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2004 DIGILAW 180 (PAT)

Ram Baram Yadav @ Gope Etc. v. State Of Bihar

2004-02-12

INDU PRABHA SINGH, MRIDULA MISHRA

body2004
Judgment INDU PRABHA SINGH and MRIDULA MISHRA JJ. 1. Cr. Appeal No. 129 of 2000 and Cr. Appeal No. 207 of 2000 arise out of the same judgment and have been heard together and are being disposed of by this common judgment. 2. Appellant Raj Kumar Gope has been convicted under Section 302 of the Indian Penal Code and was sentenced for life imprisonment. He was further convicted under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for five years. However, both the sentences were ordered to run concurrently. The appellant Ram Baran Yadav alias Gope has been convicted under Sections 302/114 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 3. The prosecution case in short is that on 5.2.1997 at 13.30 hours at Primary Health Centre, Rahui, PW 6 Kameshwar Gope gave his fardbeyan alleging therein that the (Kameshwar Gope), PW 6 has sold his one katha of land to his co-villager Anandi Gope by a registered sale deed and on the east and in front of the vended land situates 26 links of gair mazarua land. In respect of that land there was in agreement between them at the time of sale itself that each of them will share half of the gair mazarua land. It has been further stated that after the registration of sale deed the purchaser Anandi Gope (accused) backed out from the agreement and wanted to take total gair mazarua land himself and for that a tension started between them. It has further been alleged that on 5.2.1997 at about mid-day with a view to settle out tension a measurement of the said gair mazarua land was taken up. In the midst of measurement of land accused Anandi Gope, Ramdahin Gope, Rambaran Gope, Sivsaran Gope and Rajkumar Gope began to abuse and started bricbatting and they were threatening Kameshwar Gope and his family with dire consequences. In the meantime "Rambaran Gope ordered to bring gun and on his order the appellant Rajkumar Gope went running to his house and came there with country made pistol and fired which hit right side of abdomen of Shyam Deo Yadav, who fell down. Thereafter hearing the sound of the villagers Krishan Gope and Sakaldeo Gope and other family members of the informant came there and saw the occurrence. Thereafter hearing the sound of the villagers Krishan Gope and Sakaldeo Gope and other family members of the informant came there and saw the occurrence. It has further been alleged that injured Shyamdeo Yadav told them that Rajkumar Gope fired at his abdomen. Thereafter the accused persons having seen the villagers fled away. The informant and others brought Shyamdeo Yadav on a cot to Primary Health Centre, Rahui where the statement of the informant was recorded. The injured was referred to Biharsharif Sadar Hospital for better treatment and in the way he died. 4. On the basis of the fardbeyan of the informant, PW 6 Kameshwar Gope the police registered formal FIR bearing Rahui P.S. Case No. 20/97. The Officer-in-Charge, Rahui after completion of investigation submitted charge-sheet against the accused persons. Accordingly the cognizance was taken and the case was committed to the Court of Sessions. Ultimately the trial concluded with the result as indicated above. 5. The appellants have pleaded not guilty and they have stated that they have been falsely implicated in this case. 6. The prosecution in support of his case examined altogether ten witnesses. PW 1 is Binod Yadav, PW 2 is Krishna Yadav, PW 3 is Lala Yadav, PW 4 is Ram Bhajan Yadav, PW 5 is Sakaldeo Yadav alias Sakal Yadav PW 6 is Kameshwar Gope, the informant and the father of the deceased. PW 7 is Dr. Sailendra Narain. He has examined the injured and has referred him to the Sadar Hospital, Biharsharif. PW 8 is Ram Sakal Singh, Havildar. PW 9 is the IO R.N. Pandit and PW 10 is Dr. Prabhat Keshav. He has conducted the post-mortem examination of the dead body of the deceased. 7. PW I Binod Yadav has fully supported the case of the prosecution and has stated that on the date of occurrence the deceased was getting the gair mazarua land adjacent east to one katha of land which he sold to Anandi Gope measured. The deceased and appellant had earlier agreed to distribute this land equally between them but later on Anandi Gope was not agreeing on this and on that issue they had dispute. At that time also there was some dispute and accused Ram Baran Gope ordered to kill the deceased. The deceased and appellant had earlier agreed to distribute this land equally between them but later on Anandi Gope was not agreeing on this and on that issue they had dispute. At that time also there was some dispute and accused Ram Baran Gope ordered to kill the deceased. On his order Rajkumar Gope (appellant) went to his house and came with a pistol and fired which hit in the right abdomen of the deceased Shyamdeo. After sustaining injury he fell down. Thereafter some villagers assembled but all the accused persons fled away. The injured was taken to Rahui Hospital and from there he was referred to Sadar Hospital, Biharsharif where he died in the way. He was a witness of inquest report which was prepared in his presence and having his signature also on it. He also identified the signature of other witnesses of inquest report who also signed on the same in his presence. He has further stated that he had never seen that there was any differences or dispute between Kameshwar and the family of Anandi in past PWs 2, 3 and 4 have also further stated that the deceased told the informant that Raj Kumar had fired at him. PW 2 has also stated that on the wound of the injured they put bandage of towel. PW 2 further stated that he had never apprehended such occurrence which took place at the hands of the other side. He also stated that even when Rajkumar came with pistol he could not feel that such act can be done by him. If he had slightest feeling of that he could have suggested the deceased to flee away and leave