GOPI NATH GOPE vs STATE OF JHARKHAND

H.C. Mishra, J

Heard learned amicus curiae appointed by the Court for the appellant and learned counsel for the State.Â

This appeal is directed against the Judgment of conviction dated 2.6.2008 and Order of sentence dated 3.6.2008, passed by the learned Sessions

Judge, West Singhbhum, Chaibasa, in Sessions Trial No. 184 of 2005, whereby, the appellant has been found guilty and convicted for the offence

under Section 302 of the Indian Penal Code, on the allegation that he had committed the murder of his own son. Upon hearing on the point of

sentence, the appellant has been sentenced to undergo R.I. for life and a fine of Rs. 10,000/- for the said offence.Â

This is a case, in which, FIR was initially lodged against five named accused persons for committing the murder of the deceased, in which, the

appellant Gopi Nath Gope was not made an accused. The FIR was lodged on the basis of the fardbeyan of Sunita Devi, the wife of deceased

Babulal Gope, recorded on 22.3.2005, wherein, she had stated that the occurrence had taken place on 19.3.2005, when in the night she had seen the

five accused persons, namely, Shankar Gope, Ghasi Gope, Ravi Gope, and Pito Gope, and wife of Ghasi Gope, assaulting her deceased husband due to

which he subsequently died after two days. She had thus, given a completely different story about the occurrence. On the basis of the fardbeyan,

Jhinkpani P.S. Case No. 14 of 2005 corresponding to G.R. No. 175 of 2005, was instituted for the offence under Sections 302 / 34 of the Indian Penal

Code against the aforesaid accused persons and investigation was taken up. After investigation also, it appears that charge-sheet was submitted

against those five named accused persons only.Â

After commitment of the case to the Court of Session, initially charge was framed against those five named accused persons for the offence under

Sections 302 / 34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial.

In course of trial, twenty-three witnesses were examined by the prosecution, out of whom, most of the witnesses have turned hostile and have not

supported the prosecution case at all, or they were only tendered by the prosecution. The case, however, was supported by P.W.-1 Sunita Devi, the

informant and the wife of the deceased, as eyewitness, and her father P.W.-2 Lobino Gope and her uncle P.W.-6 Shankar Gope, as hearsay

witnesses, as informed to them by P.W.-1 Sunita Devi. Even the wife of the present accused and the mother of the deceased was examined as P.W.-

11Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Shakuntala Gope, and she had not supported the prosecution case and had turned hostile, stating that she had

no knowledge as to who had killed her son. It may be stated that the Investigating Officer was not examined and accordingly, the fardbeyan, FIR, and

other documents were proved by a formal witness P.W.-23 Keshav Kumar Choudhary.Â

After recording the statements of the accused persons under Section 313 of the Cr.P.C., the accused persons entered into the defence and they

examined the present accused, Gopi Nath Gope as D.W.-1. This accused has stated that Babulal Gope was his son. He admitted that occurrence took

place on 19.3.2005 in the night and the deceased and this accused were in drunken condition and there was some quarrel between them. He assaulted

his son by rod on his head. He has stated that the accused persons facing the trial had not committed the offence. After the occurrence, he had gone

to Barbil in Orissa, and when he returned back, he learnt that his son had died.

When this evidence was recorded by the Trial Court below, the appellant was made accused under Section 319 of the Cr.P.C., and charge was

framed against him on 21.6.2007, in which again he pleaded guilty of the charge. However, the Court below did not chose to convict the appellant

under Section 229 of the Cr.P.C., rather it proceeded to examine the witnesses under Section 230 of the Cr.P.C. After framing of the charge, the

record shows that only three witnesses were examined on recall, and they were P.W.-5 Â Purnochandra Gope, P.W.-9 Balbhadra Sinku and P.W.-10

Rasuka Gope. The other witnesses, including the informant, could not be examined on recall, after framing the charge against the accused appellant

Gopi Nath Gope.Â

Out of these three witnesses, P.W.-5 Purnochandra Gope had earlier stated that he had heard that there was quarrel between Babulal Gope and

