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2002 DIGILAW 524 (JHR)

Gokul Gope v. State of Bihar (Now Jharkhand)

2002-04-25

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
JUDGMENT : Lakshman Uraon, J.-All the four Criminal Appeals are directed against the judgment and order of conviction and sentence dated 27.9.1995 and 28.9.1995, passed by the 3rd Additional Sessions Judge, Chaibasa, in Sessions Trial No. 53 of 1992, and, as such, they are being disposed of by this common judgment. The learned 3rd Additional Sessions Judge, while acquitting accused Shyam Gope, Logen Gope, Lenga Purty, Jadu Nandan Biruli, Madan Gope, Ajit Kailash, Sona Ram Munda, Govind Biruli, Madhu Sudan Gope, Uday Knandayat and Brajo Mohan Tamsoy, from the charges levelled against them under Sec. 302/149 of the Indian Penal Code, has found guilty the appellants Gokul Gope, Biru alias Birendra Khandit, Akhay Naik alias Chhotu Biru Naik, Raju Khandit, Jiten Khandit, Kamal Khandit and Laxman Choudhary for the offence under Section 302/149 of the Indian Penal Code and accordingly convicted them for the offence under Section 302/149 of the Indian Penal Code and sentenced all of them to undergo imprisonment for life. 2. The prosecution case, as per the Fard-beyan of the informant Krishna Gope (P.W. 7), is that on 14.5.1990 at about 11.00 a.m. after taking meal he washed his hands and was just keeping Lata in the court-yard, his wife Triveni Devi not examined as prosecution witness), warned the informant to flee away, as the assailants had arrived. The informant Krishna Gope turned back and saw Raghu Khandait, Kamal Khandait, Laxman Choudhary, Gokhul Gope, Biru alias Birendra Khandait, Raju Khandit, Jitan Khandit, Pores and the son-in-law of Biru alias Birendra Khandait, entering into the house, in order to kill his uncle Mahavir Gope, due to old enmity. At that time the door of the house was open. Raju Khandit, Biru Khandait and Gokhul Gope had pistols in their hands, whereas Jitan Khandit and Laxman Choudhary had bombs in their hands. Rest of them were armed with Bhujali and Tangi. As the mob was violent, the informant, due to fear, concealed himself behind the back door and saw them. In the meantime, all the accused entered inside his house and caught hold of Suren Gope, Sala (brother-in-law) of Mahavir Gope. They assaulted him (Suren Gope) and asked to disclose the whereabouts of Mahavir Gape. Suren Gope asked them not to assault and informed that Mahavir Gope had gone to Chaibasa. In the meantime, all the accused entered inside his house and caught hold of Suren Gope, Sala (brother-in-law) of Mahavir Gope. They assaulted him (Suren Gope) and asked to disclose the whereabouts of Mahavir Gape. Suren Gope asked them not to assault and informed that Mahavir Gope had gone to Chaibasa. Even then all of them continued assaulting Suren Gope and in the meantime, Gokul Gope fired with his pistol on the temporal region (Kanpatti) of Suren Gope. On being injured, Suren Gope fell down on the verandah. When he fell down, Kamal Khandit gave Bhujali blwo on his head. Thereafter, the assailants knowing that Suren Gope had died, left him. Biru alias Birendra Khandait asked the assailants to go to road to cause murder of Mahavir Gope by getting him down from the bus by force. Thereafter, all the assailants proceeded towards the Station in running condition. Pan mati Devi, wife of Mahavir Gope, not examined as prosecution witness, and Raghunath Gope (P.W.9), who is witness on the inquest report and has been declared hostile, are alleged to have seen the occurrence. The informant also claimed to identify all the assailants. The informant also claimed to identify all the assailants. The informant out of fear did not come out of home to inform the police. He was waiting for Mahavir Gope. After two hours of the alleged occurrence, Jamuna Kumari (PW. 10) and Laxmi Kumari (PW. 8), both daughters of Mahavir Gope (deceased) and Bhagwan Gope (not examined as prosecution witness) came home in frighten condition and informed that as Station Colony near Shiv Mandir, Mahavir Gope and Bhishm Gope were dragged from the C.T.C. bus by accused Raju Khandait, Biru alias Birendra Khandait, Raghu Khandait, Kamal Khandait, Laxman Choudhary, Gokhul Gope, Jiten Khandit, Pores and the son-in-law of the sister of Biru alias Birendra Khandait. They started assaulting Mahavir Gope and Bhishm Gope and were trying to bring them out of the bus. The informant was informed that the bus driver was asked to proceed ahead but the bus remained stopped there. Both Mahavir Gape and Bhishm Gape were boarded down from the bus and all the accused started assaulting them. Biru alias Birendra Khandait gave a stone blow on the head of Mahavir Gape and crushed his head with big stone. Kamal Khandit assaulted Bhishm Gape with Bhujali on his neck. Both Mahavir Gape and Bhishm Gape were boarded down from the bus and all the accused started assaulting them. Biru alias Birendra Khandait gave a stone blow on the head of Mahavir Gape and crushed his head with big stone. Kamal Khandit assaulted Bhishm Gape with Bhujali on his neck. Raju Khandait fired at Bhishm Gape, causing injury to him. When Bhishm Gape fell down, then Raju Khandit assaulted him with big stone on his head. Both the daughters of Mahavir Gope, namely, Jamuna Kumari and Laxmi Kumari, informed that when they saw the alleged occurrence, out of fear to save their lives, they fled away and went to their home and informed about the alleged occurrence to Krishna Gope and other family members. Jamuna Kumari had also informed that she was given two slaps by accused Kamal Khandait. The informant came to know about the incident from Jamuna Kumari, Laxmi Kumari and Bhagwan Gope that the alleged occurrence took place due to old enmity. The Fardbeyan of the informant was also witnessed by Jamuna Kumari and Laxmi Kumari, who signed on it and their signatures were marked as Exts. 4, 4/1 and 4/2 respectively. 