Patna High Court delivered five judgements on December 20, 202 in Dasrath Paswan & Ors. vs. The State of Bihar, Ashok Singh vs. State of Bihar, Brij Kumar Pandey & Ors. vs. State of Bihar, Binod Sah vs. State of Bihar and Mainuddin Mian vs. State of Bihar.
In Dasrath Paswan & Ors. vs. The State of Bihar (2025), Justice Chandra Shekhar Jha of the High Court delivered a 37-page long judgement in a 41 year old P.S. case, wherein, he concluded:"38. The impugned judgment of conviction dated 19.02.2004 and order of sentence dated 20.02.2004 passed by learned Additional District and Sessions Judge, Fast Track Court III, Munger in Sessions Case No.58 of 1986 arising out of Barhiya P.S. Case No.161 of 1984, G.R. No.759 of 1984 is, hereby, set aside. 39. Accordingly, the appeal stands allowed. Appellants are acquitted by giving benefit of doubt. Since all above-named appellants/accused are on bail, they are discharged from their liabilities of bail bonds. Sureties stand discharged. 40. Fine, if any, paid be returned to the appellants/accused henceforth."
The appeal was preferred by the appellants-convict under Section 374(2) of the Code of Criminal Procedure (CrPC) challenging the impugned judgment of conviction dated February 19, 2004 and order of sentence dated February 20, 2004 passed by Additional District and Sessions Judge, Fast Track Court III, Munger in a Sessions case of 1986 which arose out of Barhiya P.S. case of 1984, G.R. of 1984, whereby the trial court had convicted all the appellants under Sections 147, 148, 149, 307 of the Indian Penal Code (IPC) and Section 27 of the Arms Act. The appellants namely, Ram Sabad Paswan (since died), Rambhajju Paswan and Anuj Pawan @ Ramanuj Pawan (since died) were sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.3,000/- to each for the offence punishable under Section 307 of IPC, rigorous imprisonment for three years with fine of Rs.2,000/- each for the offence punishable under Section 27 of the Arms Act.
The appellant Ram Balak Paswan, Dasrath Paswan, Anuj @ Ramanuj Pawan (since died), Chunni Paswan and Bundi Ram were also sentenced to undergo rigorous imprisonment for seven years with fine of Rs.2,000/- each for the offence punishable under Section 149 of the IPC, whereas all the appellants were further sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 148 of the IPC and rigorous imprisonment for two years for the offence punishable under Section 147 of the IPC. All the sentences were ordered to run concurrently.
The case of prosecution, as per fardbeyan of informant namely, Ramprit Pawan (PW-4), recorded by Mr. Sohan Sah, Sub-Inspector of Police, Lakhisarai Police Station was that while informant was coming to his house after taking bath from the well of Thakurbari on October 8, 1984 at about 6.30 A.M., all the appellants-accused variously armed with lathi, bhala, gadasa and firearms were cutting the bamboos standing on the land which is situated towards east of the house of the informant. The informant Ramprit Pawan forbade them from cutting the same as proceeding under Section 145 of the CrPC was pending between the parties with regard to the land on which bamboo clumps were grown. On objection, the appellants-accused became infuriated and appellant Dasrath Pawan ordered his associates to kill the informant, on which, the appellant-accused Ram Sabad Paswan (since died) fired from his country-made pistol, which hit to the informant in his back and front. The appellant Rambhajju Paswan also fired by his
country-made pistol, which hit to his right hand and shoulder as a result of which, the informant became unconscious and fell down on the ground. After some time, when he regained himself in hospital and he came to know that the accused jointly assaulted his brother Akshay Lal Paswan with garasa and lathi. The informant and his brother came to hospital for medical treatment at 10 A.M. on the same day. On the basis of fardbeyan, the Sub-Inspector of Police, Lakhisarai Police Station forwarded the fardbeyan to Barahiya Police Station for institution of a case. On the basis of fardbeyan, the Officer-in-charge, Barahiya Police Station lodged a case against the appellants-accused.
