Karu Paswan and Others vs The State of Bihar

A.K. Sinha and B.K. Jha, JJ.—Both the appeals were heard together and are being disposed of by this common judgment as both of them arise out of the same judgment.

The prosecution story, as disclosed in the fardbeyan of the informant which was recorded on the alleged date of occurrence at 10.00 A.M. in front of the house of the deceased, is that on 14.11.1995 at about 7.00 A.M. the wife of Umesh Paswan was making cow dung cakes in course of which some water fell down on the ground on account of which there was some altercation between the wives of Rajo Paswan and Umesh Paswan. There was exchange of abuses between them. After some time the Appellant Rajo Paswan came out of the house and at about the same time the deceased, namely, Parmeshwar Paswan and his wife Girja Devi also came out from their house and tried to pacify the quarrel, whereupon, the Appellant Rajo Paswan told to the informant that why he permitted Raghunandan Paswan to take water and When this altercation was going on, the Appellants Rajo Paswan and Maula Paswan gave threats to teach lesson and soon thereafter Rajo Paswan, Maula Paswan, Umesh Paswan, Raj Kumar Choudhary, Karu Paswan, Jagdish Paswan, Pramila Devi and Bhola Paswan came at the door of the informant''s father-in-law being armed with various weapons. Again both the deceased tried to restrain them but to no effect and Rajo Paswan is alleged to have fired upon the informant''s father-in-law, namely, Parmeshwar Paswan who fell down injured and when the mother-in-law of the informant went to rescue her husband the Appellant Rajo Paswan fired shot upon her also and she also fell down. It has been stated that Maula Paswan, Raj Kumar Choudhary, Karu Paswan, Jagdish Paswan and Bhola Paswan were armed with guns whereas Umesh Paswan was having a bomb in his hand and the Appellant Pramila Devi threw brick bats. The informant''s father-in-law and mother-in-law both died at the spot. Thereafter, the above named accused persons fled away firing from their respective guns and exploded bomb. While retreating they are alleged to have stated that they had killed. It has further been alleged that Appellant Bhola Paswan and Umesh Paswan exploded bombs due to which Sunita Devi, a village lady, sustained splinter injuries. The occurrence was witnessed by Chhote Paswan (P.W. 2), Gopi Paswan (P.W. 7), Umesh Paswan @ Bakhori Paswan (P.W. 8), Basudeo Paswan (P.W. 6), Doman Paswan (not examined) and many others. The motive for the alleged occurrence as disclosed in the fardbeyan of the informant is that there was dispute regarding construction of hut on a Gairmazarua land besides ill feeling prevailing between the members of the Paswan community.

On the basis of the fardbeyan a case under Sections 147, 148, 149, 324, 302 of the Indian Penal Code read with Section 27 of the Arms Act and Sections 3/4 of the Explosive Substance Act was registered against all the Appellants and the chargesheet was submitted against them under the aforesaid counts. The case was committed to the court of sessions for trial.

Charges were framed against all the eight Appellants u/s 302 read with Section 149 of the I.P.C. Appellant Rajo Paswan was separately charged u/s 302 of the I.P.C. Appellant Pramila Devi was charged u/s 147 of the I.P.C. and except Pramila rest seven Appellants were also charged u/s 148 of the I.P.C. read with Section 27 of the Arms Act as also u/s 3 of the Explosive Substance Act. The case of the defence as would appear from the trend of the cross-examination and suggestions given to the witnesses is that no such occurrence actually took place and there was a dacoity in the village in which the deceasec received fatal injuries and due to previous grudge the informant implicated the Appellants with false allegation.

In order to bring home the charges the prosecution examined as many as 12 witnesses out of whom P.W. 1 Dhirendra Kumar Singh and P.W. 10 Awadhesh Paswan are formal witnesses who have proved the formal F.I.R. (Ext. 1) and signature (Ext. 4/1) on the inquest report. P.W.6 Basudeo Paswan has been named as an eye witness in the fardbeyan but he turned volte face and did not support the prosecution version.

P.W. 4 Dr. Sunil Kumar Singh conducted the autopsy on the dead body of Girja Devi and he found the following ante mortem injuries on her person:

A lacerated wound of size 2" x 1" over front of neck with margin inverted and blackened (wound of entry) communicating with wound of exit which was lacerated wound of size 1" x 3/4" over left scapular region. On dissection the doctor found that there was laceration of larynx, trachea and oesophagus. There was fracture of second rib in front and fourth rib behind over the left side. There was fracture of left scapula and there was blood clot in subcutaneous tissue of the aforesaid injury in the left pleural cavity. In the opinion of the doctor the cause of death was due to shock and haemorrhage by the aforesaid injuries which was caused by fire arm. P.W. 4 has proved his report (Ext.2). In his cross-examination P.W.4 has stated that he found blackening mark around injury No. 1 and the injury found by him can be caused from a distance of 20 yards but not from a close distance. But this opinion of the doctor does not seem to be correct because injury No. 1 with blackening mark cannot be caused from such a distance and it is possible from a short distance only.