3. The prosecution has examined altogether eleven witnesses in support of its case. The informant Krishna Gope (PW. 7) was just washing his mouth and hands after taking meal in the court-yard and was just keeping Lota in the courtyard, his wife Triveni Devi came raising Hulla from outside and informed him that the assailants are coming. On hearing the warning of his wife, the informant fled away along with his wife. His statements was recorded by the police on which he signed (Ext. 4). He has stated that he did not turn back to see the alleged occurrence and hence this witness (informant) was declared hostile by the prosecution. This witness even failed to identify the accused, who were facing trial and were present at the Dock, as per his evidence at paragraph no. 7., He has stated that Jamuna Kumari and Laxmi Kumari when returned back from Chaibasa, they met him after two hours and informed that their father Mahavir Gope and uncle Bhishm Gope were murdered but both of them had not disclosed as to who murdered their father and uncle. P.W. 1 (Gopal Das) is a formal witness, who has proved the formal First Information Report (Ext. 1). P.W. 1 (Gopal Das) is a formal witness, who has proved the formal First Information Report (Ext. 1). P.W. 2 (Rana Pratap Singh) was the Officer-in-charge of Tonto Police Station on 14.5.1990. He was directed to proceed to the place of occurrence at Jorapokhar, where three persons were murdered, as there was none at the Jhikpani Police Station. He along with A.S.I. Sri S.N. Singh went to Jorapokhar, near Jhikpani Station. By that time the Officer-in-charge of Jhikpani Police Station also arrived there and himself started writing First Information Report. This witnesses was instructed to prepare inquest report. He prepared inquest report of all the three dead bodies, namely, Bhishm Gope (Ext. 2), Mahavir Gope (Ext. 2/1) and Suren Gope (Ext. 2/2). He was informed orally by the Deputy Superintendent of Police, Kiriburu, to proceed at the place of occurrence along with a constable. P.W. 3 (Dr. Arun Kumar Gupta) is the doctor, who has conducted the post-mortem examination of all the three dead bodies and has prepared post-mortem reports in his pen and signature (Ext. 3 series). P.W. 4 (Mahabir Biruli) has been declared hostile by the prosecution. P.W. 5 (Gardi Munda) and P.W. 6 (Shyama Prasad Nag) are tendered witnesses. P.W. 9 (Raghunath Gope) has simply seen the dead bodies of Mahavir Gope, Suren Gope and Bhishm Gope. The inquest reports were prepared in respect of all the three dead bodies on which he put his signatures. His statement was not recorded by the Investigating Officer, as deposed by him and hence he was declared hostile by the prosecution. In paragraph no. 5 he has stated that as the accused persons had murdered three persons, therefore, he was afraid of them. He has not seen as to who caused murder of Mahavir Gope, Bhishm Gope and Suren Gope. PW. 8 (Laxmi Kumari) and P.W. 10 (Jamuna Kumari) are the eye witnesses of the alleged occurrence, which took place at the Station Colony, near Shiv Mandir. P.W. 11 (Shiv Nath Ram) was the Investigating Officer till handing over the charge of Investigation to Sri J.K. Roy, S.I., on 17.5.1990. 4. The learned court below mainly relied on the evidence of P.W 8 (Laxmi Kumari) and P.W 10 (Jamuna Kumari) and has stated that their ocular evidence has been supported by the doctor (P.W 3) and also the Investigating Officer (P.W 11), who had visited the place of occurrence. 5. 4. The learned court below mainly relied on the evidence of P.W 8 (Laxmi Kumari) and P.W 10 (Jamuna Kumari) and has stated that their ocular evidence has been supported by the doctor (P.W 3) and also the Investigating Officer (P.W 11), who had visited the place of occurrence. 5. On the basis of the evidence, available on the record, the learned court below convicted all these appellants and sentenced to undergo life imprisonment for the offence under Section 302 read with 149 of the Indian Penal Code. Now the point for consideration in this case is as to whether P.W 8 (Laxmi Kumari) and P.W 10 (Jamuna Kumari) are the eye witnesses of the alleged murders of Mahavir Gope and Bhishm Gope and whether the prosecution has substantiated the charges, levelled against these appellants beyond all shadow of reasonable doubts, to cause their murder due to old enmity. 