B.N.P.SINGH,J. - (1.) THOUGH as many as eight number of accused-persons were put on trial, rest having been acquitted of the charges, Bishwanath Gope alone (hereinafter referred to as the appellant) suffered conviction under Section 302 of the Indian Penal Code (IPC) and Section 27 of the Arms Act, in which, .while he was sentenced to suffer rigorous imprisonment for life on the first count, no sentence was awarded on the second count.
(2.) FACTUAL matrix appearing from the fardbayan of Ajab Lal Yadav and also narrations made by the witnesses at trial can be recapitulated with brief narration of them. At about 11 a.m. on 23rd July, 1984, while Rajendra Gope (hereinafter referred to as the deceased), was working along with his nephew Ajab Lal Gope in the field, which situated in Jagwa Khanda of village Kharaura for transplanation of paddy crops, the appellant came along with other accused-persons (since acquitted) and on exhortation made by Ram Prit Gope for executing killing of the deceased, appellant fired shots on him when he dropped injured. All those who were working in the adjacent field came there and took the injured to State Hospital, Harnaut. However, before any medial aid could be provided to the injured, he succumbed to the injuries. As for genesis of the incident, it was alleged in the earliest version of the prosecution that Yugal Gope, cousin brother of the deceased, was at logger's head with Bishwanath Gope, appellant, and preceding the incident, Yugal Gope had assaulted Bhajji Gope, brother of the appellant with fists and slaps, pursuant to which appellant got reacted and executed killing of Rajendra Gope, who happened to be agnate of said Yugal Gope. After Police was set in motion, investigation commenced and in the process of collection of evidence, Police Officer visited place of occurrence, prepared inquest report over the dead-body of the deceased, got autopsy held by the doctor and on conclusion of investigation, laid charge-sheet before the Court. In the eventual trial that followed, the State examined altogether seven witnesses, including, doctor, Police Officer, family members of the deceased, who claimed to have been working in the field during material time of incident, and other witnesses who too claimed to be ocular to the incident. Defence of the appellant both before the Court below and this Court had been plain denial of the entire allegations, emphatically refuting his complicity in the incident and it was suggested that since the deceased bore criminal antecedent, he was killed elsewhere and for animosity, the appellant was sought to be falsely roped in the instant case. The trial Court, however, rejecting contentions raised at Bar on behalf of the appellant and accepting testimony of the witnesses, some of whom, claimed to be ocular, while acquitted rest of them, recorded findings of guilt as noticed above and sentenced them in the manner stated above. Findings recorded by the trial Court was sought to be assailed by the learned Counsel for the appellant primarily on two premises and it is sought to be urged that even though a good number of labourers were seen to have been working in the adjacent field, no one came to lend assurance to the prosecution allegation attributed to the appellant about he being killer of the deceased. Failure of the Investigating Officer to effect seizure of the blood, if at all found at the place of occurrence, was also taken to be a ground to assail the bona fide of the prosecution allegation. Some narrations made by tiie witnesses for which there did not appear to be parallel statement before the Police, was also highlighted at Bar to persuade us to disbelieve them and with equal emphaticism, it is urged that even finding recorded by the doctor was not in conformity with the accusation attributed to the appellant. Facts of the case, as we have noticed, is tell-e-tell and for which we may now advert to the narrations made by the witnesses at trial. Ajab Lal Yadav (PW 5), who happens to be maker of the fardbayan, while reiterating his earliest version, which he rendered before the Police stated to have witnessed the appellant and others coming in search of Yugal Gope, pursuant to which on exhortation made by Ramprit Gope, the appellant fired a shot on the deceased near the service well of Nagina Gope which hit the right part of the abdomen of the deceased and he dropped injured. Though the injured was carried out to State dispensary, but before any medical aid could be given to him, he succumbed to the injuries.
(3.) AS was stated by the witnesses, the appellant fired shot from a distance of about 5-6 ft from the deceased. Some part of narration made by the witnesses was sought to be highlighted at Bar to impeach credibility of the witnesses as the. Investigating Officer stated that the witnesses had not been making similar narration before the Police about the deceased running towards north when he was chased by the appellant and also about deceased making entreaty before the appellant on exhortation made by Ramprit Gope. Similar narration made by the witness about deceased sustaining injuries in right side of his abdomen was admittedly not made before the Police. However, we find that taking these discord between two narrations made by the witnesses into consideration, they do not affect broad feature about appellant having fired shot by the deceased, pursuant to which he dropped on the ground. Ashok Kumar (PW 1) too was working along with others in the field which situated in Jagwakhanda, when appellant came along with others holding fire arms and then on exhortation made by Ramprit Gope to kill the deceased, as he too happened to be gotia of Yogendra Gope, appellant fired shots on him near the service well of Nagina Gope, pursuant to which the deceased dropped on the ground. This witness too states about deceased making entreaty before the appellant before he was fired shot by him. Almost similar narrations were made by Surendra Kumar (PW 2) who states about the appellant visiting Jagwakhanda along with his associates holding arms and hurling abuses. This witness was grazing cattle in the field when he claimed to have noticed the appellant chasing the deceased and shortly after the deceased came near service well of Nagina Gope, the appellant fired shot from a distance of 5/ 6 ft which struck abdomen of the deceased who dropped on the ground. ;