Honourable Mr. Justice Shyam Kishore Sharma
1. Brahma Gope, his brother Baijan Gope both sons of Sheo Sharan Gope, Sohawan Gope and Naresh Gope both sons of Guletan Gope and Surjan Gope have preferred this appeal against the judgment of conviction and order of sentence dated 23rd December 1988 passed by learned 2nd Additional Sessions Judge, Patna in Sessions Trial No. 591 of 1986. They were tried together with Sheo Saran Gope and all were convicted under Sections 302 read with Section 149 and 307 read with section 149 of the Indian Penal Code and they have been sentenced to suffer rigorous imprisonment for life and rigorous imprisonment for five years respectively with a direction that all the sentences would run concurrently. Though the trial court has found Sheo Saran Gope guilty u/s 302 I.P.C. and Brahma Gope u/s 307 I.P.C. as there was no separate charge against them so that they were convicted u/s 302/149 and 307/149 I.P.C.. Fard beyan (Ext. 5) of Ram Auttar Gope (P.W. 5) with regard to an occurrence of the midnight of 13-14 April 1983 was the basis of the prosecution case wherein the informant (P.W. 5) stated that his brother Guptal Yadav (deceased), his nephew Lala Prasad @ Lala Gope (P.W. 2) were sleeping at their bunglow and in the midnight between 12-1 a.m. seven accused persons namely, Sheo Sharan Gope, Bhram Gope, Vijay Gope, Basu Gope, Sohaban Gope, Naresh Gope and Surjan Gope having firearm entered into the Bunglow of the informant shouting "Maro-Maro" and at that very time Sheo Sharan Gope threw bomb upon Gupat Gope which caused instantaneous death to him. Later on, the informant and his nephew Lala Gope (P.W. 2) hid themselves in the straw. Culprits, thereafter, went near Jamuna Gope (P.W. 1) and fired upon him causing injury and they also assaulted P.W. 1 Jamuna Gope with lathi. Four persons entered inside the house of Jamuna Gope in search of one Rameshwar Prasad (not examined) and took away three boxes containing clothes etc. The accused persons also threw bombs at the courtyard and door of Suraj Deo ( P.W. 4). On the basis of fard beyan of P. W. 5 given at the place of occurrence on 14th April 1983 at 9 a.m. a case u/s 396 I.P.C. was instituted vide Dhanarua P. S. Case No. 46 of 1983.
2. After completion of the investigation, charge-sheet was submitted u/s 396 I.P.C. and cognizance was taken. In course of investigation Inquest (Ext.6) of the dead body was prepared. Post mortem report of the deceased (Ext. 3) was obtained, seizure of blood stained earth etc. (Ext. 1) was prepared. Charge was framed u/s 396 I.P.C. against all the accused persons on 30th July 1987 but after examination of the witnesses on the petition filed by the prosecution that no offence u/s 396 I.P.C. is made out charges were altered on 27th July 1988 and the alteration of Section 396 u/s 302/149 and 307/149.
3. Before the trial court the prosecution examined eight prosecution witnesses. They were injured Jamuna Gope as P.W. 1, Lala Pd. @ Lala Gope son of the deceased as P. W. 2, Krishna Gope as P. W. 3, Surjdeo Narain Singh Yadav (seizure witness) as P. W. 4, Ramawater Gope, informant and brother of the deceased as P. W. 5, Dr. Upendra Pd. Verma who performed examination upon the dead body as P. W. 6, Dr. Ashok Kumar Sinha who proved injury register with regard to P. W.1 Jamuna Gope as P. W. 7 and Bindeshwari Pd. Singh, Investigating Officer as P. W. 8.
4. The defence of the accused persons was of false implication on account of enmity.
5. After trial these appellants along with Sheo Sharan Gope were convicted. Sheo Saran Gope died and so Cr. Appeal No. 69 of 1989 (D.B.) filed on his behalf abated. One Basu Gope remained absconder.
6. this Court is required to see as to whether the prosecution was able to prove charges against the appellants beyond shadow of all reasonable doubts or not.