the place when appellant Rajkumar came with fire arms. PW 6 Kameshwar Gope the informant has also supported the case of the prosecution. According to him he has sold his one katha of land of accused Anandi Gope. There was gair mazarua land east of the sold land and at the time of sale there was an agreement between him and the accused Anandi Gope to share half and half of the gair mazarua land between them. He has further stated that the accused Anandi Gope after execution of sale deed wanted to utilize total gair mazarua land. There was gair mazarua land east of the sold land and at the time of sale there was an agreement between him and the accused Anandi Gope to share half and half of the gair mazarua land between them. He has further stated that the accused Anandi Gope after execution of sale deed wanted to utilize total gair mazarua land. At the time of measurement accused Anandi Gope, Rambaran Gope, Ramdahin Gope, Rajkumar Gope and Sivsaran Gope were present and from his side he, himself, his sons Krishan, Shyamdeo and Sakaldeo and also co-villagers Vinod, Rambhajan and Lala Were there. As measurement started they hurled abuses. The accused Ram Baran Gope ordered his son to bring gun and on his order all the accused went to the house and came there armed with pistol and gun and they were raising slogans and fired at him. It has further been alleged that after moving ahead few steps, the appellant Rajkumar Gope fired at Shyamdeo (deceased) causing injury on his right side of abdomen. Having sustaining injuries he fell down and villagers came having seen them the accused persons fled away. Thereafter the injured was taken to Rahui hospital from where he was referred to Sadar Hospital Biharsharif and in the way he died. According to him his fardbegan was recorded at Rahui Primary Health Centre. PW 7 is Dr. Shailendra Narain, the Medical Officer of Primary Health Centre, Rahui where the deceased was first brought. He examined the injured and found the following injuries on his persons : (i) One lacerated wound with profused bleeding measuring 1" x 1/2" with inverted margin and there is blackening around the wound at the right flank of abdomen. 8. PW 8 is a formal witness. According to him he brought the sealed bottle containing metallic substance like bullet from Malkhana of Rahui P.S. with forwarding letter written by SI Incharge, Malkhana Rahui police station which has been marked as Ext. 4 PW 9 is IO of this case R.N. Pandit. He has also supported the case of the prosecution. According to him on the date of occurrence i.e., on 5.2.1997 he was posted as Officer-in-Charge Rahui Police Station. At about 13.20 p.m. he got rumour that a man has been brought with fire arm injuries at Primary Health Centre, Rahui. 4 PW 9 is IO of this case R.N. Pandit. He has also supported the case of the prosecution. According to him on the date of occurrence i.e., on 5.2.1997 he was posted as Officer-in-Charge Rahui Police Station. At about 13.20 p.m. he got rumour that a man has been brought with fire arm injuries at Primary Health Centre, Rahui. He entered Station Diary Entry No. 109 and moved along with SI Devendra Prasad and Ramashray Sharma for Primary Health Centre, Rahui where he recorded the statement of PW 6 the informant Kameshwar Gope. He has further stated that the SI, Devendra Prasad issueD injury slip. He proved fardbeyan of the informant which has been marked as Ext. 6. The injury report has been marked as Ext. 3/1. He has also stated that the information which was entered in the station diary vide S.T. Entry No. 112 has been marked as Ext. 5/1. He has also received the injury report of the deceased Shyamdeo Yadav then he submitted sealed bottle containing bullet like metallic substance received from Sadar Hospital, Biharsharif in the Malkhana of the concerned police station. 9. PW 10 Dr. Prabhat Keshav has conducted the post-mortem examination on the dead body of the deceased Shyamdeo Yadav on 5.2". 1997 at 3.45 p.m. PW 10 has found the following on the dead body of the deceased Shyamdeo Yadav : (1) Rigor mortis present in all four limbs. (2) One lacerated wound present on right illiac region, lateral to the macberneys point 1-1/2" x 1/2" x cavity deep, margin inverted, area around the wound blackened charring on dissection : 1. Skul : Brain tissues intact and pale. 2. Chest: Lungs intact Heart chambers contained blood fluid and blood clots. 3. Abdomen : Peritonial cavity full blood fluid and blood clotts. 4. Stomach : Intact and contained semi digested food material. 5. Liver spleen intact. 6. Right kiddney raptured mesentry and small and large intestine purforated. 7. Aorta also purforated. 8. Bladder half full. According to the opinion of the doctor death has occurred due to shock and hemorrhage caused by abovenoted wound which was fire arms injury. Time elapsed since death was within 12 hours. It has also been opined that one foreign body bullet like material has been extracted out from the peritonial cavity preserved and sealed. Post-mortem report has been marked as Ext. 6 in this case. Time elapsed since death was within 12 hours. It has also been opined that one foreign body bullet like material has been extracted out from the peritonial cavity preserved and sealed. Post-mortem report has been marked as Ext. 6 in this case. 10 Learned counsel for the appellants has submitted that there is no mens rea for committing such crime. All the witnesses are related are highly interested witnesses. As such there evidence should not be relied upon. It has further been submitted that the genesis of occurrence has not been fully established and there was no motive for the crime. It has also been stated that the land was purchased in the year 1984 and the occurrence took place in the year 1997, and as such after such a long time there should not have been such occurrence taken place. It has also been submitted that the blood was not found at the place of occurrence even though the witnesses supporting the prosecution case has stated that the blood came out