Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.110 of 2001 (Appeal against the Judgment and order of conviction dated 5/8.3.2001 passed by the 2nd Additional Sessions Judge, Darbhanga, in Sessions Trial No. 148 of 1989) =========================================================== 1. Shivdhari Paswan, son of late Saudagar Paswan 2. Budhan Paswan, son of Shivdhari Paswan 3. Asharfi Paswan, son of Shivdhari Paswan 4. Dinesh Paswan, son of Shivdhari Paswan 5. Binod Paswan, son of Shivdhari Paswan 6. Bindeshwar Paswan, son of Saryug Paswan 7. Sahdeo Paswan, son of Saryug Paswan 8. Kari Paswan, son of late Charitra Paswan 9. Gonu Paswan, son of late Charitra Paswan All residents of village Tektar, P.S. Kamtaul, Distt. Darbhanga. Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Farukh Ahmad Khan, Adv. For the State : Mr. R.B. Roy ‘Raman’, A.P.P. Md. Sufiyan, Adv.
Legal Reasoning
=========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 19-01-2013 Anjana Prakash, J: A report from the Senior Superintendent of Police, Darbhanga, has been received with regard to the death of the Appellant No. 1. Hence, the Appeal as against him, is dismissed as having become infructuous. 2. The Appellants No. 3 has been convicted for the offence under Section 307 Indian Penal Code while rest of the Appellants have been convicted under Section 307/149 Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and 4 years respectively, 2 Patna High Court CR. APP (SJ) No.110 of 2001 dt.19-12-2013 2 / 5 by a Judgment and order of conviction dated 5/8.3.2001 passed in Sessions Trial No. 148 of 1989 by the 2nd Additional Sessions Judge, Darbhanga. 2. The case of the Prosecution according to Sukhi Paswan is that on 19.9.1985 while he was removing ‘Khar’ (straw) crops from his field, the accused persons came there and forbade the Informant from doing so, on account of which an altercation arose, and, thereafter, the accused persons variously armed, assaulted him. Appellant No. 3 on the orders of Appellant No. 1 assaulted with Garansa on the head and when he fell down, Appellants Kari Paswan , Budhan Paswan and Chalitra Paswan assaulted him with lathi on account of which he sustained injuries on the chest, hand, back and leg. He was also assaulted with fists and slaps. He stated that his left hand was fractured on account of such assault. 3. The defence of the Appellant was that in fact, they were the owners and in possession of the land in question and while the Informant was removing the straw to take possession over the land, this incident occurred. Thus, it appears that they had asserted their right to private property. 4. 5. During Trial, the Prosecution examined four witnesses. PW-4, Md. Kalim, is a formal witness who produced the First Information Report and such other documents. 3 Patna High Court CR. APP (SJ) No.110 of 2001 dt.19-12-2013 3 / 5 6. PW-1, Ram Prasad Paswan, and PW-2, Sukhi Paswan, are the two injured witnesses. PW-3, Dr. Ravindra Kumar, has examined the injured persons. 7. The Defence also examined two witnesses namely, Khalil Ahmad, DW-1 who was a formal witness and proved the documents of land Exbt.-1 whereas Rachchhi Sahni, was examined as DW-2 who proved the land in question belonged to the Appellant No. 1 and that he was in possession over the same. 8. PW-2 in his evidence stated that on the date of occurrence, while he was removing the straw from his field, 12 years ago, the accused persons came to the field and forbade him to do so. He did not disclose the name of accused Budhan Paswan even though his name had been disclosed in the First Information Report. He further stated that Appellant No. 1 called his family members and, thereafter, he was assaulted as mentioned by him in the First Information Report. He also stated that on his alarm, his brother Ram Prasad Paswan came who was also assaulted by Appellant Asharfi Paswan giving a Garansa blow on his head. He admitted that a proceeding under Section 144 and 145 Cr. P.C. has been initiated earlier but the case had been dropped and that a Partition Suit has been filed in the Civil Court which was pending. A suggestion was given to him with regard to the genealogy of the accused persons but he denied knowledge of the same. 4 Patna High Court CR. APP (SJ) No.110 of 2001 dt.19-12-2013 4 / 5 9. It appears that there was a counter case with regard to the same occurrence and, therefore, a suggestion was given to him as to whether he had seen Appellants Asharfi Paswan and Shivdhari Paswan informed, but, he once again denied the same. The consistent suggestion given to him was that in fact, the land was in possession of the accused persons and that it was he who acted in a high handed manner. 9. PW-1 Ram Prasad Paswan is the brother of the Informant who stated that on his alarm, he reached the place of occurrence and, thereafter, attempted to rescue his brother but Appellant Asharfi Paswan gave a Garansa blow on his head on account of which he fell down. Thereafter, Appellant Kari Paswan assaulted him with lathi whereas rest of the accused persons also gave lathi blow on his leg, back and other parts of the body. He stated that before the occurrence, there was no litigation with the accused persons but after the same, a Proceeding under Sections 144 and 145 Cr. P.C. had been initiated. He admitted that he is an accused in the counter case filed by the Appellant Shivdhari Paswan. The genealogy of the party was put to him and he admitted that the accused persons are his close relatives and the Informant. It appears that he gave his statement on the next date of the occurrence. 10. PW-3 Dr. Ravindra Kumar examined the Informant Sukhi Paswan and found five simple injuries on his person and also Ram Prasad Paswan, he found five injuries on him. The Doctor did not opine 5 Patna High Court CR. APP (SJ) No.110 of 2001 dt.19-12-2013 5 / 5 the nature of injury, but, on going through the same, I find that they were either merely swelling or incised wound of a very minor nature and thus, it is evident that the injuries were simple in nature. 11. The injury reports of Appellants No. 1 and 5, i.e. Shivdhari Paswan and Binod Paswan have been proved as Exbt. C-1 and C-1/1 respectively and, hence, there is no doubt that on the same day, some of the Appellant had also been injured. The denial of the same by the Prosecution is a serious lacuna which casts a suspicion on the veracity of the Prosecution version. Moreso, in absence of examination of the Investigating Officer, who alone, could have competently given the true picture, I am not inclined to accept the Prosecution case as projected by the two interested witnesses. 11. Hence, giving benefit of doubt to the Appellants, the Appeal is allowed. The order of conviction and sentence dated 5/8.3.2001 passed against the Appellants in connection with Sessions Trial No. 148 of 1989 by the 2nd Additional Sessions Judge, Darbhanga, is, hereby, set aside. 12. The Appellants are discharged from the liabilities of their respective bail bonds. (Anjana Prakash, J) Patna High Court, Patna. Dated, the 19th December, 2013. NAFR/S.Ali