Patna High Court
Brind Paswan vs The State Of Bihar on 16 April, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 938 of 2017
Arising out of PS. Case No.-169 Year-2002 Thana- FATUA District- Patna
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Brind Paswan Son of Baldeo Paswan, R/o Usfa, P.S.- Gauri Chak, District-
Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance:
For the Appellant/s : Sri Arun Kumar Tiwary, Advocate
Sri Amar Anand, Advocate
Sri Mrityunjay Kumar, Advocate
Ms. Jyotsna Kumari, Advocate
For the Respondent/s : Sri Abhimanyu Sharma, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 16-04-2025
The present appeal under Section 374(2) read with
Section 389(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the Cr.P.C.), has been preferred by the
sole appellant against the judgment of conviction and the order
of sentence dated 12.06.2017 and 16.06.2017 passed by the
learned Court of VIth Additional District and Sessions Judge,
Patna City, District-Patna (hereinafter referred to as the 'learned
Trial Judge') in Sessions Trial No. 849 of 2003 (arising out of
Fatuha P.S. Case No. 169 of 2002). By the said judgment dated
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
2/36
12.06.2017
, the aforesaid appellant has been held guilty for
commission of offence under Section 302 of the Indian Penal
Code (hereinafter referred to as the 'IPC') and Section 27 of the
Arms Act, 1959 and he has been sentenced to undergo rigorous
imprisonment for life for the offence under Section 302 IPC with
penalty of Rs. 10,000/- and in default thereof, the appellant has
been directed to undergo further one year imprisonment. The
appellant has also been sentenced to undergo three years
rigorous imprisonment under Section 27 of the Arms Act, 1959
with penalty of Rs. 2,000/- and in default thereof, the appellant
has been directed to undergo further imprisonment of one month.
The sentences have been directed to run concurrently.
2. The short facts of the case are that the fardbeyan of
Sitaram Paswan was recorded by the Sub-Inspector of Police,
Nagendra Singh posted at P.S. Gaurichak, District-Patna on
20.12.2002 at 16:30 hours. In the fardbeyan, the informant,
namely, Sitaram Paswan has stated that on 20.12.2002 his grand-
son at about 07:00-08:00 a.m. had come back to the house after
visiting Abdullah Chak, whereafter the co-villagers, namely,
Brind Paswan (appellant) son of Baldeo Paswan, Ramanand
Paswan son of Jaleshwar Paswan, Ratan Paswan son of
Jaleshwar Paswan started making round of the house of the
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
informant leading to his grand-son hiding in the house itself on
account of fear since earlier also quarrel had taken place in
between them. In the day time at about 02:00 p.m. the grand-son
of the informant had ventured outside the house on the southern
side for urinating, however Brind Paswan (appellant) carrying a
rifle had tried to kill him, however grand-son of the informant
had come running and had hidden himself inside the house. After
sometime, the accused persons including the appellant armed
with rifle and gun had surrounded the house of the informant and
had started engaging in abusing them, however they did not open
the door. Subsequently, all the accused persons had gone on the
roof of the house of Jaleshwar Paswan and when the grand-son
of the informant had gone in the courtyard at about 03:00 p.m.
and was spreading chadar (cloth-sheet), the accused Jatan
Paswan, who was standing on the roof of the house of Jaleshwar
Paswan had said that he is standing in the courtyard, whereupon
Brind Paswan (appellant) had fired gun shot from his rifle upon
the grand-son of the informant with the intention to kill him,
whereupon the same had stuck his grand-son Anil in the
stomach, whereafter he fell down in an injured condition and
then Brind Paswan had also fired more gun shots. After Anil was
hit by gun shots, people from the village had arrived and then the
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
aforesaid accused persons had climbed down from the roof and
had fled away through the house of Jatan Paswan and Jaleshwar
Paswan. Thereafter, Saraswati Devi and wife of Anil with the
help of the villagers had taken Anil for treatment to Patna. The
informant has further stated that the motive of occurrence is that
his grand-son Anil Paswan had entered into a quarrel earlier with
regard to fishing the fishes. The informant has also stated that
members of Kahar caste are also having hand in killing his
grand-son and he would name the witnesses, who had seen the
occurrence, later on. The fardbeyan was then read over to the
informant and upon finding the same to be correct, he had put
his thumb impression over the same.
3. After recording of the fardbeyan a formal FIR bearing
Fatuha P.S. Case No. 169 of 2002 was registered under Sections
147/148/149/326/307 of the IPC and Section 27 of the Arms Act
on 21.12.2002 at 06:00 p.m., however, on account of the death of
the deceased Anil Paswan, Section 302 of IPC was added later
on. The FIR was lodged against the appellant and nine other
accused persons, as named in the fardbeyan. After investigation
and finding the case to be true qua the appellant and one Chhota
Paswan, the police had submitted charge sheet on 30.05.2003
under Sections 147, 148, 149, 326, 307/302 of the IPC & Section
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
27 of the Arms Act. The learned Trial Judge had then taken
cognizance of the offence under Sections 147, 148, 149, 326,
307/302 of the IPC and Section 27 of the Arms Act against the
appellant and one Chhota Paswan, whereafter the case was
committed to the Court of Sessions vide order dated 16.09.2003
and it was numbered as Sessions Trial No. 849 of 2003. After
taking into account the charge sheet and the materials collected
during investigation, the learned Trial Judge framed charges
under Sections, 302, 302/149 and 326 of the IPC as also under
Section 27 of the Arms Act, 1959 against the appellant.
