CRIMINAL APPEAL NO.805 OF 2004 CRIMINAL APPEAL NO.665 OF 2004 --------- Against the judgment and order of conviction and sentence dated 20th day of August, 2004 passed in S.T. No. 603 of 2000 by Shri Jayanta Kumar Sen, Additional Sessions Judge XI, Patna --------- Cr. Appeal No. 805 of 2004(DB) Bhagwan alias Bhawan Gope, resident of village – Baikatpur, Police station – Khusrupur, District – Patna Cr. Appeal No. 665 of 2004 (DB) 1. Mahendra Gope, son of Chander Gope, 2. Chalaku Gope alias Chullu Gope, 3. Devendra Gope, sons of Hira Gope, all residents of village – Baikatpur, P.S. – Khusrupur, District – Patna Versus The State of Bihar ………Respondent (in both the appeals) --------- For the Appellants : Sarvshri Satyendra Pd. Singh Tej Narayan Singh, Advocates. For the State : Shri Ashwini Kumar Sinha, APP For the Informant : Shri Santosh Kumar, Advocate -------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Mridula Mishra & Dharnidhar Jha, JJ. These two appeals have been preferred by the four appellants challenging the judgment and order of conviction and sentence dated 20.8.2004 passed by the Additional Sessions Judge – XI, Patna in S.T. No. 603 of 2000 whereby appellant 2 Bhagwan alias Bhawan Gope has been convicted under section 302 of the IPC and appellants Mahendra Gope, Chalaku Gope alias Chullu Gope and Devendra Gope have been convicted under sections 302/34 of the IPC. All the appellants have been sentenced to undergo R.I. for life and also to pay a fine of rupees ten thousand. In default of payment of fine, they have been further sentenced to undergo R.I. for five years. 2. Shravan Kumar (P.W.4) is the son of the deceased Bhaiya Lal Rai and informant of the case. The occurrence in which the father of the informant was killed by accused persons, took place on 4.6.1993 at 10.30 P.M. The case of the prosecution as narrated by the informant is that on 4.6.1993 at 9 P.M. he along with his father Bhaiya Lal Rai went to sleep on a chowki at his Bathan in front of their house. After some time he heard some sound and woke up and saw his villagers Mahendra Gope, Chullu Gope and Devendra Gope catching hold of the legs and hands of his father and Bhagwan alias Bhawan Gope cutting his father’s neck with fasuli. All four persons thereafter fled away towards their house. The informant raised alarm and several villagers assembled at the place of occurrence. The motive as disclosed in the fardbeyan of the informant for commission of this offence by the accused persons is a Panchaiti, held some days earlier, in which Chullu Gope was out casted by the panches as he had forcibly taken 3 away the wife of Jatan Gope and started living with her. Due to this incident, the four accused persons had held out threats to his father that he will have to face consequence for the same. 3. The Officer Incharge of Khusrupur police station reached at the place of occurrence at 11.45 P.M. and statement of informant was recorded at his darwaza in front of the villagers, namely, Harakhdhari Rai, Kamta Rai, Dinesh Gope and others. Inquest was held and report was prepared at the place of occurrence itself and the dead body was sent for postmortem. The postmortem on the dead body was conducted on the next day by Dr. N.K. Singh, examined as P.W. 5. 4. The accused persons, after being chargesheeted, were sent up for trial and during trial they all took the defence of innocence and also that the occurrence took place in some other manner but due to some previous enmity, they have falsely been implicated by the informant and other witnesses in this case. 5. Six witnesses were examined by the prosecution. P.W. 1 Kharagdhari Rai was declared hostile. P.W. 2 Kamta Gope did not claim to be the witness of the actual occurrence but he has supported the prosecution story which relates to the post- occurrence. He claimed to have seen all the four accused persons fleeing away from the place of occurrence. He saw Bhagwan Gope fleeing with blood stained Fasuli. When he 4 reached at the place of occurrence, The informant and others disclosed names of Mahendra Gope, Devendra Gope, Chullu Gope and Bhawan as accused who have killed Bhaiya Lal Yadav. Only eye witness examined by the prosecution, who fully supported the case of the prosecution, is the informant P.W. 4. 