Pravesh Gope and Others vs State of Bihar

S.N. Jha and P.N. Yadav, JJ.—There are eight Appellants in all in these two appeals. They have been convicted for committing murder of Raj Kumar Gope of village Pakri within Karai Parsurai Police Station of Nalanda district on 29.6.1987 at about 5 p.m. While seven Appellants of Cr. Appeal No. 162/98 have been convicted u/s 302/149 and sentenced to imprisonment for life, the sole Appellant of Cr. Appeal No. 269/98 has been convicted u/s 302/34 of the Indian Penal Code and sentenced to imprisonment for life. All of them have also been convicted u/s 148 of the Penal Code but no separate sentence has been awarded thereunder.

Jagdish Gope, father of Raj Kumar Gope, reported the occurrence to SI Ram Vyas Singh of Karai Parsurai PS at 6.30 p.m. on the date of occurrence i.e. 29.6.1987 at the bank of river Lokain on the outskirts of village Pakari where murder is said to have been committed. He stated in the fardbeyan that he had asked his son Raj Kumar to bring the she-buffalo which had gone towards the river side while grazing. When Raj Kumar reached at the place of occurrence the Appellants a"med with guns and farsa came out of the maize field of one Nanhku Bhagat along with 10-15 others and attacked him. Raj Kumar tried to flee away, however on the order of Appellant Naresh Gope, Appellant Chandrika Gope fired from his gun causing injury to Raj Kumar, other Appellants also fired simultaneously. On hearing the sound of gun fire witnesses rushed to the place and the Appellants fled away. The informant along with others went near Raj Kumar and found two gun shot injuries-one on the chest towards right side of arm-pit and the other on the left side of the chest. Jagdish Gope alleged that the cause of occurrence was altercation which had taken place two days ago between the Appellants and Raj Kumar. On the above said statement of Jagdish Gope Hilsa (Karai) PS Case No. 157/87 was registered against the Appellants. The case was investigated by SI Ram Vyas Singh who after completing necessary formalities submitted chargesheet and the Appellants were thus put on trial.

At the trial the prosecution examined six witnesses to prove its case four out of whom including informant Jagdish Gope claimed to be eye witnesses. They are P.W. 1 Upendra Prasad alias Upendra Gope, P.W. 2 Suresh Gope, P.W. 3 Ram Babu Paswan and P.W. 4 Jagdish Gope, the informant himself. The other two witnesses are official witnesses namely Dr. Ram Bhanu Prakash Rukhaiyar who had held postmortem on the body of the deceased and SI Ram Vyas Singh the Investigating Officer, examined as P.Ws. 5 and 6. The Appellants did not examine any witness in their defence. At the end of the trial, the trial court convicted and sentenced the Appellants in the manner indicated at the outset.

Shri Tara Kant Jha, learned Counsel for the Appellants submitted that there are discrepancies in the fardbeyan version of the informant and his evidene in court and from the evidence of P.W. 1, 2 and 3 it would appear that all of them, indeed the informant too, had reached the place of occurrence after the occurrence was over and the Appellant had fled away. Shri Jha placed the evidence of the witnesses at length. He also submitted that the medical evidence does not corroborate the fardbeyan version about the injuries.

Having perused the evidence of the witnesses we find substance in the submissions.