4. During the course of investigation, nine witnesses were
examined. While PW-1 Satish Pandit, PW-2 Nageshwar Paswan,
PW-3 Baleshwar Bind and PW-4 Kashi Mahto have been
declared hostile, PW-5 Saraswati Devi is the mother of the
deceased, PW-6 Rinku Devi is the wife of the deceased, PW-8
Sheela Kumari is the sister of the deceased and PW-9 Rajeshwar
Paswan is the father of the deceased. The doctor who had
conducted the postmortem of the dead body of the deceased
namely Dr. Radha Raman Singh has been examined as PW-7.
5. The learned counsel for the appellant Sri Arun Kumar
Tiwary assisted by Sri Mrityunjay Kumar, Advocate has
submitted that there is discrepancy in the description of the
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
wound of entry as has been mentioned in the inquest report viz-
a-viz the postmortem report. As far as the inquest report is
concerned, no bruises have been found, however the same has
been mentioned in the postmortem report, thus both are
contradictory to each other. It is also submitted that neither the
fardbeyan nor the formal FIR has been exhibited, which has
caused grave prejudice to the appellant. Yet another issue raised
by the learned counsel for the appellant is that neither the
Investigating Officer nor the informant have been examined in
the present case which has also caused great prejudice to the
appellant and is also fatal to the case of the prosecution. In this
regard, it is submitted that the first prejudice which has been
caused to the appellant is that the place of occurrence has not
been established thus the incident itself becomes doubtful. It is
also submitted that neither blood-stained mud nor any material
articles have been found much less seized from the courtyard,
where the deceased is stated to have been shot dead so as to
corroborate the actual occurrence. Even the Chadar which was
being spread by the deceased has not been seized much less any
diagram of the place of occurrence having been prepared by the
Investigating Officer. It has also been submitted that the distance
from which the alleged gunshot firing was made is also yet to be
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
determined so as to prove the mode and manner of occurrence.
As far as the bullet in question is concerned, it is submitted that
the same was never sent for ballistic examination. Thus, all the
aforesaid factors as also non-examination of the Investigating
Officer makes the entire occurrence doubtful. It is also submitted
that the statements of the witnesses have been recorded after
delay thus the possibility of them being tutored cannot be ruled
out. It is also submitted that a bare perusal of the fardbeyan
would show that the same does not mention as to where the
fardbeyan was recorded and the same also becomes suspicious in
view of the fact that there are no witnesses to the alleged
fardbeyan. It is also submitted that there is grave contradiction in
between the fardbeyan and the testimony of the witnesses with
regard to the motive inasmuch as in the fardbeyan it has been
stated that there was fishing dispute in between the deceased and
the accused persons, however in the testimony of the witnesses it
has been mentioned that there was land dispute in between the
parties.
6. It is further submitted by the learned counsel for the
appellant, by referring to the evidence of PW-4, PW-5, PW-6,
PW-8 and PW-9 that there are grave inconsistency and
contradiction in their evidences. As far as PW-5 is concerned,
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
her statement was admittedly recorded after 08-10 days and she
has said in her deposition that only Brind and Ramanand had
climbed the kotha whereas the other witnesses have said that
many accused persons had climbed the kotha. As far as PW-6 is
concerned, she has stated in her evidence that 7-8 accused
persons had climbed the kotha. Thus, it is submitted that the
place from where firing was made becomes doubtful. It is also
submitted that PW-6 has stated in her evidence that the motive
for the occurrence is that the land on which the deceased was
shot belongs to her but the accused persons are wrongly laying
their claim over it. Thus, it is submitted that the place of
occurrence is not the courtyard of the informant. It is next
submitted that PW-6 Rinku Devi has not named the appellant to
be the person who had shot the deceased. The learned counsel
has next referred to the postmortem report as also to the
evidence of the doctor (PW-7) to submit that upon external
examination one unstitched lacerated wound has been found on
epigastric region of abdomen of size 3cm x 2cm x cavity deep,
margin of which were blackened. It is thus submitted that
blackened wound is found only when the firing is made from
close distance and in case firing is made from far away,
blackening does not take place. In this regard, the learned
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
counsel for the appellant has referred to a judgment rendered by
the Hon'ble Apex Court in the case of Mohan Singh and Anr.
vs. State of M.P. reported in (1999) 2 SCC 428, paragraph nos.
12 and 13 whereof are reproduced herein below:-
"12. We find as aforesaid, there is another part of the
deposition of the same doctor with reference to the same
injuries when he records that the shape of the wounds
was oval indicating the injuries being caused from a
higher pedestal. In Taylor's Principle and Practice of
Medical Jurisprudence, 12th Edn., at p. 297, it says:
"The position of the wound of entrance usually marks
a part of the body which was at the moment of
discharge facing the muzzle of the weapon, and in a
straight line with the barrel; it therefore indicates with
precision whether the victim was facing the muzzle or
with his back or side to it.