6. Srinath Ram (P.W 11) has recorded the Fard-beyan of the informant Krishna Gope (P.W 7) on 14.5.1990 at about 3.15 p.m. in presence of P.W 8 (Laxmi Kumari), P.W 9 (Raghunath Gope) and P.W 10 (Jamuna Kumari). P.W 8 (Laxmi Kumari) and P.W 10 (Jamuna Kumari) were presen1 throughout when the Fard-beyan of Krishna Gope (P.W 7) was recorded by him or which Krishna Gope, Laxmi Kumari and Jamuna Kumari put their signatures. P.W E (Laxmi Kumari) and P.W 10 (Jamunc Kumari), both daughters of deceasee Mahavir Gope, have stated that on that day they had gone to Chaibasa to appear, at their examination, which was post-poned on that day and were returning home through C.T.C. bus. P.W 8 (Laxmi Kumari) in paragraph no. 1 has stated that She along with her sister Jamuna Kumari (P.W 10), father Mahavir Gope (deceased) and cousin brother Bhishm (deceased) had gone to Chaibasa and on the same day through C.T.C. bus, they returned to Jhikpani. Later on she has stated that her father had not gone to Chaibasa along with her sister rather she had gone to Chaibasa separately (Paragraph 16). PW. 10 (Jamuna Kumari) has stated that she and her sister alone had gone to Chaibasa to appear at an examination but when the examination was post-poned, then both the sisters went to Chaibasa Bus-stand to go to Jhikpani. There they met with their father and cousin brother, who were returning through that bus. PW. PW. 10 (Jamuna Kumari) has stated that she and her sister alone had gone to Chaibasa to appear at an examination but when the examination was post-poned, then both the sisters went to Chaibasa Bus-stand to go to Jhikpani. There they met with their father and cousin brother, who were returning through that bus. PW. 10 (Jamuna Kumari) has stated that while she and her sister Laxmi Kumari (PW. 8), father Mahavir Gope and cousin brother Bhishm Gope were proceeding for Jhikpani and at about 1.00 p.m. when the bus reached Jhikpani Railway Station near Shiv Mandir, then the accused peeped them from outside. She identified them to be Jiten, Kamal Choudhary, Pores, Raghu, Chhotu Biru, Laxman, Biru alias Birendra and Raju Khandait. Raju Khandait informed the other accused that Mahavir was inside the bus. Apprehending danger, Jamuna Kumari (PW. 10) asked the driver not to stop the bus and to drive it but in the meantime, someone dragged the driver out of the bus and thereafter, Chhota Biru opened fire. Kamal Choudhary ordered all the passengers to come down. All the passengers came out of the bus leaving both the sisters, their father Mahavir Gope and cousin brother Bhishm inside the bus. Appellant Gokhul Gope, having gun in his hand, entered in the bus through the rear gate and threatened Mahavir Gope to shoot him. Through the frontal gate Raju Khandait entered and assaulted this witness Jamuna Kumari (PW. 10) with fists on her back. In the meantime, Chhota Biru and Jiten also entered into the bus. Jamuna Kumari and her sister (PW. 8) tried to save their father and surrounded him. Chhota Biru slapped this witness (P.W. 10) twice. Thereafter, all the appellants entered into the bus and started assaulting her father. They dragged them out of the bus. At that time appellant Laxman had pistol in his hand whereas Raghu was having sword. Outside the bus also all the accused assaulted Mahavir Gape and Bhishm Gape. When Mahavir Gape fell down then Biru alias Birendra gave a stone blow on his head. The stone was a big one. Mahavir Gape, father of Jamuna Kumari (P.W. 10) and Laxmi Kumari (P.W. 8) died at the spot. Appellant Kamal Khandait gave a Bhujali blow on the neck of Bhishm Gape and appellant Raju Khandait fired at Bhishm Gape but it did not injure him. The stone was a big one. Mahavir Gape, father of Jamuna Kumari (P.W. 10) and Laxmi Kumari (P.W. 8) died at the spot. Appellant Kamal Khandait gave a Bhujali blow on the neck of Bhishm Gape and appellant Raju Khandait fired at Bhishm Gape but it did not injure him. When Bhishm fell down, then Raju picked up a big stone and assaulted on his head, resulting in his death. When both the sisters i.e. P.Ws. 8 and 10 saw the alleged murder, then to save their lives, they fled away towards their home. When they reached home, then they met Krishna Gape (P.W. 7-informant) and Raghu Nath Gape (P.W. 9). They informed about the alleged occurrence which had taken place near Jhikpani Railway Station, Shiv Mandir. On the other hand, Krishna Gape narrated them about the occurrence, which took place at their home village i.e. Jorapokhar, wherein, Suren Gape was done to death by laxman Chaudhary, Gokhul Gape, Chhota Biru, Raghu, Pores, Raju Khandait and Biru alias Birendra. 7. P.W. 10 (Jamuna Kumari) has stated that at about 3.00 p.m. Fard-beyan of Krishna Gape was recorded in her presence, which was read over on which Krishna Gape signed. Both the sisters i.e. P.W. 8 and P.W. 10, also signed on it. She has stated that the statements of both the sisters were not recorded on 14.5.1990 at about 3.15 p.m. rather their statements were recorded after three days of the alleged occurrence. P.W. 11 (Srinath Ram), who was the Investigating Officer, recorded the statement of only Krishna Gope (P.W 7) and Raghunath Gope (P.W 9). Both of them have been declared hostile by the prosecution although Raghunath Gope is a witness on the inquest reports, prepared by the Investigating Officer in respect of all the three dead bodies. The Investigating Officer has not assigned any reason as to why he did not examine Laxmi Kumari (P.W 8) and Jamuna Kumari (P.W 10) on that very day at Jorapokhar. He has also not recorded the statements of the nearby persons as there are shops and residential houses of many persons at Jhikpani, near Shiv Mandir. He did not even examine the bus conductor, driver or Khalashi or anyone else of the second place of occurrence Le. Jhikpani, Station Road, Shiv Mandir. He has also not recorded the statements of the nearby persons as there are shops and residential houses of many persons at Jhikpani, near Shiv Mandir. He did not even examine the bus conductor, driver or Khalashi or anyone else of the second place of occurrence Le. Jhikpani, Station Road, Shiv Mandir. On the other hand, P.W. 11 (Srinath Ram) handed over charge of investigation on 17.5.1990 to J.K. Rai, S.I. of Police. That second Investigating Officer, namely, J.K. Rai, S.I., who recorded the statements of other witnesses including P.W 8 and P.W 10 and submitted chargesheet, has not been examined by the prosecution. 