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2015 DIGILAW 51 (PAT)

Ranjay Rai @ Ranjan Rai v. State of Bihar

2015-01-12

RAJENDRA KUMAR MISHRA, V.N.SINHA

body2015
JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Sole appellant has been convicted for the offences under Sections 302/149, 307/149, 326/149, 429/149, 436/149, 148 and 452 of the Penal Code and sentenced to undergo Rigorous Imprisonment for life under Section 302/149 of the Penal Code with observation that it is not necessary to impose sentence for the other offences. 2. By filing the present appeal appellant has challenged the judgment of conviction, order of sentence dated 05/07.06.2013, passed by Ad hoc Additional District & Sessions Judge- IInd, Hajipur, Vaishali in Sessions Case No. 195 B of 2006/571 of 2006. 3. Prosecution case, as set out in the fardbeyan of informant injured Bijendra Mahto (P.W.7) in Primary Health Centre, Raghopur on 01.01.2006 at 7:30 A.M. is that in the preceding night of 01.01.2006, informant was sleeping on the veranda, other family members were sleeping inside the house. Around 1:00 A.M. informant heard voice, foot steps of few persons approaching his house, woke up, saw in the adjoining bulb light co-villagers Jagat Rai, Bipat Rai, Ram Babu Rai, Binay Rai, Dandu Rai, Shankar Rai, Deonath Rai, Nathu Rai, Chhabila Rai, Bachcha Babu Rai, Jay Babu Rai and appellant Ranjay Rai as also 10 to 11 unknown, variously armed with lethal weapons. Informant tried to run away but Jagat Rai, Bipat Rai apprehended him and pushed him on the ground, 3-4 unknown climbed over him, gagged his mouth by pushing gunny bag. Jagat Rai asked his accomplice to surround the house so that none could come out from the house, to sprinkle kerosene oil and to set the house ablaze. Ram Babu Rai locked the house/room from outside in which wife of the informant, children were sleeping. After the house/room was locked, Binay Rai, Dandu Rai, Shankar Rai went to the roof, sprinkled kerosene oil and set the house ablaze. Nathu Rai, Chhabila Rai sprinkled kerosene oil on the person of the informant and pressed him by their feet so that he may not escape. Jagat Rai put lighted match-stick over the mouth of the informant. After the house was set ablaze, the rioters ran away. Informant also managed to run away and save himself. While the informant was running away, Bipat Rai shot at him, the informant, however, escaped the shot and succeeded in running away raising alarm. Jagat Rai put lighted match-stick over the mouth of the informant. After the house was set ablaze, the rioters ran away. Informant also managed to run away and save himself. While the informant was running away, Bipat Rai shot at him, the informant, however, escaped the shot and succeeded in running away raising alarm. Hearing alarm his neighbours and brother Binod Mahto (P.W. 1), Bindeswar Mahto (P.W. 3) as also other members of the family also woke up and raised alarm. In the locked house, wife of the informant Baby Devi, the daughters Neelam Kumari, Punam Kumari, sons Suraj Kumar, Anil Kumar and Rajesh Kumar were burnt alive. Informant’s she-buffalo, calf, entire belongings of the house were also gutted to ashes. In the fardbeyan informant further stated that three months earlier his she-buffalo was stolen by Jagat Rai and his family members for which he lodged a case. For the last 15 days pressure was being mounted on him to withdraw the case but informant was not responding as the case was pending in Court. 4. Brother of the informant Binod Kumar Mahto (P.W. 1) and Bindeswar Mahto (P.W. 3) also put their Left Thumb Impression over the fardbeyan. The fardbeyan was scribed by Sub-Inspector Anjani Kumar (P.W. 11) Officer-in-Charge of Rushtampur Out Post, who forwarded the same for registration of the case to Raghopur Police Station. The fardbeyan was received in the Raghopur Police Station on the same day, on the basis of which present Raghopur P.S. Case No. 01/06 was registered for the offences under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307, 302 of the Penal Code and Section 27 of the Arms Act on 01.01.2006 at 9:00 A.M. and transmitted to the Court also on the same day but received in the court of C.J.M., Vaishali at Hajipur on 02.01.2006. Investigation of the case was conducted by the scribe of the fardbeyan (P.W. 11), who having collected the objective findings from the place of occurrence, recorded the