Boro Paswan vs State of Jharkhand

H.C. Mishra, J

1. Heard learned counsel for the appellant and learned counsel for the State.

2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 25th of August, 2009 and the Order of sentence dated 27th of

August, 2009, passed by the learned Additional Sessions Judge, F.T.C., Sahibganj, in Sessions Case No. 204-A of 2006, whereby, the appellant has

been found guilty and convicted for the offences under Sections 302 / 34 of the Indian Penal Code, and Section 27 of the Arms Act. Upon hearing on

the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs. 5,000/- for the offence under Sections 302 / 34 of the

Indian Penal Code, and also R.I. for 3 years for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently.

3. The prosecution case was instituted on the basis of the fardbeyan of the informant Uma Yadav, who is brother of the deceased Prabhu Yadav,

recorded on 12.6.2003 at about 7.30 P.M., near the Railway Hospital, Jharna Colony, Sahibganj. The informant has stated that on 12.6.2003, he saw

his brother Prabhu Yadav and cousin Amlesh Yadav going on a rickshaw towards Railway Bridge, where upon he asked them as to where they were

going. They informed that they were going towards Jharna Colony and would return soon. After some time the informant also proceeded towards

Jharna Colony and when he reached near the bridge near water tank, he saw the accused persons Boro Paswan, Krishna Saw and Jhabu Paswan on

one motorcycle and upon seeing the informant, the accused persons abused him in filthy languages and stated that they had committed the murder of

his brother and they fled away. As the informant proceeded further, he saw the rickshaw puller coming back, on whose rickshaw, his brother and

cousin had gone towards Jharna Colony. The rickshaw puller also informed him that his brother had been murdered. He reached near the shop of one

Mansoor Qureshi, where he found his brother lying on a chouki in the pool of blood. His brother was having three gunshot injuries, out of which, two

injuries were on his head and the third injury was on the side of his chest. His brothers Munna Yadav and Raju Yadav, and the counsin Amlesh

Yadav were present there and all of them informed him that Boro Paswan, Krishna Saw and Jhabu Paswan came there and all of them fired one shot

each upon the deceased and fled away. The informant has further stated that the accused persons had committed the murder of his brother, due to

previous enmity and being the criminals, they wanted to establish their supremacy. On the basis of the fardbeyan of the informant, Borio (Jirwabari)

P.S. Case No. 57 of 2003, corresponding to G.R. No. 148 of 2003, was instituted for the offences under Sections 302 / 34 of the Indian Penal Code,

and Section 27 of the Arms Act, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case.Â

4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 / 34 of the

Indian Penal Code and Section 27 of the Arms Act, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course

of trial, 12 witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of

the deceased. The I.O. has not been examined in the case.Â

5. Out of material witnesses examined, P.W.-2 Abdul Rajjak, P.W.-3 Ziaul Rahman, P.W.-4 Sk. Heshamul Haque, P.W.-5 Dinesh Thakur and

P.W.-7 Arjun Prasad have turned hostile and have not supported the prosecution case. P.W.-6 Md. Nizamuddin Khan had only been tendered by

the prosecution. Â

6. P.W.-9 Uma Yadav is the informant in the case. This witness  has stated that the occurrence had taken place on 12.6.2003 at about 6.00 to

6.30 P.M. He was near the Sahibganj College Road, when he saw his brother Prabhu Yadav and cousin Amlesh Yadav, going on a rickshaw. They

informed him that they were going towards Jharna Colony, and when they did not return back for 15-20 minutes, this witness also proceeded towards

Jharna Colony along with one Prakash Saw. When he reached near the railway bridge, he saw the accused persons Boro Paswan,  Jhabu

Paswan and Krishna Saw on a motorcycle, who told that they have sent his brother up, and asked him to take away the dead body. He proceeded

further when he saw the rickshaw puller, on whose rickshaw his brother and cousin were going towards Jharna Colony, who also informed him that

near Railway Hospital, his brother had been murdered. This witness reached near Railway Hospital, where he found his brother Prabhu Yadav lying

in the pool of blood on a chouki near the meat shop of  Mansoor Qureshi. There were three gunshot injuries on his brother.  Munna Yadav,

