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2001 DIGILAW 1116 (PAT)

Gagan Rai Alias Gagandeo Rai v. State Of Bihar

2001-12-12

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. All the appellants have been convicted under section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. They have been further directed to pay a fine of Rs. 1000/- each, in default, to undergo rigorous imprisonment for one year each. 2. The prosecution case, in short, is that Rajendra Sah younger brother of informant Rajaram Sah used to go to Chakiya Bazar on cycle for selling rice and after selling the same used to return back in the evening. It has been alleged that on 28,1.97 the brother of the informant after selling rice was returning to his Village.In the way at 7.30 P.M. The miscreants apprehended the brother of the informant and started snatching the cycle and money. He raised Hulla thereupon the miscreants shot dead the brother of the informant. On the sound of firing and Hulla villagers assembled there and they raised cries of "Chor-Chor" and "Daku-Daku". The informant along with villagers Baban Singh, Sri Narain Singh, Rajendra Singh went to the place of occurrence and found that the brother of the informant having sustained gun shot injury was tying dead in pool of blood. It has been stated that from north of Simara Sareh alarm was heard and the villagers had apprehended one of the miscreants who was assaulted by them. The informant went to the place where the villagers had apprehended the miscreant. He heard from the villagers that the miscreant who was apprehended disclosed his name as Baleshwar Raut. He further disclosed that he along with Gagan Rai, Bhuli alias Ramagya Mahto and Sattan alias Chhakan Mahto committed this occurrence and Gagan Rai had opened fire at the deceased. It has been further alleged that the mob assaulted the miscreant as a result of which he died. It has been stated that the extra judicial confession made by Baieshwar Raut was heard by the informant along with villagers. On the basis of the Fardbeyan of Raja Ram Sah format F.l.R. was drawn up and after completion of the investigation charge sheet was submitted against the four accused persons showing accused Baleshwer Raut dead. Cognizance of the offence was taken and the case was committed to the court of sessions where the trial concluded with the result as stated above. The appellants pleaded not guilty. 3. Cognizance of the offence was taken and the case was committed to the court of sessions where the trial concluded with the result as stated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether twelve witness. P.W.1 is Sheo Jee Prasad Gupta, P.W. 2 is Chandreshwar Prasad, P.W. 3 is Ram Lal Prasad, P.W. 4 is Girija Nandan Singh, he has been declared hostile, P.W.5 Is Parmanand Singh, he has been declared hostile, P.W. 6 is Narendra Kr., Singh, he has been declared hostile, P.W.7 is Upendra Sah, P.W. 8 is Raghu Nath San, P.W. 9 is Ashirbad Singh, has also been declared hostile, P.W. 10 is Kishori Singh, he has been declared hostile too, P.W. 11 is Raja Ram Singh, informant of the case and P.W. 12 is Arun Rajak, I.O. of the case. 4. P.W. 11, the informant has fully supported the case of the prosecution. According to him, when his brother deceased Rajendra Prasad raised alarm from Simra Sareh, he heard the sound of gun shot. He along with co-villagers went to Simara Sareh and saw his brother lying dead in a pool of blood. He had sustained gun shot injury on his chest. It has been further stated that the villagers chased the miscreants and one accused Baleshwar Raut was apprehended and he was assaulted by fists and slaps by the villagers. According to him, the apprehended accused disclosed his name as Baleshwar and confessed that he along with the appellants had murdered Rajendra Sah. Police came from Chakiya village and his Fardbeyan was recorded. Seizure list was prepared and the police also took blood stained soil. According to him, he did not identify any of the miscreants. 5. P.Ws. 1, 2, 3, 7 and 8 have supported the case of the prosecution as stated by the informant in his first information report. P.W. 12, I.O. of the case has stated that on 28.1.97 he received a rumour that a person was murdered by the miscreants and his articles were looted while he was returning from Chakiya to the village Laukaha. According to him after making Saneha entry he proceeded to the place of occurrence along with the police party in order to verify the fact. He has stated that he reached village Laukaha and visited the place of occurrence. He also recorded the Fardbeyan of the informant. According to him after making Saneha entry he proceeded to the place of occurrence along with the police party in order to verify the fact. He has stated that he reached village Laukaha and visited the place of occurrence. He also recorded the Fardbeyan of the informant. He has given the full description of the place of occurrence. He also recorded the statement of the other witnesses during the course of investigation. He prepared the inquest report.of the dead body of the. deceased. 6. Learned counsel for the appellants submitted that there is no sufficient evidence on the basis of which the appellants should have been convicted by the court below. The court below has relied on the statement of the co-accused who was apprehended by co-villagers after chase who disclosed his name as Baleshwar Raut. it has been further submitted that accused Baleshwar subsequently died and the court below has convicted the appellants on extra judicial confession and also confession of appellant Saltan before the police. It has been submitted that the court should not have relied upon extra judicial confession of these two accused persons. The statement made by deceased Baleshwar just before his death cannot be treated as dying declaration under section 32 sub-section (1) of the Evidence Act in the present case. 7. In this case since the statement of Baleshwar was made before the co-villagers, his confession should have been accepted as a piece of evidence, if corroborated by witnesses. However, in this case on this point four witnesses have been examined but they did not support that actually such statement was made before them. As such, the alleged confessional statement could not be proved. Certainly, the statement of Sattan alias Chhakan Mahto was made before the police and the same has no evidentiary value. Though it is expected that a man soon before his death would not speak lie, but the so called statement of Baleshwar has not been proved. The statement of Baleshwar certainly can not be termed as dying declaration. 8. Though the prosecution has examined altogether twelve witnesses to prove its case but the prosecution could not come out with the evidence to prove the participation of these appellants in the commission of crime. The statement of Baleshwar certainly can not be termed as dying declaration. 8. Though the prosecution has examined altogether twelve witnesses to prove its case but the prosecution could not come out with the evidence to prove the participation of these appellants in the commission of crime. Even the informant P.W. 11 who reached at the place of occurrence on hearing the cries of his brother and sound of firing, could not see any of the appellants at the place of occurrence. Even he could not see the apprehended accused Baleshwar Raut neither he heard his confessional statement made before the co-villagers. In view of insufficient evidence I do not find it proper to convict the appellants and they deserve benefit of doubt. Accordingly, the appellants are acquitted, the conviction and sentence passed by the court below are set aside. It has. been stated that the appellants are in jaii. They are directed to be released forthwith, if not required in any other case in the result, this appeal is allowed.