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2012 DIGILAW 576 (JHR)

Anil Gope v. State of Jharkhand

2012-04-16

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court: Both these appeals arise out of the common judgment of conviction dated 22.06.2002 and order of sentence dated 25.06.2002 passed by the learned Vth Additional Judicial Commissioner, Ranchi in Sessions Trial No. 68 of 2001, convicting the appellants under section 302/34 IPC and sentencing them to undergo R.I. for life. 2. The prosecution case in short is that the informant-Munga Devi (PW-5) lodged fardbeyan on 25.09.2000 at about 10.00 AM to the following effect: At about 6.00 AM she went to her 'Bari' for plucking ladyfinger and her son Kunwar Gope (deceased) went to the nearby well for taking bath. When she was returning at about 8.30 AM to her home after plucking ladyfinger, she heard the sound of cry coming from her house. When she reached her house, she saw that the appellants Anil Gope and Nirmal Oraon were assaulting her son indiscriminately with 'tangi' and 'Khukhari' on his head and shoulder and her son was lying on the ground. She raised alarm, on which appellants fled away. She brought some water but her son died. She started crying. People assembled there and some of them had seen the occurrence, but nobody came forward to rescue the deceased. The cause of incident was said to be a case going on between Dudhu Gope (father of appellant-Anil Gope) and the deceased in which Dudhu Gope was injured and on the preceding day, there was quarrel between the appellants and the deceased. Due to such dispute, appellants have killed her son. 3. Learned counsels for the appellants assailed the impugned judgment on various grounds. They submitted that eyewitnesses projected in this case are not eyewitnesses and due to enmity, appellants have been falsely implicated in this case; there are vital contradictions in the place of occurrence and manner of occurrence; appellant-Anil Gope has remained in jail for more than eleven years and appellant-Nirmal Oraon after serving more than nine years of imprisonment, has been released on bail by a Bench of this court. 4. On the other hand, counsel for the State supported the impugned judgment. 5. PWs – 1&2 are seizure witnesses, but they turned hostile. 6. PW-3 is the doctor who conducted postmortem on the dead body of the deceased. 4. On the other hand, counsel for the State supported the impugned judgment. 5. PWs – 1&2 are seizure witnesses, but they turned hostile. 6. PW-3 is the doctor who conducted postmortem on the dead body of the deceased. He found several injuries caused by heavy sharp cutting weapon such as 'tangi' and 'Khunkhari' and lacerated wounds and abrasion were caused by blunt side of 'tangi' and 'khukhari'. 7. PW-4 (Ghuran Gope), father of the deceased, has projected himself to be an eyewitness, but the Investigating Officer (PW-6) said in paragraph-27 of his deposition that this witness did not say that he saw the occurrence, rather he said that he got the information about the occurrence from his wife-Munga Devi (PW-5). Further, this witness said in paragraph-8 of his deposition that only he and one another person had seen the occurrence who has died. He did not say that his wife (PW-5) had seen the occurrence. The investigating officer (PW-6) in paragraph-28 of his deposition again said that this witness did not project himself to be an eyewitness. 8. Thus, it is not possible to believe that the PW-4 is an eyewitness. Similarly, it is not possible to believe that the PW-5 is an eyewitness. There are vital contradictions in her narration of the occurrence in her fardbeyan and the deposition in the court. In her evidence, she said that the occurrence took place in the Aangan of her house. It may be noted here that the I.O. (PW-6) found the dead body on the public road. None of the prosecution witnesses including PW-4 said that the appellants threw the weapons after killing the deceased at the place of occurrence, but as per the prosecution, weapons of assault were allegedly recovered from the place of occurrence. In her fardbeyan, PW-5 said that while she was returning home after plucking ladyfinger, she heard that somebody was crying in her house and then she saw the alleged occurrence. But in her deposition, she said that she was all along present in her house at the relevant time and when her son (deceased) was entering into the house, he was assaulted by the appellants in the Aangan. There is discrepancy in the narration of weapons used in the assault in her fardbeyan as well as in her evidence. But in her deposition, she said that she was all along present in her house at the relevant time and when her son (deceased) was entering into the house, he was assaulted by the appellants in the Aangan. There is discrepancy in the narration of weapons used in the assault in her fardbeyan as well as in her evidence. It has also come in the evidence that the deceased was involved in several criminal cases of serious nature such as murder, dacoity and rape. 9. PW-7 though has not been declared hostile, but supported the defence version by saying that he reached at the place of occurrence earlier than PW-5 who reached at the place of occurrence after half an hour of the occurrence and started crying saying that who has killed her son. 10. After carefully going through the record and hearing the parties at length, in our opinion, appellants deserve the benefit of doubt as the prosecution has not been able to prove it's case beyond all reasonable doubts. 11. In the result, these appeals are allowed. The judgment of conviction and order of sentence as passed by the trial court against the appellants, is set aside. Appellants are acquitted of the charges. Appellant-Nirmal Oraon is on bail. He is discharged from the liability of his bail bonds. Appellant-Anil Gope is in jail. He is directed to be released forthwith if not wanted in connection with any other case.