Keshwar Gope vs Emperor

Coutts, J.—The appellant in this case, Keshwar Gope, has been convicted u/s 304 of the Indian Penal Code and has been sentenced to rigorous imprisonment for two years. The accused has been tried along with three others, Bihari Gope, Kokai Gope and Bunma Gope, who were acquitted. Bihari and Kokai are brothers. Keshwar is the son of Bihari and Bunma is the son of Kokai.

The case for the prosecution was that on the 25th March last, Jhumak Gope went to Chhabila village, where the appellant and the other three persons, who were tried, live, and called together a panchayet because Keshwar and Bunma had abused his son, Muni, for having allowed his cattle to graze their crop. Before the punches Ram Chariter, one of the witnesses, gave evidence of the occurrence regarding which the punchayet had been called, whereupon Bunma accused him of giving false evidence. Ram Chariter abused Bunma in return. Bunma then struck Ram Chariter with a small stick and Keshwar slapped him. Ram Chariter''s uncle Lachman interfered and slapped Bunma. Bihari, Bunma and Kokai then slapped Ram Charitar and Keshwar picked up a bamboo which was lying there and struck Lachman two blows on the back and one on the head. Lachman fell down unconscious and was carried home. He died the next day about noon and the post mortem examination showed that death was due to fracture of the skull.

The occurrence is said to have taken place on the afternoon of the 25th and that evening after sunset, as Lachman''s condition appeared to be serious, Ramji Gope and Adhin Gope started for the Police Station, which is 10 miles away. They could not find the Police Station that night and spent the night under a tree. In the morning, they reached the Thana. The Sub-Inspector was either not there or was ill, it is not clear, but the Writer Head Constable made an entry of the statement of Ramji Gope in the Station Diary. This was about 8 A.M. Ramji Gope then returned to his village shortly after he returned Lachman died, so he was returning to the Thana to give information when he met the Writer Head Constable at Mahamadpur, about a mile from his village, where the Writer Head Constable recorded what has been treated as the first information in the case. This was about noon. The Writer Head Constable after recording this statement went on to the village, where he arrested Keshwar, Bihari and Bunma and in the evening he returned to the Thana with these accused persons and also with witnesses Ramji, Adhin and two other persons, Budhan and Chhattu. He took up the investigation, with the result that the four accused were committed for trial and Keshwar, the appellant, has been convicted.

As I have already said, the post mortem examination showed that Lachman''s death was due to a fracture of the skull and there is every reason to believe that this fracture was due to a blow from a bamboo as alleged by the prosecution. The question of whether this blow was inflicted by Keshwar and the circumstances under which it was a flicked, remain to be considered. The accused denied that there was any punchayat and stated that there was a quarrel between Kokai and the complainant''s party over cattle grazing, in the course of which Kokai got hit on the head with a kodali. There is no evidence in support of this story, but it is a fact that Kokai was found by the Sub-Assistant Surgeon of Laheria Sarai Police Hospital on the evening of the 25th to have an incised wound on his head 3� inches by 1 inch by 2 inches which was caused by a sharp cutting instrument and it was clear that he had lost a good deal of blood. He had also two other slight injuries. Although then there is no evidence in support of the defense story, it certainly is clear from the fact of Kokai having been injured that the prosecution witnesses have not told the whole truth, and it is contended by Mr. G.C. Pal for the appellant that from this and other circumstances, we should find that the story of the panchayet having been held is entirely false. The circumstances, on which he relies, are that none of the punches told why they were nailed to form a panchayet, that it is unlikely that a panchayet would be sailed on account of two youths abusing each other, and that none of the punches interfered in the quarrel. These are all circumstance which, it is right, should be taken into consideration, but in view of the first information, which was laid at 8 A. M., and of the oral evidence, which has been adduced on the point of the panchayet having been held, it seems clear that there was a panchayet. It is also equally blear, however, from the fact that Kokai was injured that the prosecution have not disclosed ''the whole truth about what occurred at the panchayet, and that they have not done so becomes a matter of considerable importance in considering what is really the main question in the case, namely, whether Keshwar struck the blow from the effects of which Lachman died.

Seven witnesses have been examined as to the actual occurrence and each of them states that it was Keshwar who struck Lachman, but it is contended by Mr. G.C. Pal that we should not rely on their evidence because it was not stated in the first information that it was Keshwar who struck Lachman and because the prosecution has withheld two witnesses, Budhan and Chhattu, who had stated to the investigating Sub Inspector, when they were taken to the Thana on the night of the 26th, that it was not Keshwar but Kokai who struck the blow with the bamboo. There is great force in these contentions. There appears to have been a complete misapprehension in the mind of the learned Sessions Judge as to what the first information in this case was. The first information in this case was the information, which was given by Ramji Grope to the Writer Head Constable at 8 A.M. on the morning of the 29th, the sub-stance of which he recorded in. the Station Diary. In this statement, it is merely recorded that Bunma, Keshwar, Kokai and Bihari had struck Lachman and Ram Chariter with bamboo. It would appear from the statement that all these persona struck him, and certainly there is nothing to suggest that it was Keshwar who struck the blow. This, as I have already said, is the first information, but the learned Sessions Judge has treated the statement made by Ramji to the Writer Head Constable at noon as the first information, and it is on this first information that the case that it was Keshwar, who struck the blow, is based. This, however, is not the first information; it is not even evidence and it should not have been considered by the learned Sessions Judge. It is merely a statement recorded by a Police Officer in the course of the investigation and the purpose, for which it was brought in, was to corroborate the subsequent statement of Ramji Gope made in Court--an entirely unjustifiable procedure. The admission of this document was objected to by the defence but it was admitted "subject to objection." The Court, however, never appears to have considered the objection with the result that a document has been used, which is totally inadmissible and which must now be excluded from consideration. Excluding this so-called first information, then, we have the first information recorded at 8 A.M., in which it is not stated that Keshwar struck the fatal blow and when this story first appears we do not know. It is impossible, under these circumstances, not to view the prosecution evidence on this point with grave suspicion. Another ground for treating the prosecution case with suspicion is the fast that the two witnesses, Badhan and Chatti, were not examined. These witnesses on the night of the 25th stated to the Sub Inspector that it was Kokai, who had struck Lachman with the bamboo. No reason for not producing these witnesses is given. They were presumably eye-witnesses of the occurrence and important witnesses; it was the duty of the prosecution to produce them and the failure of the Public Prosecutor to do so appears to require explanation. It may be that their examination would have entirely changed the view of the case which was taken by the learned Sessions Judge, and their non-production, couple with the fact that in the first information it is not stated that Keshwar struck the fatal blow and the fast that the prosecution witnesses have undoubtedly suppressed some part, at least, of the truth, throws so much suspicion on their evidence that I am unable to accept it.

I would accordingly set aside the conviction and sentence and acquit the accused.

Das, J.

I agree.