Jharkhand High Court

~ vs The State Of Jharkhand Os Ove _ on 23 March, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
forimnal Appellate Jurisdiction)

Criminal Appeal (DB) No. S78 of 2012
with
Criminal Appeal (DB) No.462 of 2012

anid the arser of
SCS STOTES

      
 
 

 

Re Fudgraent af < dated SFY O38 201
if Jt > jearned Additional
PEQoa}

 

ed Ba 2

Ohanbacd in Sessions

 

En Criminal Appeal (DB) No.S78 of 012
Sans Gope, son of late uplal Cope, resident of

Shabtipur, PS-Topy 3

       

i, UNstrict-Dhanbacl

~ Appellant

un Criminal Appeal (D8) No. 462 of 2012:

Shiba Gope, son of late Ragple ale HOPE

. Ramesh mvar Gope, sori of late Ray Gane

oy Lahu Gupe, or late Ruyghal Crops 1

4. Abodh Gone, sen of late Nirma!

&. Ashok Kumar ¢ Gope. son of
Com Gope, son of late Darg

7. Dhane Gope . Sem of late Janki rope

S. Sudbur Gope, san of late Nunu Cope ek

AL residents of wilage-Shaktipuy, B5~-Topchanchi, 'District

Dhanbad. -» Appellants

4 ot
ot fbn

  

   

;
og"

Versus
The State of Jharkhand os ove _. Respondent
an hoth cases)

{Heard thro: agh Vv. Con 1 23" Mar ch, 2023)

PRESENT
HON'RLE MR. JUSTICE SHREE CHANDRASHERHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA

Por the Appellants 9: Mr. Mahesh Tewari, Advocate
Me Ankur Anand, Advoc ate
in beth cases!

Por the State > Mr. Ravi Prakash. ;

 

 

 

 

 

 

 

 

Persans Were named rss acKLsed it)

ay vt Ye ba eS PN ne ee SY 34% nf POV cat cen k .
fopchancht PS Case No. Id] af Tags which was lodged on

20,10. 1988 under sections Lay, S24, S37, 84h anc

 
 

 

 

SOY of the Indian Penal Code. About six

3

Way AYE,

   

2

 

"PP any vod ee ecee ROVE varcses raed deny a0 Rey
oviernze under section SO2 was added in the 3

 

.

aa The case of the prosecution is that the inferrant a:

barb

pee oy nthe.

ting in the Court at Chas since last cme

igs

accused were pressurising the informant to i a

> ae mf, mee + sony pe Be ey does ad the said case. (in 2OLIG 1988 there was heated

between

came alongwith Banshi Gore, se, Bhola Ge pe, Nuno Gope, Incdre Gope, Sfubu Gope, Abacdh Gope, Sameshwer ¢ Cope, Cue ar Gope, Sudhir

Debu Gope, Prasadi Gope, Dhanu Gepe and Gort Gore,

Jarsa, spear and flathn On hea: Ing Predia

Charku Gope and Gaba ope, hus son, carne out of the house.

and his brother Gulab Gope who were st anding outside their

house tried to intervene whereupon Go pi Gope assaulted Gulab

Gope with Jatid on his head and Lala Gope hrt his neck with

back portion of farsa. Ib is stated that Nirmal frope has alsa

assaulted Gulab Gepe on his head with back portion of fang.

Charkn Gope ark Gulab Gope both became unconse ius arid fell

pets Sy ete ron y rs nos.

