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2002 DIGILAW 985 (PAT)

Bhola Gope v. State Of Bihar (Now Jharkhand)

2002-09-11

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
Judgment Lakshman Uraon, J. 1. The appellants have preferred this appeal against the judgment dated 22.9.1990 passed by the learned 1st Additional Sessions Judge, Giridih, Camp Tenu- ghat in S.T. No. 236/82 convicting all the appellants under Section 302/34, IPC and sentencing them to go R.I. for life. The learned Court below also con Victed the appellants Bhola Gope and Gauri Gope under Section 323, IPC but no separate sentence was passed under this section against them. 2. The informant, Arjun Pandey (PW 5), whose fardbeyan was recorded on 13.10.1981 at 8 p.m. at Dugda outpost. Ext. 1, has narrated that on 13.10.1981 at village Ghutway (Erda), P.S. Chandrapura, Dist. Giridih, at about 4 p.m. Phulu Gope (Phulchand Gope) was grazing the paddy crops of the informant by his goats and sheep. Kalawati Devi (PW 7), sister of the informant, when objected, then she was given blows with slaps by him. Kalawati Devi went to her home and informed about the occurrence and then the informant went there and asked as to why he did assault his sister wuh slaps. At this, Bhola Gope brought a lathi and chased thee informant to assault. The informant fled away and went to his door. In the meantime, all the appellants, namely, Bhola Gope, Gauri Gope, Sahdeo Gope and Fulchand Gope (Phule Gope), reached there armed with tangi and lathi. The appellants, Gauri Gope, had tangi in his hand and the other three had possessed lathi. The appellant, Bhola Gope, gave a lathi blow to the informant and ordered the other appellants to kill all the prosecution party. On his order, with an intention to kill, the appellant, Gauri Gope, gave a tangi blow on the head of Jai Kumar Pandey (deceased). On being injured Jai Kumar Pandey fell down. When the informant, Arjun Pandey, asked as to why he assaulted with tangi. Then, the appellant Gauri Gope, also gave a tangi blow on the person of the informant which caused injury on his right hand. Thereafter all the appellants pelted stones causing injury to Bhuneshwar Pandey (PW 1). Thereafter, the injured. Jai Kumar Pandey, was taken on a khat to the police outpost. The other villagers also saw the appellants fleeing away from the P.O. after the alleged occurrence. 3. In this present case dying declaration of Jai Kumar Pandey was recorded by Dr. K.K. Pd. Thereafter, the injured. Jai Kumar Pandey, was taken on a khat to the police outpost. The other villagers also saw the appellants fleeing away from the P.O. after the alleged occurrence. 3. In this present case dying declaration of Jai Kumar Pandey was recorded by Dr. K.K. Pd. (Senior M.O., DCW) in general male ward of DCW hospital on 15.10.1981 at 9.30 a.m. in the presence of witnesses, Panchanand Pandey (PW 11) and Dayanand Prasad (PW 10). Dr. K.K. Pd. could not be examined as he is no more. In the dying declaration, Ext. 2, Jai Kumar Pandey has stated that on 13.10.1981 at about 4 p.m. he was informed by his sister, Kalawati Devi that Phulchand Gope got the paddy crops grazed by his goats. When Kalawati Devi objected then she was assaulted. The injured, Jai Kumar Pandey and others went to Bhola Gope and asked as to why he assaulted their sister. At that moment he rushed to assault them and then the informant and Jai Kumar Pandey fled away and went to their doors. In the meantime, Bhola Gope, Phulchand Gope, Sahdeo Gope and Gauri Gope, armed with lathi and danda, went there. Gauri Gope had tangi and other three had lathi in their hands. Bhola Gope ordered to kill and then Gauri Gope gave a tangi blow on his (Jai Kumar Pandey) head. On being injured with tangi blow he fell down and became unconscious. When he regained his sense in the hospital then he saw Arjun Pandey, informant, and Bhuneshwar Pandey in injured condition. 4. After 11 days of the alleged occurrence the injured, Jai Kumar Pandey succumbed to his injury given by Gauri Gope, a blow on his head with tangi. 