8. The alleged statement of Laxmi Kumari and Jamuna Kumari that they had gone to Chaibasa to appear at the examination on 14.5.1990 has not been corroborated by any witness. Jamuna Kumari (P.W 10) has stated that she has got no proof either oral or documentary to show that she had gone along with her sister Laxmi Kumari to appear at an examination at Chaibasa. She did not recognise any of the passengers, who were in the C.T.C. bus. She had gone to Chaibasa from Jhikpani• at 8.00 a.m. boarding A.C.C. bus. Even then she could not identify the other girl students, who used to go and come to attend college. She has stated that no one will support her statement, who were in the bus along with her sister (Paragraph no. 32). She has stated that from Chaibasa to Jhikpani they had got their seats. On the other hand, her sister PW. 8 (Laxmi Kumari) has deposed that due to heavy rush they could not get any seat and were in standing position. They do not know as to why their father and cousin brother had gone to Chaibasa. PW 10 (Jamuna Kumari) has stated that she did not see the big stone, which was used to assault on the head of her father. On the other hand, in paragraph no. 93 she has stated before the police in her statement that Kamal Khandait gave Bhujali blow on the neck of Bhishm Gope and Raju Khandait fired at him, which did not injure him. When Bhishm Gope fell down then Raju Khandait assaulted on his head with a big stone, resulting in his death. In paragraph no. 93 she has stated before the police in her statement that Kamal Khandait gave Bhujali blow on the neck of Bhishm Gope and Raju Khandait fired at him, which did not injure him. When Bhishm Gope fell down then Raju Khandait assaulted on his head with a big stone, resulting in his death. In paragraph no. 96 she has stated that five accused persons who took out Bhishm Gope from the bus were not named by her before the Investigating Officer. She has also deposed that she was informed by Krishna Gope and Raghunath Gope that Suren Gope was murdered by Laxman Choudhary, Gokhul Gope, Chhota Biru, Raghu, Poresh, Raju Khandait and Biru alias Birendra. In paragraph no. 98 she has stated that she has not deposed before the Investigating Officer that Fard-beyan of Krishna Gope (PW. 7) was recorded in her presence or in presence of her sister, on which both of them put their signatures. 9. PW. 8 (Laxmi Kumari) has deposed that when the bus stopped at Jhikpani stand near Shiv Mandir, then the accused surrounded the bus. She identified Kamal Khandait, Laxman Choudhary, Poresh, Birendra Khandait, Chhota Biru, Raju Khandait, Gokhul Gope and Raghunath Khandait. She could not identify other persons, who had surrounded the bus. Kamal Choudhary when saw inside the bus, he informed the other accused persons that Mahavir was inside the bus. They entered into the bus and started assaulting Mahavir Gope. Gokhul Gope had gun in his hand, who entered through the rear gate of the bus and threatened to shoot Mahavir Gape, although Mahavir Gape is related with Gokhul Gape, as his Mama. From the frontal gate, Raju Khandait entered inside the bus and thereafter, started' assaulting Mahavir Gape. They took him out of the bus. All the accused started assaulting Mahavir Gape. Gokhul Gape assaulted with butt end of the pistol on the read, resulting in bleeding injuries. In the meantime, Birendra Khandait picked up a big stone and crushed the head of Mahavir Gape. Accused Raju Khandait assaulted with sword (Talwar). When her cousin brouther started fleeing away, then all the five accused caught hold of him. Accused Kamal Khandait assaulted him with Bhujali on the neck. Raju Khandait fired at Bhishm but it did not injure. When Bhishm Gape fell down, then Raju Khandait assaulted him with a big stone on his head. Accused Raju Khandait assaulted with sword (Talwar). When her cousin brouther started fleeing away, then all the five accused caught hold of him. Accused Kamal Khandait assaulted him with Bhujali on the neck. Raju Khandait fired at Bhishm but it did not injure. When Bhishm Gape fell down, then Raju Khandait assaulted him with a big stone on his head. The alleged occurrence took place due to old enmity. She has stated that first of all the Fardbeyan of Krishna Gape was recorded but her statement and her sister's statement were not recorded at that time rather they were examined after three days of the alleged occurrence. When the Investigating Officer was recording the statement of Krishna Gape, then she was inside her home. She did not hear the statement, given by Krishna Gape (P.W. 7), as his statement was r9corded in the Angan. Thus, she has contradicted the statement of her sister Jamuna Kumari (P.W. 10) that she and her sister (this witness) remained present throughout when the Fard-beyan of Krishna Gape was recorded. In the Fan1beyan of Krishna Gape. (Ext. 4), Jamuna Kumari and Laxmi Kumari have also signed (Exts. 4/1 and 4/2). The Investigating Officer Sri Nath Ram (P.W. 11) has stated that while he was recording the statement of Krishna Gape (P.W. 7) then both the sisters Laxmi Kumari and Jamuna Kumari were present throughout and were narrating the alleged occurrence to him and, therefore, he thought that they had seen the alleged occurrence. Even then the Investigating Officer did not record their statements in the diary. 