Binay Paswan and Baikunth Paswan vs The State of Bihar

B.K. Jha, J.—Both the appeals arise out of the judgment dated 24th June 1998 passed by the then learned Additional Sessions Judge-I, Gaya in Sessions Trial No. 601/93 104/93 28/96, so they were heard together and are being disposed of by this common judgment.

All the three Appellants have been convicted and sentenced to undergo R.I. for life u/s 396 of the Indian Penal Code and five years u/s 201 of the Indian Penal Code. However the sentences awarded to them have been ordered to run concurrently.

The case of the prosecution is based on the F.I.R. lodged by the informant, Ashok Kumar of village Pranpur. It is alleged that while in the night of 16.1.1988 at about 11 P.M. he alongwith his cousins, Rajdeo Yadav, Arun Kumar and uncle, Ramdeo Yadav, was asleep on the roof of his house, 10 dacoits climbed over the roof with three nuts pistols and torches from the corner of western-southern side of his house. On seeing the dacoits on the roof, Arun Kumar and Ramdeo Yadav jumped down and fled away but two dacoits covered the informant and Rajdeo Yadav on the roof at the point of fire arms. The rest of the dacoits jumped into the court yard and broke open the main door of his house. The informant identified the accused, Vijai Paswan of village Bum Paraiya on the roof of his house with three nuts in his hand and Baikunth Paswan of village Prabhua, Vijai Paswan of village Marha and his co-villager, Binay Pawan in his Angan with gun and pistol in the torch light flashed by the dacoits in course of the commission of the dacoity. As soon as they broke open the door of the room of Ramlakhan Prasad, the father of the informant, he came out of the room and started fleeing away but was chased in course of which the informant heard the sound of firing. The grand father of the informant Shivchandra Yadav. also came out of the room and due to firing received gun shot injuries. The dacoits also pushed down Vijay Yadav, the uncle of the informant, from the roof of the house and he was injured. The dacoits caused gun shot injuries to Ramlakhan Prasad, the father of the informant, caught him and was taken away by them. The dacoits looted away various sorts of articles like Ornaments, clothes tape-recorder etc. worth Rs. 10,000/-. The beheaded dead body of Ramlakhan Prasad was recovered from the bed of the river; after some days of the occurrence and his head was found chopped of by sharp cutting weapon.

On 17.1.1988 at about 1 A.M., S.I. Ganesh Prasad of Paraiya Police Station recorded the fardbeyan (Ext. No. 5) of the informant, Ashok Kumar in P.O. village Pranpur. On the basis of his fardbeyan (Ext. No. 5), a formal F.I.R. Ext. No. 4 was drawn up and a case was registered under Sections 395/364 of the Indian Penal Code "against the four accused persons, namely, Vijai Paswan of village Burh Paraiya, Baikunth Paswan of village Prabhua, Vijay Paswan of village Marha and Binay Paswan of the P.O. village-Pranpur and the investigation followed. During investigation the accused, Vijai Paswan of village Marha died. On completion of the investigation, police submitted chargesheet against all the four accused persons under Sections 396/201 of the Indian Penal Code showing Vijai Paswan of village dead. After observing the legal formalities the case was committed to the court of sessions and all the three accused faced the trial before the then learned Additional Sessions Judge-I, Gaya, which ultimately ended in their conviction and sentence as indicated above.

The defence of the Appellants is a plea of innocence and false implication in this case. No witness has been examined on behalf of the defence.

At trial the prosecution examined altogether six witnesses in support of its case. Out of them, P.W. 1, Munna Devi, P.W. 2, Shivchandra Yadav and P.W. 3, Ashok Kumar, the informant, are the eye witnesses to the occurrence. P.W. 4, Tulsi Prasad Das, has been tendered by the prosecution but nothing could be elicited in his cross examination by the defence. P.W. 5 is Dr. Mithilesh Kumar Sinha who conducted autopsy on the dead body of Ramlakhan Prasad. P.W. 6, Gopal Prasad, is a formal witness and has proved the case diary (Ext. No. 3) formal F.I.R. (Ext. No. 4) and fardbeyan (Ext. No. 5).

The evidence of P.W. 5, Dr. Mithilesh Kumar Sinha is that on 26.1.1988 at 11 A.M. he conducted autopsy on the dead body of Ramlakhan Prasad duly identified by Constable No. 61, Ganesh Maharaj and found the following ante-mortem injuries;

Head with Neck missing and was completely chopped at level of 5th cervical vertebra which was found sharply cut at its middle alongwith larynx. Floor of the wound was infiltrated with blood clots. Few sharply cut flaps of soft tissues were attached with margin.

