CRIMINAL APPEAL (DB) No.263 OF 1988 ------ Against the judgment of conviction and order of sentence dated 12.05.1988 passed by Sri Ram Charitra Sathi, 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 316 of 1985/ 111 of 1985. ------ 1.Natho Paswan son of Jathu Paswan 2.Bhakhoran Paswan 3.Bino Paswan 4.Maheshwar Paswan all three are sons of Natho Paswan, resident of village Sanaha Pangu Tola, P.S.Sahebpur Kamal, District Begusarai 5.Kapildeo Paswan son of Ramautar Paswan resident of village Jilla,P.S. Matihani, District Begusarai ---- Appellants Versus The State of Bihar ---- Respondent ----- For the Appellants :M/s Birendra Kumar Sinha, Sr.Advocate & Krishna Ranjan For the State : Ms Shashi Bala Verma, Addl.P.P. ----- P R E S E N T ----- THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------ S.K.Sharma & D.K.Singh,JJ. All the above five appellants were put on trial and by judgment dated 12.05.1988 they have been convicted under Section 302/34 of the Indian Penal Code for causing murder of Ramdeo Paswan and further convicted under Section 323 of the Indian Penal Code for causing injury to informant Asharphi Paswan. They have been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for six months for offences under Section 302/34 of the Indian Penal Code and under Section 323 of the Indian Penal Code, respectively, by 3rd 2 Additional Sessions Judge, Begusarai in Sessions Trial No. 316 of 1985/111 of 1985. Their sentences were ordered to run concurrently. 2. On 9.2.1985 the informant Asharphi Paswan has given his statement before the police that on the preceding date i.e., on 8.2.1985 at 3.00 P.M. he along with his younger brother Ramdeo Paswan was sitting at Basbatti which was situated by the side of his house. At that very time, the named accused persons of the first information report came variously armed with Lathi and Daw and tried to cut the bamboos. When it was protested by the informant’s brother Ramdeo Paswan, then at the behest of Jhari Paswan, all the accused persons namely, Bhakhoran Paswan, Bino Paswan, Mahesar Paswan, Natho Paswan and Kapildeo Paswan started indiscriminate assault by means of lathi, as a result thereof Ramdeo Paswan received severe injuries and the informant also received injuries when he tried to rescue him. Ramdeo Paswan was brought to hospital for treatment but there he succumbed 3 to the injuries. The fardbeyan of the informant resulted in Sahebpur Kamal P.S.Case No. 17 of 1985 under Sections 147,148, 323 and 302 of the Indian Penal Code and after investigation, chargesheet was submitted under the aforesaid sections. One Maheshwar Paswan was initially absconding during investigation, so chargesheet was submitted showing him as an absconder. On the basis of the chargesheet, cognizance was taken and after completing all paraphernalia the case was committed to the court of Sessions. The case came to the court of 3rd Additional Sessions Judge on transfer by the Sessions Judge where charges were framed and explained to the accused persons. They pleaded innocence and preferred to face the trial. 3. The defence of the accused persons was of false implication. 4. In order to prove its case, the prosecution has examined seven witnesses. They are : P.W.1 Ramji Paswan, P.W.2 Bhagwat Paswan, P.W.3 Rameshwar Paswan, P.W.4 Dr.Ram Naresh Singh, P.W.5 Sabja Devi, P.W.6 Asharphi Paswan and P.W.7 Rato Devi. The 4 Investigating Officer of the case has not been examined. 5. The trial court after considering the entire evidences and other materials on record came to the conclusion that the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts against all the accused persons. Hence they have been convicted and sentenced, as stated above. 6. We have to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 7. P.Ws.1,2,5 and 7 have been declared hostile. P.W. 5 is widow of the deceased. P.W.3 has been tendered. Therefore, the only evidence which remains in the case, is that of the informant P.W.6 and the Doctor P.W.4. 8. The informant, P.W.6, has deposed on 25.9.1987 and he has stated that two years ago, he was sitting along with his younger brother Ramdeo Paswan at the ridge of the field. At that very time, Jhari Paswan (died 5 before framing of charge), appellant no.1 Natho Paswan, appellant no.4 Maheshwar Paswan, appellant no.3 Bino Paswan, appellant no.2 Bhakoran Paswan and appellant no.5 Kapildeo Paswan, all being armed with lathi and Tengari came and started cutting bamboo. Informant’s brother Ramdeo Paswan asked them to stop cutting bamboo. On this, Jhari Paswan instigated for killing. Thereafter all the accused persons started indiscriminate assault by lathi to Ramdeo Paswan. The informant went to rescue his brother, then he also received injuries on both arms and palm. When Ramdeo Paswan fell down on the earth, the accused persons badly thrashed him and when the accused persons assumed Ramdeo to be dead, they escaped. Injured Ramdeo was brought to Balia Hospital for treatment and from there he was referred to Begusarai Hospital and in course of treatment he died. Occurrence