Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 944 (JHR)

Chatur Gape v. State of Bihar

2002-08-29

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT By Court.-This appeal has been preferred by the appellants named above against the impugned judgment dated 25.2.1995 passed in Sessions Trial No. 59 of 1989 by Shri Paras Nath Sinha, District and Sessions Judge, Singhbhum West at Chaibasa whereby and whereunder all the appellants were found guilty for the offence punishable under Section 302/34 and 452 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for life for the offence punishable under Section 302/34 of the Indian Penal Code but no separate sentence was awarded for the offence under Section 452 of the Indian Penal Code. 2. The prosecution case has arisen on the basis of the fardbeyan of P.W. 2 Padma Gopin, the informant and wife of Ghashi Gape, the deceased of this case recorded by S.1. on 6.7.88 at 9.30 hours at Anandpur P.S. regarding the occurrence which is said to have taken place on 5.7.1988 at 20.00 hours in village Thiya Tangar P.S. Anandpur, District Singhbhum. 3. The prosecution case in brief is that the informant along with her husband ,Ghashi Gape on return from Anandpur Mangla Hat at about 4 or 5 P.M. was in her house and Chowkidar P.w. 8 Nicolas Topno has also come to her house while returning from the said market and Ghashi Gape and Nicolas Topno were sitting together and talking. It is alleged that the appellants Chatur Gape armed with axe, Budhu Gape armed with Davli, Budhu Gape armed with lathi, Bhadru Gape armed with axe, Patru Gape (since dead) armed with Tabala and Nando Gwala armed with lathi have trespassed into the house of the informant and at that time she was in the kitchen trying to burn fire in the oven and all the aforesaid appellants started assaulting Ghashi Gape and appellant Chatur Gape assau'tl~d Ghashi Gape with axe and, thereafter, they have dragged and carried Ghashi Gape towards Sapu river and in spite of the protest and cries by her, the appellants did not leave Ghashi Gape and took him with them. It is also alleged that the informant did not follow the appellants due to fear and due to the fact that she was alone and no villager came to the place of occurrence on her alarms and Chowkidar Nicolas Topno also fled away from there. It is also alleged that the informant did not follow the appellants due to fear and due to the fact that she was alone and no villager came to the place of occurrence on her alarms and Chowkidar Nicolas Topno also fled away from there. The prosecution case further is that in the morning she went towards the said river along with the co-villagers and the Chowkidar aforesaid where the dead body of the deceased was found in a sack tied with the stones and there were several injuries on the back side of his neck, cheek. temple and head and information to that effect was given to the local P.S. It is also alleged that there is land dispute between the deceased and the appellants prior to the occurrence which is still existing and alive and one day prior to the occurrence there had been an altercation between them in the night and due to the said enmity Ghashi Gape has been done to death by the appellants. 4. The appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have been falsely implicated in this case due to the admitted enmity which is still existing and alive. It has also been contended that the deceased was in the habit of committing theft of maize crop and grab the land of the others and he had enmity with several villagers who might have murdered him near the river aforesaid. 5. The prosecution has in all examined ten witnesses to substantiate the charges levelled against the appellants. P.W. 2 Padma Gopin is the informant of this case and the widow of Ghashi Gope. the deceased of this case. P.W. 8. Nicolas Topno is the village Chowkidar who is stated to be present at the place of occurrence at the time of occurrence as per the averments made in the fardbeyan (Ext. 4). P.W. 7 is also stated to be present at the place of occurrence at the relevant time. However, P.Ws. 7 and 8 have turned hostile and they do not at all materially support the prosecution case. P.Ws. 4, 5 and 6 have been tendered. P.W. 3 is a witness on the inquest report and his signature thereon is Ext. 4). P.W. 7 is also stated to be present at the place of occurrence at the relevant time. However, P.Ws. 7 and 8 have turned hostile and they do not at all materially support the prosecution case. P.Ws. 4, 5 and 6 have been tendered. P.W. 3 is a witness on the inquest report and his signature thereon is Ext. 3, though the said inquest report has not been admitted into evidence due to the non-examination of the I.O. in this case. P.W. 1 is a witness on the seizure list (Ext. 5) regarding the recovery of the blood stained earth and two axes from the house of the informant. However, P.W. 10 a formal witness has proved the formal F.I.R. (Ext. 3), the fardbeyan (Ext. 4) and seizure list (Ext. 5) in the absence of the I.O. in this case. P.W. 9 is the doctor who has conducted the postmortem examination on the dead body of the deceased and his report in respect thereof is Ext. 2. 6. In view of the evidence oral and documentary on the record the learned court below has found the appellants guilty and convicted and sentenced them as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned court below has failed to meticulously consider the evidence on the record in proper perspective and has gravely erred to come to the finding of the guilt of the appellants. It has been submitted that P.W. 2, the informant and P.W. 8, the village Chowkidar cannot be termed as eye witness of the alleged occurrence and they have been set up as eye witnesses in this case due to the enmity existing and alive. It has also been contended that there is no legal evidence on the record of independent, natural and competent witness to establish the fact regarding the identification of the appellants in assaulting the deceased of this case as alleged. 8. The learned A.P.P. has contended that P.Ws. 2 and 8 are the most natural and competent witnesses of the occurrence in question and there is evidence on the record to connect or implicate the appellants in the occurrence in question. 8. The learned A.P.P. has contended that P.Ws. 2 and 8 are the most natural and competent witnesses of the occurrence in question and there is evidence on the record to connect or implicate the appellants in the occurrence in question. Lastly it has been submitted that in view of the evidence on the record the learned court below has rightly convicted the appellants and thus there is no illegality in the impugned judgment. 