5. PW 1, Bhuneshwar Pandey, is the eye witness, who has corroborated the fardbeyan of the informant, PW 5 Arjun Pandey. He also sustained injury due to pelting of stones which gets support from the evidence of Dr. Hernial Mahto (PW 12), who stated that when he examined the injured on 13.10.1981 he found abrasion on the left side of the cheek about 1/2" x 1/2" and small swelling in the left thumb. Both the injuries were caused by hard and blunt substance such as stones, however, they were found simple in nature. He along with the informant, Arjun Pandey, sustained injuries besides Jai Kumar Pandey who succumbed to his injury. Both the injuries were caused by hard and blunt substance such as stones, however, they were found simple in nature. He along with the informant, Arjun Pandey, sustained injuries besides Jai Kumar Pandey who succumbed to his injury. Arjun Pandey was also examined by the Doctor who found lacerated wound on the dorsal surface of left arm about 1/2" x 1/6" x 1/8". There was swelling on the left elbow joint and right shoulder. He opined that injury No. 1 may be caused by tangi if the edge of the tangi was not sharp and the other injuries were caused by lathi. 6. PW 1, Bhuneshwar Pandey, PW 5, Arjun Pandey (informant) and PW 7, Kalawati Devi, sister of the informant and the deceased, are the eye-witnesses of the alleged occurrence. PW 3, Anganu Gope and PW 8, Gondal Gope are seizure list witnesses regarding seizure of blood stained soil, stones and grass, prepared by the I.O. in their presence on which they signed and gave their L.T.I. 7. In this case the I.O. and the doctor have not been examined. Postmortem report was proved by PW 13, Tribeni Pd. Sinha, a Homeopath Practitioner, who was acquainted with the pen and signature of Dr. M. Hasan, Ext. 7. This witness has stated that the said Doctor was a tutor in the Medical College, Dhanbad only for a short period and whereabout his present address is not known. 8. As I have mentioned above that the alleged occurrence took place only because PW 7, Kalawati Devi, has objected Fulchand Gope, as to why he grazed the paddy crops by his goats and sheep. She was assaulted with slaps and thereafter she narrated the story to her brothers, PW 5, Arjun Pandey (informant) and Jai Kumar Pandey (deceased). 9. Both her brothers went to the house of the accused-persons only to ask as to why they grazed their paddy crops and on objection why they slapped, PW 7, Kalawati Devi. All these three witnesses have stated that when Bhola Gope chased them to assault with lathi then the informant and his brother, Jai Kumar Pandey, fled away and went to their doors. All the three witnesses, PWs 1, 5 and 7 have deposed that Gauri Gope had tangi in his hand and other three appellants had lathi. All these three witnesses have stated that when Bhola Gope chased them to assault with lathi then the informant and his brother, Jai Kumar Pandey, fled away and went to their doors. All the three witnesses, PWs 1, 5 and 7 have deposed that Gauri Gope had tangi in his hand and other three appellants had lathi. On the order of Bhola Gope to kill, who also gave lathi blows on the person of the informant, PW 5. On his order Gauri Gope assaulted with tangi on the head of Jai Kumar Pandey and when PW 5, Arjun Pandey, asked as to why he gave tangi blow then he was also given tangi blow, who sustained injury on his hand and thereafter they pelted stones and fled away and then Jai Kumar Pandey fell down with bleeding injury and became unconscious. All three eye-witnesses have corroborated the fact that Gauri Gope gave a tangi blow on the head of Jai Kumar Pandey which was also corroborated by Dr. Hernial Mahto (PW 12), that he found injuries on the persons of PW 1, Bhuneshwar Pandey, PW 5, Ariun Pandev and he deceased. Jai Kumar Pandey. Their ocular evidence was supported by the evidence of Dr. Hernial Mahto (PW 12). He prepared the injury report in respect of all the three injured, Ext. 4 series. He advised to clean and dress the injuries and also asked to stitch the wound found on the person of Jai Kumar Pandey as he was admitted in the hospital and bed-head ticket was also maintained. Thereafter on 15.10.1981 Dr. K.K. Pd. referred Jai Kumar Pandey to Civil Hospital, Dhanbad. He also informed this fact to the Officer-in-Charge, Dugda P.S. that the condition of the patient was deteriorating in his letter (Ext. 6) and the bed-head ticket was also marked as Ext. 5. This Doctor had twice attended the injured patient, Jai Kumar and examined in hospital on 13.10.1981 and 14.10.1981. He firstly thought that he will improve on the next day but, he started vomiting hence, he was referred to Civil Hospital, Dhanbad. 10. The prosecution has examined the informant, his sister, Kalawati Devi and the injured, Bhuneshwar Pandey who are closely related and interested witnesses but they have stood well to the cross-examination and have supported the prosecution case as alleged in the fardbeyan by the informant. 