Chhutu Gope and Others vs State of Jharkhand

Both these appellants were put on trial in Sessions Trial No. 22 of 2003 on the accusation of committing murder of Radha Govind Gope. The trial court having found both of them guilty of committing his murder, convicted them under section 302/34 of the Indian Penal Code vide its judgment dated 17.2.2005 and, accordingly, sentenced each of them to undergo imprisonment for life.

The case of the prosecution is that on 3.8.2002, the informant Sitaram Gope (PW8) as well as his father Radha Govind Gope (deceased) had gone to ease themselves towards the pond. While they were returning, they as soon as reached near the house of Duryodhan Gope situated near the field of Primary School, Pamia, both the appellants, came out of the house of Duryodhan. Roso Gope, appellant No. 2 was having a tangi with him whereas Chhutu Gope (appellant No. 1) was having a lathi. Upon seeing Radha Govind Gope there, appellant Roso Gope assaulted him with tangi over his chest, and right arm, as a result of which he fell down and then appellant Chhutu Gope gave a lathi blow upon him. However, Radha Govind Gope stood up and tried to flee from there, but after going to a distance of about 50-ft. he fell down and died there. In the midst of occurrence, when the informant PW8 raised alarm, Bharat Gope (not examined), Sushen Gope (PW2), Banmali Mahto (PW1) and Balram Gope (PW3) came and saw the occurrence.

Meanwhile, Krishna Dutta Jha (PW7), Officer in Charge, Ichagar PS received rumour about the murder of a person at village Pamiya. On receiving such information, he made Entry to that effect in the Station Diary and proceeded to the place of occurrence, where he recorded the fardbeyan (Ext. 2) of the informant on 3.8.2002 at about 10.30 a.m wherein the informant narrated about the incident as has been stated above and also stated that the accused appellants did commit such offence as four days before, an altercation had taken place in between the appellant Chhutu Gope and the deceased on the point of irrigating land and there Chhutu Gope had extended threats of dire consequence.

On such fardbeyan, a formal FIR was drawn and the officer incharge, Krishna Dutta Jha himself took up the investigation during which he held inquest on the dead body of the deceased and prepared an inquest report (Ext4). In course of inspection of the place of occurrence, he did find blood being spilled over the ground which he collected under seizure list (Ext5). Meanwhile, he sent the dead body for post mortem examination, which was conducted by Dr. Yogendra Nath (PW9) who upon holding autopsy on the dead body of the deceased, did find the following injuries on the person of the deceased:

A. Incised wounds:--

(I) 12.5 c.m. x 4 c.m. X bone deep obliquely placed over right chest front upper part. The weapon cut underlying right collar bone and sternum.

(II) 29 c.m. X 4 c.m. X soft tissue over right fore arm front and adjoining lower half of the upper arm, minimum two blows have caused the wounds as evidenced by skin flaps, two in numbers.

(III) 3 c.m. x 1 1/2 c.m. X bone deep over right outer part of orbital margin.

(IV) 3 c.m. X 1 c.m. X bone deep over left partial scalp.

B. Internal injuries:--

There was contusion of brain. The vessels of right arm, and the fore arm were cut."

The doctor issued post mortem examination report (Ext 6) with an opinion that the death was caused due to shock and haemorrhage on account of aforesaid injuries caused by heavy sharp cutting weapon.

After completion of the investigation, when charge sheet was submitted against the appellants, cognizance of offence, as aforesaid, was taken. In due course, when the case was committed to the court of sessions, the appellants were put on trial during which the prosecution in order to prove the charges beyond all reasonable doubts, examined as many as nine witnesses. On them, PW1 Banmali Mahto; PW3 Balram Gope and PW8 Sitaram Gope (informant) claimed themselves to be the eye witnesses, who did testify that while the deceased was returning after easing himself along with his son Sitaram Gope (PW8), who was about 10-15 ft behind Radha Govind Gope (deceased) and reached near the house of Duryodhan, the appellants Roso Gope and Chhutu Gope came out of the house. Roso Gope was having a tangi in his hand whereas Chhutu Gope was having a lathi with him. Roso Gope gave tangi blows upon Radha Govind Gope, as a result of which he fell down and then Chhutu Gope gave lathi blows. Radha Govind Gope any how stood up and tried to flee from there. Having gone to a distance of about 50ft, he again fell down and died. PW4 Janak Singh Munda and PW5 Shivram Gope are the witnesses to the seizure of earth smeared with blood, whereas PW6 Hare Kisto Gope is a hearsay witness.

After closure of the prosecution case, when the appellants were questioned under section 313 of the Code of Criminal procedure over the incriminating evidences appearing against them, both of them denied the charges. Thereupon, the trial court having placed its implicit reliance on the testimonies of the eye witnesses, PWs 1, 3 and 8 getting corroboration from the medical evidence, found both the appellants guilty of committing murder of the deceased and accordingly, recorded the order of conviction and sentence which is under challenge.