After completion of investigation, the Investigating Officer submitted charge-sheet under Sections 147, 148, 149, 324, 307 of the IPC and Section 27 of the Arms Act against the appellants-accused. The Jurisdictional Magistrate on the basis of materials collected during investigation, took cognizance of the offence and after compliance of Section 207 of the CrPC, committed the case to the court of sessions for trial and disposal in view of Section 209 of CrPC. 7. The Trial Court on the basis of materials as collected during the course of investigation explained charges to the appellants/accused for the offence punishable under Sections 147, 148, 149, 324, 307 of the IPC and Section 27 of the Arms Act, to which, they denied and pleaded ‘not guilty’ and claimed for trial. 8. To substantiate its case, the prosecution had examined altogether seven witnesses.
Justice Jha noted: "12. It is pertinent to mention that the learned trial court initially acquitted the appellants/accused but, the informant being aggrieved with aforesaid judgment, preferred Criminal Revision No.523 of 1989 before this Court and in exercise of power under Section 401(3) of the CrPC, the High Court has set aside the judgment and remanded back to the learned trial court for appreciation of evidences of PWs 2, 4 and 7 to its correct extent. After hearing both sides, the learned trial court has convicted above-named appellants/accused and sentenced them in the manner indicated above."
It is evident, the High Court had set aside the acquittal of the appellants/accused after hearing a criminal revision petition filed in 1989 and remanded back to the trial court for appreciation of evidences of PWs 2, 4 and 7. In compliance of the High Court's order, the trial court re-heared the case and convicted the appellants who were acquitted earlier. The name of the judge who had set aside the judgment and remanded the case back to the trial court is not in public domain.
Being aggrieved with the judgment of conviction and order of sentence, the appellants/accused/convicts preferred to appeal in the High Court.
Justice Jha observed: "31. It appears that the statement under Section 313 of the CrPC of accused/appellants has been recorded by learned trial court in very cryptic and mechanical manner and same is not acceptable under law in view of legal ratio as settled through Sukhjit Singh vs. State of Punjab [(2014) 10 SCC 270]". In Sukhjit Singh's case Supreme Court has held: “10. On a studied scrutiny of the questions put under Section 313 CrPC in entirety, we find that no incriminating material has been brought to the notice of the accused while putting questions. Mr Talwar has submitted that the requirement as engrafted under Section 313 CrPC is not an empty formality. To buttress the aforesaid submission, he has drawn inspiration from the authority in Ranvir Yadav v. State of Bihar [(2009) 6 SCC 595 : (2009) 3 SCC (Cri) 92]. Relying upon the same, he would contend that when the incriminating materials have not been put to the accused under Section 313 CrPC it tantamounts to serious lapse on the part of the trial court making the conviction vitiated in law. 11. In this context, we may profitably refer to a four-Judge Bench decision in Tara Singh v. State [1951 SCC 903 : AIR 1951 SC 441 : (1951) 52 Cri LJ 1491] wherein, Bose, J. explaining the significance of the faithful and fair compliance with Section 342 of the Code as it stood then, opined thus: (AIR pp. 445-46, para 30) “30. I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342 of the Criminal Procedure Code. It is not a proper compliance to read out a long string of questions and answers made in the committal court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of Section 342 of the Criminal Procedure Code, is so gross in this case that I feel there is grave likelihood of prejudice.”
Justice Jha relied on the decision in Hate Singh Bhagat Singh vs. State of Madhya Bharat [1951 SCC 1060: AIR 1953 SC 468 : 1953 Cri LJ 1933], wherein Justice Bose speaking for a three-Judge Bench highlighted the importance of recording of the statement of the accused under the Code expressed thus: (AIR pp. 469-70, para 8) “8. Now the statements of an accused person recorded under Sections 208, 209 and 342, Criminal Procedure Code are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box.”
Justice Jha underlined that this principle has been reiterated in Ajay Singh vs. State of Maharashtra [(2007) 12 SCC 341 : (2008) 1 SCC (Cri) 371] in following terms: (SCC pp. 347-48, para 14) “14. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of
the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.”
