IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.600 of 1996 ========================================================== 1. Sanjai Paswan, S/o Ramji Paswan, R/o Katghat, Topkhana Bazar, P.S.- Kotwali, Munger. 2. Ramji Paswan, S/o Late Ram Kishun Paswan, R/o Katghat, Topkhana Bazar, P.S.-Kotwali, District-Munger. 3. Binay Paswan, S/o Ram Prasad Paswan, R/o village-Katghat, Topkhana Bazar, P.S.-Kotwali, District-Munger. ..... .... Appellants Versus State of Bihar ..... .... Respondent with Criminal Appeal (DB) No. 611 of 1996 ========================================================== Om Prakash Paswan, S/o Late Ram Kishun Paswan, R/o village-Katghat, Topkhana Bazar, P.S.-Kotwali, District-Munger. .... .... Appellant Versus The State of Bihar .... .... Respondent ======================================================= Both the above appeals are against the judgment of conviction dated 27.11.1996 and order of sentence dated 28.11.1996 passed by 1st Additional Session Judge, Munger in Sessions Case No.193 of 1996. Appearance : (in Cr.Appeal No.600 of 1996): For the Appellants : M/s. Ajit K. Singh and D.N. Jha, Advocates. For the Respondent : Mr. Shiwesh Chandra Mishra, APP. (in Cr.Appeal No.611 of 1996): For the Appellant : M/s. Shakil Ahmad Khan, Sr. Advocate, Jay Prakash and Shailendra Kumar, Advocates For the Respondent : Miss Shashi Bala Verma, APP. ========================================================== CORAM: HON‟BLE MR. JUSTICE NAVANITI PRASAD SINGH HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH ----------- (Per: HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH) ----------- All the four appellants were charged under Section 302 read with Section 34 of the Indian Penal Code. The appellant Om Prakash Paswan has been further charged under Section 302 of the Indian Penal Code and 27 of the Arms Act. The learned 1st Additional Sessions Judge, Munger by judgment dated 27.11.1996 convicted them for the offence they were charged with and after 2 hearing them on the point of sentence by his order dated 28.11.1996 sentenced appellant Sanjay Paswan, Ramjee Paswan and Binay Paswan to undergo R.I. for life under Section 302/34 of the Indian Penal Code. The appellant Om Prakash Paswan has been sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code. He has further been sentenced to undergo R.I. for five years under Section 27 of the Arms Act. In his case, no separate sentence has been passed under Section 302/34 of the Indian Penal Code. Both the sentences in the case of appellant Om Prakash Paswan have been ordered to run concurrently. 2. The prosecution case in short as per fardbeyan of Sunil Paswan recorded on 24.12.1994 at 5.15 p.m is that his nephew Jagarnath Paswan was working as a labourer in the house of Suresh Sinha. The appellants armed with firearm came there at about 4.15 p.m. on 24.12.1994. Om Prakash Paswan is alleged to have fired from his pistol causing injury in the waist of Jagarnath Paswan. Jagarnath Paswan fell down. The informant together with Kapildeo Paswan and Bhutto Paswan ran towards the place of occurrence. The accused persons fled away towards south. The victim Jagarnath Paswan was found in a precarious condition. He disclosed that Om Parakash Paswan had caused gun shot injury upon him and Ramjee Paswan, Sanjay Paswan and Binay Paswan were accompanying him. The informant together with Bhutto Paswan and Kapildeo Paswan carried the victim to hospital on a rickshaw, but on way, even before reaching the hospital Jagarnath Paswan succumbed to the injury. The informant claims that 3 incident of occurrence was witnessed by other persons also. The said fardbeyan was recorded by Sub-Inspector of Police, B. N. Singh in Sadar Hospital, Munger at 5.15 p.m. on 24.12.1994. On the basis of fardbeyan a formal First Information Report was drawn on the same day at about 8.15 p.m. The case was investigated and on conclusion of investigation, charge sheet was submitted. The appellants were sent up for trial. The learned Magistrate took cognizance of the offence. After supplying the police papers in terms of Section 207 of the Criminal Procedure Code, the case was committed to the court of sessions. All the four accused persons were charged for having committed offence punishable under Section 302/34 of the Indian Penal Code. The accused Om Prakash Paswan had been further charged for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. The accused persons did not plead guilty and claimed to be tried. 3. The prosecution in order to prove its case has examined in all 11 witnesses. Out of them P.W.-1, Kapildeo Paswan, P.W.-2, Bhutto Paswan, P.W.-3 Suresh Kumar Sinha and P.W.11, Sukhdeo Mistry have been declared hostile by the prosecution. P.W.-5 Mahendra Prasad Mandal has been tendered for cross-examiantion. P.W.-9 Brajnandan Singh is the investigating officer of the case. P.W.-10 Sri V.K. Mishra is the Judicial Officer, who had recorded statement of Kapildeo Paswan (PW.-1), Bhutto Paswan (P.W.