7. Before discussing oral evidence it would be appropriate to discuss the evidence of P.W. 6 Dr. Upendra Prasad Verma, who has conducted the postmortem examination of the deceased on 14.4.1983. P.W. 6 was posted as Prof. & Head of the Department of Forensic Medicine of Patna Medical College and Hospital and on that date at 4 P.M. he held the postmortem examination over the dead body of Gupat Das and found following ante mortem injuries:-
(i) Lacerated wound of scalp involving the vertex and occipit -8"x7", margins charred and blackening all around. The skin portion in the region was showing a blown up appearance.
(ii) Blood clot at scalp all over.
(iii) Comminuted fracture 8"x5" at the vertex both parietals and temporals with upper portion of occipital bone.
(iv) Brain highly congested and multiple haemorrahage areas in the substance of brain.
(v) Fractures linear at base on the scalp in the mid-cranial and posterior cranial fossal.
(vi) The right hand in the medial and anterior aspects showed a blown up appearance with blackening of tissues in the entire area including medial side of lower right forearm. The metacarpals and phalanges were broken, dis-organized and presented a blown up appearance with blackening of tissues in the region and around it.
(vii) Multiple blackened, burnt areas at the middle of right fore-arm at medial and anterior aspects of sizes varying from 3/4" x 1/10" to 1/2"x 1/10" longitudinal and tapering towards elbow.
No missile or splinter was recovered from any part of the body and death was on account of bomb explosion and it was within 12 to 24 hours.
8. Dr. Ashok Kumar Sinha on 14.4.1983 was posted as Resident Surgical Officer at Patna Medical College & Hospital under the unit of Prof. Ram Sharan Sinha and on that date one Jamuna Singh was admitted at 7.15 a.m. and he was examined and following injuries were found on his person:-
(i) Lacerated wound 1" x 1/2" x 1/4" over left side of check.
(ii) Abrasion 1/2" x 1/2" over right upper lip.
Both the injuries were caused within 12 hours of the examination. The details of the injuries were not explained and according to the doctor this could be available from bed head tickets. But in the present case the bed head ticket was not produced. In cross-examination in para 6 the doctor has stated that gun firing injuries were caused either by pellets or bullets and if the firing is straight then the wound would be circular and if the firing is from side then the wound would be oval and according to the doctor the injuries of Jamuna singh were neither circular nor oval. There was no charring and blackening in the above injuries and lacerated wounds can also be caused by hard blunt substance.
9. P.W. 1 is the sole injured witness of the occurrence and he has stated in his evidence that on 13.4.1983 at about midnight he was sleeping on Darwaja of his cowshed where the Lalten was giving light. Upon the adjoining bunglow Guptal Gope (deceased), Ramawatar Gope (P.W. 5), Lala Gope (PW. 2) were sleeping at that very time he heard the sound of bomb explosion and also heard the cry. Thereafter, 10-12 persons carrying torch came near this witness, they were having gun, lathi and bombs. P. W. 1 identified Sheo Saran Gope (now dead), Brahma Gope, Baijan Gope, Basu Gope, Sohawan Gope, Naresh Gope, Surjan Gope, Pragash Gope and Ayodhya Gope (Sic.). Immediately after arrival Brahma fired upon him which caused injury upon his left chick and on account of that he fell down and became unconscious. He regained his consciousness after 1-2 days. After regaining consciousness this witness came to know about the killing of Gupat Gope. He also knows that accused persons have looted away certain articles of the house.
10. The prosecution case has been supported with regard to manner and role of the accused persons by other witnesses, namely, P. W. 2 and informant P. W. 5. These three witnesses P. W. 1, 2 and 5 are eye witnesses. P. Ws. 3 and 4 have arrived at the place of occurrence after the occurrence and they know about the occurrence from others. Therefore these two persons P. W. 3 and 4 are hearsay witnesses.
11. Though P.W. 1, 2 and 5 have supported the prosecution case but the Learned Counselfor the appellants has submitted that P.W. 3 and 4 are hearsay witness and their evidence cannot be considered because of presence of eye witnesses. About P. W. 1 it has been submitted that he was examined by the police after 21 days of the occurrence though he in his evidence has stated that he regained his consciousness hardly after 1-2 days of the occurrence. P. W. 2 was examined after seven days of the occurrence.
