Krishna Gope Vs. State of Bihar  Insc 401 (25 August 2003)
Balakrishnan & B.N. Srikrishna. K.G. Balakrishnan, J.
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.
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
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.
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 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.
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.
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 :
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.
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.
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.
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 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
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.
opinion, the fact of non-recovery of the weapon from the house of the appellant
does not inure to his benefit.
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.