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2014 DIGILAW 894 (PAT)

Ganauri Beldar v. State of Bihar

2014-08-20

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard learned counsel for the appellants and learned counsel for the State. 1. Three appeals are being heard together and disposed of by common order as three cases arise in connection with Sessions Trial No. 174 of 1985 (arising out of G.R. No. 571 of 1983) and the appellants have been convicted for offence under Sections 307/14 of Indian Penal Code and sentenced for rigorous imprisonment for ten years and also to pay fine of Rs. 10,000/- (Rupees ten thousand) each and in default of payment of fine they shall further undergo rigorous imprisonment for six months. They have further been convicted for offence under Section 148 of Indian Penal Code and sentenced to undergo rigorous imprisonment for three years as well as Section 27 of the Arms Act for rigorous imprisonment for four years and all the sentences have been ordered to run concurrently. 2. The prosecution case as alleged by the informant, Deobaran Gope is that on 18. 06. 1983 at about 10 A.M. one she buffalow of accused Ganauri Beldar entered into the agricultural land of the informant in which crop of sugar cane was standing. Sheonandan Gope, the servant of the informant started for lodging the she-buffalow in the Kanji house. In the meantime, the informant saw about 30-40 persons armed with guns to have reached at southern side in which he could identify the accused Prabhu Beldar, Bhattu Beldar, Ganauri Beldar all sons of Baudhu Beldar, Shrawan Beldar, son of Ganauri Beldar, Ramji Beldar, Rameshwar Beldar, both sons of Chhotu Beldar, Suresh Beldar, son of Bhagwan Beldar, Kara Beldar, son of Tuna Beldar and Sukhdeo Beldar, son of Baudhu Beldar, all residents of Bhadruke Bigha, P.S. Chandi, District-Nalanda. All the miscreants scattered in all the sides. Some of them took position towards from behind a ridge towards South East and some towards East from behind the ridge of a brick kiln and opened indiscriminate firing. Out of fear Sheonandan Gope leaving she-buffalow ran towards the lane of Deonandan Gope and Bamjham Gope and stood there. In the meantime, accused Bhatu Jamadar gave order on which accused Prabhu Beldar fired which hit the right eye of Sheonandan Beldar. Accused Rameshwar Beldar also shot fired which hit the right ribs cage of Brahm Gope. Both injured have been succumbed to injury at the spot. In the meantime, accused Bhatu Jamadar gave order on which accused Prabhu Beldar fired which hit the right eye of Sheonandan Beldar. Accused Rameshwar Beldar also shot fired which hit the right ribs cage of Brahm Gope. Both injured have been succumbed to injury at the spot. Thereafter, accused Shrawan Beldar also shot fired which hit Arbind and accused Kara Beldar also shot fired which hit Kabindar Gope, son of the informant. Thereafter, all the persons for save their lives left the village. The whole occurrence is said to have been witnessed by Ramnandan Prasad, Balam Yadav, Rajendar Yadav, Sita Gope, Ganauri Gope and Bangali Gope. It has also been alleged that the land in which the she-buffalow had entered, there was standing sugar cane crop of the informant. 3. On the basis of Fardbeyan, F.I.R. lodged. The police after investigation submitted charge sheet submitted for offence under Sections 147, 148, 149, 302 and 324 of the Indian Penal Code and Section 27 of the Arms Act. Further charge framed under Sections 147, 148, 307/149 and 302/149 of the Indian Penal Code and Section 27 of the Arms Act, though, specific charge was made against Rameshwar Beldar for offence under Section 302 of Indian Penal Code for murder of Brahm Gope. However, accused Prabhu Beldar who has been attributed role of firing upon Sheonandan Beldar remained absconder and one accused Bhatu Jamadar died. Hence out of eight accused persons, seven accused persons were tried. 4. During trial, seven witnesses were examined out of whom P.W. 1 Ballam Yadav, P.W. 2 Ramnandan Prasad, P.W.3 Sita Gope, P.W. 4 Rajendra Gope, P.W.5 Kamendra Gope, P.W.6 Dr. K.D.P Verma and P.W.7 Deo Baran Gope (informant). However, Doctor and I.O. were not examined and case was closed for statement of the accused persons recorded under Section 313 of Cr.P.C. 5. However, during trial, though, witnesses have supported the prosecution case regarding firing causing injury to four persons by fire arms which includes Sheonandan Beldar, Brahm Gope, Arbind and Kabindar Gope. Out of four injured persons, Sheonandan Beldar and Brahm Gope two persons succumbed to injury. Though witnesses have supported the prosecution case, but neither post mortem on the person of Sheonandan and Brahm proved nor the doctor examined to prove the cause of death. However, P.W. 6 has proved the injury of Kabindar have been alleged in the First Information Report. Though witnesses have supported the prosecution case, but neither post mortem on the person of Sheonandan and Brahm proved nor the doctor examined to prove the cause of death. However, P.W. 6 has proved the injury of Kabindar have been alleged in the First Information Report. Hence trial court acquitted the appellant Rameshwar Gope merely on the ground that doctor has not been examined to prove injury and cause of death of deceased Brahm. 