CRIMINAL APPEAL (DB) No.579 OF 2004 Against the judgment and order of conviction and sentence passed by Sri Chandra Bhan Singh, Additional District Judge FTC IV, Samastipur dated 27th/30th July, 2004 in Sessions Trial No. 290 of 1993 in G.R. 576 of 1989. Sudama Das @ Chandeshwar Rai @ Mahatma, Son of Late Ram Janam Rai, Resident of Village – Hasanpur Surat, Police Station – Patori, District - Samastipur -----------------------(Appellant) Versus The State Of Bihar --------------------(Respondent) For the Appellant :- Mr. Ashutosh Kumar, Advocate. Mr. Nachiketa Jha, Advocate. For the State :- Mr. Ashwani Kumar Sinha, APP. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma Heard learned counsel for the appellant and the State. & Gopal Prasad, JJ. 2. The appellant has been convicted under Sections 302 and 342 of the Indian Penal Code and sentenced to undergo life imprisonment for offence under Section 302 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months for offence under Section 342 of the Indian Penal Code. 3. The prosecution case as alleged in the fardbeyan by the informant Mahesh Prasad Thakur is that on 28.05.1989 Krishna Singh and Yugal Kishore came to the house of the informant and disclosed that Ramesh Prasad Thakur the brother of this informant had met with an accident and then the informant proceeded with them, came to the village Hasanpur 2 Surat and there the informant was made captive in a room of the Math under the order of Mahatma (Sadhu) of the Math and Umasankar Ram closed him in a room and snatched off Rs.200/- and HMT watch and handed over the same to the Mahatama under threat and abuse. 4. The further case is that several people collected there and then the Mahatam ousted him from the Math and asked him to sleep by the side of room in which he was kept as captive. 5. The further case is at 7:00 P.M while this informant was sleeping the said Sadhu came and sprinkled kerosene oil on his body and set on fire and fled away out side the room and on the cry several people came, torn his clothes and with the help of Ramesh Kumar Thakur and others brought him to the hospital on a thela where his fardbeyan was recorded. 6. The motive of the occurrence as alleged is that one Upendra Prasad Mishra of village Judawanpur was also living at the Math with him and he had taken money from several people on the pretext of providing service and it is alleged that this informant was also in league with Upendra Prasad Mishra as his associate and so the offence was permeated. The ferdbeyan was recorded by ASI, Rajendra Singh of Patori P.S Samastipur and the ferdbeyan also mentioned the signature of Rajendra Singh as well signature of Ramesh Thakur as apparent from the ferdbeyan to be the brother of the same father. On the ferdbeyan, the FIR was lodged, after investigation the charge was submitted, on the said charge sheet the cognizance was taken and case was committed to the court of session and subsequently the charge 3 was framed under Section 302, 342 of the Indian Penal Code against accused Uma Shankar Rai and Shadhu Das and fruter the charge was also framed under Section 379/109 of the Indian Penal Code against this appellant and against Uma Shankar Rai for offence under Section 379 of the Indian Penal Code. 7. Further, during the trial six witnesses were examined on behalf of the prosecution who are P.W. 1 Sonakhi Paswan Chaukidar 9/4, P.W. 2 Jalim Rai, P.W. 3 Baleshwar Rai, P.W. 4 Anand Kumar, P.W. 5 Baleshwar Rai, P.W. 6 Md. Nizamuddin. Further, neither I.O nor ASI who recorded the ferdbeyan of the informant nor Ramesh Kumar Thakur was examined as a witness. The documentary evidence have been adduced in this case. They are Ext. 1 the formal FIR, Ext. 2 post mortem report, Ext. 3 endorsement on the ferdbeyan, Ext. 4 the signature of Rajendra Singh on the ferdbeyan. It is pertinent to mention that earlier a case was instituted under Section 307 on the alleged statement of the ferdbeyan informant Mahesh Prasad Thakur but subsequently the informant died and the case was converted from 307 to 302 of the Indian Penal Code. After considering the oral and documentary evidence and hearing the counsel for both side the trial court convicted the appellant under Section 302 and 314 of the Indian Penal Code and acquitted Uma Shankar Rai. 8. Learned counsel for the appellant, however, contended that there is no legal evidence at all against the appellant and the appellant has been convicted merely on the ferdbeyan which has formally been proved was 4 taken to as dying declaration without evidence as to dying declaration was even made by the victim or not and without even the identification of the accused in Court, the order of conviction has been passed and hence, the prosecution has not been able to prove the charge beyond reasonable doubts. 9. Learned counsel for the State, however, reluctantly opposed the appeal. However, having regard to the facts and circumstances the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubt. 10. P.W. 1 is the chaukidar and as stated that he went to the Math on seeing the crowd and the people collected there said that one boy has died setting on fire and then took him to Janta Hospital. The boy had got burn injury on his body. However, there is nothing in his evidence regarding the implication of any accused though stated that the boy died in the hospital. There is nothing in his evidence about implication of the accused. 11. P.W. 2 is the witness who has been tendered and his evidence is not significance as tendering a witness is abandoning a witness. 12. P.W. 3 is an advocate clerk who has formally proved the formal FIR which has been marked as Ext. 1 and his evidence is also of mens rea. 13. P.W. 4 is a doctor who has formal endorsement of the ferdbeyan though have stated those statements nor signed before him. 14. P.W. 6 is again an advocate clerk who has formally proved Ext. 4 the signature of Rajendra Singh on the ferdbeyan and this is total six witness 5 examined. However, only evidence on record is the ferdbeyan which is formally proved. There is no oral evidence at all whether the deceased made any statement to the police or whether he was in a position to make statement or whether he really made statement and the person who recorded the statement of informant has also not come forward to prove the ferdbeyan and the conviction has been maintained only on the basis of this ferdbeyan which has formally been proved and this fardbeyan has only been proved to be in the writing of Paras Nath Paswan who recorded it but the contents of the same has not been proved by oral evidence. It may be pertinent to mention that the formal FIR is not a substantive piece of evidence and has got only corroborative value. Even the SI who has recorded the statement of the deceased has not been examined and there is no evidence that the informant was in a position to make statement before the police or whether he really make a statement before the police or whether that statement was voluntary was not. There is no iota of evidence even the Ramesh whose signature is taken on the fardbeyan who is said to be the brother of the informant and his signature find place in the ferdbeyan also has not been examined neither the I.O. nor the Rajendra Singh who recorded the statement of informant has been examined and in such circumstance the fardbeyan cannot be treated to be a dying declaration for conviction and hence taking into consideration the entire evidence there is no iota of evidence regarding the implication of the accused facing the trial. 6 15. However, thus learned lower court appears to have considered the ferebeyan as a dying declaration however without taking into consideration the law regarding the taking evidence as the dying declaration without any legal evidence and whether the deceased was able to speak out and really made the statement and hence the lower court misdirected itself in taking the evidence which was not legal and admissible and worthy of reliance hence having regard to the facts and circumstance we find and hold that the prosecution has not been able to establish the charges beyond reasonable doubts by reasonable, cogent, legal and unimpeachable evidence and hence the order of conviction recorded by the learned lower court is hereby set aside and the appeal is allowed. The appellant, who is in jail, is ordered to be released forthwith if not required in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna. Dated 13th May, 2010 Kundan/ N.A.F.R.