SURESH GOPE & ORS. vs STATE OF JHARKHAND

H.C. Mishra, J

1. As all these five appeals arise out of common Judgment of conviction and Order of sentence, they were heard together and are being disposed of

by this common Judgment.

Heard learned counsels for the appellants and the learned counsel for the State.   Â

The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 22.06.2007, passed by the learned Additional Sessions

Judge, FTC No.-IV, Dhanbad, in Sessions Trial No. 371 of 2004, whereby, the appellants have been found guilty and convicted for the offences under

Sections 302 / 149 of the Indian Penal Code and Section 148 of the Indian Penal Code. Upon hearing on the point of sentence, all these appellants

have been sentenced to undergo R.I. for life for the offence under Sections 302 / 149 of the Indian Penal Code and they were also sentenced to R.I.

for one year for the offence under Section 148 of the Indian Penal Code, and both the sentences were directed to run concurrently.

At the very outset, it may be stated that against all these appellants charges were also framed for the offences under Sections 325 and 307 / 149 of

the Indian Penal Code, but none of the appellants have been convicted for the said offences, and even the State has not filed any appeal against the

non-conviction of the appellants for these offences.Â

The prosecution case was instituted on the basis of the written report given by the informant, Mukesh Gope, the son of the deceased Rajaram

Gope, to the Officer-Incharge of Govindpur Police Station on 6.2.2004, stating therein that on the same day, the informant had come out of his house

for taking bath, when he saw that the accuseds, Nathu Gope, Basu Gope and Subhash Gope armed with lathi, and the accuseds Bhawani Gope and

Suresh Gope armed with tangi, came to his house and started abusing them. The accused Bhawani Gope assaulted the informant by tangi on his head,

whereas, Suresh Gope assaulted his father Rajaram Gope by tangi on his head. It is also alleged that his uncle, Madhusudan Gope was also assaulted

by Bhawani Gope by tangi and thereafter, the accused persons, namely, Bablu Kumbkhar, Nathu Gope, Basu Gope and Subash Gope assaulted them

by lathi, badly injuring the informant, his father and his uncle. As to the cause of occurrence, it is stated that the occurrence had taken place due to

previous enmity between the parties. The written report to the occurrence was given at the Police Station, on the basis of which, Govindpur P.S Case

No.33 of 2004, corresponding to G.R No. 375 of 2004, was instituted against all the six named accused persons for the offences under Sections 147,

148, 149, 323, 325 and 307 of the Indian Penal Code. As one of the injured, i.e., Rajaram Gope, the father of the informant, died in course of

treatment, Section 302 of the Indian penal Code was also added. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against all the six accused persons for the offences under Sections 148,

325, 307 / 149 and 302 / 149 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to

trial. In course of trial, thirteen witnesses were examined on behalf of the prosecution, including the I.O. and the Doctors, who had examined the

injuries on the injureds and had conducted the post-mortem examination on the dead body of the deceased.Â

P.W.-11 Mukesh Gope is the informant in the case, and the son of the deceased. This witness has stated that the occurrence had taken place on

6.2.2004 at about 1:30 P.M. He was in the courtyard of his house, when he saw that Bhawani Gope, Suresh Gope, Nathu Gope, Basu Gope, Subhash

Gope and Bablu Kumbkhar came to the door of his house and they started abusing them in filthy languages, whereupon this witness, his father and his

uncle Madhusudan Gope came out of the house. Bhawani Gope assaulted his father on his head by tangi, causing bleeding injury and Suresh Gope

also assaulted his father on his head by tangi. Nathu Gope assaulted his father by lathi on his head. Subhash Gope, Basu Gope and Bablu Kumbkhar

also assaulted his father by lathi. His uncle, Madusudan Gope was assaulted by Bhawani Gope by tangi on his head. Suresh Gope also assaulted his

uncle by tangi on his head. Nathu Gope and other accused persons also assaulted him by lathi. He was again stated that Bhawani Gope assaulted this

witness by tangi on his head. Nathu Gope, Suresh Gope, Basu Gope, Subhash Gope and Bablu Kumbkhar assaulted him by lathi. There were bleeding

injuries on the head of this witness, his father and his uncle and they fell down. Some villagers assembled there, when the accused persons fled away.

They were brought in the courtyard of their house and thereafter, they were taken to Govindpur Police Station and thereafter, they were taken to

Govindpur hospital, from where, his father Rajaram Gope and uncle Madhusudan Gope, who were in serious conditions, were referred to Dhanbad

Sadar Hospital. This witness was treated at Govindpur hospital. His father died in course of treatment. He has stated that he had given his statement

at the Police Station, upon which, he had put his signature and he has identified his signature as Exhibit-1/3 on the written report. He has again stated

that his statement was recorded by the police. He has identified the accused persons in the Court. In his cross-examination, this witness has stated

that at the Police Station, he had first submitted a written report, written by Haripad Gope, but that was torn by the Police Officer, present there.

