Patna High Court
Indradeo Paswan And Anr vs The State Of Bihar on 24 October, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.11 of 2013
Arising Out of PS. Case No.-47 Year-1991 Thana- DANIYAWAN District- Patna
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1. Indradeo Paswan
2. Bam-bam Paswan,
Both are Sons of Niru Paswan, Resident of Village - Chaura, P.S.-
Daniyawan, District- Patna
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mrs. Soni Shrivastava, Advocate
Ms. Aditi Sharma, Advocate
For the Respondent/s : Mr. Zeyaul Hoda, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 24-10-2024
At the outset, learned counsel for the appellants
submit that Appellant No. 1, namely, Indradeo Paswan has died
on 15.12.2018 during the pendency of this appeal as stated in
para 2 of the supplementary affidavit filed by the learned
counsel for the appellants.
2. Accordingly, the name of the appellant no. 1,
namely, Indradeo Paswan be abated.
3. The present appeal has been filed under Section
374(2) of the Code of Criminal Procedure, 1973 (hereinafter
referred as ‘Cr.P.C.’) challenging the Judgment of conviction
and order of sentence dated 04.12.2012 passed by the learned
Patna High Court CR. APP (SJ) No.11 of 2013 dt.24-10-2024
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Additional Sessions Judge-V, Civil Court, Patna City in
Sessions Trial No. 408 of 1993 arising out of Daniyanwan P.S.
Case No. 47 of 1991, instituted for an offence punishable under
Sections 147, 148, 323, 324, 325 and 307/34 of the Indian Penal
Code and appellant no.1 has been convicted for 5 years of
simple imprisonment for the offence punishable under Section
307 of the I.P.C. and is further sentenced to pay fine of Rs.
2,000/- to the informant and on default of payment of fine he
further will be sentenced to simple imprisonment for 2 months.
Appellant no. 2 has been convicted for 4 years simple
imprisonment for the offence punishable under Section 307 of
the I.P.C, 6 months of simple imprisonment for the offence
under Section 323 of IPC and 1-year simple imprisonment for
the offence under Section 325 of IPC.
4. Heard Ms. Aditi Sharma, learned counsel for the
appellant and Mr. Zeyaul Hoda, learned APP for the State.
5. The brief facts leading to the filing of the present
appeal are that as per the fardbeyan of the informant, on the
alleged date of occurrence at about 9 am, the informant returned
back to his home from the farm house of Rameshwar Yadav and
in the meantime the accused persons severally armed with lathi
and farsa rushed at his door. The accused persons namely
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Indradeo Paswan, Bambam Paswan and other co-accused
persons came to his Darwaja and started assaulting him. It is
alleged that the accused Indradeo Paswan inflicted farsa blow
on his head causing him head injury and co-accused Bambam
Paswan inflicted him lathi blow on his left-hand causing hand
fracture and other co-accused persons also inflicted injuries to
the informant.
6. On the basis of such fardbeyan Daniyanwan P.S
Case No. 47 of 1991 was registered for an offence punishable
under Sections 147, 148, 323, 324, 325 and 307/34 of the Indian
Penal Code and after investigation charge sheet was submitted,
thereafter the accused persons were put on trial after
commitment of the case to the Court of Sessions.
7. The prosecution examined altogether 6 prosecution
witnesses in this to substantiate the charges against the accused
persons, out of them PW-1 Rameshwar Paswan, PW-2 Ganauri
Paswan, PW-3 Awadesh Paswan, PW-4 Fulla Devi (wife of the
informant), PW-5 Ram Lila Paswan (the Informant) and PW-6
Dr. Umesh Paswan. The Injury report has been marked as Ext.
1. No evidence has been adduced from the side of defence. In
this case the Investigating Officer of this case has not been
examined during the trial.