Justice Jha pointed that "32. From perusal of record, it appears that the Investigating Officer of this case has not been examined during the trial. In this context, it would be apt to reproduce relevant paragraph of the legal report of Hon’ble Supreme Court as available through Munna Lal v. State of Uttar Pradesh (supra), which are as under:-.“38. First, statement of PW-3 under section 161, Cr. P.C. was recorded nearly 24 days after the incident. Since the Investigating Officer did not enter the witness box, the appellants did not have the occasion to cross-examine him and thereby elicit the reason for such delay. Consequently, the
delay in recording the statement of PW-3 in course of investigation, is not referred to and, therefore,
remains unjustified. The possibility of PW-3, being fixed up as an eye-witness later during the process
of investigation, cannot be totally ruled out”.
Justice Jha noted that though PW 4 was said to have reached the place of occurrence at 1.30 p.m. on 5-9-1985 and recovered a bullet in the blood oozing out from the injury at the hip of the dead body, no effort worthy of consideration appears to have been made to seize the weapons by which the murderous attack was launched. It is true that mere failure/neglect to effect seizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral
testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not being found by this Court to be wholly reliable. The missing links could have been provided by the investigating officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the investigating officer could not depose as a witness, as told by PW 4, is that he had been sent for training. It was not shown that the investigating officer under no circumstances could have left the course for recording of his deposition in the trial court.
Justice Jha observed: "It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the investigating officer. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case. 33. It appears that the witness examined during trial are interested and related witnesses."
He drew on paragraph No. 32 and 33 of the legal report of Supreme Court as available through Nandlal vs. State of Chattisgarh (supra), which are as under:-“32. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in Vadivelu Thevar v. State of Madras [1957 SCC OnLine SC 13], has observed thus: “11. … Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.”
Justice Jha referred to paragraph no. 4 and 5 of the legal report of Supreme Court as available through State of Himachal Pradesh vs. Shamsher Singh (supra), which are as under:- “4. On an appeal preferred by the accused-respondent, the aforesaid conviction has been set aside and he has been acquitted for the offence under Section 307 IPC and Section 27 of the Arms Act, 1959 but has been convicted for the offence under Section 326 IPC and sentenced with imprisonment already undergone. 5. The High Court in acquitting the accused-respondent held that for an offence under Section 307 IPC, the court was obliged to see if the act was done with the intention or knowledge so as to cause death and since the facts do not prove such intention or knowledge on part of the accused-respondent, there cannot be an offence for attempt to murder under Section 307 IPC. It also observed that the intention has to be gathered from the entire circumstances of the case such as nature of the weapon used, the manner in which it was used, severity of the blow or hurt, the part of the body where the injury was inflicted and so on and not merely from the end result”.
Justice Jha record4ed: "35. Taking note of aforesaid available evidence as surfaced during trial, it is an admitted position that occurrence was free fight in nature, where both parties received injuries. The case of appellant for same set of occurrence lodged by appellant side prior to this case. Police upon investigation submitted final form against appellants. Injuries of appellants, which was also of gunshot could not explain by prosecutions. I.O. of this case could not examined during trial, which also appears fatal for prosecution. PW-1, PW-2 and PW-3 deposed to arrived after actual occurrence. Allegation of firing appears general and omnibus out of testimony of PW-4, whereas same was stated in specified manner in FIR. PW-4 deposed that only two accused persons were carrying country-made pistol, whereas he was silent about Anuj Paswan (since died). All such unanswered events creates a doubt qua occurrence, which creates a serious doubts, the benefit of which must be extended to accused/appellants. 36. In view of aforesaid testimony of witnesses, who are related to informant (PW-4) cannot be wholly reliable as they appears interested witnesses in view of Nandlal’s case (supra). 37. Statement of appellants/accused also appears recorded in very cryptic and mechanical manner in view of Section 313 of the CrPC....."
The judgement concluded that the present appeal against appellant Nos. 2, 4 and 5 stands abated. "Now, this appeal survives against above-named four appellants only."
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