Thereafter, his statement was recorded by the police. He has also stated in his cross-examination that there was no enmity with the accused persons

from before. This witness was put to lengthy cross-examination and his attention was drawn towards his statement, given before the police, for taking

contradictions in his deposition before the Court and his statement made before the police. He has denied the suggestion to have lodged the false case.

P.W.-4 is Madhusudan Gope, who was also injured in the occurrence. He has also supported the prosecution case as an eyewitness to the

occurrence, stating that the occurrence had taken place on 6.2.2004 at about 1: 30 P.M. He was sitting in the courtyard when he saw the accused

persons, who came and started abusing them and started pelting stones. Rajaram Gope came out of the house whereupon Bhawani Gope assaulted

him by tangi, causing bleeding injury. Suresh Gope also assaulted him by tangi on his head, causing bleeding injury and Nathu Gope assaulted him by

lathi on his head, whereupon Rajaram Gope fell down and other accused persons assaulted him by lathi intending to kill him. Thereafter, this witness

came out, when Bhawani Gope assaulted him by tangi on his head, Suresh Gope assaulted him by tangi on his head and Nathu Gope assaulted him by

lathi causing bleeding injuries, and he also fell down. Thereafter, Bhawani Gope assaulted Mukesh Gope by tangi, Suresh Gope also assaulted him, and

Subhash Gope & Basu Gope also started assaulting Mukesh Gope. When they fell down, some villagers assembled there and they were brought to the

courtyard. A vehicle was brought, by which, they were taken to Govindpur Police Station, from where they were taken to Govindpur Hospital and

from there, they were referred to Dhanbad Sadar Hospital. His brother Rajaram Gope died in the hospital. He has also identified the accused persons

in the Court. This witness was also put to lengthy cross-examination and his attention was also drawn towards his statement given before the police,

for taking contradictions in his deposition before the Court and his statement made before the police.Â

P.W.-1 Gorai Chandra Gope, the brother of the deceased, P.W.-2 Kamala Devi, the wife of the deceased, P.W.-3 Sobhawati Devi, the daughter of

the deceased, P.W.-5 Haripad Gope, P.W.-6 Sadhu Gope, P.W.-7 Binod Bihari Gope, P.W.-8 Lal Chand Gope & P.W.-10 Dinesh Gope, who are the

co-villagers, have also supported the case as eyewitnesses to the occurrence, and all these witnesses have deposed in more or less the same manner,

stating that that Bhawani Gope had assaulted the deceased Rajaram Gope by tangi on his head and Suresh Gope had also assaulted Rajaram Gope by

tangi on his head and other accused persons assaulted him by lathi. Thereafter Madhusudan Gope was also assaulted by Bhawani Gope and Suresh

Gope by tangi and by other accused persons by lathi. Thereafter Mukesh Gope was also assaulted by Bhawani Gope and Suresh Gope by tangi on his

head and the other accused persons assaulted them by lathi.

P.W.-9 is Dr. Digvijoy Kumar, who had examined all the three injureds, including the father of informant, while he was alive. Since there is no

conviction of the accused appellants either for the offence under Section 325 of the Indian Penal Code, or for the offence under Sections 307 / 149 of

the Indian Penal Code, the injuries on the other injureds need not be looked into, but the injuries upon the deceased is required to be seen. Suffice

would be to say that no injury was found on any of the three injureds caused by any sharp cutting weapon, rather the injuries on all three of them were

found to be caused by hard and blunt substance only. The Doctor had had found the following injuries on Rajaram Gope while he was alive, on

6.2.2004:-

(i) Lacerated wound 2â€​ x ½â€​ x ½â€​ on the left side parietal region. There was recurrent vomiting, sign of head injury.

(ii) Swelling 1â€​ x 1â€​ on right hand.

He had reserved the opinion about the nature of injury and has stated that the patient was showing the signs of head injury and was referred to

P.M.C.H, Dhanbad in critical condition. He has identified the injury report to be in his pen and signature, which was marked Exhibit -1.

After the death of the deceased Rajaram Gope, the post-mortem examination of his dead body was conducted by P.W.-12 Dr. Ranjeet Kr. Arya

on 7th February 2004, and he had found the following ante-mortem injuries on the dead body:-

I) Head Shaved- 4â€​ x 2 ½â€​ over fronto parietal region in midline. A stitch wound with stitches-2â€​ Long within shaved area was found.