P.W. 5 is another doctor who conducted autopsy on the dead body of Parmeshwar Paswan and found the following ante mortem injuries on his person:

Wound of entry 1/2" lacerated circular wound x brain cavity deep on bridge of nose with inverted margin. Wound of exit 1/2" lacerated circular wound over upper portion of left side of neck with inverted margin. On dissection fracture of nosal bone sphenoid occipital bone were seen. Cranial cavity contained blood and blood clot. There was laceration of brain matter and extrasation of blood in the soft tissue of left side of neck. P.W. 5 has proved his report (Ext. 2/1) and has stated in his cross-examination that he did not find any tattooing mark around the wound. So he stated that it was caused from a distance of 4 ft In the opinion of P.W.5 also the death was caused due to aforesaid fire arm injuries.

From the evidence of P. Ws. 4 and 5 it is well established that both the deceased died due to the injuries caused by. fire arms and both sustained single fire arm injury on their persons. The allegation in the F.I.R. is also to the effect that Appellant Rajo Paswan fired one shot upon Parmeshwar Paswan and one shot upon his wife, Girja Devi.

It may be stated here that in the fardbeyan of the informant which was recorded after three hours of the alleged occurrence by the I.O. it has been cleanly stated that when the deceased Parmeshwer Paswan and his wife tried to stop the quarret it was Rajo Paswan who fired upon Parmeshwar Paswan first from his country made gun on account of which he fell down Injured and when his wife ran to rescue her husband the Appellant Rajo Paswan again shot fire upon her on account of which she also fell down. So it is clear from the fardbeyan that both the deceased received gun shot injuries at the hands of Rajo Paswan and other Appellants had not resorted to any firing upon the deceased. But It seems that during evidence the prosecution tried to improve its case, inasmuch, as the witnesses were examined to say that Maula Paswan had also fired upon one of the deceased but the witnesses have made lcontradictory statements in this regard which we will refer to in our subsequent paragraphs.

So far Appellant Rajo Paswan is concerned there is consistent evidence of P.W. 3 Nitu Kumari and P.W. 9 Sahdeo Paswan (informant) that he fired upon Parmeshwar Paswan. In the fardbeyan also the allegation is that at first Rajo Paswan fired upon Parmeshwar Paswan who fell down and died at the spot. Therefore, it would appear that P. Ws. 3 and 9 both have supported the prosecution story as regards the firing made by Rajo Paswan upon Parmeshwar Paswan and there is consistency in their evidence on this score. Both the witnesses, remained unshaken in their cross-examination on this point and no material contradiction could be elicited from them. We are, therefore, of the view that the prosecution has been able to prove, at least, this fact that Appellant Rajo Paswan committed the murder of Parmeshwar Paswan for which he has been held guilty for committing the offence u/s 302 of the Indian Penal Code.

As already stated above the prosecution has developed its story, inasmuch as, the witnesses have been examined to say that it was not only Rajo Paswan who fired upon both the deceased, rather, Appellant Maula Paswan also shot fire upon one of the deceased. P.W. 2 Chhote Paswan has deposed that it was Rajo Paswan who fired upon his sister-in-law (Girja Devi) and Appellant Maula Paswan fired upon his brother Parmeshwar Paswan. His evidence is contradictory to the prosecution case as made out in the fardbeyan where it has been alleged that Appellant Rajo Paswan had fired upon both the deceased. The evidence of P.W. 2 has been contradicted by P.W. 3 who has stated that it was Maula Paswan who fired upon her mother and P.W. 8 has also made a contradictory statement that it was Rajo Paswan who fired upon Girja Devi and according to P.W. 9 Maula fired upon Girja Devi. The attention of P.W. 12 Mr. R.S. Singh who is the I.O. of this case was also drawn in this connection and he has stated that Chhote Paswan (P.W. 2) had not stated before him that Rajo Paswan had fired upon Girja Devi. Similarly P.W. 3 Nitu Kumari had also not stated before him that her mother died as a result of firing of Maula Paswan and P.W. 8 Umesh Paswan had also not stated before him that Appellant Maula Paswan fired upon Parmeshwar Paswan with his gun. The I.O. has stated that it has been noted in the diary that Rajo Paswan had fired upon Girja Devi also. Therefore, what we find is that so far the evidence of the witnesses that Maula Paswan had also participated in the firing on the deceased has not only been contradicted by the I.O. rather the evidence of the witnesses on this point is also not consistent, inasmuch as, two witnesses have stated that Maula Paswan fired upon Girja Devi whereas two of them have stated that he fired upon Parmeshwar Paswan and their evidence is contradictory to the allegations in the F.I.R. Therefore, the evidence of the witnesses that Maula Paswan had fired upon the deceased does