6. The trial court on scrutinizing the evidence on record and considering the argument of both sides found that P.Ws. 1,2, 4, 5 and 7 have all consistently stated that on the alleged date of occurrence at 10 A.M., she-buffalow of accused Ganauri Beldar entered into the land of the informant Deobaran where he had planted the crop of sugar cane and when Sheonandan Gope, servant of the informant apprehended the she-buffalow and proceeded to lodge buffalow in the Kanji house, then the all the accused persons came armed with gun and accused Prabhu Beldar fired causing injury upon Sheonandan Beldar and accused Rameshwar Beldar fired causing injury upon Brahm Gope and both of them succumbed to injury. They have also stated that accused Shrawan Beldar also fired causing injury to Arbind and accused Kara Beldar fired causing injury to Kabindar Gope. The trial court, though, believed their evidence and relied in material particular held there is no reason to reject their evidence even for non-examination of the I.O. as no prejudice has been caused the appellants on the defence. 7. However, the trial court taking into consideration the fact that since the doctor has not been examined and post mortem on the person of deceased, Sheonandan Gope and Brahm Gope has not been proved was constrained to hold that accused persons cannot be held to be guilty for committing offence under Sections 302/149 of Indian Penal Code and hence acquitted the appellant Rameshwar Beldar from the charge for offence under Section 302 IPC and other appellants for offence under Sections 302/149 I.P.C. since there was allegation that all the accused persons armed with deadly weapons only, hence acquitted the appellants from the charge under Section 147 I.P.C. 8. The trial court further taking into consideration the evidence of witnesses that all the appellants were armed with fire arms and there is consistent evidence that accused Rameshwar Beldar, Kara Beldar, Shrawan Beldar facing the present trial with others fired with their guns causing injury to four persons out of them two were allegedly killed. It is further held that accused Ganauri Beldar whose presence at the time of occurrence can not be doubted as he was the person whose she-buffalow had entered into the sugar cane field of the informant, which was the cause to the incident hence convicted the appellants for offence under Sections 148 and 307/149 of the Indian Penal Code as well as Section 27 of the Arms Act. However, the other appellants Sukhdeo Beldar, Suresh Beldar and Ramjee Beldar are given benefit of doubt and accordingly acquitted on the charge for offence under Sections 148 and 307/149 of Indian Penal Code. 9. Learned counsel for the appellants however challenged the order of conviction for offence under Sections 307/149 and 148 IPC as well as Section 27 of the Arms Act, it has been contended that there is several contradictions and infirmities in the evidence of witnesses. It is submitted that the occurrence took place at Banyan tree, whereas the dead body is alleged to have been found in the lane. It has further been contended that there is allegation of indiscriminate firing of 100 rounds but neither the mark of pellet on the wall nor any empty cartridges in an around the place of occurrence nor any sign of firing was found, so objective finding of the occurrence is missing. It is further contends that several charge sheeted witnesses have been examined, but doctor and I.O. have not been examined and hence it can well be inferred that prosecution has not been able to prove the charge beyond reasonable ground so appellants are entitled for benefit of doubt. 10. Learned counsel for the appellants further submitted that case of the defence has not been considered as the case of the defence is that occurrence took place in village- Gauri Bigha between Beldar and Yadavs in which the deceased died and the dead body of the two deceased were brought to the place of occurrence and false case has been instituted. It has further been stated that deceased Sheonandan Beldar was not resident of the village where occurrence took place and his resident at about 1 kilometre away from the occurrence and hence his presence at place of occurrence is doubtful. 