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2004 DIGILAW 402 (PAT)

Gopi Gope v. State Of Bihar

2004-04-07

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment RAM NANDAN PRASAD and MRIDULA MISHRA JJ. 1. The appellants have preferred this appeal against the judgment and order dated 5.8.2000/8.8.2000 passed by the 3rd Additional Sessions Judge. Nalanda in Sessions Trial No. 181/1.5 of 1998/98, whereby the appellants Gopi Gope and Shailendra Gope have been convicted for the offence under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000 each and in default of payment of fine to undergo simple imprisonment for six months, the appellants Bachchu Gope, Sagar Gope, Ram Nath Gope and Indru Gope have been convicted for the offence under Section 302/149, IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each and in default of payment of fine to undergo simple imprisonment for six months. All the appellants have further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. 2. Kishore Gope is informant in this case. He gave his fardbeyan on 27.10.1997 at about 12.20 p.m. before the Officer-in- Charge of Bhaganbigha Out-Post that while he was harvesting paddy crop in his field his son Dani Gope was going to attend the call of nature. He reached near the Boring/Cabin of Chando Singh, he put the water pot on the ground and started rubbing tobacco. In the meantime Sagar Gope, Ramprit Gope, Shailendra Gope, Indru Gope, Ramnath Gope. Bachchu Gope and Amrik Gope came with pistol from behind the cabin and surrounded his son. They raised alarm on which Gopi Gope who was ploughing the field came running and fired on the right temporal region of his son. He fell down. Thereafter Shailendra Gope fired on the right eyebrow. Ramprit Gope put the barrel of the pistol in the mouth and fired which pierced and came out from the back. The occurrence was witnessed by Naresh Gope, PW 2, Rameshwar Gope. PW 5, Shyam Gope not examined, Haricharan Yadav, PW 1 and Vijay Gope PW 3 who were working in their fields nearby the place of occurrence. The aforesaid accused persons started making indiscriminate firing and ran away towards east. Thereafter they went near Dani Gope and found him dead. In the meantime the police came. PW 5, Shyam Gope not examined, Haricharan Yadav, PW 1 and Vijay Gope PW 3 who were working in their fields nearby the place of occurrence. The aforesaid accused persons started making indiscriminate firing and ran away towards east. Thereafter they went near Dani Gope and found him dead. In the meantime the police came. The motive of the occurrence was that Gopi Gope wanted to purchase the land of Chando Singh but he purchased the land from him. 3. On the aforesaid fardbeyan a formal FIR was drawn and investigation was handed over to PW 7 who started investigation and after completion thereof submitted charge-sheet. The Court took cognizance and committed the case for trial. During the pendency of the trial Ramprit Gope died. The remaining accused persons were put on trial and the trial Court convicted the appellants as indicated above. 4. During the pendency of the appeal Sagar Gope, Bachchu Gope and Ramnath Gope were killed and as such their appeal stood abated. The case of Amrik Gope was separated as he was absconding. 5. The defence of the appellants was that they were innocent and falsely implicated in the case out of enmity. The FIR is antedated, the witnesses are close relation of the deceased and the post mortem report does not support the prosecution case. 6. The prosecution in support of its case examined 8 witnesses. PW 1, PW 2, PW 3 and PW 5 claimed to be eye-witnesses to the occurrence, PW 4 is a hearsay witness, PW 6, is informant and he also claimed to be eye-witness, PW 7 is Investigating Officer and PW 8 has held post mortem over the dead body. 7. PW 6 is father of the deceased Dani Gope, PW 1 has admitted relationship between the witnesses and the deceased. Learned counsel for the appellants, in the circumstances, contended that since the eye-witnesses are relation and inimical to the appellants their evidence be discarded. The law in this regard is that the evidence of interested/inimical witnesses is not required to be discarded outright rather their evidence has to be scrutinised with care and caution. Keeping in mind the settled rule of law we proceed to examine the evidence of the witnesses. 8. PW 6 is informant and is an eyewitnesses to the occurrence. The law in this regard is that the evidence of interested/inimical witnesses is not required to be discarded outright rather their evidence has to be scrutinised with care and caution. Keeping in mind the settled rule of law we proceed to examine the evidence of the witnesses. 