10. The prosecution has examined the informant, his sister, Kalawati Devi and the injured, Bhuneshwar Pandey who are closely related and interested witnesses but they have stood well to the cross-examination and have supported the prosecution case as alleged in the fardbeyan by the informant. The other witnesses who have been either declared hostile and others who are hearsay have also supported that they were narrated by the informant about the alleged occurrence and the assault made by these appellants. Thus, I find that these eye-witnesses, PWs 1, 5 and 7, have proved the manner of the occurrence. Their statements have corroborated the prosecution case supported by he medical evidence. There is no delay in informing the Police, lodging the FIR and taking the injured for treatment. 11. The learned counsel appearing on behalf of the appellants has argued that the Homeopath Doctor (PW 13), is a formal witness who has proved the post mortem report (Ext. 7), prepared and signed by Dr. M. Hasan. On this ground it was submitted that post mortem report cannot be considered regarding the injuries sustained by the deceased and the cause of death as the Doctor who conducted the post mortem examination and submitted the report, was not tested in the Court and was not cross-examined. It was also argued that PWs 1, 5 and 7 are highly interested witnesses because they are of the same family. There is no independent witness in this case to support the prosecution case although as per statement of PW 7, the assault continued for about half an hour but, none of the villagers had gone to witness the alleged scene and assault. It was also submitted at the dying declaration was not in proper form. It was also argued that in absence of cross-examination of the I.O., the appellants were caused great prejudice as the attention of the witnesses to their statements made before the I.O., could not be drawn. Lastly it was argued that only allegation against Gauri Gope is that he gave a tangi blow on the head of Jai Kumar Pandey who succumbed to his injuries after eleven days of the alleged assault. The appellant, Bhola Gope is alleged to have assaulted the informant with lathi and Gauri Gope assaulted with tangi causing injury on his arm. There is no specific allegation in respect of other appellants. Sahdeo Gope and Phulchand Gope. The appellant, Bhola Gope is alleged to have assaulted the informant with lathi and Gauri Gope assaulted with tangi causing injury on his arm. There is no specific allegation in respect of other appellants. Sahdeo Gope and Phulchand Gope. On the other hand there is general allegation that they were armed with lathies and they assaulted PW 1, Bhuneshwar Pandey and PW 5, Arjun Pandey with lathi. On this ground it was argued that when there is no specific allegation against the other three accused persons who have assaulted Jai Kumar Pandey then they cannot be dragged. Hence against them Section 34 of the IPC is not attracted as the specific allegation of giving tangi blow on the head of Jai Kumar Pandey is only against Gauri Gope. Hence the others except the main assailant, Gauri Gope, should be dealt with their individual acts into consideration. The learned counsel for the appellants has also argued that as the appellant, Gauri Gope, had given only one tangi blow on the head of Jai Kumar Pandey without any repetition on his person, who fell down and became unconscious, was taken to hospital where he succumbed to his injury after eleven days of the alleged occurrence. Hence instead of Section 302, IPC, Section 304, Part II of the IPC, is attracted and has relied upon a case reported in 1998 JT 488 (SC) In this view of the fact it was submitted that the non-assailants, Bhola Gope, Sahdeo Gope and Phulchand Gope, did not cause any injury with lathi on the person of Jai Kumar Pandey, who later on died, cannot be held guilty under Section 302/34, IPC although they were armed with lathies but there is no specific allegation of lathi assault on his person. 