Where the weapon is set at a slant to the body, the
bullet may strike the skin and enter through a distinctly
oval hole, the 'approach' side of which is a graze
widening out into the actual entry, or it may tear
across the surface of the skin leaving only a groove or
split.
13. In Modi's Textbook of Medical Jurisprudence and
Toxicology, 21st Edn., at p. 264, it says:
"The wound of entrance in distant shot is usually
smaller than the projectile due to the elasticity of the
skin, and round when the projectile strikes the body at
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
a right angle and oval when it strikes the body
obliquely. The edges of the wound are inverted and the
striking bullet covered with grease and smoke causes
also a collar of abrasion contusion, which looks like a
dark ring, showing two zones, the inner of grease and
the outer of abrasion.
When there is a close shot that is in the range of
powder blast and flame is within 1 to 3 inches for
small arms, there is a collar of soot and grease (if
present on the bullet) around the circular wound of
entry. Singed hairs may be seen if the body is not
covered with clothing.
When it is fired beyond a distance of 12 inches, there
are no powder marks of soot or heat effects around the
wound."
7. Referring to the aforesaid judgment rendered in the case
of Mohan Singh (supra), it has been submitted by the learned
counsel for the appellant that firstly blackening would not take
place in case firing is made from beyond a distance of 12 inches
and secondly in case firing is made not only from a faraway
place but also from a place which is higher than the place where
the person who is shot is situated, the projectile would strike the
body at a right angle and would create an oval wound, however
in the present case the wound has been found to be lacerated
which is not possible in case firing is made in the manner it has
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
been done in the present case. Thus, it is submitted that the entire
case of the prosecution is not believable. It is further submitted
that consequently the ocular evidence stands at variance with the
medical evidence, hence in such cases the guilt of the appellant
does not stand proved beyond all reasonable doubt. It is also
submitted that no independent witnesses have been examined
and only related witnesses have been examined in the present
case, which also creates a doubt with regard to the case of the
prosecution. Lastly, reference has been made to a judgment
rendered by the learned Division Bench of this Court in the case
of Sachidanand Singh & Ors. vs. State of Bihar reported in
2025 (2) BLJ 817 to submit that non-examination of the
Investigating Officer is fatal to the case of the prosecution and
moreover, unless and until the medical evidence is irreconcilably
in conflict with the oral evidence, the oral testimony of the eye-
witnesses cannot be doubted and further unless the medical
evidence completely rules out all possibilities of injuries taking
place in the manner alleged, the testimony of the eye witnesses
cannot be thrown out. It is thus submitted that in the present case
the medical evidence is irreconcilably in conflict with the oral
evidence, hence the testimony of the prosecution witnesses is not
trustworthy, thus the appellant is required to be acquitted.
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
Therefore, it is the submission of the learned counsel for the
appellant that the judgment of conviction & the order of sentence
passed by the Ld. Trial Judge is perverse and is fit to be set aside.
8. Per contra, the learned APP for the State has submitted
that the occurrence in question has been supported by four
witnesses i.e. PW-5, PW-6, PW-8 and PW-9. It is also submitted
that the evidence of the said eye witnesses is consistent and there
is no inconsistency so as to warrant any interference with the
judgment and order passed by the learned Trial Judge. It is also
submitted that the place of occurrence is well established, hence
non-examination of the Investigating Officer has not caused any
prejudice to the appellant. It is further submitted that the factum
of the appellant having fired gun shots from his rifle upon the
deceased has been well established by the testimony of the eye
witnesses i.e. PW-5, PW-6, PW-8 and PW-9. It is also submitted
that there is no variance in the ocular evidence viz-a-viz the
medical evidence and the occurrence stands corroborated from
the medical evidence adduced in the present case. Thus, it is
submitted that the judgment of conviction and the order of
sentence passed by the learned Trial Judge does not suffer from
any infirmity and the same is fit to be upheld.
9. Besides hearing the learned counsel for the parties, we
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
have minutely perused both the evidences i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
10. PW-1 Satish Pandit, PW-2 Nageshwar Paswan, PW-3
Baleshwar Bind and PW-4 Kashi Mahto have all been declared
hostile, hence their evidence is not being adverted to.
11. PW-5 Saraswati Devi is the mother of the deceased and
she has stated in her evidence that her son Anil Paswan was
murdered 2-2½ years ago in the day time at about 3:00-4:00 p.m.
She has also stated that on that day at about 7:00 a.m. the
accused Brind Paswan (appellant) and Ramanand Paswan had
chased her son Anil Paswan with gun in their hands, whereafter
her son had hidden himself. At about 02:30 p.m., son of PW-5
had come out of the house to attend call of nature but when he
saw the said two accused persons watching him, he again came
inside the house and hid himself. At about 3:00-4:00 p.m. while
the son of PW-5 Anil Paswan was spreading cloth sheet at the
door, at that time 20-22 persons surrounded the house and some
climbed on the roof of Jaleshwar Paswan and from there the
appellant Brind Paswan had fired at the son of the informant
which had hit him at the abdomen and then he fell down and laid
on the ground while all the accused persons fled away.