on the ground, The other accused are also said ta have inflic © Gulab Gope, Gabu Gope and the informant over

ent parts of their body. Bela Devi, Aata Bala Devi, Pati

Lakbhu Singh and others rushed there OCCUPTETIC',

3, Im ccnirse of Ene statements of the

WHE PeCOoraeca Lirier section Ol of the Corde af

Criminal Procecture (hereinafter referrerl fo as CrPc }. The infureci

were taken to Government Hospital, Te pelkanchi where they

Krishna Sahani ane

Che

were attended hy Dr Ral

provided rmeclical

ayia OE es a dny Pye we 3 Pea aege Foye by piddpuge hacen dt Sg ms ; aid, Charku Gope was referred for better treatment to Central

woah 2 SEE ANS

Hospital, Tyhanbad where he underwent heard or reery, however, he succumbed ta the uyuries and died on 26.10.1988 ~ the

s conduoted by Dr. Vinod Suorar on

the same day. A charge-sheet was submitted against fiffecs

by an order dated 26.00 0000 charges

eleven persons under sections 147 . 148, af the briclan atcairied| Six

wWihriesses to prove the the accused,

-Gebu Gone ope, PWo-Aatu Bala Devi and

oN x ¥

PW3-Gobardhan Gope are intimately related to Chari Gone,

Rameshwar Gope are formal witnesses

ared hostile. PWo-Tr. Vinod Kumar is the doctor

who has conducted the postmortem examination, however,

Peoide

stishna Sahani and the Invest} lgatine officer were not

in the trial. We find a reference of injury reports in the

'y Out those were not tendered in evidence,

webele

Yhe learned Additional sessions Judee-Ih Cyhanbad

has held that PAY 1, PW anc

frushwart thy EVIE OES rch rrpotiive: attachect> to thesr on this

ground of past arimosi ify would. not

About non-examiriation of De. Bal Krishna Sahard in the context of injuries caused to Gulab ope, Gabu Cupe and Gobardhan

the learned

the prosecution

nce regarding

ed po ¢ fed oN f ne! ~ Me ¢ re nace ~ Se! rae cere.

pe yn eed, sree net "

beds bert n we Pak tant

urnler seetion that due ta nen examination of the

Ee re

injured Gobardhar: Ge rope, Gabu Gope

eed c. aie bh Sy eS mS EO PREV BMWS oo FPR 2 QPS SF * = ana Gulab Gope, charges under sections Sa $34 and 307/34 of

smplicity 0 oF the appellants in © learned trial J

of the tniclan FE

S were

sa ~ nt nf

for Pwo y

f i

to RY

sitericed

Jos

ERE

revenge

Ben

oo me

PRY

farl

Cet sned counsel for

reed

tt y wt

"o a fat ~

tee

coe ent nw om rere ©;

judgment of comviction of the appellants on the aforesaid

ith equal vehement Mr. Ravi Prakash, the learned

< wok

charges anc SpLPP has tried to meet the plea raised on behalf of the appellantea. Mr. Mahesh Teowari, thes

pha d bbs e ey en eee gah ~ that the marmer af occurrerice

wfrarke Gope doa mot es

hared common intention fo cause his death. Ho is further sortended that in absence of the doctor who examined Gulab Gope, Gabu Gope and Gobardhan Gore and rmorenver without examining Gulab Gope the appellants cannot be held Hable for

eQUsing infuries to therm, more so because their injury reports

were mot prachaced chiring the trial. Mr, sel has relied on the qudgment in Vinubhel

RHE Dedakbhar Pate! and Others"

appellants were convicted both under sections ia' and 1s8 of the Indian Penal Code. Section 147 odvites punishment far riating which is defined in section 146. If any member of the unlawful assernbly ueed a deadly weapon as

