KAMLESH GOPE Vs. STATE OF BIHAR

JUDGEMENT

(1.) On the fardbeyan of Mahendra Yadav P.W. 4, Noorsarai P.S. Case No. 98 of 1986 was registered against Ramashray Gope (since deceased) no. 2 Kamlesh Gope (appellant) and Ayodhya Paswan (since deceased) along with 3 4 others for causing death of Sikandar Gope on 25.11.1986 at 6.00 P.M. and after having the investigation of the case completed, charge sheet was submitted against the aforesaid three who, subsequently been directed to face trial by the court of Sessions bearing Sessions Trial No. 230 of 1987. While the aforesaid Sessions Trial was continuing Ramashray Gope jumped out from the bail and as his attendance could not be procured even by issuing warrant of arrest non-bailable as well as processes, hence his trial was separated on his being declared absconder. The Sessions Trial No. 230 of 1987 proceeded against remaining two Kamlesh Gope (appellant) and Ayodhya Paswan (since deceased) and concluded by a judgment of conviction and sentence dated 17.1.1989 by the learned Sessions Judge, Nalanda at Biharsharif for an offence punishable under Section 302/149 of the IPC and each of them were directed to undergo R.I. for life, under Section 148 of the IPC directed to undergo R.I. for three years as well as under Section 27 of the Arms Act directed to undergo R.I. for three years. Instant appeal bearing No. 47 of 1989 has been filed on behalf of appellant Kamlesh Gope while on behalf of convict appellant Ayodhya Paswan Cr. Appeal (DB) No. 60 of 1989 was filed which stood abated on account of his death.

(2.) Later on presence of absconding accused Ramashray Gope was procured and accordingly the trial also proceeded against him in Sessions Trial No. 230 of 1987/ 528A of 1989 which also concluded in holding the appellant/convict guilty for an offence punishable under Section 302/149 of the IPC having sentenced R.I. for life, under Section 148 of the IPC sentenced to undergo R.I. for three years and Section 27 of the Arms Act sentenced to undergo R.I. for three years vide judgment dated 19th April 1990 by the then Sessions Judge, Nalanda at Bihar Sharif against which Criminal Appeal (DB) No. 305 of 1990 was filed on behalf of aforesaid convict/appellant Ramashray Gope which also abated on account of his death. As such, there happens to be survival of only one Criminal Appeal (DB) No. 47 of 1989 at the behest of appellant Kamlesh Gope.

(3.) The prosecution case in nutshell as per Ext. 3, fardbeyan of P.W. 4 Mahendra Gope recorded on 26.11.1986 at about 11.00 A.M. by the police officials of Noorsarai P.S. at the place of occurrence lying at Bahuar Tand Khandha of Village Bhakhari disclosing therein that on 25.11.1986 at about 6.00 P.M. while he along with his brother Sikandar Gope (deceased) were engaged in irrigation of mustard crop, his co-villager Ramashray Gope, Kamlesh Gope, Ayodhya Paswan armed with lethal weapons along with 3 4 unknown companions came and shot at his brother Sikandar Gope. His brother Sikandar Gope after sustaining injury fell down. He along with his cousin brother Dhari Yadav rushed on account of which the accused persons flee away by making indiscriminate firing. His brother died instantaneously. He had seen two empty cartridges of 12 bore, three empty cartridges of .315 bore at the spot. He also named Sadhu Sharan, Jugeshwar Gope, Ramashish Yadav, Rampravesh Yadav along with others to be an eye witness to the occurrence. Taking place of brawl a few days ago on account of dispute over ridge, has been shown motive for commission of the occurrence.