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
Thereafter, the son of PW-5 was taken to P.M.C.H. but he died as
soon as he was admitted there. She has also stated that Brind
Paswan and other accused persons had surrounded her house and
the said occurrence has taken place because of land dispute with
Ramanand Paswan. PW-5 had identified the accused Chhote
Paswan and Brind Paswan standing in the dock. In cross-
examination, PW-5 has stated that one case is pending against
her in the Patna Civil Court in which she, her husband, her
father-in-law and son Anil and others are accused and the said
case has been filed by one Vijay Paswan. She has also stated that
three other cases are pending against her son Anil Paswan. In
paragraph no. 8 of her cross-examination, PW-5 has stated that
she has not filed any other separate case for the occurrence of
07:00 a.m. She has also stated that the stairs of house of
Jaleshwar Paswan is Pukka (concrete) and on the roof there were
about 10 persons, however, she cannot name all of them. She has
next stated that her courtyard is enclosed and nobody had come
inside the courtyard, however outside the courtyard there were
10 accused persons.
12. In paragraph no. 11 of her cross-examination, she has
stated that she has got no land dispute with Brind Paswan. She
has also denied the suggestion that her son was having relation
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
with I.P.F. and terrorist as also he had kept the rifle of terrorist
after stealing the same leading to his son being murdered. In
paragraph no. 12 of her cross-examination, PW-5 has stated that
her statement was recorded after 8-10 days. PW-5 has also
denied the suggestion that she had stated before the police that
Anil Paswan had fired by rifle from the side of roof of Jaleshwar
Paswan which hit the abdomen of Anil Paswan and the accused
persons had further fired two shots but the same did not hit
anyone. In paragraph no. 14 of her cross-examination, PW-5 has
denied the suggestion that she had stated before the police that
Brind Paswan had fired at her son Anil which hit his abdomen.
13. PW-6 Rinku Devi is the wife of the deceased and she has
stated in her deposition that the occurrence dates back to four
years at about 09:30 in the morning when she was at her house
and her husband was coming to his house from outside when she
saw that the appellant Brind Paswan and Ramanand Paswan
were also coming from outside and thereafter the said two
accused persons had chased Anil Paswan, however he quickly
came inside the house and hid himself. At about 02:00 p.m. in
the afternoon Anil Paswan had gone outside for urination,
however, again the said two accused persons had exhorted
resulting in Anil Paswan again coming inside the house and
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
hiding himself. At about 3:00-4:00 p.m., Ratan Paswan, Jatan
Paswan, Pawan Paswan, Karoo Paswan, Mahi Paswan, Swarath
Paswan, Baldeo Paswan, Nawal Paswan, Pyare Beldar, Siyaram
Beldar, Akhilesh Choudhary, Sitaram Choudhary, Chhote
Paswan and Umesh Paswan, all armed with various weapons had
arrived there and half of them had climbed the kotha of
Jaleshwar Paswan, whereafter from the kotha of Jaleshwar
Paswan three gunshot firing was made on Anil, however again
PW-6 states that two gunshot firing were made while one
gunshot did not hit Anil, the other hit him in his stomach and
then the accused persons had ran away while Anil fell down.
PW-6 has further stated that with the aid of other persons present
there, she had taken Anil to Nalanda Medical College and
Hospital, Agamkuan, Patna, however the doctor upon
examination said that he has died. She has also stated that the
motive for occurrence is that the land on which Anil was hit by
gunshot belongs to her but the accused persons are falsely
claiming the same to be theirs. PW-6 had recognized Chhote
Paswan and Brind Paswan standing in the dock. In her cross-
examination, PW-6 has stated that there is only one road to go
outside her house. She has also stated that before the occurrence
Anil had gone outside the house and he was out for 10 days. She
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
has also stated that her husband had gone to jail once after their
marriage where he had stayed for one-two months. She has
stated that she does not know as to whether her husband is an
accused in the case pertaining to killing of Lochan Paswan. She
has denied the suggestion that her husband was having
allegiance with the extremist organization. She has also denied
the suggestion that her husband had stolen rifle of the extremist
organization and on account of fear of the extremist, he used to
stay mostly in the house.
14. In paragraph no. 13 of her cross-examination, PW-6 has
stated that at about 02:00 p.m. in the afternoon there were about
19 people outside the house, who had surrounded the house. In
paragraph no. 15 of her cross-examination, PW-6 has stated that
at 02:00 p.m. nobody had ventured outside the house. She has
also stated that though 19 persons had surrounded the house,
however no alarm was raised by any person of the house. She
has next stated that she cannot say as to how many times the
police had come to the house after the occurrence. She has also
stated that her statement was recorded on the second day of the
occurrence and it is not a fact that her statement was recorded
after five months. In paragraph no. 18 of her cross-examination,
PW-6 has stated that it is not a fact that she had told the police
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
that Anil Paswan had fired gun shots from the house of
Jaleshwar Paswan which hit Anil Paswan in the stomach. In
paragraph no. 19 of her cross-examination, PW-6 has stated that
no articles were seized by the police in her presence. In
paragraph no. 20 of her cross-examination, PW-6 has stated that
the day on which her statement was recorded, on that day
statement of her father-in-law, sister-in-law, younger father-in-
law and grand-father/grand-mother was also recorded by the
police, however her statement was recorded first.