8. PW 6 is informant and is an eyewitnesses to the occurrence. His evidence is that on the day of occurrence in the midday at 12 Oclock he and his brother Haricharan Gope, PW 1 were harvesting paddy crop in their field. His son Dani Gope, the deceased was going to attend the call of nature, he reached near the boring/cabin of Chando Singh and kept his water pot on the ground and started rubbing tobacco, in the meantime from behind the cabin the accused persons including the appellants came with pistol and surrounded his son. Gopi Gope was ploughing his field nearby the place of occurrence. He came running and took out pistol from his waist and fired on the right temporal region of his son. Ho fell down on the ground thereafter Shailendra Gope fired on the right eyebrow, Ramprit Gope (dead) put the barrel of the pistol in the mouth and fired which pierced and came out from the back. The occurrence was witnessed by PW 2, PW 3, PW 5 and PW 1. When he tried to go near the place of occurrence the miscreants including the appellants started making firing indiscriminately and they ran away towards east. They thereafter went there and found Dani Gope dead. Hearing the sound of firing police came there. He gave his fardbeyan before the police and he put his signature over it. After recording the Jardbeyan inquest report was prepared. The police also seized blood and six empty cartridges and prepared seizure list. The witness admitted in his cross- examination that he and his son Dani Gope were accused in three cases. The witnesses denied that he was accused in several cases including the case of kidnapping. He also admitted that except the accused persons including the appellants he has no enmity with any one. The witness was cross-examined at length but nothing cogent could be elicited to doubt his evidence/presence near the place of occurrence. 9. PW 1, PW 2, PW 3 and PW 5 are also relation of the deceased. He also admitted that except the accused persons including the appellants he has no enmity with any one. The witness was cross-examined at length but nothing cogent could be elicited to doubt his evidence/presence near the place of occurrence. 9. PW 1, PW 2, PW 3 and PW 5 are also relation of the deceased. They have supported the prosecution case and the evidence of PW 6. Their evidence is that at the relevant time they were working nearby the place of occurrence. The son of PW 6 was going to attend the call of nature, he reached near the cabin/boring of Chando Singh, put his water pot on the ground and started rubbing tobacco. The accused persons/appellants came from behind the cabin with country made pistol in their hands and surrounded Dani Gope. They raised alarm on which Gopi Gope who was ploughing field nearby the place of occurrence came running, took out pistol from his waist and fired on right temporal region of Dani Gope. Dani Gope fell down. Thereafter Shailendra Gope fired on the right eyebrow of Dani Gope. Ramprit Gope put the barrel of the pistol in the mouth of the deceased and fired which pierced and came out from the back. The witnesses ran towards the place of occurrence but the appellants and other miscreants started firing mdiscriminately and ran away towards the east. Thereafter they reached there and found Dani Gope dead. The police came hearing the sound of firing and recorded the fardbeyan of PW 6 and thereafter the inquest report was prepared. The police seized six empty cartridges and blood stained earth. The police also recorded their statements. The witnesses were cross- examined at length but nothing cogent could be elicited to doubt their presence near the place of occurrence or in any manner to doubt their evidence. Their evidence appears to be consistent on all material points of the prosecution case and with the evidence of PW 6. 10. PW 7 is the Investigating Officer. He was posted as Assistant Sub-Inspector of Police at Bhaganbigha Out-Post. At the relevant time he was on patrolling duty to maintain law and order. He heard the sound of firing. He went to the place of occurrence situated south of village Nawada. 