Gopal vs State of U.P.

Vineet Saran, J.—The appellant-Gopal has been convicted u/s 302, I.P.C. in Sessions Trial No. 195 of 1981 vide judgment and order dated 20.3.1984. For the same incident Keshav Gond and Jagarnath had been tried u/s 302/34 who both have been acquitted in Sessions Trial No. 22 of 1982 by the same judgment of the Sessions Judge, Ballia dated 20.3.1982.

The facts in brief are that an incident is said to have taken place on 28.9.1981 at about 6.30 p.m. near the grove of Dina Barai situate in village Amawa, P. S. Sukhpura, district Ballia in which the appellant is said to have given one knife blow to Harendra Singh, son of Raman Singh who succumbed to the injuries on way to Varanasi. The first information report regarding the incident was lodged by Raman Singh, the father of the deceased Harendra Singh at 3.30 a.m. on 29.8.1981 at P.S. Sukhpura which is approximately 10 Kms. from the place of occurrence.

As per the first information report, the appellant/accused Gopal had worked as a Halwai of the complainant Raman Singh for some time and 3-4 days before the occurrence at about 2 p.m. the accused-appellant had cut the crops of the complainant and while he was trying to load it, he was caught by Harendra Singh, son of the complainant who gave him few slaps for committing such theft. Because of such incident the accused-appellant Gopal left the job of Halwai. On 28.9.1981 before 6.30 p.m. Harendra Singh, son of the complainant Raman Singh had gone to give meals to the elder brother of the complainant at his tubewell and while Harendra Singh was returning home after giving the meals, the accused Gopal Gond, alongwith two other persons, surrounded the son of the complainant, Harendra Singh lit the torch which was with him and on seeing the accused persons he raised an alarm. The other son of the complainant, namely. Ravindra Singh who had gone to ease himself, reached there on hearing the alarm of his brother Harendra Singh. He also recognized the accused in the torch light. The other witnesses, namely, Rajdeo Singh, Raghuraj Singh, Barmeshwar Singh and Jai Govind Singh also reached the spot and saw that the accused Gopal Gond giving a knife blow to Harendra Singh in his stomach and ran away with his associates. The complainant also reached the spot and took the injured Harendra Singh on a cot to the Sadar Hospital, Ballia with the help of Mahantam Singh, Sudarshan Singh, Raj Kishore Singh, Janardan Singh etc. The injured Harendra Singh was medically examined and was given first aid. The statement of the injured was also recorded in presence of the Magistrate. The doctors at Ballia had, however, advised the injured to be taken to Varanasi Hospital. On this medical advise the injured Harendra Singh was being taken to Varanasi in a taxi but on the way he succumbed to his injuries at about 11 p.m. near Karimuddinpur, district Ghazipur. The complainant then took the dead body of Harendra Singh and lodged the report.

After investigation the police submitted a charge-sheet against the accused-appellant Gopal on 31.10.1981. A separate charge-sheet dated 16.1.1982 u/s 302/34. I.P.C. was submitted against the other two accused persons, namely, Keshav Gond and Jagarnath. Since the accused persons pleaded not guilty, the trial was held in which the appellant was convicted and sentenced to life imprisonment and other two co-accused persons have been acquitted.

Though the accused persons pleaded not guilty and denied the charges, however, they did not adduce any oral evidence in defence. The prosecution produced four eyewitnesses, namely, Raman Singh, the informant and father of the deceased as P.W. 1, Balmeshwar Singh as P.W. 2 and Rajdeo Singh as P.W. 3 and Vinod Kumar Singh, son of Rajdeo Singh as P.W. 4. Besides this, the other formal witnesses were also examined. Dr. G. K. Tripathi who conducted the post-mortem was examined as P.W. 5 and had proved the following ante-mortem injuries :

Punctured wound 3 cm. x 1 cm. x cavity deep over upper part of right side of abdomen 4 cm. away from midline and 5 cm. above the umbilicus.

Omentum coming out through the wound. Margins clean cut.

In the cross-examination the said witness stated that the injury might have been caused by heavy weapon such as ''Bhala''.