15. PW-7 Dr. Radha Raman Singh is the doctor who had
conducted the postmortem of the dead body of the deceased and
he has stated that on the fateful day he was posted as Lecturer-
cum-Tutor in Nalanda Medical College and Hospital, Agamkuan
in the Department of F.M.T. On that day, at 11:00 a.m. he had
conducted autopsy on the dead body of Anil Paswan and had
found the following ante-mortem injuries on the dead body:-
External Examination:-
(1) One unstitch lacerated wound found on epigastric
region of abdomen of size 3 cm x 2cm x Cavity deep
margin of which was blackened. The wound was stitch
3cm below the Xiphoid process and 11 cm above the
umbilicus on mid abdominal line.
(2) Bruise on left side of back on 11 cm enter costal
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
space 11cm left from mid line. Size was 5cm x 4cm. Under
the skin the metallic material was full from exterior and
on dissection of the skin a bullet like folded metallic
material was recovered which was sealed labelled and
handed over to the constable deputed.
Internal examination:-
(1) Abdominal cavity was full of blood and blood clot
rice food stuff was also found in abdominal cavity.
(II) Stomach was perforated on anterior and posterior
wall.
(III) Mesentery was massively ruptured and bruised.
(IV) Pancreas left kidney spleen lower margin of left
lobe, of liver were ruptured.
(V) There was hole in eleventh inter costal muscle
layer at the level of injury no.2 from which bullet like
metallic material was found.
(VI) Visceras, were pale.
(VII) Heart was empty.
(VIII) Brain was pale.
PW-7 has opined that all the injuries are ante-mortem and
cause of death is severe abdominal injuries causing severe
hemorrhage and shock and the weapon used is fire arm. PW-7
has assessed the time since death to be 2 hours to 24 hours. PW-
7 has stated that the postmortem report dated 21.12.2002 is in his
writing and bears his signature, which has been marked as
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
Exhibit-1. In cross-examination, PW-7 has stated that he has not
mentioned about the name of fire arm as the same can be
detected only by Ballistic Expert. PW-7 has also stated that the
distance from which firing was made is not mentioned in the
postmortem report.
16. PW-8 Sheela Kumari is the sister of the deceased and she
has stated in her deposition that the occurrence dates back to 4-5
years at about 07:00 a.m. in the morning when her brother Anil
Paswan was coming from Abdullah Chak and at that time the
appellant Brind Paswan and Ramanand Paswan were roaming
around with rifle in their hands, whereafter they had chased him
leading to him coming inside the house and hiding there. At
about 01:00-2:00 p.m. in the day time Anil Paswan had gone
outside the house for urinating, however he saw that Brind
Paswan and Ramanand Paswan were roaming around with rifle
in their hands, who had again chased him, leading to him again
coming inside the house and hiding there. Thereafter, at about
03:00-4:00 in the day time while the deceased was spreading
Chadar in the courtyard, Ramanand, Biren, Mahil, Ratan, Jatan,
Karoo, Chhote, Swarath, Vijay, Baldeo, Nawal and Sakal
Paswan had surrounded the house and then the appellant Brind
Paswan, from the roof of Ramanand Paswan, had started firing
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
gun shots on Anil Paswan, however the first shot passed by
while the second shot hit him below the chest leading to him
falling down and then the accused persons fled away.
Thereafter, PW-8 had taken his brother to Nalanda Medical
College and Hospital, Agamkuan, Patna along with mother,
father, sister-in-law etc., however at the hospital the doctor said
that Anil has died. PW-8 had recognized the accused persons
standing in the dock. She has also stated that the motive of
occurrence is land related dispute with Ramanand Paswan. She
has stated in her cross-examination that his brother had been out
for 10 days and he had returned on the day of occurrence. She
has also stated that she does not know whether her brother has
gone to jail or not. In cross-examination, PW-8 has stated that
the house of Ramanand Paswan is situated towards the north of
her house and the house of the appellant Brind Paswan is
adjacent to her house on the eastern side. She has also stated that
her house is not surrounded on the four sides by wall. In
paragraph no. 5 of her cross-examination, PW-8 has stated that
land dispute was going on with Ramanand Paswan from before.
She has also stated that she had seen Ramanand Paswan and
Brind Paswan roaming around at about 07:00 a.m. in the
morning with rifle in their hands. In paragraph no. 10 of her
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
cross-examination, PW-8 has stated that no rifle or gun is present
in her house. In paragraph no. 18 of her cross-examination, PW-
8 has stated that she cannot say as to at how much distance from
her brother, the persons firing gunshot were present. In para no.
19, PW-8 has stated that at the time when the accused persons
had surrounded the house, she was inside the house.
