Sisir Gope @ Shishir Gope & Anr. vs The State Of Jharkhand

I have already heard the arguments of Mr. Vikas Pandey, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Spl.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 28.08.2008 and 30.08.2008 respectively, passed by learned Additional District & Sessions Judge-II, Ghatsila, East Singhbhum in Sessions Trial Case No. 281 of 2001, whereby and whereunder the appellants have been held guilty for the offence under Sections 341/324/307/34 of the I.P.C. and sentenced to undergo R.I. for three months for the offence under Section 341 of the I.P.C.; R.I. for one year for the offence under Section 324 of the I.P.C. and R.I. for seven years for the offence under Section 307 of the I.P.C. All the sentences were directed to run concurrently.

Factual matrix giving rise to this appeal is that on 27.10.2000, at 08:30 P.M., the accused Bablu Gope @ Sunil Gope was quarrelling with his wife. In the meantime, Shishir Gope also came there. Thereafter, Bablu Gope started abusing the informant, Dilip Gope and when the informant was asked why he has abusing him, then Bablu Gope caught hold the informant and Sisir Gope assaulted him with a sword, but the said blow of sword, injured the arm of Bablu Gope. Thereafter, both the accused persons, namely Bablu Gope and Sisir Gope gave another blow upon the informant, causing an injury to his abdomen and thereafter, the villagers also gathered and saved him.

On the basis of fardbeyan of the informant, Ghatshila P.S. Case No.104 of 2000, dated 28.10.2000, was registered for the offence under Sections 341/323/324/307/504/34 of the I.P.C. against the accused persons.

After due investigation, charge sheet was submitted under Sections 341/323/324/307/326/504/34 of the I.P.C. before the A.C.J.M. The learned A.C.J.M. after taking cognizance under same Sections transferred the case to the Court of learned J.M. 1^st Class, for commitment. The case was committed to the Court of Session, where S.T. Case No. 281 of 2001 was registered.

After hearing on the point of charge, charges were framed under Sections 341/34, 324/34 & 307/34 I.P.C. on 26.08.2002. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

In the course of trial, altogether 10 witnesses were examined by prosecution:-

P.W.-8-Dilip Gope (informant)

Apart from oral testimony following documentary evidence have also been adduced by prosecution.

On the other hand, one defence witness, namely Rajo Bala Gope (D.W.-1) has been examined by defence. However, a documentary evidence Exhibit-A, certified copy of judgment dated 23.04.2007 passed in Cr. Appeal No. 06 of 2007 has been adduced.

The learned Trial Court after evaluating the evidence adduced by prosecution recorded findings about guilt of the appellants and sentenced to them as stated above.

Learned counsel for the appellants assailing the impugned judgment of conviction and order of sentence has submitted that the learned court below failed to appreciate that the Investigating Officer has not been examined in this case. It is further submitted that there is a case and counter case between the parties, wherein the members of the informant’s side have also been convicted by the learned Appellate Court and that there admittedly existed previous enmity between the parties. Learned counsel further submitted that the learned court below failed to appreciate that most of the independent witnesses including the brother of the informant has been declared hostile by the prosecution. It is further submitted that only P.W.-7 and P.W.-8, who are husband and wife and admittedly interested witnesses, have supported the prosecution case. It is also contended that the alleged weapons of offence have not been seized by the Investigating Officer, which creates a serious doubt regarding the prosecution case. Learned counsel further submitted that there are material contradictions in the evidence of the prosecution witnesses, which also cast a serious doubt on the veracity of the prosecution case. Therefore, impugned judgment and order of conviction and sentence of the appellants is liable to be set aside and this appeal may be allowed.

On the other hand, learned Spl.P.P. has opposed the aforesaid contentions raised on behalf of the appellants and submitted that the learned Trial Court has rightly convicted the appellants and there is no merit in this appeal, therefore, this appeal is fit to be dismissed.

The only point for determination in this appeal is “as to whether the impugned judgment and order of conviction and sentence of the appellants suffers from any serious error of law calling for any interference in this appeal?”

Before adverting to imparting my verdict on above point, it is desirable to take brief resume of ocular testimony of witnesses examined during trial.

It appears that in order to substantiate the charges leveled against the appellants, altogether 10 witnesses were examined by the prosecution. Out of them P.W.-2, Usha Rani Mallah, P.W.-3, Kunti Gope, P.W.-4, Smt. Sarala Gope, P.W.-5, Subhash Mallah and P.W.-6, Milan Gope have been declared hostile by the prosecution and not supported the prosecution story.

P.W.-1, Dhanpati Gope is the brother of the informant. He stated that incident took place about two years ago, between 7:30 and 8:00 P.M. He was at home, when Malavati Gope called out to him. He immediately ran to the house of his younger brother, Dilip Gope. Upon arriving, he saw Sunil Gope and Shishir Gope pinning his brother to the ground, while Shishir Gope was stabbing him in the stomach with a sword. This witness intervened, causing both assailants to flee. The next morning, this witness took his brother, Dilip Gope, by car to the Ghatshila Police Station. From there, he took him to Ghatshila Hospital and subsequently to T.M.H., Jamshedpur, for further treatment. A dispute had previously arisen between his brother, Dilip Gope, and Sunil Gope and his wife. According to him, this dispute was the reason of assault on his brother.