weapen of otfence: sectign Ld is-attracted. Apparently, an

sused cannot be canvicted both under sections 147 anc 148 of

the Indian Penal Code. There was mo separate charge

warider seetion I49 and the charge against the appellants for

causing death of Charkua Gope was framed with the aid of

section 4. From the aforesaid, it is clear that death of Charku

(ope wae not ranice Gf camunonm abject of

ayy tea rer€isd oy eee Ree urmawfual asserbly

were framed uneer sections

SO? f34 af the Incian Penal Code the learned trial

Nas mot recorded) conviction of the appellants on those

appellants were convicted

af the Inchan Berial Coxte anes therefore if ean be

red that the prosecution case that the appellants

Uy weapon committing rioting has failed,

{

a os + ws ae 3 peewee a a? aa wee a red 'Nwal ts 23 ys Mee ee 'asd ros wo ry a" ye No nnd, ot % reeds A repel ved Qe ~, wy wt , oS wer or wh ms" ."5 Pe itt ow ¢ ret +f Lp y ~~ Co ~~ Sus a rs 'ap fan o oped 'ad ot £65 aw, nt eee, cs nn is ord Le om o Le > 'nett rd aaa ~~ : wt on ny tn, one a ye ws x Ses ad bens "oe, be "a, 4 ' q % By os oe te viene ba ye wend as nt w wy oS & ae: oy ' oy be ut ran sened, "2 rh oe ' Pao ats oa on oo, ° oO 4 a en a 4 Oe we we Ut ee oy, Bad Ot a wa sone "or ie ny % a wt wo ws yo 5 Ae x Sone 4 im : - ' bie eek oo £ we ee ie rs Z ef . a Les "ped woos" w ow wines, ret vet peed fens ed ree nh ore + ee = et rood ' sheet ' yom ne a" the ae To Penne aN) ee ot fi aye " wt 1 ay Soon, we go x" G ' ge oy Malad ne : aa i. teas % wt 'ed 'ae 4 rae La , re im ent * it Ay ae weet owe oe ane wenet . wos o a « es wt we as 3 ne ret * fan ' 2 ~~ The? h Been 7 Pe, x a _ yas wa oe 24 feo, wt ot Cw * we vent eer £ 4 a news ped beet 'aa ey be ve ot oD 3 ~ we me i at toe, ns 'oo iA ron] wa ee eed a4 Okt a ny a3 oe, fe ye oy aad, aad pened wt a qe Ah. oe bod ae ent x bg 'of aS ne dae ne jo "ue os on a3 pa '. Te ve , < rp 43 apres , A - gm oo ix ¢ pone ww Ye xr ws Se ms ay mee woes vA Ey reer Sort oe ot road roa fone ot , rhe Ser % "hee! me 4 w ped tt a+ 5 °™% ms, shoot 2 eet nee Yos ea ns fees 5 fs mM yes, ° fy re 5s) a SB. Woe io Wy vei we og rs Panos wy We ot ee hee ke ae mt, hat see ae Be wen co tne nn t . 2 eed 'views hey « "~ ¥ aa an nant ~ ye ' a ed "7 wood: eee hon? ™, noon rs wae ty " 7 a ta a % mm key om rg roe na on "a i me ie rin OG ve "sy 7d Le he f a hw cheat fs + ped, * vet n 'ot 4 ~ : ? ot f . oe ee 7 an ot 0) ed "Seen tone oes 4 fey gt ot ree ~ ge whe oe we a pace n gee ip sneer sa " eon w; aphees, wet wid we xo '4 fea ue Li Ly aa t a " oS « wee . ; ; ' "ed rt wv G ant pa ee 2m we re we re & i wre vt wn g are ty os om a nan Saat foe pened a gt n mS Bat dere 4 wt Piged o z preed "deed ot we ws in oo hy tA est Cn end, se wat ss i oO oped, a eed yee ny ' Nat et nae coon ted aN er ' ers onee es 'ates a sehen a : mt * pret oread, eo ne Sy Nae hed we i we cae we aes eed . y Fe eo * ow eS a oe A bos ico ra to os me ' whet boa oo . a * want 4a wee Ln ae nm A ft fet aon rr aw * If ene ~ cheat " a % A tee nee s os eg if 7 hoe, Ae oB pe yh ipnet fr Sa mw ce Yeas ot ow > £ ~~ $5 'ae oe : ry torre "ft : an pens gi ae b, on ike ow ¢ ered z 5 m a oe ead bh ae poet a ne Mee ' wet rh oy ay a aoe oe poner 7 we ny Ween te "7 XS iy we aad ' S cet be a4 "ses a3 ae rae " on wi rae ns ae ot 'ad Z anos vere pdt eee nf OES pe My & © ws & mM Seed ye qeed, , 2 one ner aoe wa Paes £ om, zs As , Pont - odes, send 5 ry ipod " r/o wv to 3 ow rd a v4 wenn, Us ne ryph £ pee is x LF; ed hn aw reed wet 4 pee' : OO Na "fers ee "at wy ha ree Mad wid sheet 'stron, vee yet of inne ~ ater ns "he ae " fe os ~ wt pee fen > ay ee Sit ot a : on, ww om sont 3 "et eed he wt o get et rae seed 2 . ne io ms % hee wt Meet £ we . th haa ap a reeed hed tes re ~ ee ne ' « fae, 4 7 oes 'ahd 4 he m, ee ns sa bed "bit ~ Sp nw red pes sabe ae nt : a r dant ret ne Le "ha Pate rns ' a 'rr, m yes ws 'now, 1d ™ ond he wed pee view, ba om, wa a, todo, . oo ae ws Na gee "een, Ce eS Le a anne? fa Ey a Ye be ee yet 'ea ye wee pe' 7 pod ve ms aed ve As ra piped, ae : Pans peed * + 5 : ans "G eA ~~ we) lo 4 a het as bee : mo ia nw oe tae seoed Re on ro ai Le oy, oe nes tea mm oe we ey we th pen , . ' fe toed Sow oO ue ww fet of bol ny ve we "soapy one! ae cae) a Ao " ood Peed A on, te we one Foad oe ea ye mS Ly Fad in tes bead peeod, *, ca tee not we - ee aS a / re pa Soon id ry hs éy sae a arene is ~~ +e odes, ree weet ~ "4 ied ne » re as we re gent t 2 pee, a Lo rn Mu wet wes wy ve ve we, font pod pt Ry 'a Lae et inet ws 4 God, lnk Faas dont oe ' 'et nat a, od Le ree g MS * ' ia ve a wer wa oe need ni Gi wee pee ow '7 re ee on. kent we Nt oe pos, . eee he renee, 4 £ ° * . tt ww 7 ~ "3 Wen fel cos Ss aes joa wo ' "ot ns as "a teow shee oe yes oo shred a * ree wv we bv ot os or we ee ED a peed oe yoke re oe "bee! ay ie os ar tf wean ne penny me a oo ™ oa he aed a, ew "er m ote, oi Nat my ey "tat ° 'ont pad ay repeal aod " rt on tat mh ea to iS ind aad whe . rm re) oF Ph bre wegen : on "nat «" on, peoad fe LD roost mae) Sod awed a phe oy "ed 'seed ed ne Gs eet eee ° rm ws ~ pot thet ee Saas ted as fen ae t Gs wok . = cd a i na ' mm oC tee rel om Jen bat ed on neds wy pers a ; ay im . é dent i "e of a to ot nape 'rod a we Le Gs ao ne , wa rar on, ay A ed on oe heel a a we ee wo theod bey ok rm pee, om a ener eal tod aped gn et on, 'eet oo Set ies at we cee om Gy , fee , we eed % a Ly aes