17. PW-9 Rajeshwar Paswan is father of the deceased and he
has stated in his deposition that the occurrence dates back to
20.12.2002 at about 08:00 a.m. in the morning when his son Anil
Paswan was coming back from the house of his sister and on the
way Ramanand Paswan, Chhote Paswan, Randheer Paswan,
Rambhawan Paswan, Umesh Paswan, Mahil Paswan,
Ramswaroop Paswan, Siyaram Bind, Pyare Bind, Sitaram
Choudhary, Akhilesh Choudhary, Anil Bind, Munna Pandit,
Sakal Paswan, Baldev Paswan and Nawal Paswan, all together
16 persons had tried to surround his son, however his son, in
order to evade them, had suddenly entered the house and at that
time the accused persons started accumulating more persons. At
about 02:00 p.m. in the afternoon, son of PW-9 had the urge to
urinate, however he saw that the accused persons had surrounded
the house from all sides, hence without urinating he came back
into the house. PW-9 has further stated that at about 03:00-4:00
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
p.m. in the day time, while his son was cleaning/spreading
chadar, Ramanand Paswan and Brind Paswan (appellant) as also
3-4 persons had climbed upon the roof of the house of
Ramanand and Randheer, whereafter Ramanand Paswan
exhorted to fire gunshot leading to Brind Paswan (appellant)
firing gun shot, whereupon one bullet had hit in the stomach of
the son of PW-9 leading to him falling down and then PW-9 had
taken his son to the hospital, however he died during the course
of treatment. PW-9 has stated that the reason for occurrence is
land dispute with Ramanand Paswan, which is going on since 25
years. PW-9 has stated that Ramanand Paswan used to tell his
son to leave the land and withdraw the case. PW-9 had
recognized the appellant Brind Paswan and Chhote Paswan
standing in the dock.
18. PW-9 has also stated that the inquest report was prepared
by the police in his presence and he had put his signature on the
carbon copy which he has identified and the same also bears the
signature of his brother Ram Ishwar Paswan, whose signature
has also been recognized by him, which has been marked as
Exhibit-2. In cross-examination, PW-9 has stated that the
informant of this case is his father late Sitaram Paswan, whose
fardbeyan was recorded at his house and his father had put his
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
thumb impression over the same. In paragraph no. 2 of his cross-
examination, PW-9 has stated that he had given his statement in
the present case at the hospital once. In cross-examination, PW-9
has reiterated what he has stated in his examination-in-chief and
has also stated that while his son was cleaning chadar,
Ramanand Paswan climbed on the roof of Randheer and
exhorted to fire gun shots, whereafter Brind Paswan (appellant)
had fired gun shots which hit the stomach of the son of PW-9.
PW-9 has stated in his cross-examination that the house of
Ramanand Paswan is at a short distance from his house, at about
200 yards. PW-9 has also stated that the statement of his father
was recorded by the police in his presence and he was at that
time at his house and his father had put his thumb impression on
the statement. PW-9 has also stated in his cross-examination that
the firing was made from the northern side and the roof is at a
height of 12 feet from his courtyard, from there the firing was
made and at that time his father, his wife, his daughter-in-law,
his daughter and two cousin brothers were present there.
19. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the appellant on 29.02.2016
under Section 313 of the Cr.P.C. for enabling him to personally
explain the circumstances appearing in the evidence against him,
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
however, he claimed to be innocent.
20. The learned Trial Court upon appreciation, analysis and
scrutiny of the evidence adduced at the trial has found the
aforesaid appellant guilty of the offences and has sentenced him
to imprisonment and fine, as stated above, by its impugned
judgment and order.
21. We have perused the impugned judgment of the learned
Trial Court, the entire materials on record and have given
thoughtful consideration to the rival submissions made by the
learned counsel for the appellant as well as the learned APP for
the State.
22. At the outset we would deal with the issue pertaining to
the mode and manner of the occurrence and the number of
accused persons present at the alleged place of occurence. A bare
perusal of the statement of PW-5 Saraswati Devi would show
that she has stated that 10 persons were present on the roof,
however she said that she cannot name all of them while PW-6
Rinku Devi has though named several accused persons to be
present on the roof and outside the house, however she has not
taken the name of the appellant and moreover, she has also not
stated that the appellant had fired gun shots on the deceased. As
far as PW-8 is concerned, she has stated that 12 accused persons
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
were present, however PW-9 Rajeshwar Paswan has stated in his
examination-in-chief that about 5-6 persons were present on the
roof but in his cross-examination, he has stated that only
Ramanand Paswan had climbed on the roof of Randheer Paswan
and exhorted to fire gun shots, whereafter the appellant had fired
gun shots. In fact PW-6 has stated in her evidence that the
motive is that the land on which the deceased was shot belongs
to her but the accused persons are wrongly laying their claim
over it, which definitely casts a doubt about the place of
occurrence being the courtyard of PW-6. Thus, this Court finds
that there is grave inconsistency in the statement of the
witnesses, as far as the mode and manner of occurrence and the
number of accused persons present at the alleged place of
occurence is concerned, especially in light of the testimony of
PW-6, who though claims to be an eye witness but she has not
mentioned either about the appellant being present at the alleged
place of occurrence or having fired any gun shot on the
deceased.
23. Now coming to the issue of motive qua the appellant, we
find that PW-5 has stated that land dispute was existing with
Ramanand Paswan and there was no land dispute with the
appellant i.e. Brind Paswan and similarly PW-6, PW-8 and PW-9
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
have also stated that land dispute was existing with Ramanand
Paswan, hence motive also does not stand established as far as
the appellant is concerned so as to warrant killing of the
deceased by him.