Amlesh Yadav and Raju Yadav were also present there, who informed him that Boro Paswan, Jhabu Paswan and Krishna Saw had come on a

motorcycle and they had fired one shot each upon the deceased, due to which, he died. This witness has stated that the police reached the place of

occurrence, and recorded his fardbeyan, upon which, he had put his signature. He has identified his signature on the fardbeyan, which was marked

Exhibit-1. He has also identified the signatures of Amlesh Yadav and Munna Yadav on the fardbeyan, which were marked Exhibits-1/1 and 1/2

respectively. He has identified the accused Boro Paswan in the Court. This witness was put to extensive cross-examination, wherein he has stated

that he was five brothers, out of whom, Gopal Yadav was murdered earlier, Prabhu Yadav was the deceased in this case, and Raju Yadav andÂ

Munna Yadav are alive. He has stated that there were murder cases against Amlesh Yadav and this witness, in which, he had been jailed also. He

has denied the knowledge that C.C.A. was imposed on his deceased brother, but he has admitted that his deceased brother was an accused in a

murder case of a student and he was accused in other criminal cases also. He had been jailed two to three times. Raju Yadav had also gone to jail in

criminal cases. His other brothers were also jailed in criminal cases and Raju Yadav was an absconder, and he has no knowledge whether he is alive

or not. This witness has also stated that there were several shops near the place of occurrence. At the time of his murder, the deceased was not in a

drunken state. He has stated in his cross-examination that no one had informed the police, rather the police had reached the place of occurrence on its

own. He has also stated that after recording his statement, the dead body was taken to Police Station and the inquest report was prepared at the

Police Station. He has denied the suggestion of giving the false evidence.Â

7. P.W.-1 Amlesh Yadav has supported the case as an eyewitness to the occurrence. This witness has stated that he was accompanying the

deceased Prabhu Yadav from Cycle Stand of Nirmaya Hall and they were going towards Jharna Colony at the house of Arjun Prasad. When they

reached near the Hospital in Jharna Colony, Prabhu Yadav became sick and he started vomiting, as he had taken liquor, whereupon they stopped

there and Prabhu Yadav was made to lie on a chouki near the meat shop of Mansoor Qureshi. Thereafter, he went to search Arjun and informed

Arjun about the sickness of Prabhu Yadav. Father of this witness was also there and they came near Prabhu Yadav, thereafter, Arjun Prasad went

away, and the father of this witness also went away for informing the family members of Prabhu Yadav. By that time, Munna Yadav, the brother of

Prabhu Yadav also came there. In the mean time, Boro Paswan, Jhabu Paswan and Krishna Saw came together on a motorcycle, and all of them

fired pistols upon the deceased. They fired one shot each from the point blank range. At that time, this witness and Munna Yadav were sitting on the

boundary wall of the hospital. When the accused persons started fleeing away, they chased them, but the accused persons managed to flee away.

Three bleeding gunshot injuries were there on the dead body, out of which, two injuries were on the head and one was on the side of the chest. The

deceased died at the spot. This witness and Munna Yadav had put their signatures on the fardbeyan. He has also identified the accused in the Court.

In his cross-examination, this witness has stated that the deceased was his cousin. He had no knowledge whether C.C.A. was imposed upon the

deceased or not, but he had gone to jail in criminal cases. This witness has admitted that he himself had also gone to jail in four to five criminal cases,

including the murder case. He has also stated that the deceased had taken liquor, due to which, he was vomiting. There were several shops near the

place of occurrence. He has stated that he had not informed the police. Police had recorded his statement, but he has denied the suggestion that his

statement was recorded on the next day. He had no knowledge whether the blood was seized from the place of occurrence or not. He has denied the

suggestion of giving the false evidence.