police statement of the witnesses, collected the post mortem report, submitted charge-sheet No. 44/06 dated 21.03.2006 against the F.I.R. named accused including the appellant and the Non-F.I.R. named accused Maula Devi, Gautam Rai, Krishnadeo Rai @ Kishun Deo Rai and Shivdhari Rai. After submission of the charge-sheet learned Chief Judicial Magistrate, Vaishali at Hajipur took cognizance of the offences and transferred the case to the file of Sri Sanjay Kumar Sinha, Judicial Magistrate, 1st Class, Hajipur for commitment where the case of absconding accused persons Jagat Rai, Bipat Rai, Ram Babu Rai, Binay Rai, Dandu Rai, Shankar Rai, Deo Nath Rai, Nathu Rai, Chhabila Rai, Jay Babu Rai was separated but the case of accused Bachcha Babu Rai, Appellant, Maula Devi, Gautam Rai, Krishnadeo Rai @ Kishundeo Rai and Shivdhari Rai was committed to the court of Sessions under order dated 06.05.2006 and numbered as Sessions Trial No.195 of 2006. Later the case of the three out of the aforesaid absconding accused namely, Jagat Rai, Bipat Rai @ Deepak Rai and Binay Rai was also committed to the court of Sessions on 15.12.2006 and numbered as Sessions Trial No. 571 of 2006. The case of Gautam Rai was separated on 06.12.2007. Both the trials were amalgamated under order dated 12.01.2008. Case of Binay Rai in the connected trial was separated on 18.10.2008. The case of the present appellant was separated on 07.07.2009 as he claimed himself to be a juvenile. 5. Until separation of the case of the aforesaid accused persons both the trials i.e. Sessions Trial No. 195 of 2006, 571 of 2006 proceeded together, after separation the case of seven accused persons, namely, Bachcha Babu Rai, Maula Devi, Krishnadeo Rai @ Kishundeo Rai, Shivdhari Rai, Jagat Rai, Bipat Rai @ Deepak was disposed of under judgment dated 17.09.2009 by Additional Sessions Judge, F.T.C. No. 2, Hajipur, Vaishali, convicting Bachcha Babu Rai, Jagat Rai and Bipat Rai @ Deepak Rai for the offences under Sections 120(B), 148, 302/149, 307/149, 326, 429, 436 and 452 of the Penal Code awarding the three death sentence under order dated 30.10.2009. The three non-F.I.R. accused, namely, Maula Devi, Krishnadeo Rai @ Kishundeo Rai and Shivdhari Rai were, however, acquitted of the charges levelled against them. The three convicted accused persons of the two trials filed Cr. Appeal (D.B.) No. 989 of 2009 and 158 of 2010 which was heard along with Death Reference No. 06 of 2009 and disposed of under judgment dated 19.08.2010 upholding the conviction, sentence imposed on them. Against the judgment of the High Court dated 19.08.2010 matter was taken in appeal to the Supreme Court vide Cr. Appeal (D.B.) No. 989 of 2009 and 158 of 2010 which was heard along with Death Reference No. 06 of 2009 and disposed of under judgment dated 19.08.2010 upholding the conviction, sentence imposed on them. Against the judgment of the High Court dated 19.08.2010 matter was taken in appeal to the Supreme Court vide Cr. Appeal No. 249-50, 1747-48 both of 2011. Supreme Court maintained the conviction of all the three convicts but the death sentence of Bachcha Rai was commuted to sentence for life imprisonment for whole life. In this connection, Supreme Court while upholding the conviction of Bachcha Rai observed in Paragraph 93 of its judgment reported in (2013) 10 Supreme Court Cases 421 as follows:- 93. However, in the present case, while taking an overall view no overt act in the commission of crime could be attributed to A-3. The role played by A-3 during commission of the crime as established was to hold the barrels of kerosene along with one other. Whiles determining the gravity of the offence committed by the appellants it must be noticed that it is only A-1 who had threatened the informant of burning his house in case the FIR against his family and him were not withdrawn. Further, A-1, during the occurrence not only scripted and instructed the rest of the unlawful assembly but also lighted the matchstick to burn the house as well as the informant’s body. A-2, pushed the informant to the ground and later fired at him. 6. Having given the aforesaid background of the two trials we now proceed to consider the case of the present appellant whose case could not be disposed of under judgment dated 17.09.2009 in Sessions Trial No. 195 of 2006 as he raised the plea of juvenility on 07.07.2009, which was rejected. Against the rejection order