MAHESH GOPE Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both appellants in aforesaid two appeals were tried together and by a common judgment, they have been held guilty, convicted and sentenced and as such, both the appeals were taken up together under the heading "For Hearing" and are being disposed of by this common judgment.

(2.) Both the appellants by judgment dated 16th April, 2013 were held guilty and convicted for commission of offence under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') and Section 27 of the Arms Act, 1959 (hereinafter referred to as 'Arms Act'), however; they were acquitted from the charge under Sections 3 & 4 of the Explosive Substances Act, 1908 (for short "Explosive Substance Act"). By order dated 18th April, 2013 under Section 302/34 of the I.P.C., both appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- (ten thousand) each. In default of payment of fine, they were directed to further undergo simple imprisonment for two years. By the same order i.e. order dated 18-04-2013, under Section 27 of the Arms Act, both were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- (five thousand) each. In case of default in payment of fine, they were directed to further undergo simple imprisonment for six months. The judgment of conviction and sentence was passed in Sessions Trial No. 985 of 2008 (arising out of Pirbahore P.S. Case No. 297 of 2007) by Sri Choudhary B.K.Rai, learned Additional Sessions Judge - 14, Patna (hereinafter referred to as the 'Trial Judge').

(3.) Short fact of the case is that on 08-12-2007 at 12.15 hrs. in Emergency Block of Patna Medical College & Hospital, Patna (for short 'P.M.C.H.'), the Assistant Sub-Inspector of Police Sri B.N.Singh recorded fardbeyan of Premnath Rai (P.W.6). The said fardbeyan was recorded in presence of his elder brother Raghuvansh Rai (P.W.2). In the fardbeyan, he stated that on the same date at 8:30 AM, he with his elder brother Raghuvansh Rai (P.W.2) and brother Vidyanand Rai (deceased) were present near the bank of Ganges ([1]). At that very time, Vidyanand Rai (deceased) was doing [2] (cleaning teeth) and informant with his elder brother Raghuvansh Rai (P.W.2) was sitting near his tractor, which was being loaded by Ganga sand. Earlier, his elder brother Vish Rai was given gun shot injury and for which, a case was going on and in that case, his brother Vidyanand Rai (deceased) was a prosecution witness. Due to the pendency of the said case, on 08-12-2007 at 8:30 in the morning, suddenly Mahesh Gope {appellant in Cr.Appeal (DB) No. 512 of 2013} and Arun Gope {appellant in Cr.Appeal (DB) No. 510 of 2013}, both carrying pistol in their hands with other three unknown accused persons, arrived there and thereafter, they caught hold of the brother of the informant Vidyanand Rai (deceased) and with intent to kill him, gave shot of firing on his left temporal region. Due to said injury, he fell down. Subsequently, Arun Gope {appellant in Cr.Appeal (DB) No. 510 of 2013} gave second shot of firing on the temporal region. After noticing the said occurrence, the informant, his brother Raghuvansh Rai and others, who were present on [1] (ghaat), started running to catch the accused persons, however; the accused persons, after exploding bomb, fled away. While fleeing away, they were speaking that it was the consequence of being a witness. Subsequently, the informant lifted his injured brother. He was loaded on (thela) and thereafter, he was carried to P.M.C.H. In P.M.C.H., he was shown to the doctor, however; the doctor after seeing him declared dead. The informant claimed that due to old animosity, the accused persons conspiring with each other carrying pistol, had shot on temporal region of his brother Vidyanand Rai and injured him. While he was unconscious and was being carried to P.M.C.H., he died. The said fardbeyan was read over to him and after finding it correct, he put his signature in presence of his elder brother Raghuvansh Rai. His brother Raghuvansh Rai, as a witness to the fardbeyan, put his signature.