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8. Learned counsel for the appellant Ms. Aditi
Sharma, at the outset, submits that there are two versions of the
same occurrence, consisting of a case and a counter case. PW-1
in paragraph no. 6 of his deposition mentions that Lakhan
Paswan has filed a counter case and in paragraph 18, denies the
assertion that they beat Ram Lakhan in the morning. PW-3 (the
brother of the informant) in paragraph no. 9 of his deposition,
states that a case has been lodged by Ram Lakhan, in which he
is on bail and PW-5 (informant) in paragraph nos. 10 and 20 of
his deposition, refuses the claim that they went to steal and fell
down during the chase. These statements of the witnesses
indicate the existence of counter case and the accusations made
against each other is false and fabricated and it also indicates
that the prosecution is not coming out with the true picture of
this case.
9. Learned counsel for the appellant further submits
that prosecution witnesses are all related/ interested witnesses
and no independent witness has been examined during the trial
despite the fact that the occurrence is said to have taken place
outside the house of the informant and others had just assembled
at the place of occurrance. Upon perusal of records, it transpires
that inimical relationship on account of land dispute has been
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admitted between the parties, which is widely acknowledged by
nearly all the witnesses involved, therefore, there are all chances
of false implications.
10. Learned counsel for the appellant further contends
that the presence of weapons such as rods and farsa have only
been mentioned to emphasize upon the severity of the injury. It
is further submitted that injuries caused by a farsa would be
sharp cutting in nature but all the three injuries caused to PW-5
as stated by the doctor (PW-6) are from hard and blunt
substance. Considering the materials available on record, it
seems more likely that the injuries sustained are the result of the
scuffling, which took place between the parties rather than a
premeditated attempt to cause death.
11. Learned counsel for the appellant lastly submits
that according to the injury report (Exhbit-1) by the doctor (PW-
6), that the injury no. iii, is grievous in nature, but it is not based
upon any authentic report, i.e., X-ray report or X-ray plate, as
the same have not been brought on record and in order to
ascertain the exact nature of injuries, the X-ray report would be
necessary. The doctor has further opined in his cross-
examination that injury no. iii may be caused by accidental fall.
It appears from the evidence of the witnesses that the informant/
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injured was taken first to the police station and not to the
hospital for better treatment. On the same piece of evidence,
five accused persons have been acquitted of all the charges
levelled against them. Moreover, there is no recovery/ seizure of
any incriminating article, not even lathi which was allegedly
used in the occurrence. It is further submitted that Investigating
Officer (I.O.) has not been examined during the course of the
trial which has caused prejudice to the defence and the
contradiction cannot be taken in the absence of questions raised
before the I.O. with regard to the statements of the witnesses
made under Section 161 of the Cr.P.C. and it is argued that the
F.I.R. and the fardbeyan has not been proved by the prosecution
but only signature of the informant had duly been proved. It is
well settled law that the F.I.R. is the backbone of any criminal
case and if the backbone is broken, then whole criminal case
would crumble.
12. In support of her arguments, she has further relied
upon the following judgments which are as follows;
(i) Criminal Appeal (SJ) No. 48 of 2009 passed by
Co-ordinate Bench of this Court in the case of Baleshwar Yadav
Vs. State of Bihar, 2018 SCC OnLine Pat 1557
(ii) State Vs. Sheenappa Gowda and Ors. reported in
Patna High Court CR. APP (SJ) No.11 of 2013 dt.24-10-2024
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2010 SCC OnLine Kar 5294
(iii) State of Bihar Vs. Sheo Persan Ram, reported in
2013 SCC OnLine Pat 133
13. On the other hand, learned Additional Public
Prosecutor Mr. Zeyaul Hoda has vehemently opposed the appeal
and submits that there is direct allegation against the present
appellant, namely, Indradeo Paswan and Bambam Paswan for
assaulting the informant with lathi and farsa to commit murder
of the informant. In view of the aforesaid statements and the
evidence on record, learned trial Court has rightly convicted the
appellant and the present appeal should not be entertained.
14. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court.
15. Before the Trial Court, prosecution examined 6
witnesses.