10. The Investigating Officer, who has recorded the statement of Laxmi Kumari and Jamuna Kumari after three days of the alleged occurrence, has not been examined. The learned counsel for the appellants has submitted that Jamuna Kumari (P.W 10) has stated that she along with her father Mahavir Gope (deceased) was returning to Jhikpani through C.T.C. bus. Near Jhikpani Railway Station, the bus stopped. She has not stated that her cousin brother Bhishm Gope was also with them in the bus while returning to Jhikpani. All the passengers were ordered to come out of the bus. Thereafter Chhota Biru fired once, which hit the window of the bus. 11. It was further submitted that P.W 10 (Jamuna Kr.) has not stated that her father was done to death outside the bus by crushing his head with big stone. All the passengers were ordered to come out of the bus. Thereafter Chhota Biru fired once, which hit the window of the bus. 11. It was further submitted that P.W 10 (Jamuna Kr.) has not stated that her father was done to death outside the bus by crushing his head with big stone. She has never named Bhishm Gope, her cousin brother, to be in the bus and was also assaulted. She is completely silent regarding any assault or presence of Bhishm Gope in the bus. Even she has not seen her father Mahavir Gope being killed by crushing his head with a big stone. On the other hand, when Raghu tried to assault her with sword, she fled away and went to her home. Similarly Laxmi Kumari (P.W 8) has stated before the Investigating Officer that she was returning home from Chaibasa on a bus along with her father. All the accused assaulted her father inside the bus and took him out of the bus. Her father sustained bleeding injuries on the head. Her father was assaulted with the butt end of the pistol by accused Gokhul -Gope on his head. Biru and Chhota Biru were also assaulting with butt end of the pistol. Raju had Lathi in his hand and he was assaulting with Lathi. When her father fell down then Bokhul fired at him. At that time Jiten, Pores and Kamal rushed to assault this witness Laxmi Kumari and then, to save her life, she fled away and went to her home. Thereafter, she does not know what happened there. It was also submitted that P.W. 8 (Laxmi Kumari) has stated that her cousin brother Bhishm Gape when tried to flee away, then he was also caught hold of and brought down of the bus. She has not seen any assault made on his person. 12. The informant Krishna Gape (P.W. 7) and his wife Triveni Devi were at Jorapokhar (Village home) at the time when all the accused Raju Khandait, Kamal Khandait, Laxman Chaudhary, Gokhul Gape, Biru @ Birendra Khandait, Jiten Khandait, Poresh and the son-in-law of the sister of Biru @ Birendra Khandait went to kill Mahavir Gape. 12. The informant Krishna Gape (P.W. 7) and his wife Triveni Devi were at Jorapokhar (Village home) at the time when all the accused Raju Khandait, Kamal Khandait, Laxman Chaudhary, Gokhul Gape, Biru @ Birendra Khandait, Jiten Khandait, Poresh and the son-in-law of the sister of Biru @ Birendra Khandait went to kill Mahavir Gape. The informant in his evidence in court has stated that he and his wife Triveni Devi out of fear fled away and never looked back to see any of the accused, who assaulted Suren Gape and killed him. In para 5 he has stated that he did not see any of assailants and, therefore, he was declared hostile by the prosecution. The other witness Raghu Nath Gape has stated that he was never examined by the I.O. in course of investigation, although he has signed on the inquest reports (Ext. 4 series), prepared in respect of the dead bodies of Mahavir Gape. Bhishm Gape and Suren Gape. He has not seen as to how Suren Gape was killed. The informant Krishna Gape, his wife Triveni Devi and Raghunath Gape were stated to be present at Jorapokhar i.e. village home, when the assailants entered into the house in search of Mahavir Gape. When Mahavir Gape was not found, then his Sala Suren Gape was done to death. As there is no evidence, regarding murder of Suren Gape, hence the court below acquitted 11 accused persons from the charges of murder of Suren Gape. On the other hand, these 7 appellants, who are alleged to have rushed from Jorapokhar to the Jhikpani Railway Station, near Shiv Mandir, on the informant that Mahavir Gape had gone to Chaibasa, who will return by a bus, in order to kill Mahavir. 