GOPAL TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order, dated 16.10.1993 passed by the then 5th Additional Sessions Judge, Gaya, in Sessions Trial No. 23/89 (87/89), whereby and whereunder, the appellant Gopal Tiwari had been convicted under Sections 302/394, IPC read with Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life under Section 302 IPC, rigorous imprisonment for two years under Section 394, IPC and rigorous imprisonment for one year under Section 27 of the Arms Act But, all the sentences have been directed to run concurrently. The accused- appellant, Gopal Tiwari and co-accused Ashok Kumar have been charge-sheeted in the same case under Sections 302 and 394, IPC, and 27 of the Arms Act in Gaya Kotwali PS Case No. 104/87. On commitment, both of them were charged under Section 394, IPC and while accused-appellant, Gopal Tiwari was separately charged under Section 302, IPC read with Section 27 of the Arms Act and the co-accused, Ashok Kumar was separately charged under Sections 302/109, IPC. While the trial was going on and at the stage when statements of the accused persons were to be recorded under Section 313, Cr PC, accused-appellant, Gopal Tiwari absconded and then the case was split up and proceeded against co-accused, Ashok Kumar alone and by judgment and order, dated 7.5.1991 he was acquitted on benefit of doubt. After accused-appellant, Gopal Tiwari was arrested in connection with another case, he was shown remanded in the present case and then the trial again proceeded against him. When all the evidence in the case were recorded earlier in presence of both the accused persons, no further evidence was taken and only the statement of accused-appellant, Gopal Tiwari was recorded and then after hearing argument the impugned a judgment has been passed convicting and sentencing the accused-appellant as mentioned above.

(2.) The prosecution story runs as follows. PW 1 Shankar Prasad was having VCR shop near Chota Masjid in the town of Gaya and in his shop the informant PW 2, Pappu Kumar Srivastava and deceased Shatrughan worked as mechanics. On 2.4.1987, it is the allegation of prosecution that the accused-appellant, Gopal Tiwari came to the shop of PW 1, Shankar Prasad and in his absence he booked with the brother of Shankar Prasad PW 4 Sanjay Kumar, VCR and Videography were to be taken at 4 p.m. on 2.4.1987 at his residence at village Ramdhanpur as there was griha pravesh and chheka at his residence. PW 4, Sanjay Kumar gave a chit wherein the name of Gopal Tiwari with address were written to his brother PW 1 Shankar Prasad on return to the shop. To verify the facts PW 1 Shankar Prasad on the next day in the morning hours, i.e., on 2.4.1987 visited Ramdhanpur village and while asking about the address at village Ramdhanpur, this accused Gopal Tiwari came forward, who was standing nearby and confirmed that he was the person, who had booked for VCR and Videography and it has been further alleged that accused-appellant, Gopal Tiwari had paid Rs. 200/- to PW 1 at his residence. As the age of Gopal Tiwari was not of respectable age, PW 1 wanted to meet some elderly persons and parents of Gopal Tiwari. But, on the plea of being busy as stated by Gopal Tiwari, PW 1 could not meet any elderly persons in the house on his visit in the morning of hours of 2.4.1987. However, in the evening hours when co-accused Ashok Kumar came to shop of PW 1 Shankar Prasad as a messenger from accused-appellant Gopal Tiwari and with him as per direction of PW 1, deceased Shatrughan Prasad and the informant PW 2 Pappu Kumar started for Ramdhanpur along with Videography, Camera, VCR, etc. being taken in an attachee. All the three went on a rickshaw. When they reached the village Ramdhanpur at about 4.30 p.m. on the way they were stopped by accused-appellant Gopal Tiwari raising objection as to why they were late in coming when Videography was booked for 4 p.m. co-accused Ashok Kumar wanted to take away the Videography, Camera and accused-appellant Gopal Tiwari also tried to snatch away the attachee containing the articles for Videography and VCR as a result of which a scuffle started between Shatrughan Prasad and Gopal Tiwari. At this co-accused Ashok Kumar asked Gopal Tiwari to kill Shatrughan Prasad and Gopal Tiwari by his revolver shot at Shatrughan Prasad as a result of which he fell down. The accused-appellant Gopal Tiwari further brandished his revolver to scare out the persons nearby and the informant PW 2 Pappu Kumar Srivastava fled away from the place and informed the occurrence to his master PW 1 Shankar Prasad. Then PWs 1 and 2 came to the spot runningly and found that Shatrughan Prasad lying injured in a pool of blood at the place of occurrence. They took Shatrughan Prasad to Pilgrim Hospital, Gaya, and there met police and PW 2 gave his fardbeyan which was recorded by the officer-in-charge, Kotwali police station. The FIR was lodged at about 5.30 p.m. on 2.4.1987 when the occurrence took place about 4.30 p.m. At this, a case was registered under Sections 394/307, IPC. The Doctor of Pilgrim Hospital referred the injured Shatrughan Prasad to Patna for better treatment as his condition was precarious. But, while taking to Patna Shatrughan breathed his last due to injuries caused on his persons. The case was then converted under Section 302, IPC. Police held investigation and arrested the accused persons. Post-mortem was held over the dead body of Shatrughan Prasad after holding inquest over it. Autopsy was held by PW 3 Doctor Kapildeo Prasad, who found the following injuries on the person of the deceased :

(3.) As per the opinion of the Doctor, the injury was caused by fire-arm and it was ante-mortem, grievous, sufficient to cause death. The Doctor further opined that the death was due to compression and shock as a result of which the injury sustained.