appellant preferred Cr. Revision No. 1468 of 2008 in the High Court. During pendency of the said Revision case of the present appellant was separated from other accused of Sessions Trial No. 195 of 2006 which proceeded later on the basis of the shadow record prepared on the basis of the record of Sessions Trial No. 195 of 2006 in the light of the direction of the High Court passed in Cr. Misc. No. 6981 of 2012 on 27.06.2012. Misc. No. 6981 of 2012 on 27.06.2012. On the basis of shadow record the trial of the appellant was numbered as Sessions Trial No. 195 B of 2006 and disposed of under the impugned judgment convicting the appellant in the light of the evidence on record of Sessions Trial No. 195 of 2006. 7. It is submitted on behalf of the appellant that out of the 16 prosecution witnesses P.W. 7 is the informant and he is the only eye-witness of the occurrence. Others namely, P.W. 1 Binod Kumar Mahto, P.W. 2 Kiran Mahto, P.W. 3 Bindeswar Mahto and P.W. 4 Babloo Mahto are the full brothers of the informant but they reside in different adjoining houses and came to the place of occurrence after the house of the informant was set ablaze and he managed to run away raising alarm. P.W. 5 Maha Devi is wife of P.W. 2 and sister-in-law of the informant. P.W. 6 Dulari Devi is the mother of the informant. P.W. 14 Jaga Devi is wife of P.W. 1. P.W. 15 Kamli Devi is daughter of Jay Singh Mahto and niece of the informant, P.W. 16 Nanhki Devi is wife of P.W. 4. P.Ws. 5, 6, 14, 15 and 16 also arrived at the place of occurrence from their respective houses after the house of the informant was set ablaze hearing the alarm raised by the informant. P.W. 8 Dr. Sunil Keshari, P.W.9 Dr. Ashok Kumar, P.W. 10 Dr. Rajendra Kumar Rajesh and P.W. 12 Dr. Devendra Prasad Singh are the four doctors out of whom P.Ws. 8 and 9 conducted autopsy on the person of the deceased. P.W. 10 examined the informant. P.W. 12, a veterinary doctor, examined the she-buffalo of the informant. P.W. 11 Anjani Kumar is a police officer who scribed the fardbeyan and investigated the case. P.W. 13 Manji Prasad Singh is also an A.S.I. who proved the First Information Report, Inquest Report of the deceased and Injury Report of the informant. 8. Besides the aforesaid prosecution witnesses, defence also examined three defence witnesses, namely, D.W. 1 Brahmdeo Pandit, D.W. 2 Churawan Sharma and D.W. 3 Ramwali Rai. 9. P.W. 13 Manji Prasad Singh is also an A.S.I. who proved the First Information Report, Inquest Report of the deceased and Injury Report of the informant. 8. Besides the aforesaid prosecution witnesses, defence also examined three defence witnesses, namely, D.W. 1 Brahmdeo Pandit, D.W. 2 Churawan Sharma and D.W. 3 Ramwali Rai. 9. Having taken note of the prosecution, defence witnesses, now we proceed to consider the merit of the prosecution evidence in the light of the assertions made in the fardbeyan of the informant (P.W.7) that while he was sleeping on his verandah in the night of occurrence i.e. 01.01.2006 around 1:00 A.M. the accused persons came and after having overpowered the informant set ablaze his house. In the fardbeyan informant has given a detailed description about the occurrence and the specific overt act committed by each of the accused named in the fardbeyan. Appellant is said to be also present along with the others including the convicts in the night at the place of occurrence. He is, however, not said to have committed any overt act while being present at the place of occurrence in the night. In this connection we refer to the evidence of P.W. 1 Binod Kumar Mahto, who has categorically stated in his evidence that after the house was set ablaze he woke up, came to the place of occurrence and identified Jagat Rai firing from his rifle, Bipat Rai, Ram Babu Rai, Nathu Rai, Deo Nath Rai, Shankar Rai, Binay Rai, Dandu Rai, Chhabila Rai, Jay Babu Rai, Dhananjay Rai, Maula Devi, Gautam Rai, in all 12 accused persons. It has been submitted on behalf of the appellant that P.W. 1 has not even named the appellant Ranjay Rai in his evidence as the one who was present at the place of occurrence. True it is that from the photocopy of the hand written evidence of P.W. 1 also it appears that along with Jagat Rai and others Dhananjay Rai not Ranjay Rai (the present appellant) was present at the place of occurrence, such fact appears to be a mistake, while writing the evidence, name of the 12 