was witnessed by Ramji Paswan, Bhagwat Paswan and other persons. The motive of the occurrence was that the land of bamboo was purchased by the informant prior to the occurrence and for that litigation was going 6 on with appellant Natho Paswan and others. The fardbeyan of the informant was recorded by Sri R.L.Singh, Sub Inspector of Police of Sahebpur Kamal Police Station. The informant after finding the statement to be correct, put his signature on the fardbeyan. Signature of the informant on the fardbeyan has been marked as Ext.2. At the time of recording statement of informant, Banarsi Paswan and Achambhi Paswan were present. In course of evidence, this witness has given another twist about the fardbeyan and has stated that he brought his brother Ramdeo Paswan to Begusarai where Banarsi (not examined) was also present in the hospital. This witness has stated in his evidence that the statement recorded by the Police was brought by Banarsi Paswan and the same was passed on to the informant and thereafter this witness put his L.T.I. 9. P.W.4 Dr.Ram Naresh Singh has conducted autopsy on the dead body of the deceased Ramdeo Paswan and found following ante mortem injuries: (i) Swelling on left and right 7 parietal region of skull. On dissection he found haematoma beneath the skin and on removing of haemotoma he found fracture of the skull bone at the level of parieto occipital region on right side of skull. After further dissection he found that there was haematoma and laceration of brain matter opposite the fracture skull bone and the membrane was congested and lacerated. (ii) Bruise 4” x 1/2” on right scapular region. The injuries mentioned above were possible by hard and blunt substance, may be lathi. The death was caused due to injury to the brain which produced shock and haemorrhage. The time elapsed since death is 12 hours. The post mortem report has been marked as Ext.1. 10. Argument of learned counsel for the appellants is that the informant has contradicted himself on all the vital facts because his consistent case is that in 8 indiscriminate assault the informant has also received many injuries and on this basis it has been submitted that there is no injury report on the record and even the doctor has not been examined to say as to whether the informant P.W.6 has received any injury. So it has been argued that the informant was not present at the time of occurrence and he has falsely implicated the accused persons on the basis of enmity from before. It has also been argued that the informant has contradicted himself on the manner of assault because in his statement he has stated that the deceased has received indiscriminate assault and sustained grievous injury and in course of treatment he died but it has been submitted that only two injuries were found on the person of the deceased. So the version of the informant P.W.6 is contradictory of his earlier version which has resulted into culmination of the case. It has also been submitted that though seven witnesses were examined but P.Ws. 1,2,5 and 7 have been declared hostile and P.W.3 has been tendered. So the solitary evidence of the informant 9 not only remains fractured rather it creates great doubt regarding manner of assault. 11. Learned A.P.P. has submitted that the trial court has rightly convicted the appellants and the impugned judgment requires no interference by this Court. 12. The conviction of the appellants is based on sole testimony of P.W.6. His initial version was that on 8.2.1985 at about 3.00 P.M. all the accused persons have assaulted his brother Ramdeo Paswan indiscriminately which led to his death but the doctor’s finding is that the deceased was having only two ante mortem injuries. So, the informant’s evidence is not in tune with the earlier version. His further case was that he was also assaulted by the accused persons but no injury report has been produced. Another source of doubt of prosecution case is that as stated by the informant his fardbeyan was written by Banarsi Paswan and on the same the informant has put his thumb impression but Ext.2 is the signature of the informant P.W.6, on the fardbeyan. So the informant has not stated correctly that he has put his 10 signature on the fardbeyan. The signature on the fardbeyan of the informant is itself doubtful. Except the informant, other prosecution witnesses have turned hostile. As the Investigating Officer has not been examined, the defence could not take out the contradictions. So the non-examination of the Investigating Officer has definitely prejudiced the case of the appellants. 13. After analyzing the entire evidences on record, we are of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. As such, the appellants deserve to be acquitted. 14. In the result, the appeal is allowed and the judgment of conviction and sentence is set aside. The appellants are acquitted. They are discharged from the liability of their respective bail bonds. Patna High Court,Patna The 8th September, 2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Dinesh Kumar Singh, J.) 11