Kapil Paswan and Another vs The State of Bihar

Shyam Kishore Sharma, J.—Above named appellants of all the appeals have assailed the judgment of conviction and order of sentence dated 20th and 22nd September, 1990 passed by the learned Ist Additional Sessions Judge, Nalanda, Biharsharif in Sessions Trial No. 188 of 1990/189 of 1990 by which the appellants were convicted for the various offences. Appellant Kailash Paswan has been held guilty for the offence punishable u/s 302 of the Indian Penal Code. Appellant Raj Kumar Raut, Kapil Paswan and Chandeshwar Paswan alias Loha Paswan have been held guilty for the offence punishable u/s 302/149 of the Indian Penal Code. All the four appellants have been held guilty for the offence punishable under sections 27 of the Arms Act and section 148 of the Indian Penal Code. For the offence u/s 302, IPC appellant Kailash Paswan was sentenced to undergo imprisonment for life whereas others have been directed to undergo imprisonment for life under sections 302/149 IPC. Further 3 years'' imprisonment was awarded for the offence u/s 27 of the Arms Act and 1 year imprisonment for the offence u/s 148 of the Indian Penal Code. All the sentences were ordered to run concurrently. Regarding killing of Basu Gope, brother of the informant (PW 3), a case was registered vide Hilsa PS. Case No. 95 of 1988 under sections 147, 148, 149, 302 of the Indian Penal Code and section 27 of the Arms Act on the fard-beyan (Ext. 1) of Ram Lakhan Prasad. The Officer Incharge recorded the fard-beyan at the tea stall of Satya Narayan Prasad (PW 5 declared hostile) wherein the informant stated that just about 15 minutes earlier, his full brother Basu Gope (deceased) came running on being chased by Kailash Paswan, Kapil Paswan, Raj Kumar Raut, Chandeshwar Paswan alias Loha Paswan, Bhushan Mahto, Shiv Mahto, Dhaneshwar Sao, Umesh Das, Brija Das and 8-10 unknown persons. They were having pistols with them. Kailash Paswan fired which caused injury in the head of Basu Gope and he fell down at the tea stall of Satya Narayan Prasad. Thereafter, Raj Kumar fired again upon the head of Basu Gope who died. Kapil Paswan fired which struck on wall. Bhushan Mahto fired for scarring. Others namely, Shiv Mahto, Dhaneshwar Das, Umesh Das, Brija Das and Chandeshwar Paswan were surrounding with firearms. The occurrence was witnessed by Satya Narayan Prasad (PW 5), Shiv Narayan Singh (PW 4), Shideshwar Prasad (PW 1) and Sharwan Prasad (PW 2). It has been alleged that there was tussle for being agent of Maxi Stand of Hilsa between the informant brother and the accused and that was the reason for the commission of occurrence. The fard-beyan, witnessed by Bishundev Prasad (not examined) and Ramashiv Prasad (not examined), resulted in the formal FIR (Ext. 5) and investigation ensued. Place of occurrence was inspected, statement of witnesses were recorded, blood stain soil was seized but not sent for chemical examination, inquest report (Ext. 4) was prepared, Post mortem report (Ext. 2) was obtained and the Police submitted charge-sheet after finding the case to be true against the accused persons. After observing the paraphernalia i.e. after supply of police paper etc. the case was committed to the Court of Sessions where charge u/s 302 of the Indian Penal Code and section 27 of the Arms Act was explained against Kailash Paswan and Raj Kumar Raut. Charge under sections 302/149, IPC and 27 of the Arms Act was framed against Kapil Paswan, Chandeshwar Paswan alias Loha Paswan, Bhushan Mahto, Shiv Mahto, Dhaneshwar Das, Umeas Das and Birja Das whereas charge u/s 148, IPC was explained to Kailash Paswan, Raj Kumar Raut, Kapil Paswan, Chandeshwar Paswan alias Loha Paswan, Bhushan Mahto, Shiv Mahto, Dhaneshwar Das, Umesh Das and Birja Das. They pleaded their innocence and claimed to be tried.

The defence of the accused persons was of false implication on account of dispute of being agent of Hilsa Maxi Stand and also that the deceased was a notorious criminal involved in a number of cases and on being chased thrashed and one eye was also damaged by the mob. Their further defence was that on account of consistent criminal activities the informant found the moment to be proper for fabricating the false case.

Before the trial court the prosecution has examined altogether 8 witnesses. They are: Chandeshwar Prasad (PW 1), Sharwan Prasad (PW 2), Ram Lakhan Prasad (PW 3), Shiv Narayan Singh (PW 4), Satya Narayan Prasad (PW 5), Dr. Shiv Nandan Prasad (PW 6), A.S.I., Arjun Singh (PW 7) and Saryu Das (PW 8).

