. III is decided in the affirmative.

13. In light of the legal position as discussed above and on

the basis of the findings arrived at on the issues formulated

above, we are of the considered opinion that the conviction of the

appellant is not sustainable in the eyes of law and the prosecution

has failed to prove its case beyond all reasonable doubts.

14. Accordingly, the appeal is allowed. The judgment of

conviction and the order of sentence dated 17.11.1995 passed

by Sri R.P. Chaudhary, 1st Addl. Sessions Judge, Khagaria in

Sessions Case No. 127 of 1994, arising out of Gogri P.S. case No.

251/93, are set aside. Since, the appellant Saheb Kumar Paswan

@ Saheb Paswan is on bail, he is discharged from the liabilities

of his bail bonds.

15. Before parting with this appeal, we record our

appreciation towards Mr. Amish Kumar, learned advocate

appointed as Amicus Curiae to represent the appellant, who has

rendered his able assistance to this Court in this appeal.

Therefore, we direct the Patna High Court Legal Services Patna High Court CR. APP (DB) No.8 of 1996 dt.10-08-2023

Committee to pay a sum of Rs. 10,000/- to Mr. Amish Kumar

learned advocate, who is appointed as Amicus Curiae to represent

the appellant at the cost of the State by order dated 13.07.2023

passed by this Court.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                AFR
CAV DATE                28.07.2023
Uploading Date          10.08.2023
Transmission Date       10.08.2023