2003 INSC 1154
Fulchand Gope & Another

v.

State of Jharkhand

(Supreme Court Of India)

HON'BLE MR. JUSTICE DORAISWAMY RAJU HON'BLE MR. JUSTICE
ARIJIT PASAYAT

Criminal Appeal No. 377 Of 2003 With Criminal Appeal No. 378 & 379 Of
2003 | 16-12-2003

1. These three appeals are by four accused persons who faced trial for allegedly
having committed homicidal death of one Jai Kumar Pandey (hereinafter
referred to as `the deceased'). The occurrence took place over a very small and
trivial matter on 13.10.1981. The accused persons faced trial for alleged
commission of offences punishable under Section 302 read with Section 34 of
the Indian Penal Code, 1860 (in short `the IPC') so far as all the four accused
persons are concerned, and Section 323 IPC relating to accused-appellants
Bhola Gope and Gauri Gope. The Trial Court found the accused persons guilty
of the aforesaid offences, sentenced each one to undergo rigorous imprisonment
for life. Though Bhola Gope and Gauri Gope were convicted for the offence
under Section 323 IPC, no separate sentence was imposed. Appeal before the
Patna High Court did not bring any relief and a Division Bench by the
impugned judgment confirmed the conviction and sentence.

2. In support of the appeal, Mr. A. Sharan, learned senior counsel appearing for
the appellants submitted that the High Court has failed to notice the apparent
inconsistencies in the evidence. Three of the accused persons were minors at the
time of occurrence. Finally, it was submitted that the factual scenario, as noticed
by the Trial Court and the High Court does not make out a case under Section
302 IPC, and in any event, so far as accused Fulchand Gope, Sahdeo Gope and
Bhola Gope are concerned, even Section 304 IPC would not be applicable to
their cases. Learned counsel for the respondent-State of Jharkhand supported
the judgments of the Trial Court and the High Court.The factual background, as
described by the Trial Court and noticed by the High Court is to the following
effect:

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3. On 13.10.1981, around 4.00 P.M., the accused Fulchand Gope was grazing
the paddy crops of the informant, Arjun Pandey, PW-5 and his goats and sheep
were destroying the crops. This was objected to by PW-7, Kalawati Devi, sister
of PW-5. She was slapped by the accused Fulchand Gope. Kalawati Devi went
home and informed about the occurrence and PW-5 went and asked him as to
why his sister was slapped. At this, accused Bhola Gope brought a lathi and
chased the informant who ran away. Subsequently, all the accused persons
reached there armed with various weapons. The accused Gauri Gope had a
Tangi in his hand and other had lathis. Bhola Gope gave a lathi blow to the
informant and Gauri Gope gave a Tangi blow on the head of the deceased. The
others pelted stones, causing injury to PW-1, Bhuneshwar Pandey. Thereafter,
information was lodged at the police station and investigation was
undertaken.The factual scenario, as noted above, goes to show that the
occurrence which took place over a sudden quarrel and the accused persons
acted in course of that quarrel and did not take any undue advantage. That
brings the case under Section 304 IPC, so far as accused Gauri Gope is
concerned. But so far as others are concerned, it is to note that they had not
assaulted either the deceased or the informant. But their presence was there and
to a certain extent, their indirect participation by asking the Gauri Gope to teach
the deceased a lesson, and also of pelting stones. That being so, in the peculiar
circumstances of the case, the conviction of Gauri Gope would be appropriately
under Section 304 (Part-II) IPC. So far as others are concerned, it would be
under Section 326 read with Section 34 IPC. So far as the question as to
whether the accused persons are minors or not, does not appear to have been
specifically urged before the Trial Court and the High Court and, therefore, we
do not think it necessary to deal with that aspect.

4. Custodial sentence of eight years' rigorous imprisonment, so far as Gauri
Gope is concerned, would suffice, while in the case of the other accused
persons, it will be three years rigorous imprisonment. Since the custodial
sentence is for three years, we extend the benefits under the Probation of
Offenders Act so far as they are concerned. The necessary terms shall be fixed
by the Trial Court before whom the concerned accused persons shall appear
without further notice on 20.01.2004 to receive orders.The appeals are allowed
to the extent indicated above.

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