PWs 2, 4 and 5 have not supported any part of the allegation against any of the accused and they were declared hostile by the prosecution and was allowed to cross-examine those witnesses. PW 8 is a formal witness, PW 7 is the Investigating officer and PW 6 has held autopsy upon the dead body. Two witnesses, namely, PWs 1 and PW 3 the informant have supported the prosecution case.

The trial court after considering the evidences found the appellants guilty whereas other accused persons who were also put on trial along with these appellants were acquitted. Learned Amicus Curiae representing the appellants has submitted that the trial court has not considered the direct conflict between the medical finding and the ocular evidence and also from the evidences available on record, it is proved beyond the shadow of all reasonable doubts that none of the witnesses have seen the occurrence.

PW 3 was present at the tea stall when his brother Basu Gope came running on being chased by Kailash Paswan, Raj Kumar Raut, Loha Paswan, Kapil Paswan, Bhushan Mahto, Shiv Mahto, Shiv Mahot, Birja Das, Umesh Das and Akhilesh Das came running to the tea stall of Shiv Narayan Prasad. In the meanwhile first shot was given by Kailash with his country made pistol which caused injury upon the head of informant''s brother. Second firing was made by Raj Kumar on his head. Firing of third shot caused no injury to anybody which hit to the wall. Informant''s brother received two firearm shots then, he fell down and died. The informant''s brother was carrying agency of Jeep and Maxi Taxi service since last 2-3 years. Others were also involved with the agency and that was the bone of contention between the informant''s brother and the accused persons. Specific question was put to the informant as to whether Basu Gope fell down after receiving the first shot then he expressed his ignorance explaining that he could not see but his brother definitely fell down after receiving second firearm injury. Regarding antecedent of his brother he has stated that his brother was accused in commission of dacoity in the compound of Sadar Hospital, Hilsa. This witness denied the suggestion that his brother has lost his eye in course of commission of dacoity. The evidence of this witness is clear that two firearm shots were given by the accused persons which struck upon the head of Baso who fell down.

PW 3 has been supported by PW 1 with regard to manner of assault and stated that he has seen the occurrence wherein Basu Gope was given two shots and on account of that he died.

The definite case of the prosecution remained after examination of ocular evidence was that Baso was fired upon twice by country made pistol and both firing struck upon his head which proved fatal. Now it is relevant to go through the evidence of doctor who held post mortem on the dead body at 10.00 a.m. on 31.3.1988 and has found one oval wound of 1/2" diameter with blackening inverted and lacerated margin over occiput (back of scalp) wound, that was the wound of entry. The doctor has clarified further that he had noticed only one firearm injury and that injury could have been caused by only one shot.

The evidence of the doctor is only to the extent that it was a case of death by use of firearm by one shot. Though a number of witnesses have been examined but none have supported the prosecution case except PWs 3 and 1 and these two witnesses have also stated that the deceased was fired upon twice and he received two ante mortem firearm injury and it was apparent that the deceased must have received two different injuries but that was not indicated by the doctor while he averred that the deceased received only one firearm injury. The prosecution witness, in whose tea stall the occurrence has taken place, has been declared hostile. The FIR named witnesses, namely PWs 2 and 4 have also not supported the prosecution allegation against the accused and they have been declared hostile. Therefore, only two witnesses have supported the prosecution case with regard to manner of assault and their evidence was consistent that two firing shots hit the deceased.

If there is some difference between the medical count and the version of eye witnesses, then it is settled beyond all reasonable doubt that ocular testimony has to be given weight. If there is some variation then, the medical evidence has to be read along with that, then the situation turned and decides that there is contradiction between two versions. The contradiction in the present case is at large and the doctor has remained consistent even in his cross-examination wherein he has stated that he has found only one firearm injury, that was not the case which has been narrated by the prosecution witnesses. Thereafter, the grave contradiction between the eye witnesses count and the medical count has remained totally unexplained. This grave contradiction coupled with the hostility between two sides creates doubt as to whether PWs 1 and 3 have seen the occurrence or not. Had they seen the occurrence, then they would have stated that the deceased got only one firearm injury. The variation between the two types of evidence is not reconcilable if the prosecution has not been able to explain the various loopholes in the evidence brought on the record. Though the learned APP supported the judgment and the explanation given regarding variations of two types of evidence does not have any force rather the explanation given is merely an academic type.

In view of the discussions made above, we are of the view that the prosecution has not been able to prove its case against the appellants beyond the shadow of all reasonable doubts. In the result, these appeals are allowed and the judgment of conviction and order of sentence against the appellants is set aside. Since they are on bail, they are discharged from the liabilities of their respective bail bonds.

As none was appearing in this appeal, Mr. Deovind Kumar Singh, Advocate was appointed as Amicus Curiae to assist this Court on behalf of the appellants of all the above noted appeals and he has argued well. We appreciate the assistance given by Mr. Singh. Let a copy of the first page and last page of the judgment be handed over to Mr. Singh, Advocate so that he may get the prescribed fee from High Court Legal Services Committee, Patna.