F.I.R. named accused for appellant Ranjay Rai ‘Dhananjay Rai’ was written by the Presiding Officer of the court in paragraph 2 of the evidence. In the same paragraph it is further stated that all the accused persons seen by P.W. 1 at the place of occurrence were armed with lathi except Bipat Rai who was armed with gun and they were running away towards west. 10. P.W. 2 Kiran Mahto is the other brother of the informant. He also came to the place of occurrence after the house of the informant was set ablaze hearing the alarm of the informant. P.W. 2 also noticed at the place of occurrence Jagat Rai, Bipat Rai, Bachcha Rai, Ram Babu Rai, Deo Nath Rai, Shankar Rai, Jay Babu Rai, Chhabila Rai, Nathu Rai, Dandu Rai, Binay Rai, Gautam Rai, appellant Ranjay Rai and Maula Devi. Jagat Rai was armed with rifle, Bipat Rai was armed with gun, Ram Babu Rai, Shankar Rai and all others were armed with lathi and that they were seen running away from the place of occurrence. In Paragraph 2 P.W. 2 stated that Maula Devi was indicating appellant Ranjay and Gautam to go away from the place of occurrence. In Paragraph 3 P.W. 2 deposed that during the occurrence wife of the informant Baby Devi, his daughters Neelam Kumari, Punam Kumari and three sons Anil, Suraj and Rajesh were burnt to ashes. He also stated that she-buffalo of Bijendra Mahto was also burnt and that informant was taken to Raghopur Hospital for treatment. In Paragraph 10 P.W. 2 stated that the villagers continued looking at the house and did not come to douse the fire. In Paragraph 29 P.W. 2 stated that the house of the appellant is 200 yards west of the place of occurrence house. In Paragraph 30 P.W. 2 stated that his brother informant had no prior litigation, enmity with appellant Ranjay and Bahcha Rai. 11. P.W. 3 is the other brother of the informant. He also came to the place of occurrence after the house was set ablaze on hearing alarm of the informant and found at the place of occurrence Jagat Rai armed with rifle, Bipat Rai armed with gun, Bachcha Babu Rai, Shankar Rai, Dandu Rai, Binay Rai, Jay Babu Rai, Nathu Rai, Ram Babu Rai, Chhabila Rai, Dharmnath Rai, Gautam Rai, appellant Ranjay Rai and Maula Devi armed with lathi running towards west of the house of P.W. 3. He also stated that all the family members of the informant including his wife, daughters, three sons were burnt to ashes. His she-buffalo was also burnt. In Paragraph 6 P.W. 3 stated that three months earlier another she-buffalo of the informant was stolen by Wazir Rai, Jagat Rai and Ajay Rai for which a case was lodged in which Wazir Rai and Ajay Rai had gone to jail but Jagat Rai did not go to jail and that Jagat Rai and others were pressurizing the informant to withdraw the case otherwise the entire family shall be burnt to death and the present occurrence has been given effect to for the said reason in which the entire belongings of the informant was also burnt. P.W. 3 also refuted the suggestion in Paragraph 37 of his evidence that he has not asserted before the police that Ranjay Rai and others were armed with lathi. 12. P.W. 4 is also a brother of the informant who came to the place of occurrence after the house was set ablaze on hearing alarm raised by the informant and saw the accused persons including the appellant present at the place of occurrence armed with lathi. In Paragraph 3 P.W. 4 stated that the wife of the informant as also his two daughters and three sons were burnt to death inside the house. In Paragraph 4 he further stated that the informant also suffered burnt and came to his house in flame which was extinguished by P.W. 4 and others. P.W. 4 also stated that the she-buffalo of the informant was also burnt to death. In Paragraph 24 P.W. 4 stated that he did not make any statement before the police and that he deposed in court as per the instructions of his brother. He, however, denied the suggestion in Paragraph 25 of his evidence that he has implicated the accused persons at the instance of his brother and then clarified in the same paragraph that he saw the accused persons and identified them. In Paragraph 26 P.W. 4 further stated that his other castemen neighbours at the time of occurrence had gone to some other place for thrashing of paddy. 13. In Paragraph 26 P.W. 4 further stated that his other castemen neighbours at the time of occurrence had gone to some other place for thrashing of paddy. 