Sri M. L. Dwivedi, Executive Magistrate, who had recorded the dying declaration of the accused was examined as P.W. 6. He stated that the doctor had given the certificate on the said dying declaration after recording of the statement that the deceased was in a fit state of mind to give the statement. The Sub-Inspector Jai Murti Pandey conducted the panchayatnama on the dead body and proved the same and other connected papers, was examined as P.W. 8. Sri K. Shanker Prasad Sriyastava,'' the Special Executive Magistrate who conducted the identification parade of the accused Jagarnath and Keshav Gond was examined as P.W. 9. In his cross-examination he had stated that the accused persons had informed that the identifying witnesses knew them from before the occurrence. The Head Constable Ramesh Chandra Rai who had received the written report on 29.9.1981 at about 3.30 p.m. and prepared the F.I.R. was examined as P.W. 10. Dr. Kailash Singh who had medically examined the deceased Harendra Singh prior to his death and had also given the certificate on the dying declaration which was recorded by the Magistrate was examined as P.W. 11. The Investigating Officer Sri Shambhu Nath Yadav was examined as P.W. 12. He stated that the case was registered in his absence. He, however, interrogated the witnesses and inspected the spot of occurrence and had prepared the site plan at the instance of Ravindra Singh. The blood-stained and ordinary earth could not be collected because of rain on the previous night. He arrested the accused appellant Gopal on 30.9.1981 and interrogated him and submitted a charge-sheet against him on 31.10.1981. Out of the other two accused persons, Keshav Gond surrendered in Court on 17.12.1981. Jagarnath was arrested from the taxi stand on 22.12.1981. Against them charge-sheet was submitted on 16.1.1982. In his cross-examination he admitted that he did not interrogate Hawaldar, the brother of the complainant Raman Singh for whom the deceased is said to have taken the meals. He also admitted that the witnesses did not tell him that the weapon was ''Chakunuma Bhala'' or ''Bhalanuma Chaku'' but only stated that the weapon was a Chaku''. He also stated that none of the witnesses had told him that the other two accused persons had ''danda'' with them. He also stated that the accused Keshav was the brother of accused Gopal and the accused Jagarnath was their brother-in-law.

The dying declaration given by the deceased Harendra mentioned that at about 8 p.m. while he was returning from the tube-well after giving meals, on the way Gopal Gond alongwith two other persons met him. Gopal Gond attacked him by bhala and the other two persons instigated Gopal Gond. On receiving such injury, Harendra stated that he became unconscious and regained consciousness in the hospital.

In his statement recorded u/s 313. Cr. P.C. the accused-appellant denied his involvement in the occurrence and claimed false implication due to enmity. However, no witness was examined in defence.

We have heard Sri Raghuraj Kishore, learned amicus curiae appointed by the Court, on behalf of the appellant and Sri A. K. Singh, learned Additional Government advocate, on behalf of the State and have perused the record.

It has been submitted by Sri Raghuraj Kishore that there are several contradictions in the evidence adduced by the eye-witnesses as well as the dying declaration. It is contended that there is inconsistency in the first information report and the dying declaration with regard to the weapon used as in the first information report it is alleged that a knife blow was given whereas in the dying declaration it is said that it was ''bhala''. Further, in the first information report the incident is said to have taken place at 6.30 p.m. whereas in the dying declaration it is stated by Sri Harendra Singh that when he was returning from the tube-well at about 8 p.m. such incident had taken place. It has also been submitted that the complainant Raman Singh who had made statement before the Investigating Officer clearly stated that his son was speaking while going to hospital and had informed him that the accused Gopal had struck him with a ''chaku'' whereas in the dying declaration the deceased Harendra Singh had stated that on receiving blow from ''bhala'' he had become unconscious and regained consciousness in the hospital. It has thus been submitted that the dying declaration itself is suspicious and cannot be relied upon.

On the other hand learned Additional Government Advocate has submitted that the evidence of the eye-witnesses is consistent and minor discrepancies as mentioned in the dying declaration cannot be a ground for disbelieving the entire prosecution story.

We have heard Learned Counsel for the parties. The evidence of the eye-witnesses as well as other formal witnesses clearly show that the death was caused because of the knife blow given by the appellant Gopal Gond to" the deceased Harendra Singh in his stomach. The same is clearly supported by the medical evidence. It is also clear that there was sufficient light in which the appellant and other co-accused could have been identified. The discrepancy in the description of the weapon used which was ''chaku'' and described to be so in the first information report but mentioned as ''bhala'' in the dying declaration cannot be sufficient to disbelieve the prosecution story. As such, on the basis of the evidence adduced by the parties, we are of the firm opinion that the death of the deceased Harendra Singh was caused because of the knife blow injury given by the appellant Gopal Gond.

However, as regards his conviction by the trial court u/s 302, I.P.C. it may only be stated that the trial court has not considered the fact that it was a single blow which had been given by the appellant. From the evidence, as well as the nature of the injury, it cannot be said that the appellant had committed the act with the intention or knowledge that it was likely to cause death and thus it cannot be said that it was with an intention or knowledge to cause death of the deceased Harendra Singh. In the facts and circumstances of this case, we thus hold that the appellant would be guilty of committing crime under Part II of Section 304, I.P.C.

The appellant has already remained in jail for more than 8 years from 30.9.1981 till 2.11.1989, when he was granted bail by this Court.

In the result, this appeal stands partly allowed. Conviction u/s 302. I.P.C. is altered to Section 304, Part II, I.P.C. and sentence of life imprisonment is reduced to 8 years rigorous imprisonment.

Considering the fact that the appellant Gopal Gond was a young man when he committed crime and did not have any previous history of conviction or bad character, the sentence is reduced to the period already undergone in jail. He is on bail. His bail bonds are cancelled and sureties discharged.