Gumda Gope vs State of Jharkhand

Dhirubhai Naranbhai Patel, J.—This appeal has been preferred against the judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Fast Track Court-I, Chaibasa in Sessions Trial No. 219 of 2000 vide order dated 25/26th September, 2002. This appellant has been convicted for life imprisonment for causing murders of (a) Smt. Pano Gope and (b) Bagun Gope for the offence punishable under Section 302 of the Indian Penal Code. It is the case of the prosecution that on 26.02.2000 at 8.05 a.m., the informant Lai Singh Gope (P.W. 2) gave written report to police that on 25.02.2000 (Friday) at about 8, p.m. he with other co-villagers were returning from the place of worship to his house. He saw that accused Gumda Gope was assaulting his Kishori aunt (Smt. Pano Gope) repeatedly with Pirah (a piece of wood) as a result, Smt. Pano Gope died immediately and accused Gumda Gope ran towards his house. Thereafter, Bagun Gope, who was the son of Smt. Pano Gope (deceased) chased the accused Gumda Gope with Axe in his hand and came to the house of accused Gumda Gope, but, accused Gumda Gope snatched the Axe from Bagun Gope and started assaulting him with back portion of the same Axe and as a result, Bagun Gope also died immediately.

Following seven witnesses were examined by the prosecution:

It is submitted by the counsel for the appellant that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. The so called eye witnesses, in fact, are not eye witnesses at all. Moreover, the prosecution has failed to prove the motive. Even intention has also not been proved. The witnesses have seen the occurrence at much distance during night time and there was no evidence of light at the place of occurrence. These aspects of the matter have not been properly appreciated by the learned trial court and hence, the impugned judgment and order of conviction and sentence, passed by the learned trial court, deserves to be quashed and set aside.

It is submitted by the counsel for the appellant that the medical evidence and the ocular evidence are in contradiction with each other and there is no corroboration with the medical evidence. It is further submitted by the counsel for the appellant that there were several other persons at the time of occurrence, but, the prosecution has failed to examine those witnesses. Therefore, the judgment and order of conviction and sentence, passed by the learned trial court deserves to be quashed and set aside.

We have also heard counsel appearing on behalf of the State APP, who has submitted that no error has been committed by the learned trial court in convicting and sentencing the present appellant. The case of prosecution is based upon more than one eye witness, who are P.W. 2 and P.W. 6. The deposition of P.W. 2 clearly narrates the role played by this appellant in causing murder of Smt. Pano Gope by Pirah (hard and blunt substance) and thereafter, when the son of Smt. Pano Gope, had gone with Axe to take revenge, this appellant snatched away the Axe, caused severe injury upon Bagun Gope by this appellant and he also expired on the spot. Thus, looking to the deposition of P.W. 2, who is nephew of one of the deceased and neighbour and also identified the appellant in the court, there is no question of mis-identity of the accused whatsoever arises and whenever, the accused is known even by voice he can be identified.

It is submitted by the learned A.P.P. that P.W. 6, who is an eye witness, has also given clear deposition before the learned trial court. He has corroborated the deposition given by another eye witness P.W. 2. Moreover, looking to the medical evidence given by P.W. 1 Dr. Jawahar Khan, there are several injuries upon the body of both the deceased. The injuries were capable of being caused by hard and blunt substance as well as by the back side of the Axe. The deposition given by P.W. 5, who is I.O., have enough corroboration by the deposition given by P.W. 2 and P.W. 6, so far as place of occurrence, seizure of weapons are concerned. Thus, the prosecution has proved offence of murders committed by this appellant beyond reasonable doubt. It is also submitted by the learned A.P.P. that when there is a clear, cogent and convincing evidence given by the eye witnesses, failure to prove the motive on the part of the prosecution is not a fatal and he has relied upon the judgment passed by Hon''ble Supreme Court reported in Yunis @ Kariya etc. Vs. State of Madhya Pradesh, and it is submitted by the learned A.P.P. that looking to these evidences on record, this appeal may not be entertained by this Court.

