Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 154 (PAT)

Biswanath Gope v. State Of Bihar

2003-02-05

B.N.P.SINGH, P.K.SINHA

body2003
Judgment B.N.P.Singh, J. 1. Though as many as eight number of accused-persons were put on trial, rest having been acquitted of the charges, Bishwanath Gope alone (hereinafter referred to as the appellant) suffered conviction u/s. 302 of the Indian Penal Code ( Indian Penal Code, 1860 ) and sec. 27 of the Arms Act, in which, .while he was sentenced to suffer rigorous imprisonment for life on the first count, no sentence was awarded on the second count. 2. Factual matrix appearing from the fardbayan of Ajab Lal Yadav and also narrations made by the witnesses at trial can be recapitulated with brief narration of them. At about 11 a.m. on 23rd July, 1984, while Rajendra Gope (hereinafter referred to as the deceased), was working along with his nephew Ajab Lal Gope in the field, which situated in Jagwa Khanda of village Kharaura for transplanation of paddy crops, the appellant came along with other accused-persons (since acquitted) and on exhortation made by Ram Prit Gope for executing killing of the deceased, appellant fired shots on him when he dropped injured. All those who were working in the adjacent field came there and took the injured to State Hospital, Harnaut. However, before any medial aid could be provided to the injured, he succumbed to the injuries. As for genesis of the incident, it was alleged in the earliest version of the prosecution that Yugal Gope, cousin brother of the deceased, was at loggers head with Bishwanath Gope, appellant, and preceding the incident, Yugal Gope had assaulted Bhajji Gope, brother of the appellant with fists and slaps, pursuant to which appellant got reacted and executed killing of Rajendra Gope, who happened to be agnate of said Yugal Gope. 3. After Police was set in motion, investigation commenced and in the process of collection of evidence, Police Officer visited place of occurrence, prepared inquest report over the dead-body of the deceased, got autopsy held by the doctor and on conclusion of investigation, laid charge-sheet before the Court. In the eventual trial that followed, the State examined altogether seven witnesses, including, doctor, Police Officer, family members of the deceased, who claimed to have been working in the field during material time of incident, and other witnesses who too claimed to be ocular to the incident. 4. In the eventual trial that followed, the State examined altogether seven witnesses, including, doctor, Police Officer, family members of the deceased, who claimed to have been working in the field during material time of incident, and other witnesses who too claimed to be ocular to the incident. 4. Defence of the appellant both before the Court below and this Court had been plain denial of the entire allegations, emphatically refuting his complicity in the incident and it was suggested that since the deceased bore criminal antecedent, he was killed elsewhere and for animosity, the appellant was sought to be falsely roped in the instant case. The trial Court, however, rejecting contentions raised at Bar on behalf of the appellant and accepting testimony of the witnesses, some of whom, claimed to be ocular, while acquitted rest of them, recorded findings of guilt as noticed above and sentenced them in the manner stated above. 5. Findings recorded by the trial Court was sought to be assailed by the learned Counsel for the appellant primarily on two premises and it is sought to be urged that even though a good number of labourers were seen to have been working in the adjacent field, no one came to lend assurance to the prosecution allegation attributed to the appellant about he being killer of the deceased. Failure of the Investigating Officer to effect seizure of the blood, if at all found at the place of occurrence, was also taken to be a ground to assail the bona fide of the prosecution allegation. Some narrations made by tiie witnesses for which there did not appear to be parallel statement before the Police, was also highlighted at Bar to persuade us to disbelieve them and with equal emphaticism, it is urged that even finding recorded by the doctor was not in conformity with the accusation attributed to the appellant. 6. Facts of the case, as we have noticed, is tell-e-tell and for which we may now advert to the narrations made by the witnesses at trial. 6. Facts of the case, as we have noticed, is tell-e-tell and for which we may now advert to the narrations made by the witnesses at trial. Ajab Lal Yadav (PW 5), who happens to be maker of the fardbayan, while reiterating his earliest version, which he rendered before the Police stated to have witnessed the appellant and others coming in search of Yugal Gope, pursuant to which on exhortation made by Ramprit Gope, the appellant fired a shot on the deceased near the service well of Nagina Gope which hit the right part of the abdomen of the deceased and he dropped injured. Though the injured was carried out to State dispensary, but before any medical aid could be given to him, he succumbed to the injuries. 7. As was stated by the witnesses, the appellant fired shot from a distance of about 5-6 ft from the deceased. Some part of narration made by the witnesses was sought to be highlighted at Bar to impeach credibility of the witnesses as the. Investigating Officer stated that the witnesses had not been making similar narration before the Police about the deceased running towards north when he was chased by the appellant and also about deceased making entreaty before the appellant on exhortation made by Ramprit Gope. Similar narration made by the witness about deceased sustaining injuries in right side of his abdomen was admittedly not made before the Police. However, we find that taking these discord between two narrations made by the witnesses into consideration, they do not affect broad feature about appellant having fired shot by the deceased, pursuant to which he dropped on the ground. 