Subhash Paswan vs State of Bihar - 2023 Supreme(Pat) 350

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 350

IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and HARISH KUMAR, JJ.
Criminal Appeal (DB) Nos. 685, 727, 757 of 2014
(7.7.2023)
Subhash Paswan (in 685)
Bibhash Paswan (in 727)
Deep Narayan Paswan
@ Deep Narain @ Deepu Paswan
@ Deepu (in 757) ... Appellants
vs.
State of Bihar ... Respondent
(in all)

Advocates:
For the Appellants : M/s Anamul Haque, Najmul Hoda, Pranjal Kumar(in 685); Md. Najmul Hoda(in 727); Sweety Sinha, Dr. Manoj Kumar (in 757).
For the Respondent: M/s Binod Bihari Singh, APP (in 685, 727); Bipin Kumar, APP (in 757).

Headnote:
Criminal Procedure Code, 1973 – Section 304 – Constitution of India – Article 21 – Legal aid to accused at State expenses – Duty is assigned to trial court to appoint a Pleader for defence of accused in a Session Case where accused is not represented by a Pleader – Denial of legal assistance would also result in violation of constitutional mandate under Article 21 of Constitution of India – However, such legal assistance cannot be trusted upon accused person against his will. (Paras 15, 17 and 18)
Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Life imprisonment – Testimony of a child witness can not be discarded if the witness has intellectual capacity to understand questions and able to give rational answers thereof – Trial court is at liberty to test capacity of a child witness – Testimonies of witnesses also corroborated by medical evidence and post-mortem report – Testimonies of witnesses are quite consistent and except some minor discrepancies or inconsistencies nothing has been found which discredited truthfulness and credibility of witnesses touching very foundation of prosecution case – Prosecution has been able to prove case beyond all its reasonable doubts – There is no perversity in judgment of conviction – Appeals dismissed. (Paras 39, 48, 50, 51 and 52)
Criminal Law – Appreciation of evidence – Basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that evidence of such a witness should be appreciated as a whole – Rustic witness as compared to an educated witness is not expected to remember every small details of incident and manner in which incident had happened more particularly when his evidence is recorded after a lapse of time – A witness is bound to face shock of untimely death of his near relatives – Rustic witnesses cannot be expected to have exact sense of time and so cannot be expected to lay down with precision chain of events. (Para 43)
Criminal Law – Appreciation of evidence – Testimony of an eye witness must not be pendulous – There should not be vital contradiction or inconsistency in testimony of witnesses and it must be free from blemish and devoid of any ambiguity and uncertainty – In criminal law, contradictory and uncorroborated statements cannot be relied upon, much less than forming basis of conviction. (Para 49)

Harish Kumar, J.—We have heard Mr. Najmul Hoda, learned counsel for the appellant in Cr. Appeal (DB) No. 685 of 2014 and Cr. Appeal (DB) No. 727 of 2014; Mrs. Sweety Sinha in Cr. Appeal (DB) No. 757 of 2014 and Mr. Binod Bihari Singh, learned APP for the State in all the three appeals.

2. All the three appeals are arising out of S.T. No. 859 of 2009 / Tr. No. 68 of 2013 emanates from Jagdishpur (Goradih) P.S. Case No. 40 of 2009, disposed of vide judgment of conviction and sentence by the learned 1st Additional Sessions Judge, Bhagalpur and, as such, the same have been heard together with the consent of the parties and being disposed of by this common judgment.

3. The appellants have challenged the judgment of conviction dated 09.07.2014 and the consequent order of sentence dated 17.07.2014 passed by the learned 1st Additional Sessions Judge, Bhagalpur in S.T. No. 859 of 2009 / Tr. No. 68 of 2013, arising out of Jagdishpur (Goradih) P.S. Case No. 40 of 2009, whereby and whereunder they have been found guilty and convicted for the offences under Sections 302/34 of the Indian Penal Code and sentenced to undergo Imprisonment for life and to pay a fine of Rs.10,000/- to each convict for the offence under Section 302/34 of the Indian Penal Code. In default of payment of fine to undergo Simple Imprisonment for a period of six months.

4. The prosecution case, as disclosed in the Fardbeyan of Pankaj Kumar Paswan (P.W.6), son of late Suresh Paswan resident of Village Etawa, P.S. Goradih, District Bhagalpur recorded by S.I., R.B. Singh of Goradih O.P. (P.W.12) on 24.02.2009 at 15.30 hours at village Etawa, is that on 24.02.2009, the informant (P.W.-6) along with his father Suresh Paswan (deceased) in the morning went for preparing Labour Card at the house of the Mukhiya at village Kasimpur and thereafter they returned to their house at 12.30 P.M. After taking meal, the father of P.W. 6 went to Gohal and slept in the Palani. In the meantime, at about 1.30 P.M., the cousin (brother) of P.W.6, namely, Subhash Paswan (appellant in Cr. Appeal (DB) No. 685 of 2014), Bibhash Paswan (appellant in Cr. Appeal (DB) No. 727 of 2014), Deep Narayan @ Dipu Paswan (appellant in Cr. Appeal (DB) No. 757 of 2014) and Surendra Paswan armed with Bhala, Lathi and Garasa came there. The appellant Subhash Paswan caught hold both the legs of his father and Bibhash Paswan caught hold the head and thereafter the appellant Deepu Paswan @ Deep Narayan Paswan assaulted on the neck of his father by means of Garasa, due to which his neck was cut down. When the father of the informant tried to save himself, the appellant Deepu Paswan @ Deep Narayan Paswan again assaulted him, due to which he sustained cut injury over the palm of his left hand. The father of the informant even after sustaining the aforenoted injuries anyhow stood up from the cot, but he fell down in the Palani, where he died. Surendra Paswan armed with Bhala was standing there and giving threatening to the persons, who were coming there and due to fear none of the persons tried to come there. On hulla, several other persons came there and then all the accused persons/appellants fled away.

5. The reason behind the said occurrence is said to be that appellant Deepu Paswan @ Deep Narayan Paswan used to make allegation against the father of the informant that he was keeping ill eyes on his wife and due to which by making false allegation against the father of the informant they have killed him by sharp cutting weapon. Several persons witnessed this occurrence.

6. After having recorded the fardbeyan of the P.W.6, the same was forwarded to SHO, Jagdishpur Police Station for institution of a case and, accordingly, Jagdishpur P.S. Case No. 40 of 2009 was registered on 25.02.2009 for the offences punishable under Sections 302/34 of the Indian Penal Code.

7. After completion of the investigation, the police submitted charge-sheet under Section 173 of the Cr.P.C. for the offence under Section 302/34 of the Indian Penal