II) Bruise- 2 ½â€​ diameter over dorsum of right Hand.

III) On Dissection â€" Head & Brain- Extra dural hamotoma over rightparietal region. Sub dural hamotoma was found over both side of brain. Chest

and abdomen- all internal organs were conjested. Heart- Left chamber contained partially fluid blood Right Chamber was full of blood.

Stomach â€" 150 cc. Of blackish fluid.

Bladder - empty.

He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2.

P.W.-13 Sudarshan Prasad is the I.O of the case. He has stated that on 6.2.2004, he was posted as Sub-Inspector of Govindpur Police Station,

where he got the written report by Mukesh Gope, on which, the police case was instituted. He has identified the endorsement, made by him on the

written report, which was marked Exhibit-3. He has also proved the formal FIR, which was marked Exhibit-4. He has stated that he sent the injureds

Mukesh Gope, Rajaram Gope and Madhusudan Gope to Primary Health Centre, Govindpur, where he recorded the re-statement of the informant. He

also inspected the place of occurrence and has stated that the occurrence had taken place just outside the house of the informant, where he found the

bloodstains. He has given the details at the place of occurrence. He recorded the statements of the witnesses and conducted the raids for

apprehension of the accused persons, but the accused persons could not be apprehended. He was also informed that Rajaram Gope had died during

the treatment, and he received the inquest report and the post-mortem report of Rajaram Gope. He had also recorded the statement of Madhusudan

Gope at the hospital. He had arrested Suresh Gope on 31.3.2004 and he had submitted the charge-sheet after completing the investigation. The

attention of this witness was drawn towards the statements of the witnesses, which shows that there are contradictions in the evidence of the

prosecution witnesses in their depositions in the Court, and their statements given before the police.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused persons have denied the evidence

against them. However, no evidence was adduced by the defence. On the basis of the evidence on record, the appellants have been convicted and

sentenced only for the offences under Sections 148 and 302 / 149 of the Indian Penal Code, but there is no conviction and sentence of the appellants

for the allegation of assaulting and injuring the informant Mukesh Gope, and his uncle Madhusudan Gope. As stated earlier, there is no appeal against

that, either by the State, or by the informant / victim.

Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below cannot be sustained in the eyes of law, in view of the fact that the prosecution has failed to bring home the charge against the appellants beyond

all reasonable doubts. It is submitted that there are material contradictions in the evidence of the witnesses. According to the prosecution case, as

stated in the written report, at the time of occurrence, the informant had come out of his house and was going to take bath, when first of all, he was

assaulted by Bhawani Gope by tangi and thereafter, Suresh Gope had assaulted his father Rajaram Gope by tangi on his head and Madhusudan Gope

was assaulted by Bhawani Gope by tangi on his head, and there is allegation against the other accused persons to have assaulted all the three of them

by lathi. It is pointed out by the learned counsel that in the FIR, there is no allegation against the accused Bhawani Gope to have assaulted the father

of the deceased and there is no allegation on Suresh Gope to have assaulted either the informant Mukesh Gope, or his uncle Madhusudan Gope, but all

the material witnesses, including the informant P.W.-11 Mukesh Gope and the injured P.W.-4 is Madhusudan Gope, have deposed in the Court that

both Bhawani Gope and Suresh Gope assaulted all the three of them by tangi causing bleeding injuries, and his father was also assaulted by Nathu

Gope on his head by lathi causing injury. Learned counsel has submitted that the evidence of P.W.-9 Dr. Digvijoy Kumar, who had examined the

deceased, while he was alive and even P.W.-12, Dr. Ranjeet Kumar Arya, who had conducted the post-mortem examination on the dead body of the

deceased, show that they had found only one injury on the head and that too was not caused by any sharp cutting weapon. Learned counsel

accordingly, submitted that the ocular evidence of these witnesses is not at all corroborated by the medical evidence, either of P.W.-9 Dr .Digvijoy

Kumar, or of P.W.-12 Dr. Ranjeet Kumar Arya. Learned counsel accordingly, submitted that the prosecution has failed to bring home the charge

against the accused appellants beyond all reasonable doubts, and it is a fit case in which all the appellants ought to have been given the benefits of

doubt.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that all the witnesses, including the informant and the

injured have fully supported the prosecution case and their ocular evidence is fully corroborated the medical evidence of P.W.-9 Dr. Digvijoy Kumar

who had found the corresponding injuries on the deceased as well as on both the injureds. The post-mortem report also shows that the deceased had

died due to the head injury. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of

sentence passed by the Trial Court below.

