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2023 Supreme(Jhk) 64
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, SUBHASH CHAND, JJ.
Chanderdeo Gope and Another - Appellants
Versus
State of Bihar - Respondent
Cr. Appeal (DB) No. 140 of 1994 (R)
Decided on : 01-02-2023
Advocate Appeared:
For the Appellants : Mr. Rakesh Kumar Sinha, Amicus Curiae
For the Respondent: Mr. Pankaj Kumar Mishra, APP
Headnote:
Indian Penal Code, 1860 – Section 302 – Criminal Procedure Code, 1973 – Section 34, 374 (2), 313 – Indian Evidence Act, 1872 – Section 27 – Judgment of conviction – Framed the charge – However, one order again has been passed by co-ordinate Division Bench of this Court by wherefrom it appears that Mr. P.P.N. Roy, learned senior counsel on instruction had stated that he appears for appellant no. 1 – But, today, in course of hearing, learned counsel has submitted that she is having no instructions in this regard – Held, Court having discussed fact in entirety as above and after going through judgment of conviction of learned trial court wherefrom it is evident from discussion made at paragraph-13 that learned trial court although has discussed settled position about disclosure of confession made before security officer who is not a police officer but he has been considered to be person in authority, as such, confession made before security officer has been held to be inadmissible in law but said inadmissibility has subsequently been considered to be admissible after considering testimony of P.W. 3, 5, 7 and 10, which is basis of conviction of appellants – Aforesaid finding, according to considered view of this Court, cannot be said to be just and proper reason being that confession so made as has been said to have been recorded as per testimony of P.W. 7 has not been brought on record. P.W. 3, 5, 7 and 10 have only disclosed that confession has been made by these appellants but learned trial court has failed to appreciate that no specific question has been put to appellants while recording their statement under Section 313 of Cr. P.C. and version having not been corroborated due to non-examination of investigating officer, as such, element of doubt is there and also doubt of complicity of appellants in commission of offence is there but learned trial court has failed to consider that aspect of matter, therefore, impugned judgment, according to considered view of this Court, requires interference – Appeal allowed.
JUDGMENT :
Sujit Narayan Prasad, J.
Mr. Rakesh Kumar Sinha has been appointed as amicus in this case as would appear from the order dated 09th April, 2019. For ready reference, the said order is being reproduced as under:
“Mrs. Niki Sinha, the learned A.P.P. appears on behalf of the State and submits that notices have been served upon the appellants.
The learned A.P.P. shall file an affidavit.
Nobody appears on behalf of the appellants, however, reports dated 19.03.2019 and 01.04.2019 have been received from the Secretary, Jharkhand High Court Legal Services Committee which transpire that both the appellants have desired for legal aid.
In view of the aforesaid fact, Mr. Rakesh Kumar Sinha, the learned counsel is hereby appointed as Amicus in this case.
The Registry is directed to serve a complete set of paper-book to Mr. Rakesh Kumar Sinha, the learned Amicus and the learned A.P.P, if already not supplied.
The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s).
Fee for learned Amicus shall be fixed on disposal of the appeal.
Post the matter on 02.05.2019 under the heading “For Orders”.
Let a copy of the order be given to the learned A.P.P.
Let name of Mr. Rakesh Kumar Sinha, the learned Amicus appear in the cause-list.”
2. However, one order again has been passed by the co-ordinate Division Bench of this Court on 02nd May, 2019 by wherefrom it appears that Mr. P.P.N. Roy, learned senior counsel on instruction of Mrs. Pragati Prasad had stated that he appears for the appellant no. 1. But, today, in course of hearing, Mrs. Pragati Prasad, learned counsel has submitted that she is having no instructions in this regard.
3. This Court, therefore, after taking into consideration the order dated 09th April, 2019, by which Mr. Rakesh Kumar Sinha, learned counsel had been appointed as Amicus has proceeded to hear him on behalf of both the appellants.
4. With the consent of the parties, the matter has been heard on merits.
5. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction and order of sentence dated 20th July, 1994, passed by learned 5th Additional Sessions Judge, Hazaribagh, in Sessions Case No. 60 of 1991, whereby and whereunder, both the appellants have been convicted under Section 302 of the Penal Code, 1860 and directed to undergo imprisonment for life.
6. The prosecution story in brief as per the Fard Beyan of Beni Mahto which formed the basis of FIR is that on 26.09.1990 in the morning, the informant received information at his residence in Sarubera colony that his elder brother Madho Gope has been murdered in his residence in Arra 48 number colony upon which he went to the residence of his elder brother Madho Gope and found his said brother lying dead on the floor. The blood had come out from his nose, mouth and temporal. Madho Gope used to live alone. His neighbours told the informant that in the morning when they went to take tobacco from Madho Gope they found the outer door of his quarter opened and Madho Gope was lying dead in his pool of blood. Then they raised hulla upon which other neighbours also came there.
7. Mr. Rakesh Kumar Sinha, learned amicus has raised the following grounds in assailing the impugned judgment of conviction and sentence:
(i) The judgment of conviction is based upon the extra judicial confession and the same has been said to be over-heard by P.W. 3 and 5. The said over-hearing has also been heard by P.W. 7 and P.W. 7 in his testimony has stated that the same has been confessed by the appellants by reducing the same in writing but according to the learned amicus, nothing has been made available on record said to have been recorded by reducing the same in writing by the appellants regarding commission of murder. But, the same having not been corroborated by any independent witness, the judgment of conviction cannot be said to be sustainable in the eyes of law, as such, re