-2), Sunil Paswan (P.W.-4) under Section 164 of the Code of Criminal Procedure. P.W.-7 is Dr. P.M. 4 Sahay, who held post mortem examination on the dead body of Jagarnath Paswan. P.W.-4 Sunil Paswan is the informant. P.W.-6 Meena Devi is wife of the deceased Jagarnath Paswan and P.W.-8 Amin Paswan is a co-labourer, who was working at the relevant time in the house of Suresh Sinha along with the deceased. 4. From the first information report itself, it is apparent that after hearing sound of firing P.W.-4 together with Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) went to the place of occurrence and saw the accused persons fleeing away. In his deposition also P.W.-4 Sunil Paswan has stated that he along with Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) went near the place of occurrence. It may be noted here that P.W.-1 Kapildeo Paswan and P.W.-2 Bhutto Paswan have been declared hostile by the prosecution and they have not supported P.W.-4, the informant. 5. It would further appear from the evidence of P.W.4 in court that he was grazing cow at a distance of 25-30 yards from the place of occurrence at the time of occurrence and from there he saw the firing by the accused Om Prakash Paswan. This fact has not been mentioned in the first information report. This fact for the first time was introduced by P.W.4 in his statement recorded under section 164 of the Code of Criminal Procedure on 19.1.1985. This is a very important point to establish presence of P.W.4 near about the place of occurrence. The importance of this fact is also for the reason that had this fact been disclosed to the investigating officer (P.W.9), he would have made 5 an objective finding in this regard. The investigating officer (P.W.9) has stated in his deposition that he did not notice any sign of grazing of cattle near the place of occurrence. The investigating officer has categorically stated that the informant did not state before him in his further statement that at the place of occurrence he was grazing cow. 6. P.W.8 Amin Paswan is an important witness. He was working as a labour in the house of Suresh Sinha where the deceased was also working at relevant point of time. He has stated that when he reached near the deceased after hearing the gun shot he was in an unconscious state. He had received gun shot injury. He was breathing but was not able to speak. He was carried to hospital by co-villagers including Sunil Paswan (P.W.4). He died subsequently. He did not hear the name of the assailant being spoken. He saw many persons fleeing away after alleged firing. He identified all the accused persons, who were present in the dock. He claims to identify Meena Devi (P.W.6) too. He further claims to have seen Meena Devi on that date. In cross-examination this witness has stated that he was known to the accused persons since his childhood. Thus, being known to the accused persons he has not divulged their name among the miscreants, who were allegedly seen fleeing away after occurrence. If this witness is to be believed, participation of the appellants in the crime is ruled out. 7. Meena Devi (P.W.6) is wife of the deceased. She is also a very important witness. Her husband was done to death. In her deposition she has stated that in the evening she came to 6 know that her husband was killed. She went to the place where occurrence had taken place. When she reached at the place of occurrence, her husband was unconscious. He was taken to hospital by Sunil Paswan, Kapildeo Paswan and Bhutto Paswan. She has stated in her examination-in-chief that she could not know the name of the accused who had committed the crime. In cross- examination this witness has stated that when she reached near her husband, he was surrounded by labourers. Sunil Paswan, Kapildeo Paswan and Bhutto Paswan came there about l5-20 minutes after arrival of this witness and they took her husband to hospital on a Rickshaw but on way to hospital he died. It is important to note it here that P.W.6 and P.W.8 have not been declared hostile. From the evidence of these two witnesses it becomes clear that Sunil Paswan (P.W.4) was not present at the time when Jagarnath Paswan was shot dead. He reached subsequently and by the time he reached the victim was unconscious. Thus, there was no occasion for the victim to have disclosed the name of any of the accused persons. 8. At this stage, I may usefully refer to paragraph 9 of judgment of the Supreme Court in this case of Raja Ram Vs. State of Rajasthan as reported in (2005) 5 SCC 272, which is quoted hereunder:- “But the testimony of P.W.-8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw P.W.-5 making the deceased believe that 7 unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic. declare) P.W.-8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of P.W.8 is binding on the prosecution. Absolutely no reason, much less, any good reason, has been stated by the Division Bench of the High Court as to how P.W.