10. PW 7 is the Investigating Officer. He was posted as Assistant Sub-Inspector of Police at Bhaganbigha Out-Post. At the relevant time he was on patrolling duty to maintain law and order. He heard the sound of firing. He went to the place of occurrence situated south of village Nawada. He found Dani Gope dead and injuries on his person, B.K. Singh, Officer-in-Charge of the OutPost also reached there who recorded the fardbeyan of the PW 6. After recording the fardbeyan he handed over the investigation to him at the spot. He started investigation and prepared inquest report, Ext. 1/9. He inspected the place of occurrence and gave a vivid picture of the place of occurrence. The place of occurrence is field of Sia Ram Singh which is adjacent to the boring of Chando Singh. He seized the blood and empty cartridges and prepared seizure list, Ext. 2. On the spot he recorded the statement of PW. 1, PW 2 and PW 5. The next, day of occurrence he recorded the statement of PW 3 and PW 4. In cross-examination the witness admitted that fardbeyan was recorded at 12.20 p.m. After recording the fardbeyan investigation was handed over to him at the place of occurrence. He prepared the inquest report at about 120 clock in the day. The witnesses also put their signatures on the inquest report. He did not recorded the statement of Chando Singh. He did not mention the time of inspection of the place of occurrence. He did not send the seized blood for chemical examination. The witness also stated with respect to discrepancies/contradictions between the statement made before him and the evidence of the witnesses. 11. From the discussion of the evidence of the witnesses including the Investigating Officer this much is obvious that the evidence of eye-witnesses is consistent to each other and corroborates the prosecution case. Some contradictions have been pointed out by the learned counsel for the appellants but those discrepancies/contradictions are too minor in nature co affect the case of the prosecution. The evidence of the eye-witnesses is consistent on all material points and is also corroborated by the evidence of PW 7 as he found the dead body at the place of occurrence as stated by the witnesses, seized the blood and empty cartridges from the place of occurrence. The evidence of the eye-witnesses is consistent on all material points and is also corroborated by the evidence of PW 7 as he found the dead body at the place of occurrence as stated by the witnesses, seized the blood and empty cartridges from the place of occurrence. He recorded the statement of three witnesses at the place of occurrence and of the rest two on the very next day of the occurrence. Nothing could be pointed out by the learned counsel for the appellants to indicate that the witnesses have falsely deposed. Thus, on consideration we are of the opinion that though the witnesses are relation of the deceased and inimical to the appellants, there is nothing on the record to discard their evidence and we are satisfied to hold that their evidence is worthy of relevance. 12. PW 8 is the doctor who held post mortem over the dead body. He conducted the port mortem on 27.1.1997 at 4.15 p.m. He found four injuries on the person of the deceased which are quoted hereinbelow. (i) Lacerated wound of size 1" x 1/2" x cavity deep with black inverted margin behind right ear. (wound of entry) (ii) Lacerated wound of size 2" x 1/2" x cavity deep with everted margin on right side of forehead above right eye brow. (iii) Lacerated wound of size 3/4" x 1/2" x cavity deep on occipital region right side with black inverted margin (wound of entry) (iv) A swelling on right parietal region with metallic felling. The Injury Nos. 1 and 2 were communicating to each other. The Injury No. 3 was wound of entry and Injury No. 4 was swelling of right parietal region with metallic felling. Thus, it is evident that the doctor has found four injuries caused by fire arm. The Injury Nos. 1 and 2 were caused by one shot and Injury No. 3 caused by separate shot. The injury No. 4 was swelling. 13. The learned counsel for the appellant contended that the evidence of the doctor, PW 7 falsifies the case of the prosecution as the Doctor has found two injuries on the person of the deceased whereas the witnesses have stated three fire arm injuries on the person of the deceased. The injury No. 4 was swelling. 