13. Learned counsel for the appellants has submitted that the second Investigating Officer J.K. Rai, who did the major part of investigation and recorded statements of P.W. 8 (Laxmi Kumari) and Jamuna Kumari (P.W. 10) has not been examined. It was argued that in course of their statements u/s 161 Cr.P.C., they have not named these appellants to have murdered Mahavir Gape and Bhishm Gape, near Shiv Mandir. It was also submitted that the witnesses, namely, P.Ws. It was argued that in course of their statements u/s 161 Cr.P.C., they have not named these appellants to have murdered Mahavir Gape and Bhishm Gape, near Shiv Mandir. It was also submitted that the witnesses, namely, P.Ws. 8 & 10, who are the only eye witnesses regarding the occurrence, which took place at Jhikpani Railway Station, near Shiv Mandir, have not named Bhishm Gape as to whether he was also returning by the said CTC bus from Chaibasa. Both these witnesses in their statements before the I.O. have deposed that they only saw assaulting their father Mahavir Gape inside the bus. He was assaulted with butt end of gun and pistol. He sustained bleeding injuries in the bus and when he was dragged out of the bus, then both the witnesses (P.Ws. 8 & 10) tried to save their father. At that moment they were threatened to be assaulted with sword and hence they fled away out of fear to save their lives. Thus, the evidence deposed in the court that the head of Mahavir Gape and Bhishm Gape were crushed with big stone is a development in court, which was not deposed by the I.O. As the I.O. has not been examined in this case, who recorded their statements, the defence was greatly prejudiced. 14. It was also argued that there was no common object of all these appellants to attract Sec. 149 I.P.C. and has relied upon the cases, as reported, in 2002 (1) JLJR 357 (Naurang-1 Mahto & 4 ors. vs. State), 2001 Cri. L.J. 933 (Malkhan Singh & Ors. vs. State of U.P.) and 2002 AIRJhar. H.C.A. 71 (Fagu Manjhi & Ors. vs. State of Bihar & am.). 15. In the present case, the Dy. S.P., Kiriburu, has also not been examinee, who had directed Sri Nath Ram (P.W. 11) to go to the place of occurrence along with a constable where three persons were murdered. It shows that the Dy. S.P., Kiriburu might have given some information, resulting initiation of the investigation by Sri Nath Ram. When he reached the second place of occurrence i.e. Railway Station, Jhikpani, then he also saw that the officer-in-charge, Jhikpani P.S. had arrived at the place of occurrence. It shows that the Dy. S.P., Kiriburu might have given some information, resulting initiation of the investigation by Sri Nath Ram. When he reached the second place of occurrence i.e. Railway Station, Jhikpani, then he also saw that the officer-in-charge, Jhikpani P.S. had arrived at the place of occurrence. The Fard-beyan of Krishna Gope (P.W. 7) was recorded at Village Jorapokhar at 3.15 pm whereas the inquest reports of deceased Bhishm Gope, Suren Gope and Mahavir Gope were prepared on 14.5.1990 in between 2 to 3 pm. This shows that the investigation has already started prior to recording the Fardbeyan of informant (P.W. 7) at 3.15 pm. 16. P.W. 3 (Dr. Arun Kr. Gupta) held the post-mortem examination on the dead bodies of Mahavir Gope, Bhishm Gope and Suren Gope on 14.5.1990 itself at 5.00 pm. onwards. He found skull of Mahavir Gope grossly damaged and flattened from side to side, brain matters corning out through the wound. There was incised wound 5" x 1/2" x neck muscle and great vessels in front of the neck. Multiple small sharp cutting muscles deep wound on the face and force-head were found. The weapon used to cause the murder of Mahavir Gope was hard and blunt weapon and also sharp cutting weapon, such as, stones and Bhujali. He found on the dead body of Bhishm Gope anti-mortem injuries 4" x 3" x involving great vessels of neck on the right side of the front of the neck, being incised wound. There was lacerated wound 3" x 2" x brain matters on the left side of frontal bone. Skull was compressed from side to side. The injuries were caused by hard and • blunt weapon, such as, big stones and sharp cutting weapon like Bhujali. He also found on the dead body of Suren Gope external injuries 3" x 2" x brain matters protruding through the wound on the left temporal bone, penetrating wound 2" x 1" x brain matters over the fore-head and another penetrating wound 1/2" x 1/4" x brain matters on the right perital bone. The weapon used were heavy, hard and blunt weapon, may be blunt portion of Bhujali. All the injuries were ante mortem in nature, caused within 24 hours from the time of the post mortem examination. 17. The weapon used were heavy, hard and blunt weapon, may be blunt portion of Bhujali. All the injuries were ante mortem in nature, caused within 24 hours from the time of the post mortem examination. 