-8‟s testimony can be sidelined.” 9. The ratio of the aforesaid case is that a prosecution witness, not supporting the prosecution case, if not declared hostile, defence can rely upon evidence of such witness and it would be binding on the prosecution. Here, in the present case, neither P.W.-6 nor P.W.-8 has been declared hostile by the prosecution. The defence relies on the testimony of P.W.-6 and P.W.-8. The result would be that the presence of P.W.-4 the informant (Sunil Paswan) near the place of occurrence at the time of occurrence would be completely ruled out. 10. It is submitted on behalf of the appellants that there had been absolutely no motive for the accused persons to commit murder of Jagarnath Paswan. Nothing has been brought on record to show any sort of animosity in between Jagarnath Paswan and the accused persons. It is true that motive is not required for establishing a case of murder. When there is no motive alleged prosecution is not required to prove motive but in this case P.W.4 has alleged in the first information report that Jagarnath Paswan 8 was his nephew and as such he was killed by the accused persons. In such circumstance, the prosecution should have thrown some light to show as to why the accused persons would have committed murder of nephew of the informant. It is submitted that the deceased, Jagarnath Paswan, was not nephew of Sunil Paswan nor he was in any way related to P.W.4. It is worthy to note it here that P.W.4 has admitted in cross-examination that Jagarnath Paswan came in the childhood and he started living with Ramchandra Paswan. Kapildeo Paswan (P.W.1) and Bhutto Paswan (P.W.2) are sons of said Ramchandra Paswan. Ramchandra Paswan is in no way related to Nandlal Paswan father of P.W.4. The prosecution, therefore, has failed to prove and establish any motive to commit murder of Jagarnath Paswan at the hands of the accused persons. 11. On the other hand, the defence has filed a series of documents to show that Jagarnath Paswan, the deceased was a veteran criminal. He was indulged in criminal activities. He had criminal associates. He had married a muslim lady, who was sister of a renowned criminal Anwar Mian, who was killed in police encounter. It is submitted on behalf of the appellants that these facts have also transpired in the deposition of witnesses including P.W.4. Even P.W.6, wife of deceased has admitted that she is sister of Anwar Mian. The investigating officer in paragraph 21 of his deposition has also admitted the fact that on the instruction of a senior officer he had enquired about a criminal antecedent of the deceased and had found that he was accused in Kotwali P.S. Case, 3 of 1994 registered for the offence under sections 399/402 of the 9 Indian Penal Code, Kotwali P.S. Case No.424 of 1994 registered for the offence under section 307/34 of the Indian Penal Code, Kotwali P.S. Case No.424 of 1994 registered for the offence under section 307/34 of the Indian Penal Code and section 27 of the Arms Act, Kotwali P.S.Case No.282 of 1992 registered for the offence under sections 25 and 26 of the Arms Act. The investigating officer has also admitted that he received instruction from supervising authority to enquire the factum as to whether the deceased had married the sister of Anwar Mian. 12. Learned counsel for the appellants thus submits that since the deceased himself was a man of criminal antecedent he might have been killed in a different manner by some of his enemies and they have falsely been implicated by the informant. Learned counsel for the appellants advancing his argument in this regard has also stated that there was a very strong motive for false implication of the accused persons as P.W.4, Sunil Paswan, was having enimical relationship with them. The defence has exhibited several documents. This includes Ext.‟L‟ and Ext.‟L/1‟ which are certified copies of the deposition of appellants, Om Prakash Paswan and Binay Kumar Paswan in Sessions Case No.483 of 1993 which was being tried for the offence under section 307 of the Indian Penal Code and the Arms Act. In that case Om Prakash Paswan had received gun shot injury at the hands of Sunil Paswan (P.W.4) and his family members. The defence has also brought on record Ext. „C‟ which is a formal first information report, Ext. „D‟ is fardbeyan and Ext. „H‟ is certified copy of chargesheet of 10 Kotwali P.S.Case No.420 of 1992. The said case after commitment was numbered as S.C. No.483 of 1993. The defence has also brought on record Ext.„H‟ which is a certified copy of complaint petition of case no.312C of 1993 in which Nandlal Paswan father of Sunil Paswan (P.W.4) is the complainant and Om Prakash Paswan, Binay Paswan and Sanjay Paswan are accused mentioned in the complaint petition. This case relates to murder of Sushil Paswan son of Nandlal Paswan. The defence has brought on record Ext.„F‟ and Ext.