Having heard counsel for both the sides and looking to the evidences on record, we see no reason to interfere with the judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Fast Track Court-I Chaibasa in Sessions Trial No. 219 of 2000 dated 25/26 September, 2002 mainly for the following facts, reasons, evidences and judicial pronouncement:

(i) It is a case of the prosecution that P.W. 2, who is informant-Lai Singh Gope, has informed in writing to Police on 26th February, 2000 at about 8.05 a.m. that on 25th February, 2000 at about 8.00 p.m. he along with other co-villagers were returning from the place of worship to his house at that time he saw this appellant-accused assaulting his aunt Smt. Pano Gope with Pirah (a piece of wood) as a result of this injury Smt. Pano Gope expired on the spot. The accused ran away at his house. Thereafter, Bagun Gope, who is son of Smt. Pano Gope-deceased, chased the accused with Axe. He came at the house of the accused, but, the accused snatched away the Axe from the hand of Bagun Gope and he started assaulting him with back portion of the same Axe as a result of which Bagun Gope also expired immediately. Upon Fardbeyan of Lal Singh Gope, statement of several witnesses were recorded by the Investigating Officer P.W. 5 and charge-sheet was filed and Sessions Trial No. 219 of 2000 was committed to the Sessions Court and on the basis of the evidence given by P.W. 1 to P.W. 7 and on the basis of the documentary evidence on record, the learned trial court has convicted the appellant in causing murders of both the deceased and sentenced him life imprisonment.

(ii) Looking to the aforesaid First Information Report, P.W. 2 and P.W. 6 appears to be the eye witnesses of the incident. Looking to the evidence given by P.W. 2, who is an informant and nephew of one of the deceased, has clearly narrated the role played by this appellant in causing murders of both the deceased. He is neighbour of the accused. P.W. 2 and is residing in the same village and therefore, there is no question of mis-identity whatsoever arises. He has stated in his deposition that when he was returning from the place of worship towards his house he saw the accused assaulting his aunt Smt. Pano Gope with Pirah (a piece of wood). He caused injury on head and other vital parts of the body of Smt. Pano Gope. She expired on the spot. Thereafter, the son of Smt. Pano Gope chased the accused with Axe to take revenge, but, this appellant snatched away the Axe from the hand of Bagun Gope and he caused several injuries upon Bagun Gope with back side of the Axe and Bagun Gope also expired on the spot. Looking to the cross-examination nothing is coming out in favour of the present appellant-accused. His examination-in-chief remained intact as it is. The presence of this witness at the scene of occurrence is natural one. He has proved the date of offence, the place of occurrence, the weapon used by this appellant. He has also identified this appellant-accused and he is a trustworthy and reliable witness and therefore, no error has been committed by the learned trial court in appreciating the evidences given by P.W. 2-Lal Singh Gope.

(iii) P.W. 6-Sadhu Gope is an independent eye witness and is also a co-villager. He also knows this appellant-accused. In his deposition he has also narrated the role played by this appellant in causing murder of both the deceased. Looking to his deposition as well as examination-in-chief, he is also a natural witness and his presence at the place of occurrence is a natural one. He has also proved the date of occurrence, place of occurrence, weapon used and the role played by this appellant in causing murders of both the deceased. Thus, we see no reason to disbelieve this eye-witness. Looking to the cross-examination, he appears to be reliable and trustworthy witness. The deposition of both the eye-witnesses have been verified for contradictions omissions and improvements with deposition of P.W. 5, who is an Investigating Officer. Looking to the deposition given by P.W. 5, the Investigating Officer, there is no major contradiction, omission or improvement in the deposition of both the eye-witnesses and therefore, no error has been committed by the learned trial court in appreciating the evidences given by both the eyewitnesses.

(iv) P.W. 5 Rati Bhan Singh, who is an Investigating Officer has attested Fardbeyan and has proved F.I.R. and he has also proved inquest report. The deposition of this witness has also given enough corroboration with the evidence given by P.W. 2 and P.W. 6. so far as place of occurrence and the weapons used are concerned. Both the weapons were seized in presence of one Vishram Diggi, who has also examined as P.W. 3 for proving seizure list Panchnama and in his deposition, he has proved his signature upon the seizure list.