their evidenes is quite

heacl and Giviar Gope,

Nameshwar Gope and Sudhir Gope have also assaulted him with

iatha According ta PWi, the informant was assaulted by Gopi

bh Gope and Nun Gope, PW has stated that Gulah

Gepe, Gobardhan Gope and Gabu Gope were surrounded arvi

has also mace allegations of assault by Lalu Gope, Nirmal Gope

r ba jens toed _ eee:

on 'nt ~~ at ners 'sa oo a "

a ", ww ta fe ow be pee 'na?

o a "

a er ne of poor joe seve ne pn eo ~ 'na ond "met ~r, re be ue yt ne es rn pond paank

ye Ee re an?

aa "wn, ng A ad pend

Gope, Gujar Gope, Rareshwar Gope and Sudhir Cape. upon Geabu Siape, but from: their evidence we find that exe ept Numa Gope and Banshi Gope ro one has assaulted Charing © OPE,

oN A qaarre! started) between Nirmal Gope and Gulab

Gape and an infuriated Nirmal Gope had gone to his house and

tnd

called the other accusert. 'Charku Gope and OGabu Ck ope. were muiside the house and sudrdeniy Nunu Gape struck rope with back portion of tang. The doctor who has

the postmarter examination has found ane abrasion

PRP as yy wer "enh dgos Syed ey scn gy: 4 4 eye 4 Lia" ard one stitched wound about O° lone

weeno simenes aver Torefusad of Charku Gope. The prosecntign

Story to tne extent that Numu Gape and Banshi Sope miflictedl

myuries to Charku Gope is corroborated by the medical evidence.

