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2003 DIGILAW 390 (PAT)

Pravesh Gope, Jagdish Gope v. State of Bihar

2003-04-04

P.N.YADAV, S.N.JHA

body2003
JUDGMENT S.N. JHA and P.N. YADAV, JJ. There are eight appellants in all in these two appeals. They have been convicted for committing murder of Raj Kumar Gape of Village Pakri within Karai Parsurai Police Station of Nalanda district on 29.6.1987 at about 5 p.m. While seven appellants of Cr. Appeal No. 162/98 have been convicted under Section 302/149 and sentenced to imprisonment for life the sale appellant of Cr. Appeal No. 269/98 has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life. All of them have also been convicted under Section 148 of the Penal Code but no separate sentence has been awarded there under. 2. Jagdish Gape father of Raj Kumar Gape reported the occurrence to SI Ram Vyas Singh of Karai Parsurai PS at 6.30 p.m. on the date of occurrence i.e. 29.6.1987 at the bank of river Lokain on the outskirts of village Pakari where murder is said to have been committed. He stated in the fardbeyan that he had asked his son Raj Kumar to bring the she-buffalo which had gone towards the river side while grazing. When Raj Kumar reached at the place of occurrence the appellants armed with guns and farsa came out of the maize field of one Nanhku Bhagat along with 10-15 others and attacked him. Raj Kumar tried to flee away, however on the order of appellant Naresh Gape, appellant Chandrika Gape fired from his gun causing injury to Raj Kumar, others appellants also fired simultaneously. On hearing the sound of gun fire witnesses rushed to the place al1d the appellants fled away. The informant along with others went near Raj Kumar and found two gun shot injuries-one on the chest towards right side of arm-pit and the other on the left side of the chest. Jagdish Gope alleged that the cause of occurrence was altercation which had taken place two days ago between the appellants and Raj Kumar. On the above said statement of Jagdish Gope Hilsa (Karai) PS Case No. 157/87 was registered against the appellants. The case was investigated by SI Ram Vyas Singh who after completing necessary formalities submitted charge-sheet and the appellants were thus put on trial. 3. At the trial the prosecution examined six witnesses to prove its case four out of whom including informant Jagdish Gope claimad to be eye witnesses. The case was investigated by SI Ram Vyas Singh who after completing necessary formalities submitted charge-sheet and the appellants were thus put on trial. 3. At the trial the prosecution examined six witnesses to prove its case four out of whom including informant Jagdish Gope claimad to be eye witnesses. They are PW 1 Upendra Prasad alias Upendra Gope, PW 2 Suresh Gope, PW 3 Ram Babu Paswan and PW 4 Jagdish Gope the informant himself. The other two witnesses are official witnesses namely Dr. Ram Bhanu Prakash Rukhaiyar who had held postmortem on the body of the deceased and SI Ram Vyas Singh the Investigating Officer, examined as PWs 5 and 6. The appellants did not examine any witness in their defence. At the end of the trial, the trial court convicted and sentenced the appellants in the manner indicated at the outset. 4. Shri Tara Jha, learned counsel for the appellants submitted that there are discrepancies in the fardbeyan version of the informant and his evidence in court and from the evidence of PW 1, 2 and 3 it would appear that all of them, indeed the informant too, had reached the place of occurrence after the occurrence was over and the appe1lant had fled away. Shri Jha placed the evidence of the witnesses at length. He also submitted that the medical evidence does not corroborate the fardbeyan version about the injuries. 5. Having perused the evidence of the witnesses we find substance in the submissions. 6. The witnesses in their examination in chief, no doubt, claimed to have seen the occurrence themselves. They stated in no uncertain terms that after Chandrika Gape tired from his rifle Raj Kumar fell down in the river and died. However their cross-examination suggests that they reached the place of occurrence after hearing the sound of gun fire when the deceased had already fallen down after sustaining injury and the assailant had fled away. PW 1 in para 27 of the cross examination stated that he heard the sound of gun fire while he was grazing his cattle. After hearing the sound he went to the along (embankment in local parlance) and standing from there found Raj Kumar fallen down in the river. In para 28 he stated that the witness including PW 2 and the informant himself among others reached the place afterwards. After hearing the sound he went to the along (embankment in local parlance) and standing from there found Raj Kumar fallen down in the river. In para 28 he stated that the witness including PW 2 and the informant himself among others reached the place afterwards. In para 27 of his evidence he had stated that the height of the along was 4 feet above the ground level and the river 10-12 feet down from the along. In other words, he found the dead body of the deceased fallen in the bed of the river 12 below the along. If he was grazing the cattle in the vicinity and on hearing the sound of gun fire he went on the along and standing from there saw the dead body it is apparent that he could not have seen commission of the crime with his own eyes. PW 2 in para 31 of his cross-examination stated that he heard the sound of gun firing. He thereafter went on the eastern side of the river and from there he found the dead body of Raj Kumar lying in the bed of river. At that time he did not see any person of village Rupaspur. After he went there the villagers including Jagdish Gope, father of the deceased, came. Similarly PW 3 in his cross-examination stated that after hearing the sound of gun firing he saw the residents of the village running towards the place of occurrence. However the assailants had fled away before they reached. 