SHANKAR PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) ABOVE named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 24th September, 1990 passed in Sessions Trial No. 262 of 1987 by the learned 2nd Additional Sessions Judge, Bhagalpur whereby the appellants were found guilty for the offence punishable under sections 302 read with section 34 of the Indian Penal Code and each of them were sentenced to undergo imprisonment for life. They were further found guilty for the offence punishable under section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years. The sentences were ordered to run concurrently.

(2.) WITH regard to an occurrence of 7.00 PM on 24.7.1986 which led to killing of Hira Paswan, fard-beyan (Ext. 3) of Adhiklal Paswan (PW 2), the brother of the deceased, was recorded at 8.00 PM on the same day at Panjwara Out Post, wherein Adhiklal Paswan gave vivid details of the occurrence which led to killing of Hira Paswan. He went to the out post along with the corpus of deceased Hira Paswan and at that time he was accompanied by Sucha Paswan (PW 4), Niwas Paswan (PW 5), Prakash Paswan (PW 1). About the occurrence the informant stated that his brother Hira Paswan had been to attend the market and thereafter, he was returning at about 7.00 PM. At that time he was crossing by the side of house of accused Sardari, then he noticed scuffle between the informant's Bhabhi Jangli Devi (PW 7)- tendered and another Bhabhi Masomat Yasoda Devi (not examined) with regard to grazing of maize by she goats. On account of that Sardari Paswan (appellant no. 2), Shankar Paswan (appellant No. 1), Anandi Paswan (acquitted), Ashok Paswan, Bhairo Paswan were quarrelling. Hira Paswan requested the accused persons and advised them not to quarrel and abuse and assault the women. On this Sardari Paswan asked his sons to assault, upon which Shankar Paswan who was having Bhala in his hand attacked which caused injury on the left temporal side of Hira Paswan who fell down and blood started coming out. After Hira Paswan fell down, he was assaulted through Bijar by Anandi Paswan, then Ashok Paswan assaulted on the chest by lathi. Others also assaulted. Indiscriminate assault caused instantaneous death. The informant received injury in course of try to save his brother and he was assaulted by Anandi through Bijar. At the time of occurrence, Prakash Paswan (PW 1), Niwas Paswan (PW 5) and others were present and they were intervening and trying to settle the dispute. The fard-beyan resulted into formal FIR (Ext. 4) Banka Barahat P.S. Case No. 292 dated 25.6.1986 under sections 302/34 of the Indian Penal Code. The fard-beyan was received in the Court of learned C.J.M., Bhagalpur on 27.6.1986. Investigation commenced, place of occurrence was examined, inquest report of the dead body (Ext. 5) was prepared, some seizures of traditional weapons having blood stains were made, injury reports (Ext. 2 and 6) were procured, post mortem examination report (Ext. 1) was also obtained. The Police after investigation found the occurrence to be true and submitted chargesheet. The offence was triable by the court of Sessions, so after supply of police papers the case was committed to the court of sessions where charge under section 148 IPC was explained against Sardari Paswan, Shankar Paswan, Anandi Paswan and Bhairo Paswan. Charge under section 302 read with section 149 of the Indian Penal Code was explained to Sardari Paswan, Shankar Paswan, Anandi Paswan, Bhairo Paswan and Ashok Paswan. Ashok was further charged under section 147 of the Indian Penal Code, whereas, Sardari Paswan and Anandi Paswan were further charged under section 323 of the Indian Penal Code. Record of Bhairo Paswan and Ashok Paswan was split up on 17.5.1990. After the accused persons pleaded their innocence, the trial proceeded.

(3.) BEFORE the trial court the prosecution has examined witnesses, they are: PW 1 Prakash Paswan is a FIR named witness and is Bhagina of the deceased, PW 2 Adhik Paswan is the informant and brother of the deceased, PW 3 Badri Paswan is nephew of the informant has been tendered by the prosecution. PW 4 Sucha Paswan is another FIR named witness and brother of the deceased. PW 5 Niwas Paswan is another FIR named witness and has been tendered and is Bhagina of the deceased. PW 6 Deep Narayan Paswan is seizure witness. PW 7 Jangli Masomat wife of the deceased has been tendered by the prosecution. Another lady PW 8 Fuda Devi Mosmat- sister of the deceased has also been tendered. PW 10 Baudhi Paswan Chowkidar has carried the dead body for autopsy. PW 11 was an independent witness, he has been declared hostile otherwise he is also a seizure witness. PW 9 Dr. Devendra Prasad held the autopsy on the dead body of deceased Hira Paswan and PW 12 has examined the injured- informant. PW 13 Jugal Kishore is the Investigating Officer. He has also scribed the fard-beyan.