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CASE NO.: Appeal (crl.)  61 of 2003

PETITIONER: Krishna Gope                                             

RESPONDENT: Vs. State of Bihar                                           

DATE OF JUDGMENT: 25/08/2003

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       Appellant-Krishna Gope was tried for the offence of murder for having  caused the death of Sarjug Gope.   The sessions court found him guilty and  sentenced him to undergo imprisonment for life.    Two other accused tried along  with him were acquitted by the sessions court.   The appellant filed an appeal  before the Patna High Court challenging his conviction and sentence.  The High  Court elaborately re-appreciated the prosecution evidence and confirmed the  conviction and sentence of the appellant.   The judgment and order of the High  Court is challenged before us.

       The prosecution case is that on 25.6.1984 while accused Arbind Gope  was grazing his cattle, his cow strayed into the field of Sarjug Gope alias Rukha  Gope and this led to a wordy altercation between Sarjug Gope on the one hand  and Arbind Gope and Karoo Gope on the other.  When this wordy altercation was  going on, the appellant-Krishna Gope brought a country-made rifle from his  house and fired at Sarjug Gope.  Sarjug Gope sustained firearm injuries and fell  on the ground.   Meanwhile, some persons from the neighbourhood had collected  at the place of occurrence and injured Sarjug Gope was removed to Karai  Parsurai dispensary for treatment. At the dispensary, the Doctor advised that the  injured be taken to the hospital at Patna.  Injured Sarjug Gope, while undergoing  treatment at the hospital at Patna died in the night.    Earlier, while injured Sarjug  Gope was in the Karai Parsurai dispensary, PW-12 Sub Inspector of Police  recorded his statement at about 5.30 P.M.   PW-12 conducted the investigation  and he prepared the ’muazzer’.    Near the place of incident, he found one .315  bore empty cartridge and he recovered the same in the presence of two  witnesses.   He recorded the statement of various witnesses and later held  inquest on the dead body of deceased at the hospital at Patna. After the  investigation, he filed the charge-sheet.

       On the side of the prosecution, PW-5 Bhola Gope and PW-6 Banwari  Gope were examined to prove the incident.   PW-6 is the sole eye-witness who  saw the entire incident.   According to him, at the relevant time, he was in the hut  of one Ram Chandra Gope which was about 30 feet from the place of incident.     He stated that he heard the noise of the wordy altercation that was going on  between the deceased and the accused persons and saw the appellant-Krishna  Gope bringing a country-made rifle and shooting the deceased. It was suggested  to him that the hut of Ramchandra Gope was at some distance away from the  place of occurrence and that it was not possible to see the place of occurrence  as the same was at a lower level than the land on which Ramchandra Gope’s hut  was situated.  But there is nothing in the evidence to show that there was  anything to obstruct the visibility.   It is quite common that a witness being a  curious onlooker would always take up a vantage position to find out and gather

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the reasons of the quarrel that takes place in the village.  Moreover, the accused  is very much known to him and there could not have been possibility of his  mistaking the identity of the accused.    

       The evidence of PW-6 is further corroborated by the evidence of PW-5,  Bhola Gope.   PW-5 deposed that at the relevant time his nephew Ashok Kumar  came running to him and told him that a quarrel was going on between Sarjug  Gope and accused Arbind Gope and Karoo Gope.  Bhola Gope, who was  grazing his buffalo, left the cattle in the custody of Ashok Kumar and proceeded  to the place of incident.   When he reached there, he saw appellant-Krishna  Gope running away from the place of occurrence.  He saw Sarjug Gope lying in  the field with injuries on his abdomen.   The evidence of PW-5 was severely  attacked on the ground that this witness had no occasion to see the actual  incident.  Of course, this witness had not seen the appellant shooting the  deceased, but, nevertheless, the fact that the appellant was at the place of  incident and that he was seen running away from there is certainly an  incriminating circumstance.  Thus, the prosecution has satisfactorily proved that  the appellant-Krishna Gope used his country-made firearm to cause injuries to  the deceased.