15-20 persons of the village reached the place including father of the deceased. 7. In view of the above mentioned evidence of the prosecution witnesses t is doubtful if even the informant had 5een the occurrence as claimed by him in the fardbeyan or in Court. If PW 1 who was the first to arrive at the place of occurrence, followed by the others, had not seen the occurrence, it is evident that other witnesses did not see the occurrence either. As a matter of fact, it may be recalled, even in the fardbeyan the informant stated that the sound of gun firing was heard first by the witnesses. It is relevant to mention here that in the fardbeyan names of PWs. 1 and 2 were mentioned as the persons who saw the occurrence. 8. As a matter of fact, it may be recalled, even in the fardbeyan the informant stated that the sound of gun firing was heard first by the witnesses. It is relevant to mention here that in the fardbeyan names of PWs. 1 and 2 were mentioned as the persons who saw the occurrence. 8. It is relevant to mention here that in the fardbeyan the informant has stated that he had asked his son Raj Kumar to bring back the she-buffalo which had gone astray while grazing towards the river side but in his evidence in Court he stated that his she-buffalo too was grazing along with other cattle of the villagers near the place of occurrence. This deviation in our opinion is an improvement in the case intended to probabilise the claim of witnesses to have seen the occurrence. It is clear that if she-buffalo of the deceased was grazing along with the she-buffalo of others, chance of the occurrence being seen by them was more than that appears to be the reason why at the stage of evidence in Court the informant told that his son's she-buffalo too was grazing. 9. On behalf of the State it was submitted that the court should take overall view of the evidence of the witnesses and should not go by the stray statement in the cross-examination. Reliance was placed on Siddique and ors. vs. State of U.P., (1999) 9 SCC 143 , and Inder Singh & anr. vs. State (Delhi Administration) AIR 1978 SC 1091 . It was submitted that the case was instituted within one and half hours of the occurrence and there was little chance of any concoction and fabrication. 10. The submissions as general proposition are well founded. It is true that statement of a witness made under the weight of cross-examination cannot be read in isolation of the other parts of the evidence but it is eql1ally true that the veracity of the statement in examination-in-chief has to be tested with reference to his answers given in course of cross-examination. While in examination-in-chief a witness may give tutored version of the occurrence it is only when the version is tested by cross-examination that its veracity or otherwise can be foul'1d. Reading the evidence of the witness as a whole leaves little room for doubt, that they did not see the occurrence themselves. While in examination-in-chief a witness may give tutored version of the occurrence it is only when the version is tested by cross-examination that its veracity or otherwise can be foul'1d. Reading the evidence of the witness as a whole leaves little room for doubt, that they did not see the occurrence themselves. They heard the sound of gun firing and on hearing the same they went towards the Along four feet above the ground level and from there found Raj Kumar lying in the bed of the river twelve feet down. By that time the assailants were nowhere in sight, they had already fled away. Therefore, it cannot be said that the crime was committed by these appellants. 11. It is relevant to mention here that though the doctor found two injuries, they were communicating with each other-one being injury of entry and the other being injury of exit. The manner in which the injuries were described by the informant in the fardbeyan suggests as if he found two distinct injuries. Apparently the informant described the injuries as he saw them on the body of the deceased little knowing that both the injuries were result of one gun shot and therefore to that extent the medical evidence does not corroborate the prosecution case regarding the manner of occurrence. 12. In the above premises, we are satisfied that the prosecution has failed to proce its case and the appellants are entitled to acquittal. 13. In the result, the appeals are allowed. The conviction and sentence awarded to the appellants are set aside. All the seven appellants of Cr. Appeal No. 162/98 are on bail. They are discharged of title liability bail bonds. The sole appellant of Cr. Appeal No. 269/98, Chandrika Gope, is in custody. He is directed to be released forthwith if not wanted in any other case.