Having heard the learned counsels for both sides and upon going through the record, we find that the prosecution case is full of contradictions,

which are apparent from the record and without entering into the niceties of the cross examinations of the witnesses. According to the FIR, at the

time of occurrence, the informant Mukesh Gope was going to take his bath, and as soon as he came out of his house, it was the informant who was

assaulted first by Bhawani Gope by tangi, thereafter Suresh Gope assaulted the father of the informant by tangi and thereafter, Bhawani Gope

assaulted Madusudan Gope, the uncle of the informant by tangi and all the other accused persons also assaulted them by lathi. In his evidence, the

informant P.W.-11 Mukesh Gope has stated that he was in his courtyard at the time of occurrence, and when the accused persons came to his door

and started abusing them, he came out of his house. All the material witnesses examined by the prosecution have stated that it was the deceased

Rajaram Gope, who was assaulted first by the accused persons and thereafter they assaulted Madusudan Gope and the informant Mukesh Gope was

the last person to be assaulted by the accused persons. All the material witnesses have stated that both Bhawani Gope and Suresh Gope assaulted the

deceased Rajaram Gope by tangi on his head and there is evidence against Nathu Gope to have assaulted the deceased by lathi on his head, causing

injuries, and the evidence of all the prosecution witnesses are almost unanimous on this manner of assault by the accused persons. However, the

evidence of P.W.-9 Dr. Digvijoy Kumar and the injury report proved by him as Exhibit-1, as also the evidence of P.W.-12, Dr. Ranjeet Kumar Arya

and the post-mortem report proved by him as Exhibit-2, clearly show that there was no tangi injury at all on the dead body of the deceased. The fact

remains that the witnesses have also stated about the injuries caused upon the informant and his uncle Madusudan Gope, and their injuries have also

been proved by P.W.-9 Dr. Digvijay Kumar, but no incised wound was found on any of them. Their injuries have not been discussed in detail, in view

of the fact that none of the accused persons have been convicted and sentenced for the offences relating to the assaults on the informant Mukesh

Gope and the injured Madusudan Gope, but the record shows that there was no incised wound on any of them. Furthermore, it is stated in the FIR that

the occurrence had taken place due to previous enmity between the parties, but in his cross-examination the informant P.W.-11 Mukesh Gope has

clearly stated that there was no enmity between them.

These apart, the evidence of the informant P.W.-11 Mukesh Gope shakes the very base of the prosecution case. The FIR was instituted on the

basis of the written report submitted by him, but he has stated in his evidence that the FIR was instituted on the basis of his statement recorded at the

Police Station, upon which, he had put his signature. In his cross examination, he has further clarified the matter, stating that the written report which

was submitted in the Police Station was torn away by the Police Officer and his statement was recorded on which he had put his signature, on the

basis of which the police case was instituted. The FIR shows that the police case was instituted on the basis of the written report, and if the written

report was torn at the Police Station, and still the case was instituted on the basis of a written report, the origin of which is not explained, the very base

of the prosecution case becomes doubtful. This apart, the contradictions are there in the evidence of the prosecution witnesses, as proved by the I.O

P.W.-13 Sudarshan Prasad in his cross-examination, but they are not being discussed in detail for the sake of brevity.

In the facts of this case, we find that the very FIR is doubtful, and the manner of occurrence as detailed in the FIR is quite different from the

evidence adduced by the prosecution. The manner of occurrence as detailed in the FIR is not at all proved by the prosecution witnesses, and even

their ocular evidence is not at all supported by the medical evidence of P.W.-9 Dr. Digvijoy Kumar, who had examined the deceased while he was

alive, and of P.W.-12 Dr. Ranjeet Kumar Arya, who had conducted the post-mortem examination on the dead body of the deceased, as only one

injury was found on the head of the deceased and that too, caused by hard and blunt substance and not by any sharp cutting weapon. We are of the

considered view, that due to the aforesaid contradictions, the prosecution has not been able to bring home the charges against the accused appellants

beyond all reasonable doubts, and even though the witnesses have supported the prosecution case, the appellants were entitled at least to the benefits

of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of

law.

For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 22.06.2007, passed by the learned Additional

Sessions Judge, FTC No. IV, Dhanbad, in Sessions Trial No. 371 of 2004, convicting and sentencing the appellants, Suresh Gope, Basu Gope, Subhash

Gope, Nathu Gope, Bhawani Gope & Bablu Kumbhkar, for the offences under Sections 148 & 302 / 149 of the Indian Penal Code, are hereby, set

aside. Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charges. The appellant Suresh Gope is in custody,

undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. All the other

appellants are on bail. They are discharged from the liabilities of their respective bail bonds.

In the result, all these five appeals, are hereby, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with

the copy of this Judgment.            Â

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