Two circular wound of entry of diameter 1/2" with blacken and inverted margin located on front of chest in middle at 2" apart. One other wound of entry of diameter 3/4" with blacken and inverted margin located over longer lateral aspect left part of chest. One of same size wound of entry over back of chest in middle on left side. On opinion the chest and abdomen sternum 7th, 8th and 9th ribs of chest were found fractured. There was laceration of both lungs with plumua spleen coll of intrume. Heart with lays B. V. pellets were focused imbedded into the substance viscera chest and above cavity were found filled with blood clots. Pellets recovered have been preserved in a sealed container and was being sent through the messenger.

In his opinion all the injuries were ante-mortem, grievous in nature and dangerous to life. Injury No. 1 was caused by sharp cutting weapon and injury No. 2 was caused by fire arm like gun. The death was due to shock and haemorrhage and the time since death elapsed was approximately 7 to 10 days. He proved the post-mortem report (Ext. No. 2). In cross examination his evidence is that injury No. 2 was caused by a number of shots because entry wound was found on different parts of body. The shots were found from different direction but from the close range.

The medical evidence suggests that the death of Ram Lakhan Prasad was due to shock and haemorrhage caused by sharp cutting weapon and fire arm injuries. The time elapsed since death and post mortem examination held was found about 7 to 10 days. As per the prosecution case in the night of 16.1.1988 in course of commission of dacoity in the house of the informant, Ashok Kumar, his father, Ramlakhan Prasad received gunshot injury at the hands of the dacoits and was taken away by them. His beheaded dead body was recovered on 25.1.1988 from the bed of the river. The fact that Ramlakhan Prasad was murdered and property worth about Rs. 10,000/- from the house was looted in the night of 16.1.88 was not disputed before me. All the Appellants have denied their participation in the occurrence.

The prosecution has examined P.W. 1, Munna Devi, P.W. 2, Shivchandra Yadav and P.W. 3, Ashok Kumar, the informant about the participation of all the three Appellants in the occurrence. The evidence of P.W. 3, Ashok Kumar, the informant, is that he saw the Appellant Vijay Paswan with three nuts on the roof and Baikunth Paswan with gun and Binay Paswan with pistol in his Angan, in the torch light flashed by them. He saw them as soon as they came on the roof and jumped down in the Angan and also while they were attacking his father and carrying away the property from his house. In course of his cross examination at para 12 this witness stated that he had not identified the trial facing accused Vijay Paswan present in the dock. He has further stated that he had no source of light except the torches in the hands of the dacoits. The attention of this witness was also drawn to his statement made before the police u/s 161 Code of Criminal Procedure He has denied to have stated before the police that in the relevant night the police went at the house of the Appellant Binay and he appeared before the I.O.

The evidence of P.W. 2, Shivchandra Yadav, is that his house is adjacent to the house of the informant and in the night of occurrence he came out on hearing nulla of dacoity. He was caught and assaulted by the dacoits. He identified the Appellant, Binay Paswan, who opened fire at him causing injury on his right armpit and he became unconscious. In cross examination he has stated that the accused identified by him had not covered his face.

The evidence of P.W. 1, Munna Devi is that while she was asleep in her room alongwith her husband the dacoits climbed over the roof of the house, jumped down in the Angan and broke open the door of her room. They assaulted her husband and looted away property from the room. Two co-villagers present in the Angan were flashing the torch light. Amongst the dacoits she identified the Appellants, Baikunth Paswan, Binay Paswan and Vijay Paswan. In cross examination at para 3, she has stated that she does not recognize any person of village Prabhua. She has further stated at para 7 that she had identified her co-villager, Vijay and the trial facing accused, Vijay is of village Burh Paraiya. She has admitted to have disclosed about the identification of Binay Paswan before the police.