16. PW-1 Rameshwar Paswan has stated in his
examination-in-chief that as Ram Lila Paswan reached at his
Darwaja, the accused Indradeo Paswan, Bambam Paswan,
Sitaram Paswan, Niru Paswan, Saryug Paswan, Bhokhlu
Paswan, Satrughan Paswan, Manori Paswan, Ram Lakhan
Paswan and Bishuni Paswan rushed there armed with farsa and
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lathi and Indradeo Paswan inflicted farsa blow on the head of
Ram Lila Paswan causing him head injury and Bambam
inflicted him with lathi causing injury on his left hand and other
accused persons also started inflicting lathi blow upon the P.W-
5. In para-6 of his cross-examination, PW-1 has admitted that
there is case and counter case between both the parties.
17. PW-2 Ganauri Paswan has stated in his
examination-in-chief that Ram Lila Paswan reached at his
Darwaja and 10 accused persons reached there armed with farsa
and lathi, surrounded him and Indradeo Paswan inflicted farsa
blow on the head of PW-5 causing him head injury and the
accused Bambam Paswan inflicted lathi blow on his left hand
causing him hand fracture. He further stated that the wife of
Ram Lila Paswan namely, Fula Devi (PW-4) came to save her
husband and PW-5 was taken to the Daniyanwan Police Station
from where he was sent to Fatuha Government hospital. In para-
6 of his cross-examination PW-2 has admitted that his house is
at distance of 10 Bans from the house of the informant. In para-
6, he has also stated that there was previous altercation between
both the parties.
18. PW-3 Awadhesh Paswan has stated in his
examination-in-chief that all the accused persons surrounded
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Ram Lila Paswan in front of his house and Indradeo Paswan
inflicted farsa blow on the head of Ram Lila Paswan and
Bambam Paswan inflicted lathi blow to him causing left hand
fracture and rest accused persons were armed with Harve-
hathiyar. PW-3 had admitted in para-9 of his cross-examination
that the accused Ram Lakhan has earlier lodged a case against
him which is a counter case.
19. PW-4 is Fula Devi, wife of the informant Ram
Lila Paswan. She has stated in her examination-in-chief that at
the time of occurrence she was cooking meal in her house and
on hulla she came out of her house and saw the accused persons
at her darwaja. She has specifically named Indradeo Paswan as
holding farsa and assaulting her husband therewith. She has
stated that Bambam Paswan inflicted lathi blow causing fracture
of his left hand. She has stated that when her husband fell down,
she covered his body by falling over him and as such his life
was saved.
20. PW-5 is the informant Ram Lila Paswan himself.
He has stated his case stating therein, that all the accused
persons surrounded him at his darwaja and accused Indradeo
Paswan inflicted him with farsa and other accused persons were
armed with lathi. He has further stated that he sustained head
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injury by means of farsa blow inflicted by Indradeo Paswan and
the accused Bambam Paswan inflicted lathi blow on his left-
hand causing hand fracture. He has stated that his wife saved
him. He has further stated that he was taken to Daniyanwan
Police Station from where he was sent to Daniyanwan Govt.
hospital. PW-5 has proved in his evidence. He has stated that his
statement recorded by the Daniyanwan police and case was
lodged. PW-5 has admitted in para-19 of his evidence that
accused persons lodged a case against him.
21. PW-6 is Dr. Umesh Prasad who was posted as
M.O. in Fatuha State dispensary as M.O. on 19-12-1991 and he
examined the injured Ram Lila Paswan son of Parma Paswan of
village Chauda, P.S. Daniyanwan and found the following
injuries on his person; –
(i) Lacerated wound 1
l/2″x1/4″x1/4″ on parietal region of scalp. nature
of injury-simple caused by hard and blunt
substance.
(ii) A swelling 2″x3″ on the back
of the trunk simple caused by hard and blunt
substance.
(iii) A swelling 2″x2″ on middle
of the left forearm with long cracks of fracture.
The forearm can be bent at the
side of the injury according to his report,
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Fracture of both radius and ulna,
Nature of injury- grievous caused
by hard and blunt substance.
PW-6 has proved the injury report in his pen and signature
which has been marked as Ext.1. In para-9 and 10 of his cross-
examination PW-6 has specifically stated that the injury was
obvious for ascertaining it as grievous and fractured bone had
not come upward and there was no bleeding.
22. Defence has produced only one witness i.e. DW-1
Pramod Kumar, advocate clerk who was only a formal witness.
