Awadesh Paswan S/o Ramboren Paswan vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 240

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
Awadesh Paswan S/o Ramboren Paswan – Appellant
Versus
State of Bihar – Respondent
Criminal Appeal (DB) Nos. 358, 416 of 1993
Decided On : 18-05-2022

Advocates:
Advocate Appeared:
For the Appellants : Mr. Ajay Kumar Thakur, Mr. Udbhav.
For the Respondent: Ms. Shashi Bala Verma.

Headnote:
Indian Penal Code, 1860 – Sections 302 and 302/149 – Arms Act, 1959 – Section 27 – Murder – Common object – Conviction and sentence – Opinion of doctor that injuries on person of deceased was caused by firearm from range of about 12 meter distance is not consistent with oral evidence of eye-witnesses – There is great discrepancy in oral evidence relating to distance from which shots were fired and evidence of medical expert – Opinion of doctor that blackening of margin of skin is possible in case of gun shots are fired from a distance of 12, 20 or 30 meters is bereft of any logic or objectivity – Doctor who conducted autopsy did not find any wound of entry or wound of exit – He did not rule out possibility of splinter injury in case of bomb explosion – No effort was made by prosecution to ascertain as to whether injuries were caused by gun shot or bomb explosion – Splinters recovered by doctor and handed over to Constable were not sent to ballistic expert in order to ascertain as to whether they were discharged from gun shots or bomb explosion – Either fardbeyan on the basis of which FIR was registered is a fabricated document or informant is not a truthful witness – Non-examination of Police Officer without any plausible explanation would clearly make fardbeyan and formal FIR on the basis of which foundation of case was laid a suspicious document – There is no evidence that splinters were sent to ballistic expert – There is nothing to suggest that cards or wads or pellets were recovered from place of occurrence – Non-seizure or non-sending of weapons of assault, cartridges and pellets to ballistic expert for examination may not be fatal to prosecution case, if ocular testimony is found credible and cogent – However, in present case, neither oral testimony of witnesses is found credible nor oral evidence is duly corroborated by medical evidence – Doctor did not find any incised or penetrating or puncture wound on skull of informant – Injury found on person of informant is not in sync with allegation made in FIR or evidence adduced during trial – Due to non-examination of Investigating Officer serious prejudice has been caused to defence – Prosecution has failed to prove its case beyond reasonable doubts against appellants – Impugned judgment of conviction and consequent order of sentence set aside and appellants acquitted of charges levelled against them. (Paras 42, 45, 48, 49, 50, 52, 55, 56 to 58)
Criminal Law – Medical evidence – If a firearm is discharged very close body or in actual contact, subcutaneous tissues over an area of two or three inches around wound of entrance are lacerated and surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder – Adjacent hairs are singed and cloths covering part are burnt by flame – If powder is smokeless, there may be a greyish or white deposit on skin around wound – Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet. (Para 48)

JUDGMENT :

ASHWANI KUMAR SINGH, J.

1. The appellants in these two appeals have challenged the judgment of conviction and order of sentence dated 29.07.1993 and 31.07.1993 respectively passed by the learned 9th Additional Sessions Judge, Patna in Sessions Trial No. 60 of 1991 arising out of Khusrupur P.S. 22 of 1990 whereby and whereunder Shankar Paswan and Satyendra Paswan (Appellants in Criminal Appeal (DB) No. 416 of 1993) have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and rigorous imprisonment for seven years for the offence punishable under Section 27 of the Arms Act and Awdhesh Paswan, Ganesh Paswan, Lalse Paswan, Dinesh Paswan, Suresh Paswan, Kailash Paswan and Devendra Paswan (Appellants in Criminal Appeal (DB) No. 358 of 1993) have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and Devendra Paswan has been further convicted and sentenced to undergo rigorous imprisonment for seven years under Section 27 of the Arms Act.

2. The prosecution case is based on the fardbeyan of Kauleshwar Paswan recorded by R.S. Dubey, Officer In-Charge at Khusrupur Police Station on 11.03.1990 at 06:45 PM.

3. It has been stated by the informant that his cousin brother, namely, Balram Paswan had gone out to the field towards South from his house on 11.03.1990 at about 05:00 p.m. to attend the call of nature. While returning when he came near the khalihan of Prabhu Yadav, one Shankar Paswan took gun from Kailash Paswan, loaded cartridges from his possession and fired on Balarm Paswan from a short distance causing injury in his abdomen. When Balram Paswan wanted to flee away, Satyendra Paswan armed with gun, Nageshwar Paswan armed with bhala, Devendra Paswan armed with gun, Kailash Paswan armed with bhala, Ganesh Paswan armed with garasa, Suresh Paswan armed with gun, Dinesh Paswan armed with garasa, Awdhesh Paswan armed with garasa and Lalse Paswan armed with garasa came there and surrounded him from all the sides. On the exhortation given by Lalse Paswan that Balram was still alive and he should be killed, Satyendra Paswan being armed with gun fired from a short distance hitting Balram Paswan in his thigh and belly as a result of which he was badly injured and fell down.

4. It has further been stated by the informant that at the relevant time, he was at the khalihan of Prabhu Yadav at a short distance from the place of occurrence and was talking with Jatan Paswan and Samundra Paswan. In the meantime, on hearing the gun shot and the alarm raised by Balram Paswan, he rushed towards the place of occurrence with Jatan Paswan and Samundra Paswan. When he reached near the victim, Nageswar Paswan who was armed with bhala gave a blow on his head in order to kill him as a result of which he received bleeding injury over his head. On the alarm raised by him, Samundra Paswan and Jatan Paswan along with co-villagers Sahdeo Paswan, Upendra Paswan and Surendra Paswan assembled and saw the occurrence. On seeing them, the accused persons fled away. The motive behind the occurrence is that there was a dispute in respect of getting water from a hand pump installed by the Government between two groups.

5. The informant further stated that as the victim Balram Paswan was badly injured and was bleeding profusely, he was carried on a cot by some members of his family to Khusrupur Government Hospital where he was given primary medical aid and sensing the seriousness of the injuries, the doctor referred him to Patna. When Balram Paswan was being taken towards Railway Station for being taken to Patna, he died. Thereafter, the informant came together with the deceased at the Police Station.

6. On the basis of the aforesaid fardbeyan, Khusrupur P.S. Case No. 22 of 1990 was registered on 11.03.1990 at 06:45 p.m. under Sections 147, 148, 149, 302, 307, 324, 342 of the Indian Penal Code (for short ‘IPC’) against Shankar Paswan, Kailash Pa