8. P.W.-10 Munna Yadav is the other brother of the deceased. He has also supported the prosecution case as an eyewitness, stating that  Boro

Paswan, Jhabu Paswan and Krishna Saw came on a motorcycle and they fired pistol upon the deceased, causing his death. He has stated that while

his brother was lying on a chouki near the shop of Mansoor Qureshi, Boro Paswan and Jhabu Paswan had assaulted the deceased by firearm near his

ear, whereas Krishna Saw had assaulted at the side of his chest, causing bleeding injuries, due to which, Prabhu Yadav died at the spot. He tried to

apprehend the accused persons, but they managed to flee away. He has also stated that the accused persons had committed the offence for

establishing their supremacy. He has identified the accused in the Court. He has also identified his signature on the fardbeyan, which was earlier

marked exhibit. He has also stated that the fardbeyan was written by Awadhesh Kumar, and he has proved the fardbeyan, which was marked

Exhibit-2. In his cross-examination, this witness has also admitted that the deceased Prabhu Yadav was accused in five to six cases, but he had no

knowledge about the murder case. He has also admitted that he himself had been jailed for three to four times including in murder case. He has

admitted in his cross-examination that he had given the statement before the police, that when he had reached near Jharna More, he heard the sound

of firing and he saw Boro Paswan, Jhabu Paswan and Krishna Saw fleeing away on a motorcycle, whereupon, he chased them, but he could not

apprehend them and when he returned back, he saw his brother  Prabhu Yadav dead. He has stated that he had put his signature on the inquest

report and other documents at the Police Station. The police had also seized blood from the place of occurrence. He has also denied the suggestion of

giving the false evidence.

9. P.W.-8 is Prakash Saw, who had accompanied the informant   Uma Yadav towards the place of occurrence. He had seen the dead body

of the deceased with bleeding firearm injuries and he was also informed about the occurrence by the brothers of the deceased present there. As such,

he is only a hearsay witness.

10. P.W.-12 is Sri Krishna Ram, who was the rickshaw puller, on whose rickshaw, the deceased and his cousin Amlesh Yadav were going towards

Jharna Colony. He has stated that when they reached near the meat shop, Prabhu Yadav was made to lie on a chouki. He also went to take tea,

when he heard the sound of firing. He returned back, but by that time, it was dark. When he came to the place of occurrence, Amlesh Yadav was not

there. Prabhu Yadav was lying injured, who subsequently died. He again came to the place of occurrence for taking his fare, but Amlesh Yadav was

not there. While he was returning, he met Uma Yadav, the brother of the deceased near the bridge, and he informed him that his brother had been

murdered. He has not identified the accused in the Court. In his  cross-examination, this witness has stated that Prabhu Yadav had become sick,

as he had taken liquor.

11. P.W.-11 Ramashray Singh is the Doctor, who had conducted the post-mortem examination of the dead body of the deceased, on 13.6.2003 and

had found the following ante-mortem injuries on the dead body:-

(i) Lacerated wound of ½†x ½†x interior with inverted margin on right side between upper part of neck angle of mandible with blackening

around the wound (wound of entry).

(ii) Lacerated wound on right side of head, with a fracture of underlying skull bone size 3x4â€​ x ¾â€​ everted and ragged margin (wound of exit).

(iii) Lacerated wound ½†x ½â€Â with inverted margin of right side of lateral boarder of lower part of chest blackening around the wound

of entry at the level of seventh, eighth ribs.

Internal examination:-

(i) Headâ€"Cranial cavity filled with blood and blood clot in right side brain fractured linear 1"".

