LAWS(PAT)-2019-7-253

SHYAM GOPE Vs. STATE OF BIHAR

Decided On July 08, 2019
SHYAM GOPE Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) Appellants in all the aforesaid three appeals were tried together and were convicted and sentenced by a common judgment of the trial court, and as such, all the aforesaid three appeals were taken up together under the heading "For Hearing" and are being disposed of by this common judgment.

(2.) Appellant - Shyam Gope in Cr. Appeal (D.B) No. 603 of 2012 was convicted by judgment dated: 21.05.2012 for the offence under Section 302 of the Indian Penal Code, 1860 [ hereinafter referred to as the "I.P.C."]. He has further been convicted by the same judgment for offence under Section 27 of the Arms Act, 1959 [ hereinafter referred to as the " Arms Act"] along with Harinandan Gope [ appellant in Cr. Appeal ( D.B.) No. 708 of 2012]. Other appellants by the same judgment have been convicted for the offence under Section 302/34 of the I.P.C. By order dated - 24.05.2012, Shyam Gope [appellant in Cr. Appeal (D.B.) No. 603 of 2012] was sentenced to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and to pay a fine of Rs. 5,000/-. In case of default in payment of fine, he was directed to further undergo rigorous imprisonment for two months. Rest of the appellants under Section 302/34 of the I.P.C. have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each. In default of payment of fine they have further been directed to undergo rigorous imprisonment for two months. Appellant -Shyam Gope [in Cr. Appeal ( D.B.) No. 603 of 2012] and Harinandan Gope [in Cr. Appeal (D.B.) No. 708 of 2012] by order dated 24.05.2012 were sentenced to undergo rigorous imprisonment for four years under Section 27 of the Arms Act and to pay a fine of Rs. 1,000/- each. In case of default in payment of fine they have been directed to further undergo rigorous imprisonment for one month. The judgment of conviction and sentence was passed by Sri Santosh Kumar Srivastava, learned Additional Sessions Judge-III, Hilsa (Nalanda) [hereinafter referred to as the "trial judge"] in Sessions Trial No. 9 of 1990 {arising out of Chandi P.S. Case No. 98 of 1988}.

(3.) Short fact of the case is that on 23.04.1988 at about 7.00 A.M. in the morning fardbyan of Kapil Gope -P.W. 5 (husband of the deceased) was recorded in State Dispensary, Chandi, District, District - Nalanda. In the fardbyan it was disclosed by the informant that on the same day i.e. on 23.04.1988 in morning at 5.15 A.M. while in his house from ground floor he was carrying iron sheet to his roof, he suddenly saw that on the roof on Eastern side of the house of Manik Gope; (1) Ram Dev Gope [appellant in Cr. Appeal (D.B.) No. 533 of 2012] carrying country made gun, (2) Harinandan Gope [appellant in Cr. Appeal ( D.B.) No. 708 of 2012] carrying country made gun, (3) Manik Gope (since acquitted), (4) Shyam Gope [appellant in Cr. Appeal (D.B.) No. 603 of 2012] carrying country made gun, (5) Sriballam Yadav (since acquitted) carrying country made gun, all residents of village - Gunjar Chak, P.S. - Chandi and three -four unknown accused persons carrying arms in their hands were present. Accused- Ram Dev Gope exhorted to all the other accused persons who were with him to kill the informant whereupon, Harinandan Gope [appellant in Cr. Appeal (D.B.) No. 708 of 2012] opened fire from country made gun which he was carrying with a view to kill the informant. After getting fire arm injury the informant fell down in injured condition on his roof itself and started crying for help. On hearing the sound of cry of informant, the informant's wife - Shanti Devi came nearer to him. Then Shyam Gope [appellant in Cr. Appeal (D.B.) No. 603 of 2012] shot fire on his wife through his country made gun. After getting gun shot injury his wife fell down on roof, started squirming and died. All the accused persons fired indiscriminately through country made guns and accused persons also threw bricks. The occurrence was seen by witnesses namely: Ramlagan Gope (P.W. 4), Somar Gope (P.W. 2), Bhola Gope (P.W. 3) and other number of villagers. In injured condition the aforesaid witnesses loaded him on cot and carried to Government Hospital, Chandi and he was being treated there. He stated that on his whole body he had received fire arm injuries. The reason for the occurrence was disclosed by the informant was land dispute. He further disclosed that dead body of his wife was lying on roof. The said fardbyan was read over to him and after finding it correct he put his L.T.I. On the basis of the fardbyan on same day a formal F.I.R. vide Chandi P.S. Case No. 98 of 1988 was registered for the offence under Section 302, 307/ 34 of the I.P.C. and Section 27 of the Arms Act against five named accused persons namely: 1 - Manikchandra Gope (acquitted), 2- Ram Dev Gope [appellant in Cr. Appeal (D.B.) No. 533 of 2012], 3- Harinandan Gope [appellant in Cr. Appeal (D.B.) No. 708 of 2012] , 4 - Shyam Gope [appellant in Cr. Appeal (D.B.) No. 603 of 2012], 5- Sriballam Gope (since acquitted) and 3-4 unknown accused persons.