13. P.W. 5 Maha Devi is the wife of P.W. 2 and sister-in-law of the informant who also came to the place of occurrence after the house of the informant was set ablaze and hearing the alarm of the informant deposed on the same lines as that of her husband. In Paragraph 4 she has clarified that she identified the accused persons in the flame of the ablaze. In Paragraph 17 she stated that she did not record her police statement. 14. P.W. 6 Dulari Devi is the mother of the informant. She also came to the place of occurrence on hearing the alarm raised by her son, the informant, as she resided with another son in different house and saw the accused persons at the place of occurrence. Her evidence is also on the same lines as that of her sons and the daughter-in-laws. In Paragraph 10 P.W. 6, however, stated that there was no enmity between appellant, Bachcha Babu Rai and herself i.e. P.W. 6. 15. P.W. 14 Jaga Devi is the wife of P.W. 1. She also came to the place of occurrence from her house after the house of the informant was set ablaze and informant raised alarm, saw the accused persons including the appellant at the place of occurrence. Her evidence is on similar lines as that of her husband. 16. P.W. 15 Kamli Devi is the wife of Jay Singh Mahto (not examined), cousin of the informant. She also came to the place of occurrence from her house after hearing the alarm raised by the informant and identified the accused persons at the place of occurrence. Her evidence is on the same lines as that of prosecution eye-witnesses who came to the place of occurrence after hearing the alarm of the informant. 17. P.W. 16 Nanhki Devi is the wife of P.W. 4. In Paragraph 1 she has stated that at the time of occurrence she was sleeping in her house. Her evidence is on the same lines as that of prosecution eye-witnesses who came to the place of occurrence after hearing the alarm of the informant. 17. P.W. 16 Nanhki Devi is the wife of P.W. 4. In Paragraph 1 she has stated that at the time of occurrence she was sleeping in her house. Hearing the alarm she woke up and saw the house of her elder brother-in-law set ablaze, whereafter she came out of her house and saw Jagat Rai armed with rifle, Bipat Rai armed with gun, Bachcha Babu Rai, Jay Babu Rai, Nathu Rai, Ram Babu Rai, Deo Nath Rai, Binay Rai, Dandu Rai, Gautam Rai, Appellant Ranjay Rai, Maula Devi, Chhabila Rai and others whom she could not identify all armed with lathi running away. Bijendra Mahto suffered burn was rushed to the hospital. In Paragraph 3 P.W. 16 stated that she saw two unknown accused persons running away with container. In Paragraph 4 she further stated that the house was burnt in which her sister-in-law, two niece, three nephew, one child goat, she-buffalo were also burnt. In Paragraph 5 she further stated that in preceding Bhado she-buffalo of Bijendra Mahto was stolen by Jagat Rai, Wazir Rai and Ajay Rai for which a case was lodged and due to that case, the present occurrence has taken place. In Paragraph 20, 21 P.W. 16 also stated that her deposition has only been recorded in court and that she learnt about the name of the accused persons from her husband and Binod Mahto. In Paragraph 22 she denied the suggestion that she has falsely implicated the accused persons because she is the sister-in-law of Bijendra Mahto. 18. Now, we come to the evidence of the informant (P.W. 7). He has stated in Paragraph 1 of his evidence that on 1st January, 2006 around 1:00 A.M. he was sleeping in the verandah of his house and his wife, children were sleeping in the northern room. In the southern room one she-buffalo and a calf were tied. Informant further deposed that he heard foot-steps, voice of men, woke up and saw Bipat Rai, Jagat Rai. The two flattened him on the ground, others four unknown restrained him in that position. Four others forcibly entered the house. In the southern room one she-buffalo and a calf were tied. Informant further deposed that he heard foot-steps, voice of men, woke up and saw Bipat Rai, Jagat Rai. The two flattened him on the ground, others four unknown restrained him in that position. Four others forcibly entered the house. Jagat Rai, Bipat Rai, Jay Babu Rai, Bachcha Rai, Shankar Rai, Chhabila Rai, Ram Babu Rai, Nathu Rai, Dandu Rai, Binay Rai, Deo Nath Rai, appellant Ranjay, Gautam and Maula Devi also came there. In Paragraph 2 P.W. 7 stated that he was gagged by Jagat Rai with the help of a gunny bag