Jharkhand High Court
Rabindra Gope vs The State Of Bihar on 13 October, 2023
Cr. Appeal (DB) No. 42 of 1999 (R)
---
Against the judgment of conviction and order of sentence dated 21.12.1998 passed by
Shri Tarkeshwar Prasad, learned Sessions Judge, Gumla in S.T. No. 143 of 1998.
---
Rabindra Gope --- --- --- Appellant
Versus
The State of Bihar --- --- --- Respondent
---
For the Appellant: Mr. Shiv Prasad & Mr. Sunil Kumar, Advocates
For the Resp.-State:Mr. Shailesh Kr. Sinha, A.P.P
---
PRESENT
Hon'ble Mr. Justice Ratnaker Bhengra
Hon'ble Mr. Justice Ambuj Nath
----
Reserved on: 09.10.2023 Pronounced on:13.10.2023
----
Ambuj Nath, J: Appellant-Rabindra Gope has filed this appeal against the judgment of
conviction and order of sentence dated 21.12.1998, passed by Shri Tarkeshwar
Prasad, Sessions Judge, Gumla in S.T. No. 143 of 1998 arising out of Sisai P.S. Case
No. 17 of 1998 corresponding to G.R. No. 78 of 1998, holding the appellant guilty for
the offence under section 302 of the Indian Penal Code and thereby sentencing him to
undergo imprisonment for life.
2. Prosecution case was instituted on the basis of the fardbeyan of Anita Devi,
wife of the appellant, alleging therein that on 06.02.1998, appellant returned from the
house of one Krishnabege Uraon and took away their son Santosh Kumar, aged about
four years near a Shiv Mandir and murdered him in a very brutal manner.
3. After investigation, police found the occurrence to be true and submitted charge
sheet under section 302 of the Indian Penal Code. Learned C.J.M., Gumla committed
the case to the court of sessions on 23.05.1998 as it was exclusively triable by the
sessions court.
4. Charge was framed against the appellant under section 302 of the Indian Penal
Code on 10.07.1998. Appellant had pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has adduced both oral and documentary
evidences.
6. Narayan Gope (P.W-1) has not supported the case of the prosecution. He has
been declared hostile.
Anita Devi (P.W-2) who is the Informant of this case, has also not supported
the case of the prosecution. She has also been declared hostile.
Ropan Gope (P.W-3) has also not supported the case of the prosecution. He has
also been declared hostile.
Budhnath Oraon (P.W-4) is a hearsay witness. He has proved the signature of
Dhaneshwar Oraon on the inquest report which are Ext.2 series.
Bandhu Oraon (P.W-5) has also not supported the case of the prosecution. He
has also been declared hostile.
Mahadeo Sao (P.W-6) has also not supported the case of the prosecution. He
has also been declared hostile.
Sudhir Kumar Singh (P.W-7) is a formal witness who has proved the signature
of Sub Inspector of Sisai Police Station Satish Kumar Sinha on the fardbeyan which
has been marked Ext.3 series
Dr. Ramesh Prasad (P.W-8) is the doctor who has performed postmortem on
the dead body of the deceased. He has proved the postmortem report, which has been
marked Ext.-7
07. Case of the prosecution is that the appellant Rabindra Gope has murdered his
four years old son namely Santosh Kumar. The Informant Anita Devi who was an
eyewitness to the occurrence, has not supported the prosecution case. She has only
stated that her son Santosh Kumar died nine months ago. There was some altercation
between her and her husband. Later on, she saw the dead body of her son. She has
been declared hostile. It further appears that none of the prosecution witnesses have
supported the prosecution case that the appellant had murdered his four years old son
namely Santosh Kumar.
08. From perusal of the impugned judgment, it transpires that the learned Trial
Court had held the appellant guilty for the offence under section 302 of the Indian
Penal Code only on the ground that it has been mentioned in para-27 of the case diary
that the appellant was handed over to the police by the villagers after the occurrence.
Prosecution has not examined the Investigating Officer in this case. Any entry in the
case diary and that too when the I.O has not proved such entry or the same has not
been adduced in evidence, cannot be read in evidence against the accused, as it is not
a substantive piece of evidence.
09. As discussed hereinabove, none of the prosecution witnesses have supported
the case of the prosecution that the appellant had committed murder of his son
Santosh Kumar.
10. In view of the aforesaid facts, I am of the opinion that the prosecution has not
been able to prove its case against the appellant for committing offence under section
302 of the Indian Penal Code. Learned Trial Court has erred in holding the appellant
guilty for the aforesaid offence. Accordingly, the judgment of conviction and order of
sentence passed by the learned Trial Court is set aside.
11. This appeal is allowed. Appellant is on bail. He along with his bailors are
discharged from the liability towards the bail bonds.
Pending I.A., if any stands disposed of.
(Ratnaker Bhengra, J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated 13th October 2023
Ranjeet/