Further defence submitted five exhibits.
23. On the basis of evidence available on record and
after considering the submissions made by the learned counsel
for the respective parties, it appears that there are discrepancies
regarding the sequence of events and the presence of individuals
at the scene of the incident. It appears from the suggestions
given in cross-examination of the witnesses by defence that they
have arrived at the place of occurrence and on hulla, accused
persons had left the place of occurrence. It further appears that
police had recorded the statement of the informant at Fatuah
Government Hospital and not in the police station as stated in
para-6 of his deposition made by PW-5 (informant) when he
was bought there earlier. These discrepancies in the deposition
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of the witnesses raised serious questions about the accuracy and
the reliability on the account of the incident provided and
inconsistency regarding the sequence of events and whereabouts
of the individuals which indicates gap in the understanding of
what truly transpired during the incident.
24. Further statements made by PW-1 in para 14 and
15 of his deposition suggests that he had arrived at the place of
occurrence on hulla and the accused persons had already fled
away. PW-2 in para 13 of his deposition states that no statement
of other witnesses were recorded on 19.12.1991, i.e., the date of
occurrence, except the PW-2. PW-3 in para 16 states that he is
not sure as to when his statement was recorded before the
police. PW-4 (wife of the informant) in para 23 of her
deposition stated that her statement was taken after the lapse of
one day of the occurrence at her house and the police had not
written the statement of anyone else, except her. PW-5 in his
deposition submits that the injury sustained by the informant is
caused by hard and blunt substance and upon considering the
injury report and deposition of Dr. Umesh Prasad (PW-6), there
is no whisper that the injury has been caused by the Farsa. All
the witnesses have asserted the prosecution case that informant’s
injury has been caused by the Farsa blow but on perusal of
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deposition of Dr. Umesh Prasad, it seems that injuries sustained
by the informant has been caused by the hard and blunt
substance and there is no proof of Farsa blow which is alleged
in the fardbeyan and deposition of the PW’s and from this it
appears that all PW’s have suppressed the material facts
regarding the injury by farsa blow, so, it creates serious doubts
against the prosecution.
25. On perusal of the impugned judgment of
conviction and order of sentence dated 04.12.2012 passed by the
learned Additional Sessions Judge-V, Civil Court, Patna City in
Sessions Trial No. 408 of 1993 arising out of Daniyanwan P.S.
Case No. 47 of 1991, the compliance of Section 313 of Cr.P.C.
has been done by the learned trial court and mere mention of
Section 313 of Cr.P.C. is there and the accused has not been
heard correctly.
26. Considering the provision of Section 313 of the
Cr.P.C., this provision of the aforesaid section has a purpose of
empowering the Court to examine the accused to meet the
requirement of the principle of natural justice and the accused
on the basis of this provision, may be asked to furnish some
explanation as regards the incriminating circumstances
associated against him and the Court must take note of such
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explanation. The provision of Section 313 is to establish a direct
dialogue between the Court and the accused and a proper
methodology is to be adopted by the Court for recording the
statement of the accused to by throwing light upon the
incriminating circumstances and evidence and seek an
explanation of the accused person. If the opportunity of
examination under section 313 is given to the accused, and is
not done in an accurate manner, it may result in imperfect
appreciation of evidence.
27. The relevant paragraphs of the judgements
referred by the learned counsel for the appellant are as follows;
(i) In Criminal Appeal (SJ) No. 48 of 2009 passed by
Co-ordinate Bench of this Court in the case of Baleshwar Yadav
Vs. State of Bihar, 2018 SCC OnLine Pat 1557 which is as
follows;
“13. This Court is of the view that
without examining X-ray report with regard to
those injuries, opinion cannot be formed with
regard to nature of injury. The Doctor in the
instant case has opined Injury No. 1 to 3 to be
grievous in nature without any supporting
document. Injury Nos. I to III is quoted below:
1. Swelling of whole left leg and
foot below the knee with limitation of
movement.
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II. Swelling of whole right leg
and foot with limitation of movement.
III. Swelling of right shoulder,
upper arm with limitation of movement
of shoulder.