who lighted the same with a match-stick. Ram Babu Rai put the hatch on the door of the room from outside. Binay Rai, Nathu Rai, Chhabila climbed the roof and sprinkled petrol, kerosene oil and set the house ablaze. Informant also suffered burn. Meanwhile, Jagat Rai asked his accomplice to surround the house so that none could escape and to ensure death of all in the flame. Bipat Rai also resorted to firing. Due to fear none of the neighbours residing in the locality came to save the informant and others. In the same paragraph informant further stated that he somehow managed to run away and saw appellant Ranjay Rai, Gautam Rai, Maula Devi holding containers of petrol, diesel in their hands. Informant succeeded in running away towards north whereafter his brother Bindeshwar Mahto (P.W. 3), Binod Kumar Mahto (P.W. 1) and others put blanket on him to douse the fire. In Paragraph 3 P.W. 7 further stated that his wife Baby Devi, daughters Neelam, aged 12 years, Punam aged 9 years, sons Suraj Kumar 7 years, Anil Kumar 4 years, Rajesh 14 months, the cattles, other belongings were burnt to ashes. In Paragraph 4 informant also stated that in the preceding Bhado Jagat Rai, Wajir Rai and Ajay Rai had stolen his she-buffalo for which he lodged case in which Ajay Rai and Wazir Rai had gone to jail, whereafter accused persons were threatening him to ensure release of their son failing which he may be burnt or killed. In Paragraph 6 informant stated that after he lodged the aforesaid case accused persons were threatening him that he may be burnt or killed. In Paragraph 6 informant stated that after he lodged the aforesaid case accused persons were threatening him that he may be burnt or killed. In the same paragraph he further stated that Maula Devi used to come along with Gautam and appellant Ranjay asking the informant to ensure release of her son (Ajay Rai) and used to abuse his family members as also threaten them to spare her son otherwise all may be burnt. In Paragraph 7 of the Examination-in-Chief P.W. 7 further stated that he was taken to Raghopur hospital for treatment where he recorded his fardbeyan and having found the contents correct put his thumb impression over the same, whereafter he was also shifted to P.M.C.H. for treatment. He also asserts in his evidence that his treatment continued even on the date of his deposition. In Paragraph 8 informant identified all the accused persons present in the dock. In Paragraph 12 informant stated that after recording his fardbeyan he became unconscious and could not record his further statement and that he regained his consciousness after one and half months in P.M.C.H., Patna, whereafter he came to record his evidence in court. In Paragraph 26 P.W. 7 denied the suggestion that he has not stated before the Sub-Inspector that Maula Devi, Ranjay and Gautam had container in their hand. In Paragraph 27 P.W. 7 further denied the suggestion that he did not state before the Sub-Inspector in his further statement that his wife was being threatened by Maula Devi every day. In Paragraph 36 informant further denied the suggestion that he did not state in his fardbeyan that Ranjay was having diesel container in his hand. In Paragraph 45 of his evidence informant has admitted that he is not on litigating terms with appellant Ranjay Rai and Bachcha Babu Rai but stated that they took sides of their brother and set ablaze his house. 19. Having appraised the evidence of the eye-witnesses, informant, now we come to the evidence of P.W. 11 Anjani Kumar, the Investigating Officer of the case. He has stated in Paragraph 1 that on 01.01.2006 he was posted as Incharge of Rushtampur Out Post within Raghopur Police Station. On the same day he heard rumor at about 4:30 A.M. that in Village Rampur Shyamchak a house has been set ablaze in which few persons have become injured. He has stated in Paragraph 1 that on 01.01.2006 he was posted as Incharge of Rushtampur Out Post within Raghopur Police Station. On the same day he heard rumor at about 4:30 A.M. that in Village Rampur Shyamchak a house has been set ablaze in which few persons have become injured. After recording the information in the Station Diary, to verify the same, P.W. 11 proceeded to village Rampur Shyamchak reaching there at 5:10 A.M. found the entire house gutted and the ladies present were weeping. P.W. 11 entered the place of occurrence room and found skeleton remains of six