from the wound of the injured. Place of occurrence could not be established and the act done by the appellants wets not premeditated. It happens in spur of moment, when there was altercation between them on this point. Learned counsel has drawn my attention to a decision reported in Cr LJ 2003 (2) 1951. In this case it has been stated that during the paddy harvesting accused persons protested the prosecution party not to harvest the crop which resulted in violent altercation and one of the accused fired from his gun which hit the chest of the deceased. Their lordships held that the act of the accused was without any premeditation. Accordingly the conviction of the accused under Section 302 altered to that of Section 304(2) of the Indian Penal Code. However, in this case the act of abusing and brickbatting by the appellants shows that they were the aggressor and bent upon not to get the land measured. Accordingly the conviction of the accused under Section 302 altered to that of Section 304(2) of the Indian Penal Code. However, in this case the act of abusing and brickbatting by the appellants shows that they were the aggressor and bent upon not to get the land measured. They were prepared for any eventuality which can be concluded by the act of the appellants, Rajkumar Gope who on the order of his father went to his house and came out with loaded pistol fired after taking aim on the deceased Shyamdeo as such it seems that he had not acted in spur of moment in heat of anger and his intention was clear and he was well determined. As such in the facts of the present case the decision so cited is not helpful to the appellants. The other submission of the learned counsel that the witnesses on factum are related one and thus highly interested but it appears that they had no previous enmity with the appellants and they were always having good relation between them. They all were present at the time of occurrence. Their evidence are consistent and coherent as such testimony cannot be discarded only on the ground that they were related to the informant. So far the submission of the learned counsel that at the time of occurrence other villagers came but they have not been examined. It is well known that in present days social structure no one other than relation/family members usually takes pain to depose in case due to fear of unnecessary wrath of another party and also due to fear of harassment and waste of time during police investigation and Court proceeding even though he had actually witnessed the occurrence. As such only on the ground that witnesses are interested their testimony cannot be discarded. As far as place of occurrence is concerned according to Investigating Officer in his, deposition he has given the full description of the place of occurrence and found objective finding that there was some mark of measurement on the land i.e., cut mark of the land with spade. According to the prosecution case the place of occurrence was eastern side of the house of Anandi Gope. According to the prosecution case the place of occurrence was eastern side of the house of Anandi Gope. The informant PW 6 Kameshwar Gope has stated in paragraph 16 of the deposition that the land was adjacent east of the land he sold to Anandi Gope and he had given correct boundary in the sale deed. The learned Court below has also discussed about the place of occurrence in paragraph 21 of his judgment in detail. So far as the submission that blood was not found on the place of occurrence even though the doctor was of the opinion that profused bleeding must have been taken place. It is evident from the deposition of the witnesses PWs 2, 3 and 6 that they have bandaged the injury by means of towel which must have soaked the blood and prevented from bleeding. On dissection also it was found by the doctor PW 10 that peritoneal cavity was full of blood. It may be the result of tight bandage by the towel. According to the informant PW 6 many persons came to place of occurrence after the firing as such a blood stained must have been erased and trampled by those persons who assembled at the place of occurrence. The bleeding was not profused as has been stated in paragraph 107 of the deposition of the informant. It was little blood which fell at the place of occurrence. Even PW 3 has stated that the blood fell on the ground in drops and there was no profused bleeding. So far the genesis of the occurrence is concerned there are clear version of the prosecution witnesses that it all started when the informant Kameshwar Gope started getting the gair mazarua land measured for dividing it into two parts. So far as motive is concerned there is consistent and coherent evidence that Rajkumar Gope on instigation of his father Ram Baran fired at the deceased causing injury on his right side of the abdomen which resulted into his death. As such even if there may not be a motive an occurrence as alleged took place. The doctor extracted bullet like material from parietal region which goes to show that he had a bullet injury as per the version of the prosecution. According to the doctor the death was due to shock and hemorrhage caused by fire arm. 11. As such even if there may not be a motive an occurrence as alleged took place. The doctor extracted bullet like material from parietal region which goes to show that he had a bullet injury as per the version of the prosecution. According to the doctor the death was due to shock and hemorrhage caused by fire arm. 11. On appreciation of the evidence so adduced the learned Court below rightly came to the conclusion that the appellant Rajkumar Gope was guilty of the culpable homicide amounting to murder, punishable under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act and appellant Ram Baran Yadav was guilty under Section 302/114 of the Indian Penal Code for murder of Shyamdeo. As such we see no reason to interfere with the judgment under challenge. The conviction and sentence passed by the learned Court below is hereby upheld and this appeal is dismissed.