17. The injuries on the dead bodies of Mahavir Gope and Bhishm Gope indicate that their heads were crushed with stones resulting in skull damage and flattened from side to side. The only eye witnesses are the daughters of deceased Mahavir Gope i.e. P.Ws. 8 & 10. They have not seen these injuries caused by the appellants on the person of Mahavir Gope or Bhishm Gope, as out of fear, to save their lives, they fled away. When they were at Jhikpani Railway Station near Bus Stand, Shiv Mandir, then in their presence neither Mahavir Gape nor Bhishm Gope was murdered by the appellants. On the other hand, they have given contradictory statements regarding the presence of Bhishm Gape in the bus, returning home from Chaibasa along with them. There is no whisper before the I.O. in course of investigation that these appellants assaulted Mahavir Gape and Bhishm Gope to death. On the other hand they have developed this story in course of evidence in court, implicating all these appellants to have caused the murder of Mahavir Gope and Bhishm Gape, while they were returning from Chaibasa from CTC. bus. 18. In the present case, the second Investigating Officer, namely, J.K. Rai, has not been examined by the prosecution, which has caused great prejudice to the appellants as they could not draw contradictory statements of P.Ws. 8 & 10, which were made by developing the story in the court. At Railway Station, Jhikpani, there are number of shops, houses, hotels etc., as it is station near Shiv Mandir but the Investigating Officer never examined any of the independent witnesses of that place. Even the driver, Khalashi and conductor of the bus were not traced out for their examination. None of the passengers was also examined in this case. The informant Krishna Gape, who was at Jorapokhar (village home), has stated in his Fard-beyan about the occurrence, which took place at Jhikpani Railway Station, as informed by P.Ws. 8 and 10. He has also given statement regarding the occurrence, which took place at Jorapokhar and how Suren Gape was done to death. But he has given a goby to his Fard-beyan (Ext. 4). 19. 8 and 10. He has also given statement regarding the occurrence, which took place at Jorapokhar and how Suren Gape was done to death. But he has given a goby to his Fard-beyan (Ext. 4). 19. The only eye witnesses i.e. P.Ws. 8 and 10, have stated that they were present at village-Jorapokhar when the statement of Krishna Gape (P.W. 7) was recorded by the Investigating Officer. They have also signed on it (Exts. 4/1 and 4/2). But in course of her deposition, P.W. 8 (Laxmi Kumari) has stated that she was inside her house and the statement of Krishna Gope was recorded in the Angan. She did not hear what statement he (Krishna Gape) had stated in the Fard-beyan. On the other hand, her sister Jamuna Kumari (P.W. 10) has stated that she was present all along when the statement of Krishna Gope was, recorded along with her sister on which she and her sister signed. She has, stated in paragraph no. 5 that when she and her sister fled away and went to their home where they met Krishna Gope and Raghu Nath Gope. She and her sister (P.W. 8) narrated what had happened at the Railway Station Bus Stand, Jhikpani. Krishna Gope also informed them what had happened at Jorapokhar (village-home), resulting in the death of Suren Gope. 20. The genesis of the alleged occurrence is regarding the land dispute with one Ajit Gope, as stated by P.W. 8 in paragraph no. 45. The trend of the cross-examination also shows that there was union rivalry in between the parties. There is no witness to corroborate the evidence of P.Ws. 8 and 10, who themselves have given contradictory statements regarding their going to Chaibasa to appear at the examination. They have not produced any document as to whether there was examination on that day. They have also become unable to examine any witness and to produce any document to the effect that on that day there was examination at Chaibasa. They have also given contradictory statements regarding their going to Chaibasa. P.W. 8 has stated that they (she and her sister) along with their father Mahavir Gope and cousin brother Bhishm had gone to Chaibasa and on the same day they were returning from C.T.C. bus. They have also given contradictory statements regarding their going to Chaibasa. P.W. 8 has stated that they (she and her sister) along with their father Mahavir Gope and cousin brother Bhishm had gone to Chaibasa and on the same day they were returning from C.T.C. bus. P.W. 10 (Jamuna Kumari) has contradicted the same by saying that only she had her sister had gone to Chaibasa to appear at the examination and when the examination was post-poned, then they returned back to Chaibasa Bus stand where they met their father Mahavir Gope and cousin brother Bhishm Gope. It is also not clear as to whether they were returning home in standing condition or have got accommodation of seats in the bus. As they are quite unknown to the passengers who were of Jhikpani itself, no one. who attended the college and who were girls of Jhikpani, could be examined to corroborate the fact regarding examination and its postponment No passenger of the bus has been examined regarding the occurrence, which took place at Jhikpani Railway Station. There are number of shops, hotels and residential houses at Bus stand, Jhikpani. Even then none of the witness was examined by the Investigating Officer. 