9. There is no denying the fact that Ghashi Gope, the husband of the informant has been done to death and his dead body was recovered, kept in a sack, tied with stones on the bed of river Sapu on 6.7.1988 at 9.30 hours by S.1. Awadesh Prasad Singh in presence of P.W. 3, Jagmohan Gope, whose signature on the inquest report is on Ext. 1. P.W. 9 has deposed to have conducted the postmortem examination on the dead body of the deceased and he has found following ante mortem injuries: 1. Sharp cutting wound on the left cheek 3" x 1" x bone deep. 2. Sharp cutting wound on the right cheek 4" x 2" x skin deep. 3. Sharp cutting wound on right frontal region 3" x 1" x bone deep. 4. Sharp cutting wound on mid frontal region 4" x 3" x bone deep. He has also deposed that on dissection he found the brain was cut with a sharp object as per injuries 3 and 4 aforesaid and according to him the injuries aforesaid are sufficient in ordinary course of nature to cause the death of the deceased. He has also deposed that the aforesaid injuries have been caused by sharp cutting heavy weapon such as tangi, tabla am dauli which are sharp cutting weapons. Ext. 2 the postmortem examination report corroborates his testimony. P.W. 9 has further deposed that time elapsed since death is within 70 hours of his examination. 10. According to the averments made in the fardbeyan of the informant village Chowkidar Nicolas Topno (P.W. 8) appears to be an occular witness of the occurrence besides P.W. 2, the informant. P.W. 7 Balku Bhuiyan, a resident of village two miles away from the place of occurrence has also been stated to be an eye witness to the occurrence as P.Ws. P.W. 7 Balku Bhuiyan, a resident of village two miles away from the place of occurrence has also been stated to be an eye witness to the occurrence as P.Ws. 7 and 8 were with the deceased and talking with him after they returned from the market at the relevant time and P.W. 2 , the informant, was preparing for cooking inside the house and the deceased was sitting in the courtyard of the house with P.Ws. 7 and 8. P.W. 8 has deposed that at the time of the occurrence there was heavy rains and storm and stones were falling there and there were also big noise outside the house of the deceased and P.Ws. 7 and 8 had left the place. It is also pertinent to mention here that the fardbeyan of the informant and the evidence of P.Ws. 7 and 8 read with P.W. 3 are conspicuously silent regarding the means of identification and there is no whisper in respect of any light burning at the place of the occurrence. At this stage as per evidence of P.W. 2, the informant, the appellants armed with axe, dauli and lathi entered into the house of the informant and assault continued to be perpetrated on the person of the deceased simultaneously by them and soon, thereafter, Ghashi Gope is taken away by them towards the river Sapu. A pertinent question emerges at this stage about the identification of the appellant by the informant in the absence of any means of identification when there is a storm and heavy rains at the time of commission of the alleged occurrence. The answer to this question is in the negative in the facts and circumstances of this case. It is here relevant to ----------- 2003(1) JLJR Arbind Kumar v. mention that P.Ws. 1 and 8 though declared hostile by the prosecution have deposed to have fled away from there soon before the alleged occurrence and P.w. 8 in para 10 of his testimony has further deposed that he had taken shelter in the house of one Charu Uraon and soon, thereafter, the informant also came there and they stayed there for the whole night. This evidence, however, cast a cloud of suspicion to the very credibility of the evidence of P.w. 3 regarding the identification of the appellants while assaulting the deceased in this case as alleged. This evidence, however, cast a cloud of suspicion to the very credibility of the evidence of P.w. 3 regarding the identification of the appellants while assaulting the deceased in this case as alleged. Admittedly there is enmity between the deceased and the appellants which is still existing and alive and this enmity is in respect to a land dispute and there had been an altercation between them in the evening one day prior to the occurrence. It has also come on the record that the deceased had antecedent of committing theft of maize crop and usurping the land of others, leading to annoyance of several persons of the village. P.W. 1 has deposed about the seizure of the blood stained earth and two axes from the place of the occurrence which is inside the house of the informant but Ext. 5, the seizure list, proved by a formal witness does indicate the existence of the seizure of only one C\xe having blood stained thereon. There is no report of the serologist on the record to connect the recovered blood stained earth and the blood stained axe with the human blood specially in view of the fact that the dead body has been recovered not at the place of occurrence rather on the bed of the river. The nonexamination of the 1.0. in this case has definitely caused great prejudice to the appellants and they stand debarred from eliciting facts in his cross examination showing their innocence. The solitary testimony of the informant uncorroborated in material particulars by any independent, competent and natural witness of the occurrence cannot be said worthy of credit in the facts and circumstances of this case. Further more, the false implication of the appellant in the facts and circumstances of this case cannot be totally ruled out. The learned court below did not meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. There is no legal evidence at all on the record substantiating the prosecution case beyond all reasonable doubts. Therefore, the impugned order suffers with illegality which requires an interference therein. 11. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. There is no legal evidence at all on the record substantiating the prosecution case beyond all reasonable doubts. Therefore, the impugned order suffers with illegality which requires an interference therein. 11. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. The appellants are not found guilty of the charges levelled against them and they are, accordingly, acquitted. Let all the appellants be set free forthwith, if not wanted in any other case.