(ii) Throat and abdomenâ€"blood clot and faecal matter floating. Spleen ruptured. A bullet lodged on lateral side of chest and kidney between ninth

and tenth ribs left.Â

 He has stated that the death was caused due to shock and hemorrhage, caused by firearm, like pistol. He has identified the  post-mortem

report to be in his pen and signature, which was marked Exhibit-3. In his cross-examination, this witness has stated that it is clear that there were only

two shots of the firearm upon the dead body of the deceased. He has also stated that according to the Modi’s Medical Jurisprudence and in his

opinion, if the firearm had been used from a close range, all powder and gas would go inside the body and there shall be no blackening, charring and

tattooing. If the firearm is used from some distance, these things will happen. He has stated that the injuries could be caused in standing and sitting

position.Â

12. The statement of accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was

adduced by the defence, but the documents have been proved to show that the deceased had criminal antecedents. On the basis of the evidence on

record, the accused appellant was found guilty, convicted and sentenced by the Trial Court below, for the offences as aforesaid.

13. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court

below, cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charges against the accused beyond all

reasonable doubts. It is also submitted that the deceased was a history-sheeter and there were several criminal cases against him and, as such, the

fact that the deceased had been killed by some of his enemies, cannot be ruled out and the accused persons have been falsely implicated in this case,

due to the fact that there was rivalry between the informant side and the accused side. Learned counsel has further submitted that none of the

independent witnesses of the locality have supported the prosecution case, and all the independent witnesses have only turned hostile, and the

prosecution case has only been supported by the cousin and brothers of the deceased, who are highly interested witnesses and are themselves Â

history-sheeters, being accused in several cases, as admitted by them. Learned counsel has, accordingly, submitted that the evidence of such

witnesses could not be relied upon. Learned counsel has also submitted that the I.O. has not been examined in the case and the defence has been

vitally prejudiced in the matter, inasmuch as, the witnesses have denied the knowledge about the fact that C.C.A. was also imposed upon the

deceased. It is also submitted that it was the informant himself, who had informed the police, whereupon the police had reached the place of

occurrence, and this fact is mentioned in the case diary, but the informant has concealed this fact also for the reason best known to him. Learned

counsel has further point out that the witnesses have stated that all the three accused persons fired pistol from the close range, rather point blank

range, and it is alleged that three shots were fired upon the deceased, but the Doctor P.W.-11 Ramashray Singh has clearly stated that only two shots

were fired on the deceased, one injury on the head, was the wound of entry and other injury was the wound of exit, caused by the same assault by

firearm, which clearly shows that they are actually not the eyewitnesses to the occurrence, rather the accused persons have been falsely implicated in

this case, due to rivalry between them and to settle scores. It is submitted by the learned counsel that it is a fit case, in which, the accused ought to

have been given the benefits of doubt.

14. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that though it is a fact that the witnesses supporting

the prosecution case, as well as the deceased were having criminal antecedents, but the prosecution case is fully supported by the witnesses,

particularly, P.W.-1 Amlesh Yadav and P.W.-10 Munna Yadav, as the eyewitnesses to the occurrence. The other witnesses have also supported the

prosecution case as hearsay witnesses, as informed by the eyewitnesses to them, and the ocular evidence of these witnesses is fully corroborated by

the medical evidence of P.W.-11 Dr. Ramashray Singh and the post-mortem report proved by him as Exhibit-3. As such, the prosecution has been

able to bring home the charges against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and

Order of sentence, passed by the Trial Court below.

15. Having heard counsels for both the sides and upon going through the record, we find that the prosecution case is supported by only two

witnesses, who claim to be the eyewitnesses, namely P.W.-1Â Â Amlesh Yadav, the cousin of the deceased and P.W.-10 Munna Yadav, the brother

of the deceased. The other two witnesses, P.W.-9 Uma Yadav, the informant and the other brother of the deceased, and P.W.-8 Prakash Saw, are

not the eyewitnesses to the occurrence, but have supported the prosecution case as hearsay witnesses. The brothers and cousin of the deceased Â

are  the  highly  interested  witnesses  and  their  cross-examinations clearly show that all of them are history-sheeters

and involved in several criminal cases, including murder cases, and even the deceased himself was also a history-sheeter, involved in several criminal

cases including murder case, and as such, the murder of the deceased by one of his enemy cannot be ruled out, but at the same time, it is for the

prosecution to prove beyond all reasonable doubts as to who had committed the murder. We also find from the evidence on record that the witnesses

have denied the knowledge about the fact that C.C.A. was also imposed upon the deceased. In that view of the matter, non-examination of the I.O.