21. As I have stated above, no one has supported the prosecution case except P.Ws. 8 and 10, who are daughters of deceased Mahavir Gope and who have also given contradictory statements regarding their presence at the place of occurrence till Mahavir Gope and Bhishm Gope were done to death by crushing with stones, which is a developed one from the statements, recorded by the Investigating Officer in the case diary at paragraph nos. 35 and 36. Both these witnesses were present when the Fard-beyan of P.W 7 (Krishna Gope) was recorded by the first Investigating Officer but at that time their statements were not recorded by the first Investigating Officer (P.W 11 Sri Nath Ram). He has not assigned any reason for not recording their statements although he has stated that they were assisting the informant Krishna Gope in narrating the incidence, which took place at Jhikpani Railway Station, near Shiv Mandir. He also obtained their signatures on the Fard-beyan of Krishna Gope (informant). He has not assigned any reason for not recording their statements although he has stated that they were assisting the informant Krishna Gope in narrating the incidence, which took place at Jhikpani Railway Station, near Shiv Mandir. He also obtained their signatures on the Fard-beyan of Krishna Gope (informant). Even they were examined after three days of the alleged occurrence by the second Investigating Officer, J.K. Rai, on 17.5.1990 at 10.30 and 10.50 a.m. but both these eye witnesses i.e. P.W 8 and P.W 10, have not stated that Mahavir Gope and Bhishm Gope were done to death by dragging them out of the bus. On the other hand, when Raghu with a big sword tried to assault them, then they fled away out of' fear, and went home and narrated the occurrence to Krishna Gope and, Raghu Nath Gope (P.W 7 and P.W 9 respectively) at Jorapokhar (village-home). Before the Investigating Officer, Laxmi Kumari (P.W. 8) has stated that they (she and her sister) were chased and hence they fled away to say their lives. Thereafter, they did not know what had happen at the Bus stand, Jhikpani. Bhishm Gope was only caught and brought out of the bus. 22. As these two eye witnesses, namely, P.W. 8 and RW. 10, have not stated before the Investigating Officer regarding the murder of Mahavir Gope and Bhishm Gope, caused by the appellants, hence at that very day their evidences were not recorded. On the other hand, they have given contradictory statements regarding their presence when the Fard-beyan of Krishna Gope was being recorded. It is not clear as to whether they were hearing the statement of Krishna Gope, which was being recorded by the first Investigating Officer Sri Nath Ram on 14.5.1990 at 3.15 p.m. or whether they were inside the room and could not hear the statement as deposed by them, contradicting each other's statements in this regard. In view of the fact, I come to the conclusion that the prosecution has not proved its case about the presence of P.W. 8 and P.W. 10 at Bus Stand Road, Jhikpani, near Shiv Mandir in the bus. It is only because they are unable to produce any document regarding going to Chaibasa to appear at an examination. In view of the fact, I come to the conclusion that the prosecution has not proved its case about the presence of P.W. 8 and P.W. 10 at Bus Stand Road, Jhikpani, near Shiv Mandir in the bus. It is only because they are unable to produce any document regarding going to Chaibasa to appear at an examination. Even they are not willing to examine any of the girl students or passengers or conductor or driver or Khalashi of the bus, who might have witnessed the alleged occurrence. This is only because the Investigating Officer has not examined any of the witnesses of nearby at Jhikpani, who are having their shops, residences and hotels etc. Krishna Gape (informant) is the uncle of P.Ws. 8 and 10. He has given a go-by to his Fard-beyan (Ext. 4) and, as such, has been declared hostile by the prosecution. The other witnesses are either tendered witnesses or hostile witnesses. P.W. 2 is the witness on inquest reports. Thus, without being corroborated by any independent witness, the evidence of P.W. 8 and P.W. 10, who themselves have contradicted their statements with each other and have also developed the story of the alleged occurrence in course of examination in the court, which they had not stated before the Investigation Officer in course of investigation, including the non-examination of the Investigating Officer J.K. Rai, has also greatly prejudiced the appellants. 23. In view of the above considered facts, I find that the prosecution has not been able to prove the charges levelled against the appellants under Section 302 read with 149 of the Indian Penal Code against all the appellants beyond all shadow of reasonable doubts. The benefit of doubt, in the circumstances, must go to the appellants. 24. In the result, all the four Criminal Appeals i.e. Cr. Appeal Nos. 132, 138, 139 and 145 of 1995 (R) are hereby, allowed and the impugned judgment and order of conviction and sentence, passed against all the appellants, in respect to all the Cr. Appeals, are, accordingly, set aside. As the appellants, namely, Gokhul Gope (Cr. Appeal No. 132 of 1995R), Akhay Naik alias Chhotu Biru Naik (Cr. Appeal No. 138 of 1995R), Jiten Khandait and Kamal Khandait (both in Cr. Appeal No. 139 of 1995R) and Laxman Choudhary (Cr. Appeal No. 145 of 1995R) are on bail, they are discharged from the liabilities of bail bonds. As the appellants, namely, Gokhul Gope (Cr. Appeal No. 132 of 1995R), Akhay Naik alias Chhotu Biru Naik (Cr. Appeal No. 138 of 1995R), Jiten Khandait and Kamal Khandait (both in Cr. Appeal No. 139 of 1995R) and Laxman Choudhary (Cr. Appeal No. 145 of 1995R) are on bail, they are discharged from the liabilities of bail bonds. So far as appellants Biru alias Birendra Khandait (Cr. Appeal No. 138 of 1995R) and Raju Khandait (Cr. Appeal No. 139 of 1995R) are in custody they are directed to be released from custody forthwith, if not wanted in any other case. Vikramaditya Prasad, J.-I agree.