The witnesses in their examination in chief, no doubt, claimed to have seen the occurrence themselves. They stated in no uncertain terms that after Chandrika Gope fired from his rifle Raj Kumar fell down in the river and died. However their i cross-examination suggests that they reached the place of occurrence after hearing the sound of gun fire when the deceased had already fallen down after sus-taining injury and the assailant had fled away. P.W. 1 in para 27 of the cross-examination stated that he heard the sound of gun fire while he was grazing his cattte. After hearing the sound he went to the Alang (embankment in local parlance) and standing from there found Raj Kumar fallen down in the river. In para 28 he stated that witnesses including P.W. 2 and the in formant himself among others reached th place afterwards. In para 27 of his evidence he had stated that the height of the Alang was 4 feet above the ground lev(sic) and the river 10-12 feet down from the Alang. In other words, he found the dead body of the deceased fallen in the bed (sic) river about 12 feet below the Alang. If (sic) was grazing the cattle in the vicinity and (sic) hearing the sound of gun fire he went in the Alang and standing from there saw be dead body it is apparent that he could not have seen commission of the crime (sic) his own eyes. P.W. 2 in para 31 of his cross-examination stated that he heard the found of gun firing. He thereafter went on be eastern side of the river and from there (sic) found the dead body of Raj Kumar lying (sic) the bed of river. At that time he did not free any person of village Rupaspur. After be went there the villagers including Jagdish Sope, father of the deceased, came. Simi-P.W. 3 in his cross-examination stated that after hearing the sound of gun firing he law the residents of the village running (sic)wards the place of occurrence. However (sic) assailants had fled away before they (sic)ched. 15-20 persons of the village (sic)ched the place including father of the (sic)ceased.

In view of the above mentioned evidence of the prosecution witnesses it is beautiful if even the informant had seen the occurrence as claimed by him in the (sic)beyan or in Court. If P.W. 1 who was the first to arrive at the place of occurrence, allowed by the others, had not seen the occurrence, it is evident that other wit-(sic)sses did not see the occurrence either. as a matter of fact, it may be recalled, even (sic) the fardbeyan the informant stated that the sound of gun firing was heard first by (sic) witnesses. It is relevant to mention are that in the fardbeyan names of P.Ws. (sic) and 2 were mentioned as the persons (sic) saw the occurrence.

It is relevant to mention here that in (sic) fardbeyan the informant has stated that (sic) had asked his son Raj Kumar to bring (sic)ck the she-buffalo which had gone astray (sic)e grazing towards the river side but in (sic) evidence in Court he stated that his she-buffalo too was grazing along with other cattle of the villagers near the place of occurrence. This deviation of our opinion is an improvement in the case intended to probabilise the claim of witnesses to have seen the occurrence. It is clear that if she-buffalo of the deceased was grazing along with the she-buffaloes of others, chance of the occurrence being seen by them was more and that appears to be the reason why at the stage of evidence in Court the informant told that his son''s she-buffalo too was grazing.

On behalf of the State it was submitted that the Court should take over-all view of the evidence of the witnesses and should not go by the stray statement in the cross-examination. Reliance was placed on Siddique and Others Vs. State of U.P., and Inder Singh and Another Vs. The State (Delhi Administration), It was submitted that the case was instituted within one and half hours of the occurrence and there was little chance of any concoction and fabrication.

The submissions as general proposition are well founded. It is true that statement of a witness made under the weight of cross-examination cannot be read in isolation of the other parts of the evidence but it is equally true that the veracity of the statement in examination-in-chief has to be tested with reference to his answers given in course of cross-examination. While in examination-in-chief a witness may give tutored version of the occurrence it is only when the version is tested by cross-examination that its veracity or otherwise can be found. Reading the evidence of the witness as a whole leaves little room for doubt that they did not see the occurrence themselves. They heard the sound of gun firing and on hearing the same they went towards the Alang tour feet above the ground level and from there found Raj Kumar lying in the bed of the river twelve feet down. By that time the assailants were nowhere in sight, they had already fled away. Therefore, it cannot be said that the crime was committed by these Appellants.

It is relevant to mention here that though the doctor found two injuries, they were communicating with each other-one being injury of entry and the other being injury of exit. The manner in which the injuries were described by the informant in the fardbeyan suggests as if he found two distinct injuries. Apparently the informant described the injuries as he saw them on the body of the deceased little knowing that both the injuries were result of one gun shot and therefore to that extent the medical evidence does not corroborate the prosecution case regarding the manner of occurrence.

In the above premises, we are satisfied that the prosecution has failed to prove its case and the Appellants are entitled to acquittal.

In the result, the appeals are allowed. The conviction and sentence awarded to the Appellants are set aside. All the seven Appellants of Cr. Appeal No. 162/98 are on bail. They are discharged of the liability of their bail bonds. The sole Appellant of Cr. Appeal No. 269/98, Chandrika Gope, is in custody. He is directed to be released forthwith if not wanted in any other case.