has vitally prejudiced the defence, in not getting the opportunity for taking this information from the I.O. The fact remains that it is admitted by P.W.-1

Amlesh Yadav and P.W.-9 Uma Yadav, the informant that the accused persons had committed the offence for establishing their supremacy. In that

view of the matter, the rivalry between the prosecution witnesses and the accused cannot be ruled out and, accordingly, false implication of the

accused persons for the said rivalry also cannot be ruled out. The eyewitness have clearly stated that all the three accused persons, including the

present accused, had assaulted the deceased from point blank range and fired one shot each. The Doctor, P.W.-11 Ramashray Singh has clearly

stated that only two shots were fired on the deceased, one injury on the head, was the wound of entry and other injury was the wound of exit, caused

by the same assault by firearm. This clearly shows that as the witnesses had seen three injuries on the dead body, they very conveniently implicated

three persons, who were their rivals, with the allegation of firing on the deceased, firing one shot each. Though, in order to make the offence grave,

the witnesses have stated that the firings were made from the point blank range on the deceased, but the Doctor, conducting the post-mortem

examination had found the blackening around both the wounds of entry, which would show that the firings were made from some distance. The

tendency of concealment of truth is also apparent from the fact that the informant P.W.-9 Uma Yadav has stated that his deceased brother was not in

a drunken state, but P.W.-1 Amlesh Yadav and P.W.-12 Sri Krishna Ram, the rickshaw puller, have clearly stated that the deceased was drunken

and was vomiting, for which he was made to lie on a chouki, on which he was murdered. P.W.-9Â Uma Yadav has also stated in his cross-

examination that no one had informed the police, rather the police had reached the place of occurrence on its own. We have looked into the case

diary, which shows that he himself had informed the police party on patrolling duty, about the occurrence.

16. Taking into consideration the criminal history of the witnesses supporting the prosecution case, and rivalry between the parties, the false

implication of the accused cannot be ruled out. We are of the considered view that their evidence alone could not be relied upon for convicting and

sentencing the appellant for the offences charged, in absence of any corroboration of their evidence by any independent witness. In the present case,

all the independent witnesses of the locality have turned hostile and have not supported the prosecution case. Though P.W.-10 Munna Yadav has also

supported the prosecution case as an eyewitness, but his being eyewitness is doubtful in view of his own admission in his cross examination to have

given the statement before the police, that when he had reached near Jharna More, he heard the sound of firing and he saw Boro Paswan, Jhabu

Paswan and Krishna Saw fleeing away on a motorcycle, and thereafter he saw his brother Prabhu Yadav dead. Even about the remaining eye

witness P.W.-1 Amlesh Yadav, the rickshaw puller P.W.-12 Sri Krishna Ram, has stated that he was not present at the place of occurrence, when

the rickshaw puller reached there, upon hearing the sound of firing. We are of the considered view that in the facts of this case, the appellant was

entitled at least to the benefits of doubt, and the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law.Â

17. For the foregoing reasons, the impugned Judgment of conviction dated 25th of August, 2009 and the Order of sentence dated 27th of August,

2009, passed by the learned Additional Sessions Judge, F.T.C., Sahibganj, in Sessions Case No. 204-A of 2006, convicting and sentencing the

appellant Boro Paswan for the offences under Sections 302 / 34 of the Indian Penal Code, and Section 27 of the Arms Act, are hereby, set aside.

Consequently, the appellant is given the benefits of doubt and he is acquitted of the charges. The appellant Boro Paswan is in custody, undergoing the

sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case.

18. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this

Judgment.Â