13. The learned counsel for the appellant contended that the evidence of the doctor, PW 7 falsifies the case of the prosecution as the Doctor has found two injuries on the person of the deceased whereas the witnesses have stated three fire arm injuries on the person of the deceased. In this regard it would not be out of place to mention herein that evidence of eye-witnesses is consistent that Gopi Gope fired on the right temporal region, Shailendra Gope fired on right eyebrow and Ramprit Gope put the barrel of the pistol in the mouth and fired which pierced and came out from the back. Therefore, according to the witnesses three shorts were fired. The witnesses have stated in their evidence that they were nearby the place of occurrence. It is not the case of the prosecution that the witnesses were at the place of occurrence rather they had seen the occurrence from some distance. Moreover, when such occurrence is committed it is to be visualised that no one can say specifically, when the witnesses are at some distance, with mathematical accuracy that firing made by the particular miscreants hit the person. It is the litigant tendency in India that the person/witnesses try to develop the case so that the case may be fully proved but because of such tendency of the case of the prosecution can not be thrown out. As the witnesses were rustic and saw the occurrence from some distance, their evidence cannot be accepted with mathematical accuracy. In the case of Bankim Bihari Maiti V/s. Sri Mati Matangini Dasi, 1919 PC 157, it has been held that in Indian Litigation it is not safe to assume that a case must be false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is on some occasions a tendency amongst litigants in India, as elsewhere, to back up a good case by false or exaggerated evidence. Similarly, in the case of Mithilesh Upadhyay V/s. State of Bihar, 1997 (2) East Cr C 169 (SC) : 1997 SCC (Cri) 716, the Supreme Court was considering a similar case where testimony of the eye-witnesses was that each of the three appellants fired at the victim and each of the shots hit him. Similarly, in the case of Mithilesh Upadhyay V/s. State of Bihar, 1997 (2) East Cr C 169 (SC) : 1997 SCC (Cri) 716, the Supreme Court was considering a similar case where testimony of the eye-witnesses was that each of the three appellants fired at the victim and each of the shots hit him. The occurrence was witnessed by the eye-witnesses from some distance, the doctor found only two injuries. The Supreme Court considering the entire aspect has held that testimony of the eye-witness cannot be discarded merely because only two wounds of entry were found in post-mortem examination/ evidence of the doctor. In the instant case also there is evidence that three persons fired on the victim which hit him but the doctor has found only two wounds of entry. Thus, on consideration we find that there is no substance in the submission of the learned counsel for the appellants. 14. The occurrence is said to have taken place on 27.10.1997, the fardbeyan was recorded on the same day at 12.20 p.m., the fardbeyan was sent to the police station on 28.10.1997, formal FIR was drawn on 28.10.1997 and it was sent to the Court on 28.10.1997 which was received by the Chief Judicial Magistrate on 29.10.1997. Learned counsel for the appellants, in the circumstances contended that the fardbeyan is antedated and concocted one. In this regard it would be pertinent to mention herein that in the FIR/fardbeyan time of occurrence has not been mentioned. The witnesses during the course of examination in Court stated about time of occurrence at about midday. They have further stated in their evidence that on hearing sound of firing the police of Bhaganbigha Out-Post came and recorded the fardbeyan on the spot. The fardbeyan was recorded by B.K. Singh, Officer-in-Charge of Bhaganbigha Out-Post. He was not examined in this case. Formal FIR was drawn at Rahui Police Station on 28.10.1997. On the same day the FIR was sent to the Court which was received there on 29.10.1997. Obviously, the fardbeyan was recorded by the Officer Incharge of the Out-Post who sent the same to the Rahui Police Station and from there the FIR was sent to the Court. It is not the case of the prosecution that the person who recorded the fardbeyan was of Rahui Police Station. Obviously, the fardbeyan was recorded by the Officer Incharge of the Out-Post who sent the same to the Rahui Police Station and from there the FIR was sent to the Court. It is not the case of the prosecution that the person who recorded the fardbeyan was of Rahui Police Station. Thus in the circumstances, there has been some delay in sending the FIR but delay in sending the FIR to the Court would not unnecessarily lead to the inference that the FIR has been concocted or it has been antedated. The test is to see when the investigation was started. In the instant case it has been stated by PW 7 that fardbeyan was recorded by B.K. Singh, the Officer-in- Charge of Bhaganbigha Out-Post, who handed over charge of investigation at the place of occurrence to him, soon thereafter he prepared the inquest report and examined