       Learned counsel for the appellant strenuously urged before us that the  First Information statement itself is a fabricated document and that PW-12 could  not have recorded the statement of the deceased Sarjug Gope.   This contention  was based on a note made at the bottom of the injury report prepared by Dr.  Inderjit Prasad, who was the duty doctor at the Karai Parsurai dispensary where  the injured Sarjug Gope was first taken for treatment. The injury report is  Annexure P-1, which is purported to have been prepared at 5.15 P.M. on  25.6.1984.  In the last portion of this report, it is noted by Doctor : "As the patient  was unconscious and so I could not be able to take dying delcaration and  referred to P.M.C.H."  Based on this note, it was contended by learned counsel  that the injured Sarjug Gope must have been unconscious when he was stated to  have made the statement to PW-12 at the Karai Parsarai hospital and therefore,  the deposition of PW-12 that he had gone to the hospital and recorded the First  Information statement between 5.00 and 5.30 P.M. is highly improbable.   We do  not find much force in the contention advanced by learned counsel for the  appellant.   It is pertinent to note that the doctor at the Karai Parasarai hospital  was never asked to record any dying declaration nor was his assistance sought  for the same by anybody.  It might be possible that when the doctor saw the  injured Sarjug Gope, he may have been unconscious.  But that does not mean  that when the Sub Inspector came to the hospital, the injured continued to be in  that state.   Moreover, PW-12 Sub Inspector could have recorded the statement  of any other witness who was present at the hospital and treated the same as the  First Information statement for the purpose of the case.  PW-6 Banwari Gope  was very much present at the hospital when the Sub Inspector took the  statement of Sarju Gope.   PW-6 even deposed that the statement recorded by  PW-12 was read over to him and it was admitted to be correct by Sarjug Gope.

       Counsel for the appellant also contended that PW-12 when examined as a  witness deposed that the statement of Sarjug Gope was recorded by one Braj  Kishore Pandey and when he was confronted with a question that Braj Kishore  Pandey, Asstt. Sub Inspector could not have been the person to record the  statement of Sarjug Gope, PW-12 changed his version and said that it was  recorded by one Suresh Singh and not Braj Kishore Pandey.  This sort of minor  mistakes are not uncommon and often committed as the investigating officer  may,  at a given point of time, be required to handle investigation of more than  one criminal case.   We do not attach much importance to an inconsistency of  this sort.

       The counsel for the appellant also contended that there was a long delay  in sending the First Information Report from the police station to the Magistrate.   Even though the police station is very close to the Magistrate’s court, the First  Information Report reached the court on 27.6.1984.   Though the incident  happened on 25.6.1984, injured Sarjug Gope passed away during the night of  25th/26th June, 1984.  There was only one day’s delay in sending the First  Information Report to the Magistrate.  The ’fardebeyan’ was received in Hilsa

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police station on 25.6.1984 and from there it was sent to Hilsa court.  This must  have caused some delay in sending the F.I.R. to the Magistrate.    

       Learned counsel further pointed out that the country-made firearm alleged  to have been used by the appellant was not recovered by the police and the  same was not sent to the police station.  The learned counsel submitted that the  investigation was not properly done and that the appellant is entitled to the  benefit of doubt.   In our view, this plea is not tenable.  The house of the  appellant was searched immediately after the incident, but the police could not  recover the weapon of offence from his house.  It appears that the appellant had  succeeded in concealing the weapon before the police could search his house.   In our opinion, the fact of non-recovery of the weapon from the house of the  appellant does not inure to his benefit.

       We have carefully considered the prosecution case, the evidence adduced  and the attending circumstances. We do not think that any failure of justice or  illegality has taken place so as to warrant interference by this Court.   The appeal  is without any merits and is dismissed accordingly.