Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 208 (PAT)

Jhemi Gope v. State Of Bihar

2003-02-20

INDU PRABHA SINGH

body2003
Judgment I.P.Singh, J. 1. Appellant Jhemi Gope has been convicted under section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. He has also been convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. His sentences have been ordered to run concurrently. Appellants Nagina Gope, Ramraj Prasad, Kanhai Gope and Bilas Gope have been convicted under section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each. 2. Prosecution case, in short, is that on 9.12.1984 at 12.45 hours Fardbeyan of Ramdeo Gope (informant) was recorded at Fatuha Hospital by A.S.I. In his Fardbeyan he stated that on the same date at about 12.00 A.M. when he was measuring the land along with Pyare Mahto, all the appellants variously armed came there. Jhimi Gope asked the informant and Pyare Gope not to measure the land. Pyare Gope replied that he had purchased the land from one Baldeo Gope. It has been alleged that the accused persons began to abuse them and threatened not to make any construction over his land. Thereafter altercation took place. Appellant Bilas Gope ordered to kill. The informant out of fear tried to fled away but accused Nagina Gope caught hold of him and accused Jhimi Gope gave a dagger blow on his back. The informant being injured ran towards his house to save his life. Other accused persons chased and threw brick bats on him. Thereafter the informant was removed to the hospital where his fard beyan was recorded. The motive of the occurrence as alleged by the informant is that accused Bilas Gope and Mausa of the informant are brothers. His Mousa was issueless. He had adopted the informant as his son who is living with him since his childhood. The accused persons did not like it. They want to get rid of the informant in order to grab the land of the Mousa of the informant. On the basis of the Fardbeyan first information report was drawn up and police started investigation and after completion of the same submitted charge sheet against the accused persons. The case was committed to the court of sessions and ultimately the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. On the basis of the Fardbeyan first information report was drawn up and police started investigation and after completion of the same submitted charge sheet against the accused persons. The case was committed to the court of sessions and ultimately the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. In support of its case the prosecution examined altogether six witnesses, P.W.1 is Kishori Gope, P.W.2 is Yugeshwar Gope, a tendered witness, P.W.3 is Ramdeo Gope (informant), P.W.4 is Dr. K. D. R Verma who had examined the injured informant, P.W. 5 is Satyawan Prasad, I.O. of this case and P.W.6 is Awadhesh Kumar, a formal witness who had proved Exts. 5 and 6. 4. P.W. 3 the informant has fully supported the case of the prosecution as stated in his Fardbeyan. According to him on the date of occurrence when he was measuring his land along with Pyare Mahto the appellants came variously armed and appellant Jhimi Gope asked them not to measure the land. Thereupon, Pyare Mahto told him that he had purchased the land from one Baldeo Gope. Thereafter the appellants began to abuse them and threatened not to make any construction over the land. There was some altercation between him and the informant and therefore out of fear wanted to fled away but the appellant, Nagina Gope caught hold of him and appellant Jhimi Gope gave a dagger blow on his back. The informant after being injured ran towards his house to save his life. He has also stated that the other accused chased and threw brick bats on him. He was removed to hospital where he was treated and his Fardbeyan was also recorded. 5. P.W.4 Medical Expert Dr. K.D.P. Verma examined the injured on 9.12.84 at 2.00 P.M. and found the following injury on the person of Ramdeo Gope: "Incised wound 2"x1" on the left side of the Back in the 10th intercostal space with cut in the 1/3 of the width of the 9th rib." In the opinion of the doctor the injury was grievous in nature caused by sharp cutting weapon, may be dagger. The injury was on the vital part. 6 P.W.5 the I.O. has also supported the case. He has stated that on getting information of the occurrence he went to hospital and saw the injured and recorded his Fardbeyan. The injury was on the vital part. 6 P.W.5 the I.O. has also supported the case. He has stated that on getting information of the occurrence he went to hospital and saw the injured and recorded his Fardbeyan. He also prepared the injury memo which was Ext. 3. He again recorded Fardbeyan of the informant. He has stated that injury memo Ext. 3 was prepared by one B.N. Prasad. Thereafter he started investigation and also inspected the place of occurrence. He has given the full description of the same. In his cross examination he has also stated that he also found blood stains on the place of occurrence and also seized the blood stained soil. The other witness P.W. 1 has also supported the version of the informant. 