6. Counsel for the appellants has stated that only eye witness is an interested witness, being son of the deceased. P.W. 4 is also the informant of the case. In the fardbeyan recorded just after occurrence he had disclosed that he was sleeping beside his father on the same chowki, on which his father was sleeping when accused persons came and committed murder of his father. P.W. 4 in his deposition has stated that his father always used to sleep at the Bathan, in front of the house, for security of animals, and he also used to sleep with his father, sharing same cot. In the night of the occurrence, he was lying beside his father, in a state of half sleep and half awakened. Suddenly, he woke up hearing some unusual sound and on opening of his eyes, he found that Chullu Gope has gagged his father sitting on his chest. Appellants Devendra and Mahendra were catching hold of the hands and feet of his father and appellant Bagwan alias Bhawan was cutting the neck of his father with Chhewania (Fasuli). This witness has very clearly disclosed that despite the fact that he was awake, he did not get 5 up until the accused persons left the place. Once the accused persons left the place, he sat on the cot, raised alarm and several villagers assembled. But out of fear he did not disclose the name of accused persons before the villagers. This is quite a natural conduct of a boy about ten years of age, as the informant was at the time of occurrence. He disclosed the name of accused persons only when I.O. came at the place of occurrence and encouraged him to give statement, assuring full security. Considering the circumstance in which the solitary eye witness disclosed the manner of occurrence and participation of each accused, after some delay, no adverse conclusion can be drawn. There is no infirmity in the evidence of P.W. 4. His presence at the place of occurrence is very natural and non disclosure of the name of the accused persons before the villagers, immediately after the occurrence, is also a very natural conduct, considering his age at the time of occurrence and the gruesome murder of his father, which he had witnessed just some moment earlier. He has clearly stated that once he regained confidence, on assurance of the I.O., he disclosed the names of the accused persons. The evidence of P.W. 4 regarding cutting of neck of the deceased is also corroborated by the medical evidence and the postmortem report. Dr. N.K. Singh, P.W. 5 who has done postmortem of late Bhaiyalal Yadav found two injuries – (i) incised wound over right side of 6 neck involving from interior of neck up to right ear 7” x 1- 1/2” x bone deep below mandible presume of establishment cut on cervical bone. One more 1” x ½” x skin deep injury was found on the face of the deceased. This injury was quite possible considering the manner in which the deceased was killed by the accused persons. Actual occurrence, witnessed by P.W. 4, is also corroborated by evidence of P.W. 2, who claimed to have witnessed subsequent conduct of the accused persons. P.W. 2 saw the accused Bhagwan Yadav fleeing away with blood stained knife, immediately after occurrence. There is no reason to disbelieve the prosecution story. 7. The evidence led by the prosecution witnesses fully prove the case of the prosecution so far participation of Bhawan Gope and Chullu Gope is concerned. 8. The involvement of Bhawan Gope and Chullu Gope is also corroborated by the evidence of P.W. 2 who has deposed that when he reached at the place of occurrence, villagers present there, disclosed the name of Chullu Gope and Bhawan as killers of the deceased. 9. Names of Mahendra Gope and Devendra Gope were not disclosed by villagers as accused before P.W. 2. Counsel for the appellants submitted that name of Mahendra Gope and Devendra seems to be added subsequently, in addition to actual occurrence. The prosecution case as far as it relates to 7 Mahendra and Devendra, seems to be doubtful, also considering the role assigned to them in commission of actual occurrence. Their presence has been shown just in the manner that they had caught hold of the legs and hands of the accused, for which there was no need as Chullu Gope was sitting at the chest of the deceased gagging his mouth and Bhagwan Gope was cutting his neck. 10. In the facts and circumstances of the case, we are of the view that there is no scope for interference in Cr. Appeal No. 805 of 2004 (DB) in which Bhagwan alias Bhawan Gope has challenged his conviction and also in the conviction of accused Chullu Gope who is appellant in Cr. Appeal No. 665 of 2004. Hence, appeals on their behalf are dismissed. 11. So far other two appellants in Cr. Appeal No. 665 of 2004 (DB), namely, Mahendra Gope and Devendra Gope are concerned, their participation in the alleged occurrence appears to be doubtful, as such, their conviction by the trial court and sentence passed against them are set aside. Appeal on their behalf is allowed. 12. Appellants Mahendra Gope, Chalaku Gope alias Chullu Gope and Devendra Gope are on bail. Since the appeal on behalf of Chalaku Gope alias Chullu Gope has been dismissed, his bail bonds are cancelled and is directed to surrender before the court below to serve out the remaining sentence. So far 8 appellants Mahendra Gope and Devendra Gope are concerned, since appeal on their behalf has been allowed, they are discharged from the liabilities of their bail bonds. (Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court, The 13th August, 2010 NAFR/Anil/