NO other infury was found by PWS on the do body of Charkin

His not the case of prosecution that others have alsn

ON es eed a yay Qe we oh Broay ey ON at section 34 of the Indian Penal Code postiuates

vicarious lability of all for the act of one if the criminal act has

adore mp furtherance of the carmmon intention of ali. in

Baryab (1977) 7 SCC P46, it has been

{hat the existence of a common intention amiongst the

PAPUCIBARTS If A crime is the essential elerierd for application of

years under se

necessary that the acts af several persons

pete.

neege we pee ', & on ca nt oA ;

de ~ me! oni, ret saned ot fy

charged with comurrission of ar offence jointly must be the same

or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

ye Pease €b sayy ey ff €b EHTS ER EAE ZS SON FY + oe ry Ley From the testimony of the prosecution witnesse Swe

Cany evidence surgesting cumumion intention on the

veped A yy pus > ee ry, fm anh, rn Sete! Servet ror eet ae rr.

cused ~ the fetal blow was given to Charku Cope

by Nar Gope. fn our opinion, th

establish the charee aricer section

the prosecut jon met Banshi Gope is

Blow at the hands of Nunu Gope Charleu

Gope fell on the ground and then Banshi Gope gave ; spear blow

on his beac In the opinion of PWS, injury no. 1 which was an

sed by spear. There was no dispute

2 owhich has caused fracture of

whieh extra-diural Blond olor was

* web 3 "

under infury rs This mpury was caused by Nun Gepe.

tneére is a reference that after the

4 Z weap

assault the accused pelted stone on Charing Gape, *

herefore 3

nity thal abrasion injury «

me ruled out. Be that as if may, we

veo

which has caused abrasion inh ary an his forehead. The extent of

iyury on the foreheact of Charku Gope and the

CHrehipistarees in the

indicate that Banshi Gepe

aby

bee

niary causing hurt by dangerous weapon

MLA

Bansh: Gope wim is the appellant in Criminal Appeal

carvicted and sentenced? to Ri for ave

ed, Se far as other appellants are concerned, we are

inclined to mierfere with the order of sentence recorded by the

learriced trial

ea, In the begirming [ftcer: persons were named in the iret Information Report and eleven were put on trial. Penar

persoms, mamely, Nunu sePes Bhola Gope, Indra Gope ard

ord

re 'wel Po ode oN ed re

ws at ys not ty poe hen ne i oC, Lie G att ott on.

i pon

PND ot AOVUSE

charges were framed fourteen v er dated 20.09. 2002. It took another ten years to conclude the trial and im the meantime all the accused who were alleged to have

eo. We are inclined to accept the prosecution story that a

ii between the parties e snsued On a quarrel! between Nirmal

and Gulab Gope bat in absence of any indepen rdenit

mal avaiable an record to establish the extent of injury

CAaUBER TO three persons, the accused may be awarded Jesse

sernfence, Except the oral evidence on the injuries caused to

Gabu Gape, Gulab Cops and Gohardhan © ope, there is no to indicate the extent of WHUPes caused bo Gabu Gope, Crulab Cope and Gobardhan Gope. Of course, the witnesses have spoken about the bleeding injuries : and Gabu Gape and Gullah

ope becoming unconseimis but there is no explanation by the

prosecution why Crulab Gope was not examined ch aring the trial.

he Indian Evidence Act does not recognise mrultibude

ot Saat wee

wittesses but there is one rule in criminal law that af an am injured witness is not

reason, the accused may be

penne,

facts and ci ircuuiristances c}

WEEPONS were mot seised: the clothes of rat sent for PSL examination, anc: no one harku Gope at Government Hospital, Topchanchi

why could have thrown crnmsiderable heht on the

t :