8. Ashok Kumar (PW 1) too was working along with others in the field which situated in Jagwakhanda, when appellant came along with others holding fire arms and then on exhortation made by Ramprit Gope to kill the deceased, as he too happened to be gotia of Yogendra Gope, appellant fired shots on him near the service well of Nagina Gope, pursuant to which the deceased dropped on the ground. This witness too states about deceased making entreaty before the appellant before he was fired shot by him. 9. Almost similar narrations were made by Surendra Kumar (PW 2) who states about the appellant visiting Jagwakhanda along with his associates holding arms and hurling abuses. This witness too states about deceased making entreaty before the appellant before he was fired shot by him. 9. Almost similar narrations were made by Surendra Kumar (PW 2) who states about the appellant visiting Jagwakhanda along with his associates holding arms and hurling abuses. This witness was grazing cattle in the field when he claimed to have noticed the appellant chasing the deceased and shortly after the deceased came near service well of Nagina Gope, the appellant fired shot from a distance of 5/ 6 ft which struck abdomen of the deceased who dropped on the ground. 10. Now, we may advert to the narrations made by Nagina Gope, another witness, who happened to be PW 4. He too was working in the field in Jagwakhanda when he noticed the deceased running towards his cabin on being chased by the appellant with rifle along with his associates and shortly after the deceased turned looking back the appellant fired shots which struck right side of the abodmen and he dropped on the ground and the appellant and his associates shortly thereafter made good their escape. This witness too states that the deceased was firing shots from a distance of 5/6 ft. 11. Baleshwar Gope was an attesting witness to the fardbayan of Ajab Lal Yadav, recorded by the Police and he simply claims to have witnessed Rajendra Gope dead. The doctor who held autopsy happened to be Dr. Ram Pratap Singh (PW 4) and the doctor stated to have noticed one round punctured gunshot wound of 1/4" in diameter on right lower part of chest with blacken charred margin and this was wound of entry. The doctor noticed one lacerated wound on the back of right chest at the level of ninth thoracic vertebrae. The death in the opinion of the doctor was due to shock and haemorrhage produced by the injuries on the body of the deceased, 12. Shri Mahesh Singh, Police Officer stated to have visited State Dispensary, Harnaut, on receipt of OD slip where he recorded statement of Ajab Lal Yadav on strength of which First Information Report was drawn up at the Police Station. He stated to have prepared inquest report, visited place of occurrence which was open land adjacent east to the service well of Nagina Gope (PW 4). The field of the deceased was adjacent to the field of Nagina Gope. He stated to have prepared inquest report, visited place of occurrence which was open land adjacent east to the service well of Nagina Gope (PW 4). The field of the deceased was adjacent to the field of Nagina Gope. Police Officer states to have apprehended the appellant and also noticed blood at the place of occurrence. This is all the evidence that has been adduced on behalf of the State. 13. We can notice that though the doctor stated to have noticed gun shot wound on the right lower part of chest with blacken and charred margin which was wound of entry, the witnesses were claiming to have noticed the deceased sustaining gun shot injuries in the abdomen and this has been also highlighted at Bar to suspect the credibility of the witnesses. However, we find that the witnesses, who were seeing the incident even from insignificant distance, are not expected to make statement with mathematical precision and that apart, injuries noticed on the body of the deceased were just above abdomen and hence we find that narration made by the witnesses cannot be said to be in contract with the positive findings recorded by the doctor. Almost all witnesses were stating at trial that the appellant shot on the deceased from a distance of 5/6 ft. and the doctor had found the wound of entry with blacken and charred margin. The failure of the Police Officer, which was admitted by him, to collect blood stained earth from the place of occurrence did not introduce any serious infirmity in the prosecution version. Likewise, there being no mention about receipt of OD slip in the station dairy, was not an omission to affect the broad feature of the prosecution case and that apart, this is no longer res Integra that for the lapse on the part of the Investigating Officer, the prosecution was not a casualty. Failure of the State to examine labourer, who were working in the.adjacent field, did not materially affect the broad fabric of the prosecution version as those, who have come to lend assurance to the prosecution allegation suggesting the appellant to be killer, were none else but these who were working in the adjacent field and the Investigating Officer too had found their lands in Jagwakhanda where they were working in the transplantation of the paddy crop. Investigating Officer too had noticed transplanation of the paddy crops in the adjacent field. 14. The defence too had chosen to examine one witness and bring on the record a document which was Exhibit-A and B series and these are certified copy of the First Information Report of Criminal Cases. Enmity persisting between the family of the deceased and the appellant had been admitted even by the wjtnesses but regard being had to the clinching evidence that has been placed on the record by the State suggesting in ail eventuality the appellant to be killer of the deceased, we find that the evidence of defence placed on the record did not militate against the bona fide of the prosecution version. This fact too cannot be lost sight the occurrence took place at 11 a.m. on 23-7-1984 and the Police Station lies at a distance of six kms. from Jagwakhanda of village Khairwa and shortly after two hours the First Information Report was lodged at about 1 p.m. on 23-7-1984. Even the First Information Report was sent to the office of the Chief Judicial Magistrate just on the following day. The inquest report was prepared by the Police Officer on 23-7-1984 itself and in the backdrop of these eloquent features of the prosecution case, we find that the prosecution was launched against the appellant and others with all promptitude. The investigation commenced shortly after the incident and hence there was no delay in launching prosecution. No other points were raised at Bar to merit consideration. 15. Having analysed the evidences placed on the record which we find most clinching, and also regard being had to the contentions raised at Bar, we find that the findings recorded by the Court below was based on meticulous appreciation of facts placed before the trial Court which did not merit interference. The appeal being meritless is accordingly dismissed. 16. P.K. Sinha, J. I agree.