Mr. P.P.N. Roy, the learned Senior Counsel appearing for the appellants submits that PWs 1 and 3 though have claimed themselves to have seen the occurrence, but in fact, they were not the witnesses to the occurrence. Rather, they had reached there after the deceased had been assaulted which would be evident from the FIR itself and therefore, the trial court should not have placed its reliance on the testimonies of these witnesses. Further submission advanced on behalf of the appellants is that on the same day and at the same time, these two appellants had been assaulted by Sitaram PW8 and the deceased, as a result of which they had sustained injuries for which even a case was lodged. But none of the witnesses has accepted this fact and thereby it can be said that the prosecution has not come up with the correct picture of the occurrence and thereby the prosecution case is bound to fail, but the trial court did not take into account this aspect of the matter in right perspective. Learned counsel in support of the aforesaid submission has referred to the evidence of DW1 Dr. Diwakar Hansda who has deposed that upon examining the appellants, he did find incised injuries on the persons of both of them. Thus, in the circumstances, as stated above, none of the eye-witnesses seem to be trustworthy and therefore the trial court should have discarded the testimonies of these witnesses, but the trial court instead of disbelieving their testimonies, placed its reliance reliance and thereby the order of conviction and sentence be set aside and the appellants be acquitted.

As against this, learned counsel appearing on behalf of the State submits that PWs 1,3 and 8 are the eye witnesses who have testified about the deceased being assaulted by both these appellants. All the witnesses are consistent on each and every point and their testimonies further get corroboration from the medical evidence. Hence the trial court was absolutely justified in recording the order of conviction and sentence against the appellants, which need no interference.

Having heard counsel for the parties and on perusal of the record, we do find that it is the case of the prosecution, as has been testified by the informant PW8 that on the date of occurrence in the early morning, the deceased Radha Govind Gope as well as the informant had gone to ease themselves at the pond. While they were returning, they reached in front of the house of Duryodhan, situated near the field of the school. At that point of time, the informant was about 15-20 ft behind his father. Both the appellants came out of the house of Duryodhan. Appellant Roso was having a tangi in his hand whereas appellant Chhutu Gope was having a lathi with him. Appellant Roso assaulted the deceased with tangi over his shoulder and right hand, as a result of which he fell down and then appellant Chhutu Gope assaulted him with lathi. Radha Govind Gope, the deceased, some how stood up and tried to flee, but after going about 50 ft. away, he fell down and died. More or less, similar is the testimony of the other eye-witnesses (PWs 1 and 3). It is true that PW1 in his testimony has testified that at that point of time, when the deceased was assaulted, he did not see any person in or around him, but that does not mean that the other eye witnesses (PWs 3 & 8) were not there. It is consistent case of the prosecution that right from the beginning, PW8 was along with his father, while the deceased was returning after easing himself. He was about 15-20 ft behind his father, whereas, according to PW3, he, at that point of time, was going towards the pond which does indicate that all the three persons at the time of occurrence were at three different places and, therefore, it was quite natural on the part of PW1 to testify that he did not see anybody at the time of the occurrence. Therefore, under the circumstances, there does not appear to be any reason to discard the testimonies of the eye witnesses. Further, we do find that the testimonies of the eye witnesses get corroboration from the objective finding of the investigating officer, who did find trail of blood streak right from the place where the deceased was assaulted till the place where the deceased fell down. Again, the testimonies of the eye-witnesses get corroboration from the medical evidence which shows four incised would being caused by heavy sharp cutting weapon on the part of the body where the appellant Roso had assaulted the deceased with tangi/pharsa. Here, it would be significant to note that the appellants had also received injuries which the prosecution had never explained, but that does affect the case of the prosecution adversely as admittedly, none of the appellant had received any grievous injury, rather, the injuries were simple. Had the injuries on the person of the appellant being grievous, the matter would have been different. Further, we do find that the Doctor PW9 did not find a single injury being caused by the lathi and thereby the witnesses to the effect that the appellant Chhutu Gope did assault the deceased with lathi are not worth reliable. Under the circumstances, it would not be safe to convict appellant Chhutu Gope. The trial court did not consider this aspect of the matter and thereby committed an illegality in convicting him (Chhotu Gope) under section 302/34 IPC, whereas the trial court was absolutely justified in recording the order of conviction and sentence against the appellant Raso Gope for committing murder of the deceased.

Accordingly, we modify the judgment of conviction so far it relates to appellant Roso Gope by convicting him under section 302 IPC instead of under section 302/34 IPC. However, sentence imposed against him shall remain intact. So far as appellant Chhutu Gope is concerned, he is acquitted of the charge and is discharged from the liability of the bail bond.

With the aforesaid modification, this appeal is partly allowed.