inmates of the house. In the next paragraph Investigating Officer further deposed that he transmitted the information about the occurrence to the senior officers. He also learnt at the place of occurrence that one person Bijendra Mahto has been injured and taken to Primary Health Centre, Raghopur for treatment. Having appreciated the gravity of the situation, posted one police officer, armed force at the place of occurrence P.W. 11 proceeded to the Primary Health Centre, Raghopur to record the statement of the injured and having reached the Primary Health Centre, Raghopur recorded the fardbeyan of Bijendra Mahto P.W. 7. Investigating Officer proved the fardbeyan which is Exhibit-9. In Paragraph 4 to 9 Investigating Officer has stated about the place of occurrence and the articles found there, which is not in dispute, as such, we are not detailing the same. In the light of the contents of the fardbeyan Investigating Officer also recorded the statement of the witnesses which is evident from Paragraph 12 of his evidence. After recording the police statement of the prosecution witnesses he also collected further materials like Inquest Report from P.W. 13 and Post Mortem, Injury Report from the four doctors and then submitted charge-sheet against the accused persons. In the light of the evidence of the informant that Maula Devi was visiting his house along with Appellant, Gautam Rai to pressurize him to withdraw the case and that at the time of occurrence Maula Devi, Ranjay Rai, Gautam Rai were holding diesel container in their hand the Investigating Officer was asked to confirm whether such statement was made by the informant in his further statement. In Paragraphs 22, 23 and 24 Investigating Officer has been cross-examined on the aforesaid aspects. In Paragraph 22 Investigating Officer states that he recorded the further statement of Bijendra Rai. In Paragraphs 22, 23 and 24 Investigating Officer has been cross-examined on the aforesaid aspects. In Paragraph 22 Investigating Officer states that he recorded the further statement of Bijendra Rai. In Paragraph 23 P.W. 11 further states that informant did not disclose before him that Maula Devi used to come to his house along with Gautam and Appellant asking him and the family to spare her son, otherwise all will be burnt to death. In Paragraph 24 Investigating Officer further stated that informant had stated before him that two unknown villagers held one container each in their hand. In Paragraph 31 Investigating Officer further stated that besides the family members of the informant none of the villagers were coming forward to record their police statement about the occurrence. 20. Having appraised the evidence of the prosecution, we consider the submission of the learned counsel for the appellant. 21. It is submitted that as per the version recorded by the informant in his fardbeyan 12 persons have been named as accused including the appellant along with 10-11 unknown. Out of the 12 named accused in the fardbeyan specific overt act has been alleged against eight i.e. Jagat Rai, Bipat Rai, Ram Babu Rai, Binay Rai, Dandu Rai, Shankar Rai, Nathu Rai and Chhabila Rai that they played the dominant role of restraining the informant first and thereafter took different steps to set ablaze his house after locking the room from outside by climbing the roof and sprinkling kerosene oil. Appellant though named in the fardbeyan but nothing specific has been asserted against him in the same. In the further statement informant and the witnesses in their police statement have also not attributed any overt act to the appellant. 22. In view of the above, counsel for the appellant submitted that evidence of the informant as deposed by him in Paragraph 2 that while running away, he saw appellant, Gautam and Maula Devi holding container in their hand is nothing but embellishment, as such statement was not made by the informant while recording the fardbeyan or further statement. The other eye-witnesses of the occurrence also did not state such fact in their evidence. In this connection he also referred to the evidence of the Investigating Officer in Paragraph 22. In Paragraph 22 of his evidence Investigating Officer has confirmed that he had recorded the further statement of the informant Bijendra Mahto. The other eye-witnesses of the occurrence also did not state such fact in their evidence. In this connection he also referred to the evidence of the Investigating Officer in Paragraph 22. In Paragraph 22 of his evidence Investigating Officer has confirmed that he had recorded the further statement of the informant Bijendra Mahto. In Paragraph 23 Investigating Officer further deposed that the informant has not deposed before him that Maula Devi used to come to his residence along with Gautam and appellant Ranjay Rai asking him and his family members to spare her son Ajay Rai otherwise all of them shall be killed. 