11. However taking into consideration the evidence of witnesses, P.W. 1 and 2 have categorically stated about the occurrence of firing and they have given description about the place and time of occurrence and has mentioned about the place of occurrence which is in front of his Dalan facing South and West. In the Southern Varanda of Dalan to its Eastern corner there is a room facing West. The Banayan tree is towards South East corner of Dalan. In front of Dalan to its South there is 7 ft. wide Gali passing East-West Gali to further South of the Gali there is ridge end to the South ridge therein field. The she-buffalow of Ganuari was grazing the filed then Sheonandan, the servant of informant caught hold of it and while taking the she-buffalow to Kanji house, the appellant with others came armed with firearms, shot caused injury to four persons out of which two died. However, P.W. 2, 3 and 4 have also supported the prosecution case. P.W. 7 is the informant and from the evidence, there is apparent that four persons got injured. However, it is true that two persons got injured and died at the spot, but neither doctor nor I.O. have been examined. However, P.W. 5, Kamendra Gope the injured has been examined and supported the prosecution case and injury on his person is proved by P.W. 6 and injury report has been marked as Exhibit-1. 12. However going to the evidence of the witnesses, the witnesses have supported the prosecution case and there is nothing in their evidence to disbelieve their testimony. If their evidence inspire confidence then their evidence cannot be rejected merely on the ground that the I.O. or the doctor have not come to support prosecution cases to prove the injury. However, the evidence of the doctor has got only corroborative value. However, when the evidence of the witnesses found to be reliable and worthy of confidence then their evidence cannot be rejected merely on the ground that doctor and I.O. have not been examined under the prejudice hence shown to have caused. However, the evidence of the doctor has got only corroborative value. However, when the evidence of the witnesses found to be reliable and worthy of confidence then their evidence cannot be rejected merely on the ground that doctor and I.O. have not been examined under the prejudice hence shown to have caused. The witnesses examined have established the place of occurrence and Peepal tree is in and about the lane in which occurrence took place in front of the Dalan of P.W.1. Hence when the evidence of the witnesses found to be reliable and trustworthy, their evidence cannot be rejected for non-examination of I.O. and doctor till prejudice is shown to have been caused to the accused for non-examination of the I.O. and doctor. 13. Further the case of the defence is that occurrence took place at the village Bhadru Bigha, but the occurrence took place at Gauri Bigha where there was encounter between Beldar in one side and Yadav is other side in which Brahm and Sheonandan Beldar killed and accused persons falsely been implicated. However, except suggestion no evidence has been brought on record to suggest that deceased died in occurrence at Gauri Bigha and brought to lodge false case and except suggestion neither any circumstance nor any material has been brought on record in support of the defence set up by the defence. However, it has been submitted with regard to the objective evidence about firing is missing, but the witnesses have supported the prosecution case about the occurrence and sign on wall. However, contradictions pointed out neither goes to the root of the case nor substantiate to disbelieve the prosecution case. However, from the evidence, it is apparent that at the time of occurrence deceased were in an around near the tree which is near the house of P.W. 1. 14. Taking into consideration of the evidence of the witnesses who have supported the prosecution case in the material of fact and hence given description of the occurrence and if their evidence is liable to be believed then at this stage it cannot be rejected only the reason the injured has not been examined and prosecution case cannot be disbelieve. 14. Taking into consideration of the evidence of the witnesses who have supported the prosecution case in the material of fact and hence given description of the occurrence and if their evidence is liable to be believed then at this stage it cannot be rejected only the reason the injured has not been examined and prosecution case cannot be disbelieve. However, it is true that I.O. has not been examined, but only for non-examination of I.O. and prejudice caused of the defence is not of much importance and evidence of the witnesses are liable to be believe so cannot be rejected at this stage. 15. Having regard to the fact and circumstance, I am not inclined to interfere with the order of conviction recorded by the trial court. However, taking into consideration the fact that occurrence is of the year 1983, the appellants have been suffering for last thirty years. Hence end of justice shall meet by modifying the sentence for offence under Sections 307/149 of Indian Penal Code by sentencing the appellants from ten years to seven years only. 16. Hence I do not find to interfere with the order of conviction and sentence recorded by the trial court, Accordingly the same is dismissed with above modification. ?