„G‟ which are formal first information report and written report of Kotwali P.S. Case No.369 of 1995 in which Manglesh son of Om Prakash Paswan was kidnapped and a case was instituted by Ram Balak Paswan, the brother-in-law of Om Prakash Paswan. The defence has also brought on record Ext.„K‟ which is a copy of information petition no.825(J) of 1992 filed on 17.6.1992 by appellant, Om Prakash Paswan against Sunil Paswan and his family members. From perusal of these documents it is apparent that there was existing enmity between the informant Sunil Paswan (P.W.4) and the accused persons. It is important to note it here that in none of these cases Jagarnath Paswan figured either as an accused or as informant or as a witness. Thus, it is argued on behalf of the appellants that there existed very strong motive for the informant to implicate the appellant in a false case in order to settle the old score taking advantage of the situation. 13. It is also argued that P.W.1 and P.W.2 were sons of Ramchandra Paswan who had brought up the deceased, Jagarnath Paswan. In that way the deceased was more close to 11 P.W.1 and P.W.2 but they have not supported the case put forward by Sunil Paswan (P.W.4) regarding murder of Jagarnath Paswan. It is further argued on behalf of the appellants that I.O. (P.W.9) has not properly investigated the case. According to his evidence he had seized blood stained earth but there is no seizure list on record. There is no seizure list of bullet which was taken out from the body of the Jagarnath Paswan. The doctor, who conducted postmortem examination, has stated that he had found one bullet lodged in left lung tissue of the deceased which was sealed and signed and handed over to the police. The I.O. on the other hand has stated that he had received pellet in sealed cover from the doctor but he did not prepare any seizure list. The I.O. has also stated that he did not remember as to whether any blood-stain was found on the cloth of the deceased or not. He did not remember as to whether there was any hole in the cloth which the deceased was wearing. He has admitted the fact that he had mentioned nothing in this regard in the inquest report. These lapses on the part of the Investigating Officer are fatal to the prosecution case. It is also argued that the I.O. did not find any blood-stain at the place of occurrence. The appellants, thus, submit that the prosecution has miserably failed to bring home the charges. The case rests on the sole testimony of Sunil Paswan (P.W.-4). He is neither trustworthy nor reliable and dependable. 14. The defence has produced three witnesses. D.W.-1 is Rajendra Sharma, D.W.-2 is Mahendra Mandal and D.W.-3 is Sitaram Prasad. They have proved several documents 12 which have been marked as exhibits-„A‟ to N/1. 15. Having heard the parties what emerges in the present case is that the case primarily hinges on the testimony of a single eye-witness Sunil Paswan P.W.-4. Indeed, the conviction can be based on the testimony of single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye- witness is a wholly reliable witness, the Courts have no difficulty in passing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are strong circumstances which may show that he has interest in the prosecution then the courts generally insist upon some independent corroboration of his testimony, on material particulars, before recording conviction. Here, in the present case, in view of the discussions made hereinabove, what is found is that the corroboration furnished by the prosecution from the mouth of P.W.-6 and P.W.-8 is negative in character in so far as the involvement of the appellants are concerned. In other words, they completely exonerate the participation of the appellants in the alleged murder. They are prosecution witnesses. They have not been declared hostile. Their evidence would be binding on the prosecution. The evidence of Sunil Paswan is not corroborated in any manner by any other witness. 16. In the instant case, the testimony of solitary eye- witness P.W.-4, who was on inimical terms with the appellants from before is full of infirmities and improbabilities as noticed 13 hereinabove. In the circumstance, the testimony of P.W.-4 cannot be considered as reliable. It is true that on the evidence adduced the deceased had been proved to have been killed. However, for that reason alone, the appellants cannot be held guilty of murder when the testimony of P.W-4 was far from reliable. The learned trial court was thus, clearly in error in convicting the appellants on the sole testimony of the informant. For the reasons recorded, the conviction of the appellants cannot be sustained. 17. Accordingly, judgment and order of conviction and sentence passed in Sessions Trial No. 193 of 1996 passed by 1st Additional Sessions Judge, Munger, is, hereby, set aside. The appellants are discharged from the liabilities of their bail bonds. Navaniti Prasad Singh, J. I agree Patna High Court, The 27th September, 2011. Md.S./AFR (Ashwani Kumar Singh, J.) (Navaniti Prasad Singh, J.)