23. In the light of the evidence of the prosecution eye-witnesses including informant and the evidence of the Investigating Officer, learned counsel for the appellant submitted that though appellant Ranjay Rai is named in the fardbeyan but he is not attributed with any overt act that he was holding container of petrol/diesel. It is further submitted by the learned counsel for the appellant that appellant, at best, as per the story, set out in the fardbeyan, and the evidence of witnesses including the informant was present at the place of occurrence armed with a lathi and was seen by them running away along with others. The informant, however, to attribute overt act, deposed in court that appellant held container of petrol/diesel, such evidence is nothing but attempt on the part of the informant to attribute overt act on the appellant in view of the contents of the fardbeyan and the evidence of other eye-witnesses that appellant was present at the place of occurrence holding lathi and may not be relied upon by this Court. Learned counsel for the appellant finally submitted that as per the evidence of the informant in Paragraph 2 it is evident that Maula Devi was also holding the petrol/diesel container in her hand but she having been acquitted, similar treatment is required to be given to the appellant as he, according to the informant, was also holding petrol/diesel container. 24. Counsel for the State, on the other hand, has supported the judgment but accepted the position that informant has neither stated in the fardbeyan nor in his further statement recorded before the Investigating Officer that appellant was holding diesel/petrol container. 24. Counsel for the State, on the other hand, has supported the judgment but accepted the position that informant has neither stated in the fardbeyan nor in his further statement recorded before the Investigating Officer that appellant was holding diesel/petrol container. He further submitted that appellant may not have been holding the container but as he was at the place of occurrence holding a lathi, he was also a member of the unlawful assembly and shared the common object of the unlawful assembly. 25. In the light of the rival submissions of the counsel for the parties, we having appraised the evidence are of the view that mere presence of the appellant at the place of occurrence whose house is situated 200 yards away from place of occurrence as disclosed by P.W. 2 in his evidence in Paragraph 29 may be holding a lathi simplicitor is not enough to conclude that he also shared the common object of the unlawful assembly as from the contents of the fardbeyan, evidence of the informant, other eye-witnesses as also the Investigating Officer, we are satisfied that the prosecution story that Maula Devi along with the appellant and Gautam was coming to the house of the informant and asking the informant and his family members, the deceased, to spare her son Ajay Rai from the case registered for stealing their she-buffalo lodged against Jagat Rai, Wazir Rai, Ajay Rai and on failure of informant to do so were abusing them, is nothing but embellishment at the instance of the informant as neither such fact has been stated by the informant in his fardbeyan nor in the further statement nor by the prosecution witnesses in their evidence. Further evidence of the informant that appellant was also present at the place of occurrence holding petrol/diesel container, is also embellishment as such fact neither informant has stated in his fardbeyan nor in further statement nor any of the prosecution witnesses deposed such fact while recording evidence in court. In the facts and circumstances of the case, we are satisfied that appellant deserves grant of benefit of doubt. The appeal is, accordingly, allowed, impugned judgment is set aside. Appellant is in jail custody, as such, directed to be released forthwith, if not wanted in any other case.