7. Learned counsel for the appellants has submitted that in this case motive has not been proved as Pyare Mahto who was getting the land measured was not examined. He has further submitted that in this case all the witnesses are interested and related witnesses and not a single witness has been examined by the prosecution, Further submission of the learned counsel is that the injury inflicted on the person of injured P.W. 3 cannot be said grievous in nature because X-ray was not done and the injury does not fall within the ambit of section 320 of the Indian Penal Code. 8. From the record it appears that the case of the prosecution has been supported by P.Ws. 1 and 3 (informant). They are consistent about the manner of occur rence. The I.O. who inspected the place of occurrence also found blood stains on the place of occurrence and seized the blood stained soil. He has also proved the first information report and injury memo prepared by one B. N. Prasad Ext. 3. The informant had also stated that the assult on him was done due to grudge, appellant Jhumi Gope was nursing against him because Baldeo had gifted some land and it the same would not have been gifteted him, the same would have automaticalIy be given to appellant Jhumi Gope after the death of Baldeo. Though the immediate cause of occurrence as stated was due to measurement of land sold to Pyare but the assault was on the informant due to grudge against him for the reasons already indicated. Though the immediate cause of occurrence as stated was due to measurement of land sold to Pyare but the assault was on the informant due to grudge against him for the reasons already indicated. That apart, the fact of assault has been supported by P.W.1 and corroborated by the injury found by the doctor and version of the I.O. P.W. 5. In view of above even if immediate motive has not been proved but in view of assault on the injured informant proved by supporting evidence of Dr. and I.O. the case of prosecution cannot be discarded. It is true that both the eye witnesses are related one but P.W.3 the informant has specifically stated in his deposition that Pyare Mahto due to fear of the appellant did not choose to depose before the court below. In this case the injured informant is not the resident of the appellants where the occurrence took place. The charge sheet witness Pyare Mahto being a co-villager of the appellant naturally did not choose to take wrath of these appellants. As such the submission of the learned counsel that only interested witnesses were examined, the case of the prosecution cannot be disbelieved. Subsequently two eye witnesses are consistent and corroborative and the same has also been corroborated by the doctor. The doctor who examined the injured found that the injury was grievous in nature and has given definite opinion that 1/3rd of 9th rib was cut. Though the doctor has stated that X-ray plate was not produced but opinion of the doctor can not be discarded and certainly it attracts punishment under section 326 of the Indian Penal Code for causing grievous hurt by dangerous weapon. As such the prosecution has proved its case beyond reasonable doubts and the learned court below has rightly come to the conclusion and convicted the appellant Jhimi Gope for the offence punishable under sections 326 and 148 and other appellants under section 147 of the Indian Penal Code. I do not find any reason to interfere with the conviction of the appellants. 9. However, coming to the question of sentence learned counsel for the appellants submitted that the occurrence took place in 1984 about 19 years ago and since then the petitioners have been amply harassed and punished during the prolonged litigation and they have remained in jail for some time. 9. However, coming to the question of sentence learned counsel for the appellants submitted that the occurrence took place in 1984 about 19 years ago and since then the petitioners have been amply harassed and punished during the prolonged litigation and they have remained in jail for some time. As such, some lenient view may be taken while awarding sentence to these appellants. Having regard to the submissions so raised I am of the opinion that the ends of justice will be met if the sentence of these appellants is reduced to the period they have already undergone in jail with a fine of Rs. 5000/- to be deposited by appellant Jhemmi Gope and Rs. 500/- to be deposited by appellants Nagina Gope, Ram Raj Prasad, Kanhia Gope and Ram Bilas Gope each within three months from the date of receipt/production of a copy of this order, in default, to undergo rigorous imprisonment for a further period of one year so far appellant Jhemmi Gope is concerned and to undergo rigorous imprisonment for a further period of one month so far remaining appellants are concerned. It is made clear that the amount of fine if and when realised, shali be paid to the informant Ram Deo Gope (informant) by way of compensation. With the aforesaid modification in sentence this appeal is dismissed.