the witnesses, therefore, it is evident that the investigation was started promptly. In the case of State of U.P. V/s. Gokaran and others, 1985 East Cr C 39 (SC) : AIR 1985 SC 131 . the Apex Court while considering a similar case held that it is not that every delay in sending a delayed special report would unnecessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or antedated when the investigation started promptly. In the instant case also the charge of investigation was given to PW 7 at the place of occurrence after recording the fardbeyan and he soon thereafter started investigation. Thus on consideration we find no substance in the submission of the learned counsel for the appellants. 15. Learned counsel for the appellants next contended that the First Information Report could not be treated as FIR and it is hit by Section 162 of the Code of Criminal Procedure as the investigation was started at 12 Oclock and the fardbeyan was recorded at 12.20 p.m. In this regard it is pertinent to mention that there is no mention about time to occurrence in the fardbeyan. The witnesses however, stated that it was midday Le. about 12 Oclock PW 7 reached the place of occurrence hearing the sound of firing. He is ASI of Bhagan- bigha Police Out-Post. He was on patrolling duty. He reached the place of occurrence on the hearing the sound of firing. The witnesses however, stated that it was midday Le. about 12 Oclock PW 7 reached the place of occurrence hearing the sound of firing. He is ASI of Bhagan- bigha Police Out-Post. He was on patrolling duty. He reached the place of occurrence on the hearing the sound of firing. B.K. Singh Officer-in-Charge of the Out-Post also reached there. He recorded the fardbeyan of PW 6 and handed over investigation to him, PW 7 at the place of occurrence. He has stated in the evidence that after handing over charge of investigation he prepared inquest report. However, in cross-examination the witness stated that he prepared the inquest report at 12 Oclock and the fardbeyan was recorded at 12.20 p.m. Thus, it is evident that investigation was started earlier than the recording of the fardbeyan and as such, the same cannot be treated as FIR rather it will be statement under Section 161, Cr PC, and it is hit by Section 162 of the Cr PC, but merely because of the fact that the same cannot be treated as FIR, the evidence of the witnesses cannot be thrown out rather the evidence of the witnesses in Court is admissible and it has to be considered with care and caution. It has been stated on consideration that evidence of the witnesses in consistent to each other on all material points i.e. place of occurrence, manner of assaulttime of occurrence etc. In the case of Ranbir Yadav V/s. State of Bihar, 1996 (1) East Cr C 277 {SC} : 1995 SCC (Cri) 728, the Apex Court was considering a similar case in which the investigation was started in the night and the fardbeyan/FIR was drawn in the morning. The Supreme Court after consideration held that such FIR would be treated as statement under Section 161(3) and not the FIR. Such report can be excluded from consideration in view of Section 162 of the Code of Criminal Procedure but on that score alone the evidence of witnesses cannot be held to be inadmissible. In the instant case also it is evident that the investigation/inquest report was done at 12 Oclock and the fardbeyan was recorded at 12.20 p.m.. Such report can be excluded from consideration in view of Section 162 of the Code of Criminal Procedure but on that score alone the evidence of witnesses cannot be held to be inadmissible. In the instant case also it is evident that the investigation/inquest report was done at 12 Oclock and the fardbeyan was recorded at 12.20 p.m.. therefore, obviously the same cannot be treated as FIR as it is hit by Section 162 of the Code of Criminal Procedure but the evidence of the witnesses cannot be held to be inadmissible on that count. 16. We have already stated that though the witnesses are interested/inimical but their evidence is consistent and corroborated by the evidence of other witnesses, such as Investigating Officer and the doctor who held post mortem on the person of the deceased, and as such their evidence cannot be discarded. 17. Thus, on consideration, as discussed above, we find no merit in this appeal. Accordingly, it is dismissed. The appellants Gopi Gope and Shailendra Gope are in custody. The appellant Indru Gope is on bail and as such his bail bond is cancelled and he is directed to surrender before the trial Court to serve out the remaining period of sentenced.