(v) P.W. 1, who is Dr. Jawahar Khan, has carried out post-mortem of the bodies of the deceased, which are Exhibits & 1/1. The post-mortem of both the deceased reveals the following injuries:

Exhibit-I:- Post-mortem report of deceased Pano Gope

Injuries

External findings:

(i) Head badly injured and made flat with fracture of cranial bones.

(ii) Bleeding per nose and ears.

(iii) Bruise and abrasion over chest and back.

On dissection:

(i) Head and neck fracture of cranial bone present & subdural haematoma present.

(ii) Thorax - fracture of all ribs of both sides. Heart and lungs punctured. Plural cavity full of blood and clots.

(iii) Abdomen - Liver intact, spleen punctured. Peritonial cavity-full of blood and clots. Stomach containing - hairy like sub-stance.

Exhibit 1/1 - Post-mortem report of deceased Bagun Gope

Injuries:

External findings:

(i) Lacerated wound size 3�" x 2" x brain substance deep with protrusion of brain sub-stances - over temporal region left side.

(ii) Lacerated wound measuring 4" x 2�" x brain substance deep with protrusion of brain substance over temporal region right side.

(iii) Bruises and abrasion over chest which was depressed.

On dissections:

(i) Head and neck fracture of cranial bone present, subdural haematoma present.

(ii) Thorax - fracture of all ribs of both sides Heart and lungs punctured. Plural cavity full of blood and clots.

(iii) Weapon used - hard and blunt, may be caused by the blunt portion of Tangi.

Thus, looking to the aforesaid evidence given by P.W. 1, this medical evidence is corroborative to the depositions given by the eye-witnesses so far as use of weapons are concerned. The injuries sustained by both the deceased are at vital parts of the body. There are head injuries in both the murders and over and above head injuries, there are other injuries, which are capable of being caused by hard and blunt substance as well as by back side of the axe. There are fractures of all the ribs of both the sides of Begun Gope. These injuries are capable of being caused by the back side of axe. Looking to the deposition given by P.W. 1, there is enough corroboration to the deposition of the eye witnesses.

(vi) Looking to the evidences on record and looking to the deposition given by the eye-witnesses, prosecution has proved the offence of murders of both the deceased

which have been committed by this appellant beyond reasonable doubt.

(vii) Counsel appearing for the appellant submitted that neither motive nor intention has been proved in this case. This contention is not helpful to the appellant more particularly looking to the deposition given by the eye-witnesses P.W. 2 and P.W. 6, which are corroborated by the deposition given by P.W. 5 and P.W. 1. When there is cogent and convincing evidence given by the eye-witnesses, failure on the part of the prosecution to prove the motive or intention is not fatal to the case of the prosecution. It has been held by Hon''ble Supreme Court in the case of Yunis @ Kariya etc. Vs. State of Madhya Pradesh, . Paragraph No. 7 reads as under:

"7. The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case. For all these reasons, we find no merits in these appeals."

In view of the aforesaid decision, the contention raised by the counsel for the appellant is not accepted by this Court.

(viii) It is further submitted by the counsel for the appellant that there was no light at the place of occurrence proved by the prosecution. The incident took place at night at about 8 p.m. and therefore, the narration given by the eye-witnesses about the whole incident cannot be relied upon. This contention of the counsel for the appellant is not accepted by this Court mainly for the reason that this appellant was known to P.W. 2 and P.W. 6. Both the eye-witnesses are residing in the nearby vicinity. They are the co-villagers. In these sets of circumstances, when the accused is known and the eye-witnesses are co-villagers and especially when P.W. 2 has identified the accused in court and also looking to their cross-examination, we see no reason to accept this contention. Identification can also be by voice when the accused is known to the witnesses.

As a cumulative effect of the aforesaid facts, reasons, evidences and judicial pronouncement, we see no reason to entertain this criminal appeal and we hereby, upheld the judgment and order of conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court-I, Chaibasa in Sessions Trial No. 219 of 2000 dated 25/26th September, 2002. There is no substance in this criminal appeal. Hence, the same is hereby, dismissed.