It may be pointed out here that the Appellants, Baikunth Paswan is of village Prabhua, Binay Paswan is of P.O. Village, Pranpur and Vijay paswan is of village Burh Paraiya. It appears from the above discussed evidence of the eye witnesses to the occurrence, namely, P.W. 1, Munna Devi, P.W. 2, Shivchandra Yadav and P.W. 3, Ashok Kumar, the informant that P.W. 2, Shivchandra Yadav, identified the Appellant, Binay Paswan but helhad not disclosed the source of identification, therefore, the identification of Binay paswan by P.W. 2, Shivchandra Yadav is doubtful. P.W. 1, Munna Devi, identified all the three Appellants, Baikunth Paswan, Binay Paswan and Vijay Paswan but in cross examination her evidence is specific that she does not know any person of village Prabhua and the trial facing accused, Baikqnth Paswan is of village Prabhua. Further, she has clearly stated that she has identified her co-villager, Vijay and not the trial facing accused, Vijay who is of village, Burh Paraiya. Thus, the identification of the Appellants, Baikunth Paswan and Vijay Paswan by P.W. 1, Munna Devi, becomes doubtful. P.W. 3, Ashok Kumar, the informant identified all the three Appellants, Binay Paswkn, Baikunth Paswan and Vijay Paswan but in cross examination his evidence is that he had not identified the trial facing accused Vijay Paswan present in the dock. This being the position on the identification of all the three Appellants, the Appellant, Baikunth Paswan, has got single identification and that is of RW. 3, Ashok Kumar, the informant. The Appellant Binay Paswan, has got two identification and that is of P.W. 1, Munna Devi and P.W. 3, Ashok Kumar, the informant. The Appellant, Binay Paswan, hails from the P.O. Village Pranpur and was well known to the prosecution side.

On behalf of the Appellants, learned Counsel contended that in the present case the prosecution has withheld the evidence of the material witnessed available, so an adverse inference can be drawn. He has placed his reliance on the case of Karnesh Kumar Singh and Others Vs. The State of Uttar Pradesh, It has been held that:

A prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution. The duty of the, prosecutor is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all the eye witnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selection. The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses. Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the poof of the prosecution case.

It is evident that at the relevant hour of occurrence, the informant, Ashok Kumar alongwith Arun Kumar, Rajdeo Yadav, and Ramdeo Yadav was sleeping on the roof. On the arrival of the dacoits, Arun Kumar and Ramdeo Yadav, jumped down and fled away. The informant, Ashok Kumar and Rajdeo Yadav, were covered by the dacoits at the point of fire arms on the roof of the house. Arun Kumar, Rajdeo Yadav and Ramdeo Yadav, were the material witnesses but their evidence has been withheld by the prosecution. It was bounden duty of the prosecution to examine those material witnesses. Due to their non examination adverse inference can be drawn u/s 114 of the Evidence Act that if they had been examined by the prosecution, they would not have supported the prosecution version. Thus, there is merit in the contention of the learned Counsel for the Appellants.

Learned Counsel for the Appellants next contended that having regard to the size of the Angan it was not probable that all the 10 dacoits including the Appellants with arms such as gun, pistol and three nuts could have been there at the same time and at the time of occurrence.

The evidence of P.W. 3. Ashok Kumar, the informant, at para 8 is that the size of the Angan was 5 feet in length and 5 feet in breadth. The evidence of P.W. 1, Munna Devi, at para 9 is that at the time of occurrence" Angan Main Dacoit Khachakhach Bharey The" and that time her two co-villagers were flashing the torch light. In such a situation the identification of the Appellants, Baikunth Paswan and Binay Paswan by the informant, Ashok Kumar, from the roof of the house and the identification of the Appellant, Binay Paswan, by P.W. 1 Munna Devi, does not appear to be reliable.

Further, the prosecution has failed to examine the Investigating Officer of this case as a result of which the objective finding could not be brought on the record and his attention could not be drawn by the defence to meet out the contradictions appearing in the statement of the witnesses. This has caused a great prejudice to the defence.

Thus, the prosecution has failed to adduce credible evidence to prove the participation of the Appellants in the commission of the crime. The evidence of all the three eye witnesses is insufficient and suffers from serious infirmities. On such evidence it does not seem proper to convict the Appellants and so they deserve benefit of doubt.

In the result, both the appeals are allowed and the Appellants are acquitted of the charges. The order of conviction and sentence passed by the trial court against the Appellants is set aside. The Appellant, Vijay Paswan, is in jail custody, so he will be set at liberty forthwith if not required in any other case. The Appellants, Binay Paswan and Baikunth Paswan, are on bail, so they are discharged from the liabilities of their executed bail bonds.

A.K. Sinha, J.

I agree.