A Taped, y week aos hapa oe os, a * ws Naat ; on weed, tat ms cn, ms we er ° go ae wt a% wowed, ; ft, tne wee nf ord :

Nm oye on as od ne ee vd oo, cept, 4 on ret % od * ee , St ee at freed ra ty iy mt ae = word tes woe wd we ed rent nat alan! wet * ' eye " eo noe OE batt, es ih Jew a rn, ny 5 on an irrong "od oes ne on 1 a et vated * or) ath aoeed, eo * a Oe eet wanes wy yo "es es a te we eden Sp pot gy "at f ee - ~~ on % om 'ae! get al Pee wn cad tp te to Ly , oS 4 ei im ow ware an " mo ret rons ws, od woe feted, pe Nui = we ee nw pawet "

at 'nod » were "a a * oe 4a2 Le a en roe nies a yroneh pons eo o a et a ed t om Nedent as nee ben am jens a : at oo - ay wan, oe, apd ms ca rs Pye, a YG ne eee os Neh oo", it ans 'eed a nae whe oye pean, te m= we Tae rt ott * fone "ne pee tf se an ¢ 4 rove vaend ey : "eae! ta ste 'e ue reed, ne. 23 Swe aye pod Seat Wee Z rs S Tae. Ce wn nll 'nea? oi vw we opt eo a5 'ae .. Nee can, :

ts a wa 6S £ i oF at wee:

4 a "4 fe oe hoo

oy ° NSF

aad Yeon, "see ", v4 oo fe

ey peng, on, £ wpe Le eed , pa gone wel oye om ocend, ae a ' coped toe, weed Nae! nS oe gt rm . toe yderd, pe ~ weeed tf fed wae ae Le rere, oe, need, yooed ne os anes oe, Sd od . Seal P oa mS Lh poten o, ~~ 3 ", 4M as t ont wee a, : fee oe Z Bg ;

ee. a, at pn whe ¢ a3 uy ost wo ae "

et ; " he pede heat mt to wei , a a Fatt A fy ay ~ Sad "ne ao Lo Ze ee gehen ree nit * teed" 'ter! ie pies ree : oy 5 w we wee "cued sat ON ae

_Phanu Gope and Sudbur Gope are convc ted

7 of the Indian Penal Code and

tye

14aP, S23 and s they are sentenced to the period already undergone, The conviction of Caviar Gope ander sections La), SSS and SQ¥ of & indian Penal Code is also affirmed. He was substit hated by his

son in Criminal Appeal (DB) No. 462 of 2012, In view of fas

death no order of sentence car: be passed against him.

oe, Mr. Ravi Prakash, the learned Spi. PP states thal the

appellant, namely, Ranshi Gop: in Crimimal Agypeal (D8) No. Sis

of 2012 whe has served the sentence of more than [2 years and

S months, with rernission, is In custody and the appellants in

of 2012 are om beal.

Criminal Appeal (DB) No, 462 au, Accordingly, the appellant, namely, Banshi Gope whG is in mustody shall be set-free forthwith, Uo nat warnttecl mm conection: to arpy other cromirtal case,

SQ, The appellants, marnely, Shibu sor' Rameshwa Gepe, Lalu Gope, Abodh Gone, Gopi Gope, Dnanu Gope and ope in Criminal Appeal (DB) No. 462 af 2012 who are

en bail shall be discharged of Hablity of the bail-bonds

furnished by ther.

Sh. in the result, Cruminal Apes! oe No. O°8 of 2018

}

LS are parth allowed, im

the above terms.

32. Let the leaver Court receards be sent to the Court

COPCe Prey, HCPL

fudement be transmitted ta the

PRs gard coe epee mee tires seaamaereed fag? Shae Cour concerned and the concerned Jal Supserin

dent through

'Pax'. - sade (Shree Chandrashekhar, 4) BQ fn (Ratnaker Shenera, J)