DINESH PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) AT the outset, we may briefly refer to the salient features of the prosecution case against the appellant centering around the incident in question. The gravamen of charges against the sole appellant was that at about 7.30 p.m. on 6th February, 1991, while deceased Shiv Prakash along with his brother Om Prakash (P.W. 5) and Sushil Kumar (P.W. 6) was returning after purchasing vegetables and sweets and had reached south of the house of Sudarshan Ram, the appellant also accompanied them and fired a shot from the front side on the chest of Shiv Prakash, pursuant to which, he dropped on the ground. On alarms being raised, it was alleged that those who flocked to the place of occurrence, were Bhola alias Jai Prakash Paswan, Baidyanath Prasad, Arjun Prasad, Krishna Sao and others, before whom the injured made oral dying declaration stating inter alia, the names of the appellant as the assailant and the visitors were also informed by Om Prakash about the appellant being assailant of his brother. After the injured was carried to Pilgrim hospital for treatment, there too both the deceased and his brother disclosed complicity of the appellant as the assailant, who had shot at the injured. As the injured was in precarious condition, the doctor (P.W. 9) referred Shiv Prakash to Magadh Medical Hospital, Gaya, and there too the injured was crying loudly about the complicity of the appellant as his assailant and in course of treatment, the injured eventually succumbed to the injuries. The prosecution was launched at behest of Om Prakash Paswan (P.W. 5), brother of the deceased, pursuant to which usual investigation commenced during which the Police Officer recorded statements of witnesses, visited the place of occurrence, secured post mortem examination report and on conclusion of investigation, laid charge sheet before the Court.

(2.) THE plain defence of the appellant was that of his innocence and his false implication on behest of Sri Jai Prakash Palit, Ex M.L.A. and local leader of Congress. The State examined at trial altogether 9 witnesses, who are brother of the deceased, two doctors, the Police Officer and others, who claimed to have reached the place of occurrence shortly after the incident. The trial court after proper evaluation of the testimony of the witnesses, while did not find merit in the defence of the appellant, recorded verdict of guilt finding the appellant guilty under section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life.

(3.) NOW we may switch over to the evidence of Sushil Kumar (P.W. 6) who happens to be the maternal cousin of the deceased and also that of Om Prakash. The narration made by this witness at trial was that on 6th February, 1991, while Shiv Prakash and Om Prakash were returning with him from market after purchasing vegetables and sweets when they happened to reach near the house of Sudarshan Ram, the appellant came there and having accompanied them, fired a shot at Shiv Prakash and made good his escape. They removed Shiv Prakash to hospital and eventually he died at Magadh Medical College Hospital. The fardbeyan of Om Prakash Paswan recorded by the Police also bears his signature testifying his presence at the time of recording the fardbeyan of his brother. As for the motive, the witness would state that Shiv Prakash was a social worker, who had reprimanded the appellant not to play gambling for which the appellant had threatened him. Three witnesses, namely, Baijnath Prasad (RW. 1), Ramjee Prasad (P.W. 2) and Jai Prakash Paswan (P.W. 4) stated to have reached the place of occurrence shortly on hearing the sounds of firing, when they noticed Shiv Prakash in pool of blood bearing injuries on his person. All these three witnesses stated about oral dying declaration having been made by the injured, about complicity of the appellant who fired shot on him. Ramjee Prasad (P.W. 2) also claimed to have witnessed the fleeing of the appellant from the place of occurrence. The complicity of the appellant was also disclosed to them by Om Prakash (P.W. 5) and Sushil Kumar (P.W. 6).