Gopi Nath Gope in drunken state, but he had stated that he had not seen the occurrence, whereas, on recall, he has supported the case as an

eyewitness to the occurrence, stating that he had seen that the accused  Gopi Nath Gope had assaulted his son Babulal Gope in the state of

drunkenness, who died at the spot. His evidence is not at all reliable, as earlier he had stated that he had not seen the occurrence at all, and also for

the reason, that the deceased had not died at the spot, rather, as per the F.I.R., he had died after two days of the occurrence.Â

The other witness examined on recall, i.e., P.W.-9 Balbhadra Sinku had stated earlier that he had no knowledge whether Babulal Gope

was dead or alive and he was declared hostile, and after recall, though he has stated that he was informed by the wife of the deceased that in a

quarrel the father had assaulted the deceased, but he has stated in his  cross-examination that he had no knowledge as to who had assaulted the

deceased.Â

Even P.W.-10 Rasuka Gope, though had earlier stated that he was informed that in a quarrel the father had assaulted the deceased, and after recall

also he has stated the same thing, but in his cross-examination he has stated that he had not seen the occurrence.

The record further shows that though the appellant was made accused on the basis of his evidence recorded as D.W.-1, but after framing of the

charge, he was not examined as a witness.

Sections 229 and 230 of the Code of Criminal Procedure Code read as follows:-

Conviction on plea of guilty.- If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.""Â

Date for prosecution evidence.- If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the

Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance

of any witness or the production of any document or other thing.

Though it is a fact that while charge was framed against accused Gopi Nath Gope, he pleaded guilty, but he was not convicted by the Trial Court

below on the basis of his pleading guilty, rather, he was put to trial. Section 230 of the Cr.P.C., clearly prescribes that once the accused is not

convicted under section 229 of the Cr.P.C., on his pleading guilty, and he is put to trial, he could be convicted and sentenced only on the basis of the

evidence on record, but we find from the record that there is practically no evidence at all against him. As discussed above, the evidence of P.W.-5

Purnochandra Gope is not at all reliable, and P.W.-9 Balbhadra Sinku had no knowledge of the occurrence, whereas P.W.-10 Rasuka Gope had not

seen the occurrence.

We have also seen the statement of the accused recorded under section 313 Cr.P.C., wherein, the question was put to him that there was

evidence against him in the evidences of P.W.-5 Purnochandra Gope, P.W.-9 Balbhadra Gope, P.W.-10 Rasuka Gope and P.W.-7 Dilip Gope. No

question was put to him about his pleading guilty, or that of his evidence before framing of charge. Out of the aforesaid four witnesses, P.W.-7 Dilip

Gope was not examined after framing of charge against the appellant, even then his evidence has been relied upon by the Trial Court below, which

could not be taken into consideration. Thus, we find that even the statement of the accused recorded under Section 313 Cr.P.C., in which, also he had

admitted his guilt, suffers from inherent illegality and as such, we are of the considered view that conviction and sentence of the appellant could not be

sustained on the basis of the materials and evidences on record, as there was no legal evidence against the accused appellant. Indeed, after the

framing of the charge against this accused, neither the fardbeyan, nor the formal FIR, or the post-mortem report have been proved again. We are of

the considered view that for these infirmities, the conviction and sentence of the appellant cannot be sustained in the eyes of law.Â

For the foregoing reasons, the impugned Judgment of conviction dated 2.6.2008 and Order of Sentence dated 3.6.2008, passed by the learned

Sessions Judge, West Singhbhum, Chaibasa, in Sessions Trial No. 184 of 2005, convicting and sentencing the appellant Gopi Nath Gope, for the

offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Gopi Nath Gope is found not guilty and he is

acquitted of the charge. The appellant is in custody undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not

required in any other case.Â

Before parting with this Judgment, we must record that we have been given able assistance by Ms. Asmita Shrivastava, learned amicus curiae,

appointed by this Court for the appellant. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed

remuneration to learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the

needful.

This appeal is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with the copy of this

Judgment. Â