24. Yet another aspect of the matter is that PW-6 has
categorically stated in her evidence that no articles were seized
by the police, meaning thereby that neither any examination/
investigation was made with regard to the place of occurrence
much less any blood-soaked mud etc. were seized by the police
including the chadar in question. Moreover, neither the
Investigating Officer has been examined nor the informant has
been examined nor the fardbeyan/FIR has been exhibited much
less the arms in question having been recovered by the police
apart from the fact that even the bullet which was recovered by
the doctor from the dead body of the deceased has not been sent
for FSL/Ballistic Examination. Thus we find that the said
infirmities and lacuna in the case of the prosecution has led to
grave prejudice to the appellant. We would also like to point out
that though the witnesses have narrated the version mentioned in
the fardbeyan/FIR, however in absence of the fardbeyan/FIR
being proved much less exhibited as also in absence of the
informant being examined (on account of his death), mere
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
reiteration of the contents of the fardbeyan by the witnesses
would not suffice. In this regard, it would be relevant to refer to
a judgment rendered by the Hon'ble Apex Court in the case of
Miran Bux vs. Laloo @ Shagir Ahmad and others, reported in
(1993) suppl. 3 SCC 379, paragraph no. 4 whereof is reproduced
herein below:-
"4. Apart from these infirmities, there is one other major
drawback in this case. Manzoor Ahmed who gave the FIR
putting forward this story has not been examined on the
ground that his presence could not be secured as he was
abroad. It must be noted that the version given by him in
his report is being repeated by all the eyewitnesses. In a
case of this nature unless the version given in the FIR, is
found to be reliable, the same version repeated by these
eyewitnesses cannot be accepted outrightly. At any rate in
this case, it is difficult to accept the evidence of the other
witnesses who are all relatives and whose version suffers
from many infirmities, unless the court is satisfied that the
version given in the FIR is true. The High Court has
considered in great detail under what circumstances the
report was given by Manzoor Ahmed."
25. As far as non-examination of the Investigating Officer is
concerned, we find that the same has also caused prejudice to the
appellant inasmuch examination of the Investigating Officer is
necessary in order to bring on record the contradictions in the
evidence of the witnesses, hence it is a valuable right of the
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
accused. In the present case, in absence of examination of the
Investigating Officer, the defence has been precluded from
drawing his attention to the statements made by the witnesses
under section 161 of the Cr. P. C., especially that of PW-5, PW-6,
PW-8 and PW-9, in order to bring on record the contradictions in
the evidence of the witnesses, especially in view of the fact that
the testimony of the prosecution witnesses are full of material
contradictions. In this regard, we would like to refer to a
judgment rendered by the Hon'ble Apex Court in the case of
Lahu Kamlakar & Anr. vs. State of Maharashtra reported in
(2013) 6 SCC 417, paragraph no. 18 whereof is reproduced
herein below:-
"18. Keeping in view the aforesaid position of law, the
testimony of PW 1 has to be appreciated. He has admitted
his signature in the FIR but has given the excuse that it
was taken on a blank paper. The same could have been
clarified by the investigating officer, but for some reason,
the investigating officer has not been examined by the
prosecution. It is an accepted principle that non-
examination of the investigating officer is not fatal to the
prosecution case. In Behari Prasad v. State of Bihar
[(1996) 2 SCC], this Court has stated that non-
examination of the investigating officer is not fatal to the
prosecution case, especially, when no prejudice is likely
to be suffered by the accused. In Bahadur Naik v. State of
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
Bihar [(2000) 9 SCC], it has been opined that when no
material contradictions have been brought out, then non-
examination of the investigating officer as a witness for
the prosecution is of no consequence and under such
circumstances, no prejudice is caused to the accused. It is
worthy to note that neither the trial Judge nor the High
Court has delved into the issue of non-examination of the
investigating officer. On a perusal of the entire material
brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to
think so especially when the informant has stated that the
signature was taken while he was in a drunken state, the
panch witness had turned hostile and some of the
evidence adduced in the court did not find place in the
statement recorded under Section 161 of the Code. Thus,
this Court in Arvind Singh v. State of Bihar [(2001) 6
SCC 407], Rattanlal v. State of J&K [(2007) 13 SCC 18]
and Ravishwar Manjhi v. State of Jharkhand [(2008) 16
SCC 561], has explained certain circumstances where the
examination of investigating officer becomes vital. We are
disposed to think that the present case is one where the
investigating officer should have been examined and his
non-examination creates a lacuna in the case of the
prosecution."
26. With regard to the aforesaid aspect of the matter, it would
also be apt to refer to a judgment dated 21.10.2011, passed by
the Ld. Division Bench of this Court in Criminal Appeal (DB)
No. 592 of 2005 (Tulsi Dhadhi @ Dhari & Ors. Vs. The State of
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
Bihar & Ors. & other analogous cases), wherein it has been held
that non-examination of Investigating Officer is a serious
infirmity in the prosecution case which results in prejudice to the
accused. It would be relevant to reproduce paragraph No.44, of
the said Judgment, herein below:-
"44. Admittedly, the Investigating officer has not been
examined. It is settled law that nonexamination of the
Investigating Officer ipso facto does not discredit the
prosecution version. It is needless to point out the right of
bringing on record, the contradictions in the statement of
witnesses made before the Investigating Officer, is a very
valuable right of the accused and by showing that, the
witness has made improvements or has given evidence,
which contradicts his earlier statement, the accused is
able to satisfy the court that the witness is not a reliable
witness. The nonexamination of Investigating Officer is
serious infirmity in the prosecution case which results in
prejudice to the accused. It is clear that the examination
of the Investigating Officer is necessary in order to bring
on record the contradictions in the evidence of the
witnesses, hence it is a valuable right of the accused.
