DILESH GOPE Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present appeal has been preferred against the judgment of conviction and order of sentence dated 2nd September, 2002 passed by the Additional Judicial Commissioner, F.T.C., Ranchi in Sessions Trial No. 30 of 1995/T.R. No. 220 of 2002. The judgment of conviction and order of sentence is dated 2nd September, 2002 whereby the present appellants have been convicted for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment. It is a case of the prosecution that on 28th March, 1994 which is a day of festival of "Holi" at about 7 p.m. informant-Shanti Devi (P.W. 1) wife of deceased Dilmohan Gope gave fardbayan to police that on 27th March, 1994 at about 7.30 p.m. when she was working in her house, her husband Dilmohan Gope rushed to house with shouting to save him. Behind him Ram Lakhan Gope, Balindra Gope, Jalesh Gope (appellant No. 2), Dilesh Gope (appellant No. 1) and Rameshwar Gope entered into the house and they caught her husband then the informant (P.W. 1) raised alarm and on her alarm Ramu Gope (P.W. 2), Lallindar Gope (P.W. 3) and Keshav Gope (P.W. 4) came there and tried to save the deceased. Meanwhile, Dilesh Gope(appellant No. 1) and Jalesh Gope (appellant No. 2) assaulted the husband of the informant with 'Knife' at several part of his body. The accused persons were putting pressure on the neck of Dilmohan Gope with intention to kill him then husband of the informant (P.W. 1) died and the accused persons ran away from the place of occurrence. The motive is also alleged that there was a dispute for partition of tree between the parties upon recording of this fardbayan and thereafter investigation was carried out. Statements of several witnesses were also recorded and the charge-sheet was filed and the case was committed to the Court of Sessions being ST. No. 30 of 1995 and on the basis of Defence (sic--Prosecution?) Witness No. 1 to Defence (sic--Prosecution?) Witness No. 3 the appellants were convicted for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof for life imprisonment. Rest of the 8 accused have been acquitted. Present appellant No. 1-Dilesh Gope is the original accused No. 8 and present appellant No. 2-Jalesh Gope @ Dinesh Gope @ Jaleshwar Gope is the original accused No. 10 in Sessions Trial. Thus out of 10 accused were tried in the Sessions Trial but 8 accused have been acquitted.

(2.) Against the judgment of conviction and order of sentence passed by the Additional Judicial Commissioner, F.T.C., Ranchi dated 2nd September, 2002 in Sessions Trial No. 30 of 1995, the present appeal has been preferred.

(3.) Ms. Pragati Prasad, Counsel appearing for the appellants has argued out at length and submitted that looking to the F.I.R., P.W. 2 and P.W. 3 are not the eye witness at all. They came later on Moreover, P.W. 1, who is alleged to be the eye witness has also not put any allegation upon appellant No. 1. Moreover, this P.W. 1 in her deposition has also stated that when her husband entered into the house by shouting, several accused persons were behind him and P.W. 2 and P.W. 3 came upon raising alarm by P.W. 1 and when P.W. 2 and P.W. 3 came, by that time, husband of P.W. 1, who is Dilmohan Gope, has already been murdered. Looking to the depositions of P.W. 1, P.W. 2 and P.W. 3 there are lot of inconsistencies in the case of the prosecution. P.W. 3 has also not alleged anything against appellant No. 1 and P.W. 3 has also not alleged anything against appellant No. 2. It is also submitted by the Counsel for the appellants that all these three witnesses have clearly put allegation against accused Balesh, who is original accused No. 6, has caused injuries but he has been acquitted. Thus out of total 10 accused, 8 have been acquitted and for these two appellants also there are major omissions contradictions and improvements in the case of the prosecution. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment of conviction and order of sentence passed by the learned Trial Court deserves to be quashed and set aside.