12. After recording formal FIR the mandate to the police is for commencement of the investigation and the investigation has to be conducted without delay. Delay defeats a number of informations and it gives opportunity to inflate or deflate the case. Sooner is the statement, better would be the result. The time span between the occurrence and recording of statement has to be taken into account. The value of prompt introduction to a witness during investigation cannot be overemphasized. The investigating officer has to perform his duties with the object of investigating allegation. In course of investigation he has to take into account the fact that the witnesses are not given even such opportunities during which they could fabricate their cases.
13. The definite case of the prosecution and even the injured witness is that he was hospitalized in unconscious condition and regained his consciousness within 1 - 2 days of the occurrence. He was not admitted at any private hospital rather he was admitted at PMCH. He was sole injured witness. The onus was upon the Investigating Officer to go to him and record his statement. There is no explanation as to why the delay between the occurrence and statement of P.W. 1 took 2-3 three weeks. Even, the doctor, who has examined him and has produced injury register, has stated that bed head ticket was not available. The bed head ticket has not come on the record. The delay in recording the statement of P.W. 1 and P. W. 2 is the circumstance which has to be taken into account considering the animosity between the parties from before. Non- explanation of prompt recording of statement of Investigating Officer creates doubt as to whether the witnesses were consistent or as to whether they have given their correct version.
14. If P. W. 1 has stated that he received firearm injury, similar is the evidence of P. W. 2 and P. W. 5. The doctor (P. W. 7) who has treated P. W. 1 has explained the injuries. Though, initially he has stated that injuries would be caused by firing. In cross-examination, he contradicted his earlier version when he has stated that injuries of P. W. 1 in the circumstances stated above would be caused by hard and blunt substance. The doctor has explained the circumstances when the firing is either from front or by side. On perusal of the injury register the doctor has opined that injury of P. W. 1 was neither circular nor oval. Therefore, the sum and substance of the evidence of P. W. 7 is that injury of P. W. 1 was not by firearm as claimed by P.W. 1 and stated by P.W. 7 in his examination-in- chief but such injuries must be caused by hard and blunt substance. The doctor''s evidence that there was no charring, blackening in the above injuries creates further doubt on the credibility of P.W. 1 and credibility of P.W. 7 in his examination-in-chief when he has stated that such injury can be caused by gun firing. The doctor himself has contradicted with regard to nature of injury.
15. Only two persons/accused have caused overtact, about other six there was mere presence. They are none else but neighbours or villagers. The definite role has been attributed only against two regarding 302 IPC. The specific role was against Sheo Saran Gope only and nor any accused even touched the body of the deceased. Therefore, it was the sole act of Sheo Saran Gope who at the time of occurrence was of advanced age. When his statement u/s 313 Cr.P.C. was recorded, then his age was noted to be 60 years. Due to efflux of time he has died, therefore the person who is alleged to have killed the deceased is no more but the person who is alleged to have fired upon Jamuna Gope is the appellant no. 1 Brahma Gope. The definite case of the witness is that the injury was on account of firing by Brahma Gope. No other person has been attributed any role of firing but the conflicting and contradictory evidence of P.W. 7 (doctor) has created doubt as to whether the injury of Jamuna Gope (P.W. 1) was caused by firearm or it was caused by hard and blunt substance. The doctor in his examination-in-chief is emphatic that injury can be caused by gunfire but when he has been cross-examined he had given another version and has contradicted himself by saying that such injuries on the person of P.W. 1 could not be possible by firearm. This contradictory evidence had tainted the credibility of the prosecution case and it cannot be said that the prosecution has been able to discharge its onus of proving the charge against the appellants beyond shadow of all reasonable doubts. A person/persons cannot be convicted on the basis of conflicting evidence. For conviction evidence must be cogent, intact and consistent. Unfortunately, in the present case, the evidence is neither consistent nor cogent nor reliable. Upon such evidence it would be unsafe to uphold the judgment of conviction and sentence. In view of the doubt created by P.W. 7 with regard to the manner of injury.
16. In view of the discussion made above, it is apparent that the prosecution has not been able to prove the charge on the date and time of the occurrence and the offence as alleged was committed by the accused persons. Once the charge substantially fails, no conviction can also be affirmed on the basis of common object. In the result, the impugned judgment of conviction and order of sentence is set aside and the appeal is allowed. The appellants are acquitted of the charges and are ordered to be discharged from the liabilities of their bail bonds.