14. There is no finding of the Doctor
on the basis of supporting document to describe
aforesaid injuries to be grievous in nature.
15. Therefore, this Court is of the view
that conviction of the Appellants Yadu Yadav and
Kailash Yadav under Section 325 Penal Code,
1860 is not in accordance with law and the same
is accordingly, set aside”
(ii) In State Vs. Sheenappa Gowda and Ors. reported
in 2010 SCC OnLine Kar 5294 whose relevant paragraph is as
follows;
“18. Therefore, the question for
determination is limited to find out whether the
said injury No. 2 is proved to be a grievous
injury sustained by PW. 4. It is well settled that
In criminal cases, the burden of proving the guilt
of the accused is always on the prosecution and
that burden would not shift unless there is a
presumption or defence as enumerated in the
Penal Code, 1860 is taken by the accused. In this
case, the defence taken by the accused is one of
denial. It is clear from the evidence of PW. 1 that
he has given description of injury on physical
examination of PW. 4 and has come to the
Patna High Court CR. APP (SJ) No.11 of 2013 dt.24-10-2024
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phalanx. It is well settled that when the
prosecution alleges that grievous injury has been
caused, it is necessary for the prosecution to
prove the same beyond resonable doubt. The
evidence of PW.1. would only show that there
was injury as described in the wound certificate
– Ex.P2. When PW. 1 suspected such fracture, he
ought to have referred the injured – PW. 4 for
taking X-ray to confirm his finding that there is
fracture of middle phalanx. It is now well settled
hat unless the prosecution produces the X-ray for
confirmation of fracture opined by the Doctor on
medical examination clinically it cannot be said
that the accused have caused grievous injury of
fracture. It is true that in the cross-examination
of PW. 1, the learned Counsel appearing for the
accused has not disputed the nature of injuries
spoken to by PW.1. However, he same would not
dispense with the production the X-ray by the
prosecution to prove beyond reasonable doubt
that the injured had sustained fracture of middle
phalanx, which is an opinion given by PW. 1
Doctor only on clinical examination of PW. 4,
the injured. Therefore, it is clear that the finding
of the learned Sessions Judge holding that the
prosecution has failed to prove that the accused
Nos. 1 to 3 and 5 have committed the offence
punishable under Section 326 of I.P.C. and the
offence committed by them falls within the ambit
Patna High Court CR. APP (SJ) No.11 of 2013 dt.24-10-2024
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(iii) In State of Bihar Vs. Sheo Persan Ram, reported
in 2013 SCC OnLine Pat 133 passed by the Co-ordinate Bench
of this Court whose relevant paragraph is as follows;
“8. Further it is made clear that some
thing can be observed by open eye by the doctor
(expert) that is nature of the weapon and injury
appearing prima facie. For its gravity only x-ray
is necessary. X-ray report if speaks about the
nature of injury grievous, its help is necessary.
For being the injury simple there is no need of
xray plate. So, the nature of the injury simple
may not be doubted when abrasion and tattooing
can be observed by open eye. So, further mistake
has been committed by the trial court.”
28. Upon perusal of the aforesaid judgements and
facts and circumstances of the present case, I find and hold that
the prosecution has failed to substantiate the prosecution case as
injury of the informant is not supported by the authentic X-ray
report or X-ray plate, as the same has not been brought on
record and in order to ascertain the exact nature of injuries, the
X-ray report was necessary. In this case also, the F.I.R is not
proved, therefore, this Court comes to this conclusion that
fardbeyan, formal F.I.R. and registration of the endorsement of
the case has not been proved by the prosecution. As it is well
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settled law that the F.I.R. is the backbone of any criminal case
and if the backbone is broken then whole criminal case would
crumble. Moreover, the statement of the prosecution witnesses
are based on hearsay. Hence, the impugned judgment of
conviction and order of sentence dated 04.12.2012 passed by the
learned trial Court against the appellant is set aside and the
appellant is acquitted from the charge levelled against him. As
the appellant is on bail, he is discharged from the liability of bail
bond.
29. Accordingly, this appeal is allowed.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
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