Further it is clear that examination of the Investigating
Officer is a serious infirmity in the prosecution case, in so
far as it deprives the accused of the opportunity to show
to the court, that the witnesses were not reliable
witnesses, by proving contradictions in the earlier
statement. In the present case, non-examination of the
Investigating Officer has definitely prejudiced the
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
accused since the place of occurrence has not been
proved nor the claim of the eye witnesses that they had
seen the occurrence through hole or gap of the window of
the room has been proved, due to non-examination of the
Investigating Officer. Thus, in our opinion, non-
examination of the Investigating Officer in the present
case is a serious infirmity resulting in prejudice being
caused to the accused. Hence, on this score also
conviction of the accused persons also cannot be
sustained."
27. Now, coming back to the present case, we find that on
account of the aforesaid inconsistencies in the statement of PW-
5, PW-6, PW-8 and PW-9 and there being conspicuous gaps in
the case of the prosecution, it was imperative that the
Investigating Officer ought to have been examined which in our
view is vital since he could have adduced the expected evidence,
however, in absence of examination of the Investigating Officer,
we find that material lacuna has been created in the effort of the
prosecution to nail the appellant, thereby creating reasonable
doubt in the case of the prosecution.
28. We now advert to yet another issue raised by the learned
counsel for the appellant i.e. fardbeyan/FIR not being exhibited,
which has also led to grave prejudice to the prosecution
inasmuch as Fardbeyan is a crucial piece of evidence that
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
provides the foundation for the prosecution's case and without it
being formally exhibited, there is no formal proof of the alleged
occurrence of the crime. In the present case, though the
fardbeyan was recorded on 20.12.2002 at 04:30 hours and the
information was received at the police on the same day i.e.
20.12.2002 at 19:30 hours, nonetheless the FIR was belatedly
registered in the evening of the next day i.e. on 21.12.2002 at
18:00 hours. The delay in lodging the FIR coupled with the fact
that the witnesses have also been examined after some delay by
the police creates a doubt about the veracity of the case of the
prosecution. In fact, PW-5 namely Saraswati Devi has stated that
her statement was recorded by the police after 08-10 days. Even
PW-6 has stated that her statement was recorded by the police on
the second day of the incident and only after recording of her
evidence, the evidence of her father-in-law, sister-in-law,
younger father-in-law, grand-father/grand-mother was recorded
by the police.
29. In fact one another issue which arises for consideration is
that in absence of examination of the Investigating Officer and
the informant, the prosecution has not been able to prove the
exact place of occurrence inasmuch as in case the Investigating
Officer would have been examined, it could have transpired as to
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
whether he had prepared any map of the place of occurrence or
not, as to where the actual occurrence had taken place and as to
whether any cartridge shell (khoka) was found or not. The
investigating officer in a case of this nature should have been
examined, since his examination would have shown that there
had been a fair investigation. Unfortunately, even no site plan
was prepared and moreover, there is nothing on record to show
as to the exact place where the occurrence had taken place. We
thus find that the prosecution has failed to lead cogent, credible
and trustworthy oral evidence to establish the commission of the
offence alleged beyond all reasonable doubt, nor any
circumstantial evidence has been brought on record by the
prosecution to bring home the guilt of the appellant beyond all
reasonable doubt.
30. Thus, taking into account an overall perspective of the
entire case, emerging out of the totality of the facts and
circumstances, as indicated herein above and having perused the
entire evidence on record, we find that the prosecution has failed
to prove beyond all reasonable doubts the commission of the
offence by the appellant. Therefore, we find that the learned
Trial Judge has committed a gross error in holding that the
prosecution has proved the offence under section 302 of the IPC,
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
inasmuch as it is clear from the statement of the witnesses that
the appellant had fired upon the deceased resulting in his death
and that the defence has not been able to prove its innocence
beyond all reasonable doubt.
31. Thus, in the facts and circumstances, as discussed herein
above and for the foregoing reason, we are of the view that there
are compelling reasons in the present case which necessitates
that the appellant of the aforesaid appeal be given the benefit of
doubt.
32. Accordingly, we find that the findings of conviction
recorded by the learned Trial Court, in our opinion, is not
sustainable and requires interference. Therefore, the judgment of
conviction dated 12.06.2017 and the order of sentence dated
16.06.2017, passed by the learned Court of VI th Additional
District and Sessions Judge, Patna City, District-Patna in
Sessions Trial No. 849 of 2003 (arising out of Fatuha P.S. Case
No. 169 of 2002), are set aside. The appellant of the aforesaid
appeal is acquitted of the charges levelled against him.
33. The appellant, namely, Brind Paswan, who is in custody,
is directed to be released from jail forthwith, unless required in
any other case.
34. Accordingly, the aforesaid appeal i.e. Criminal Appeal
Patna High Court CR. APP (DB) No.938 of 2017 dt.16-04-2025
(DB) No. 938 of 2017 stands allowed.
(Mohit Kumar Shah, J)
(Shailendra Singh, J)
S.Sb/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 03.05.2025
Transmission Date 03.05.2025