P.W.-7, Mala Gope is the wife of informant. She stated that at about 08:30-09:00 P.M., she was present at her house along with her husband, Dilip Gope. At that time, a quarrel had broken out between Sunil Gope and his wife. On hearing the noise and commotion, she along with her husband, came out of their house and asked them to stop the altercation. In the meantime, Sunil Gope caught hold of her husband, Dilip Gope by his throat. While, Sunil Gope was holding him, Shishir Gope arrived with a sword and attempted to assault Dilip Gope with the intention of causing his death, but the sword blow accidentally struck the hand of Sunil Gope. Thereafter, Shishir Gope again assaulted Dilip Gope with a sword and the blow landed on his abdomen, causing bleeding injuries. On seeing the assault, she raised alarm, whereupon her brother-in-law, Dhanpati Gope, arrived at the place of occurrence and intervened to separate the parties and stop the assault. After his intervention, the assailants fled away from the spot.

P.W.-8, Dilip Gope is the informant and victim of this case. He stated that on 27.10.2000 at 08:30 P.M., he was in the house, Bablu Gope @ Sunil Gope was quarrelling with his wife and courtyard of his house and courtyard of Sunil is same and the informant raised objection on quarrelling with his wife then Sunil Gope caught hold him and began to assault. In the meantime, Shishir Gope came with sword and assaulted him when he escaped from this blow then this blow injured the arm of Bablu Gope, after that both the accused assaulted the informant and accused Shishir Gope assaulted with sword in his abdomen. After that Shishir told to kill him. On hulla, his brother Dhanpati Gope came then both the accused fled away.

P.W.-9, Dr. Nawal Kishore Sinha has examined the injured at Primary Health Centre, Ghashila and found sharp cutting wound on middle of abdomen 2" x 1" x 1". He stated in his evidence that cause of injury is sharp cutting weapon and nature of injury is grievous. He also proved the injury report marked as Exhibit-2.

P.W.-10, Ashok Ranjan Sarkar is a formal witness of this case. He has proved formal F.I.R. as Exhibit-3 and endorsement on the fardbeyan as Exhibit-1/2.

While defence has also examined one witness, i.e. D.W.-1, Rajo Bala Gope who has stated that the incident took place eight years prior at 08:00 P.M. She was present at her home. Sunil Gope had just returned home, when Dilip Gope began verbally abusing the daughter of Milan Gope. When Sunil Gope intervened to stop him, Dilip Gope struck Sunil with an iron rod. Thereafter, Dilip Gope called his elder brother, Dhanpati Gope, who arrived at the spot carrying a sword and struck Sunil Gope on his left arm. Hearing the witness scream, Shishir Gope arrived and tried to intervene. During the ensuing scuffle, the sword held by Dhanpati accidentally struck Dilip in the stomach. Consequently, Dhanpati has falsely filed this case against Shishir and Sunil. Neither Sunil nor Shishir assaulted Dilip.

In her cross-examination she has stated that Sunil Gope has also instituted a case against Dhanpati Gope in which he was convicted.

In the case of Hari Singh versus Sukhbir Singh & Ors. reported in (1988) 4 SCC 551, the Hon’ble Apex Court has held in para 7 as under:-

It has been held by the Hon’ble Apex Court in the case of Jage Ram versus State of Haryana, reported in (2015) 11 SCC 366 at para-12 that:-

From the discussion of aforesaid evidence of witnesses and the nature of injuries sustained by the injured, it is crystal clear that one sharp cut injury has been sustained by the injured on vital part of body. The injured has undergone his treatment for about 14 days. The injury was not found to be likely to cause death in ordinary course of nature rather the same was grievous in nature. Moreover, the Investigating Officer of this case has also not been examined by the prosecution. The intention/ knowledge as required to constitute the offence under Section 307 of the I.P.C., appears to be lacking in the instant case, as the circumstances proved by the witnesses including the injured nothing prevented to the appellants to cause such injury which might have resulted in instantaneous death of the deceased. Therefore, the injury has been voluntarily caused by sharp cut weapon by the appellants to the injured as such the offence committed by the appellants comes under Section 324 of the I.P.C. instead of Section 307 of the I.P.C.

In view of above discussion and reasons, the conviction of appellants for the offence under Section 307 of the I.P.C. is altered and modify to the offence under Section 324 of I.P.C. Therefore, they are held guilty for the offence under Sections 324 and 341 of the I.P.C.

So far sentence of the appellants is concerned, it appears that it was the first offence of the appellants and they were never convicted for any offence as is apparent from the impugned judgment. More than 25 years have elapsed from the date of commission of the alleged offence, therefore, considering the nature of offence committed by the appellants, their age, character and antecedent, it appears expedient in the ends of justice to award them sentence of imprisonment already undergone by them i.e. 8 months during the trial of the case. Therefore, they are sentenced to undergo for the period already undergone by them.

Accordingly, this appeal is dismissed on merits with modification in conviction and sentence as stated above.

Appellants are on bail, as such they are discharged from the liability of bail bonds and sureties are also discharged.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.