12. In this present case, I find that only for a petty matter regarding grazing of paddy crops of the informant when PW 7, Kalawati Devi, objected, she was slapped by the appellant, Bhola Gope. When the informant and Jai Kumar Pandey went to the door of Bhola Gope only to ask as to why their paddy crops were grazed by his goats and sheep and when objected by Kalawati Devi, she was slapped by Phulchand Gope. At this all the appellants who are of the same family armed with lathi and tangi, chasing the informant and Jai Kumar Pandey, went to their doors. At this all the appellants who are of the same family armed with lathi and tangi, chasing the informant and Jai Kumar Pandey, went to their doors. The appellant, Bhola Gope, firstly gave a lathi blow on the person of the informant, Arjun Pandey and also ordered the other appellants to kill the informant and his brother. The order was to kill hence, on his order, Gauri Gope who had tangi in his hand, gave a tangi blow on the head of Jai Kumar Pandey who sustained bleeding injuries, fell down and became unconscious. Later on while taken to hospital for treatment he died due to that injury. The other three appellants also assaulted with lathi to PW 1, Bhuneshwar Pandey and PW 7, Kalawati Devi. All the four appellants armed with tangi and lathi, chased the informant and his brother and went to their doors. The appellant, Bhola Gope, firstly gave a lathi blow and ordered to kill the prosecution party. On his order with an intention to kill, Gauri Gope gave a tangi blow on the head of Jai Kumar Pandey. After the alleged assault to PW 1, Bhuneshwar Pandey, PW 5, Arjun Pandey and Jai Kumar Pandey, all of them fled away simultaneously. They chased upto their house armed with lathi and tangi, went to the door of the informant, assaulted them and after the alleged assault all of them fled away at a time. This shows that all of them had common intention to cause the murder as ordered by Bhola Gope to the other appellants resulting the alleged assault. Hence Section 34 is very much attracted as all of them had gone there in furtherance of their common intention on the order of Bhola Gope to kill the prosecution party. In view of my above considered facts, I come to the conclusion that all the four appellants in furtherance of their common intention chased and took part in the assault. The injured Jai Kumar Pandey while admitted in general male ward of DCW Hospital, his statement was recorded by Dr. K.K. Pd. in presence of the witnesses, Panchanand Pandey and Dayanand Prasad, who were workers of the same hospital. It is also clear that on being given tangi blow, Jai Kumar Pandey fell down and became unconscious. When he regained his sense in the hospital he saw the informant and PW 1 in injured condition. K.K. Pd. in presence of the witnesses, Panchanand Pandey and Dayanand Prasad, who were workers of the same hospital. It is also clear that on being given tangi blow, Jai Kumar Pandey fell down and became unconscious. When he regained his sense in the hospital he saw the informant and PW 1 in injured condition. He in his good sense after regaining his sense, has stated that he was given tangi blow by the appellant, Gauri Gope on the order of Bhola Gope. The others were also given lathi blows by the other appellants who had gone there to cause his murder on the order of Bhola Gope. The post-mortem report although proved by a formal witness regarding the death of Jai Kumar Pandey who has also given his last statement, Ext. 3, before the Doctor and the other staffs of DCW Hospital on 15.10.1981 at 9.30 a.m. This piece of evidence, Ext. 3, which is now dying declaration of Jai Kumar Pandey, is also trustworthy as the witnesses who were workers of the same hospital, have stated that while Jai Kumar Pandey regained his sense and was talking then, his statement was recorded by Dr. K.K. Pd. As the said Doctor has also died hence this dying declaration recorded by him, Ext. 3, cannot be disbelieved as it is also corroborated by the eye-witnesses, PWs 1, 5 and 7. 13. In view of my above considered facts, I find that the prosecution has well proved its case against all the appellants under Section 302/34, IPC and they have rightly been convicted and sentenced to go R.I. for life for the said offence, however, no separate sentence was passed against the appellants, Bhola Gope and Gauri Gope, under Section 323, IPC in view of their conviction and sentence under Section 302/34, IPC. 14. In the result I find that there is no merit in this case which is accordingly dismissed and the judgment of conviction and sentence passed by the Court below is hereby affirmed. The appellants, namely, Bhola Gope, Sahdeo Gope, Fulchand Gope and Gauri Gope, who are on bail, their bail bonds are cancelled and they are ordered to surrender in the Court below to serve their sentences. Vishnudeo Narayan, J. 15 I agree.