Raja Paswan vs State of Bihar - 2024 Supreme(Pat) 843

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 843

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) Nos.148 and 180 of 2018
(7.10.2024)
Raja Paswan (in 148)
Ravi Paswan and Ors. (in 180) ... Appellants
vs.
State of Bihar ... Respondent
(in both)

Advocates:
For the Appellants : M/s Soni Srivastava, Indrajeet Bhushan, Ravi Bhardwaj (in both)
For the Respondent: Mr. Sri Ajay Mishra, APP (in both).
For the Informant : M/s Binit Kumar, Raj Kishor Prasad (in both).

Headnote:
Indian Penal Code, 1860 – Sections 148, 307 and 302 – Arms Act, 1959 – Section 27 – Murder, Attempt to murder and rioting – Conviction and sentence – There had been dispute over a passage of land – There is nothing on record to conclusively hold as to which faction of neighbourhood was in actual possession of passage of land – It appears that right of easement was being exercised by accused persons – When a witness to occurrence himself is injured in the incident, testimony of such a witness is generally considered to be very reliable, as he is a witness who comes in with a built-in guarantee of his presence at scene of crime and he is unlikely to spare his actual assailant(s) in order to falsely implicate others – Several persons from both sides have been injured, though injuries on all such persons including members of prosecution and appellants' side have been found to be simple in nature – Testimony of eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and medical evidence – In cases where contradiction between medical evidence and ocular evidence, greater evidentiary value is of ocular testimony vis-à-vis medical evidence – Appellant did not have intention to kill deceased – However, shot fired at his behest hit deceased which led to his death – He is liable for offence under Section 304(II) of IPC and not for Section 302 of IPC – Conviction of appellant altered to one under Section 304(II) of the IPC – appeals are partially allowed. (Paras 46, 57, 61, 66, 77, 78 and 84)

Ashutosh Kumar, J.—Both the appeals were taken up together for hearing.

2. Appellant/Raja Paswan [Cr. App. (DB) No. 148 of 2018] has been convicted vide judgment dated 23.11.2017 under Sections 148, 307, 302 of the IPC and Section 27 of the Arms Act by the learned Additional Sessions Judge-III, Nalanda at Biharsharif in connection with Sessions Trial No. 108 of 2016/Trial No. 37 of 2016, arising out of Bihar P.S. Case No. 368 of 2015. By order dated 06.12.2017, he has been sentenced to undergo R.I. for three years for the offence under Section 148 of the IPC; to undergo R.I. for five years, to pay a fine of Rs. 10,000/- and in default of payment of fine to further suffer R.I. for four months under Section 307 of the IPC; to undergo R.I. five years, to pay a fine of Rs. 10,000/- and in default of payment of fine to further suffer R.I. for four months and to further undergo imprisonment for life, to pay a fine of Rs. 10,000/- and in default of payment of fine to further suffer R.I. for four months under Section 302 of the IPC.

3. All the sentences have been directed to run concurrently.

4. The rest of the appellants viz., Ravi Paswan, Faujdari Paswan, Gautam Paswan and Pratap Paswan in Cr. App (SJ) No. 180 of 2018 have been convicted under Sections 147 and 323/149 of the IPC by the same judgment. By order dated 23.11.2017, they have been sentenced to undergo imprisonment for one year for the offence under Section 147 of the IPC and to undergo imprisonment for one year under Sections 323/149 of the IPC.

5. We have heard Ms. Soni Srivastava for all the appellants in the two appeals and Mr. Binit Kumar, learned Advocate for the informant. The State is represented by the learned APP.

6. One Rishikesh Kumar @ Chhotan is alleged to have been shot dead by appellant/Raja Paswan.

7. According to the FIR lodged by Sunil Paswan (PW- 9), a dispute had erupted with respect to passage of land between the parties on 15.08.2015 at about 8:30 in the evening. Nine named accused persons including the appellants are said to have congregated in front of the house of P.W.-9. Appellant/Raja Paswan wanted the passage to be vacated and not to be used by the prosecution side in future. This had led to a scuffle and fight between the parties. In the meantime, appellant/Raja Paswan fired from his weapon hitting Rishikesh Kumar in his neck. He is alleged to have fired again, aiming at P.W.-9, but somehow or the other P.W.-9 remained unhurt. While all this was happening, the police party arrived and took all the injured persons viz., five in number (out of whom only three have been examined) along with the deceased to the hospital. At the time of lodging of the fardbeyan by P.W.-9, the deceased had not succumbed to the injuries.

8. Based on the fardbeyan of P.W.-9, Bihar P.S. Case No. 368 of 2015 dated 15.08.2015 was initially registered for investigation for offences under Sections 147, 148, 149, 341, 323, 324, 307, 337, 504 and 506 of the Indian Penal Code.

9. Rishikesh died after few days of treatment in PMCH, whereafter Section 302 of the Indian Penal Code was added.

10. Only the aforenamed appellants in the two appeals were chargesheeted, whereas the investigation with respect to others remained pending.

11. The Trial Court after having examined fourteen witnesses on behalf of the prosecution and none on behalf of the defence, convicted and sentenced the appellants as aforesaid.

12. While assailing the Trial Court judgment, Ms. Soni Srivastava, learned Advocate has argued that from the bare reading of the fardbeyan, it would appear that there was a dispute with respect to passage of land and that the accused persons had not assembled there for killing any person; rather the congregation at the house of P.W.-9 was for the purposes of intimidating and forcing the members of the prosecution party to abandon their claim or eschew from causing any hindrance in the free passage on the lane, which apparently was in the possession of the accused persons.

13. With this back