RIYASAT MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants above named have preferred this appeal against the judgment of conviction and order of sentence dated 30th January, 2003 passed in Sessions Case No. 408 of 1998 by the learned 2nd Additional Sessions Judge, Banka whereby and whereunder the appellants have been found guilty for the offence under Section 396 of the Indian Penal Code and accordingly, they have been convicted and sentenced to undergo rigorous imprisonment for life.

(2.) SHORTLY stated, the prosecution case as disclosed fromthe written report (Ext.-1) is that at about 6.30 P.M. on 7.7.1997 fivepersons, namely, the informant Mrigendra Kumar Singh @ PappuSingh (PW 3), Biplav Kumar Singh (since deceased) and RamjeeKumar Yadav (PW 13) on one Kawasaki Motorcycle and two onanother Rajdoot Motorcycle, namely, Shishupal Singh (PW 1) andSankar Kumar Singh (since deceased) were returning after makingadvance payment to Bishundeo and Johari Pandit for fish. At thatvery time six unknown criminals variously armed with revolver,dagger, iron rod, chain, bow and arrow and bomb etc. were standingat Spillway bridge near Badua Dam. The motorcyclist had to stopthe vehicle because of the obstruction and at that very time theseappellants and other criminals took away money, watch, ring etc.from the possession of the informant and others. Thereafter, theaccused persons tide their legs and hands on their back with theassistance of the Lungi of the informant and his companions. In themean while three more persons including Pankaj Bhagat (sincedeceased) with two of his relatives came on their scooter and theywere also robbed of their belongings by the miscreants. Soonthereafter, a tractor of Saloni Murmu loaded with sand being drivenby PW 6 Sukar Pandit along with labourers Mahesh Pandit (PW 4),Subhash Sao (PW 5), Dasrath Pandit (PW 7) and Raj Kumar Saw(PW 8) arrived and those persons were also robbed of theirbelongings. At the behest of Sardar of the gang of the criminals several persons were thrown and pushed down into the water ofBadua Dam one after another by tying their hands or arms behindtheir back as a result thereof seven persons died. Some of thepersons who were thrown in the dam namely, informant (PW 3),Shishupal Singh ( PW 1) and Ramjee Yadav ( PW 13) any howmanaged to save themselves from drowning. They rushed to thenearby village Biji Khorwa and reported about the occurrence andpolice was informed at 2.00 A.M. on 8.7.1997 which was situated at8 kilometers away from Spillway Bridge Badua Dam. Formal FIR wasdrawn and investigation was taken up. After investigationChargesheet was submitted against eight accused personsincluding the appellants. Cognizance was taken and the case wascommitted to the court of Sessions where the charge was framed forthe offence under Section 396 of the Indian Penal Code for conjointlycommitting dacoity and murder of several persons during thecommission of daocity. The appellants have not pleaded guilty andpreferred to face trial.

(3.) PW 3 in his evidence has stated that on 7.7.1997possibly Monday at about 6.00 to 7.00 P.M. he was at the spillwaybridge. At that time 5 more persons were with him and they were ontwo motorcycles. One was Kawasaki Motorcycle upon which theinformant along with Biplav Kumar Singh and Ramjee Yadav werepresent while on another Rajdoot motorcycle Shishupal Singh andSantosh Singh @ Shankar Singh were traveling. They were returningafter making advance to fisherman and when they reached at thespillway bridge then six miscreants variously armed interceptedthem. One of the criminals was having a pistol of six rounds, thesecond was having a bomb and third was having iron rod, fourth wasarmed with bow and arrow. Fifth was having dagger and sixth washaving iron chain. The informant and other persons were surroundedfrom all the sides by the criminals who started snatching theirarticles. In course of loot the criminals snatched watches, ring andcash. After looting the properties one of the victim Ramjee Yadav was forced to part with his Lungi which was torn in pieces and wereutilized in tying the hands by putting it behind the body. The legswere also tied. One person was the Sardar of the gang and wasdictating the criminals. His dictates were being followed by othercriminals. In the meanwhile three more persons on a scooter arrivedthere, out of whom one Pankaj Bhagat was identified. He was alsolooted away his belongings and thereafter, their legs and hands werealso tied. At the behest of the Sardar, namely, the leader of thecriminals other criminals started throwing all the persons into thewater of the dam for killing. While the informant was standing then hewas pushed into water where the depth of water was 30-40 feet. Themiscreants took away Biplav Kumar Singh for throwing him intowater and when he sates that he would not be able to walk becausehis legs were tied then Sardar ordered to untie the legs and themiscreants obeyed the same by opening the rope around his legsand on the order of the Sardar the miscreants started throwing thepersons one by one into the water. Firstly, Biplav Kumar Singh wasthrown, thereafter, the informant was thrown. When others werewaiting for being thrown and were to be thrown in the water then onetractor arrived there. The persons upon the tractor were overpowered and the miscreants asked about the owner of the tractor.When the driver replied that the tractor was of Saloni Murmu then thefour labourers and drivers were assaulted. When the informant wasbeing pushed into the water he balanced himself and ultimately whenhe was thrown then he came near the pillar of the bridge by swimming. There was a wall in the middle of the pillar just like aplatform and the informant climbed upon it. Sometimes thereafter,Ramjee Yadav also climbed upon the platform. Shishupal Singh alsoreached up to the platform but Biplav Kumar Singh was not seen anywhere. After all the persons were thrown in the water, the informantcame to know through Shishupal Singh and Ramjee Yadav that allthe persons have been thrown in the water. While the informant andothers were at the platform in the river he noticed the departure ofthe tractor. The informant waited there but none came and then theinformant came to Biji Khorwa after swimming in the dam andnarrated the incidents to the villagers after awakening them fromtheir sleep. Villagers assembled and in the mean while SDO, BijiKhorwa was spotted who was coming. His help was sought forinforming the police. Shishupal Singh and Ramjee Yadav were takenout from the water by the villagers and they were taken to village BijiKhorwa. Informant and other victims received no help from S.D.O.,Biji Khorwa. At that very time a maruti car of Kaushal Bhagat wasseen coming. The informant and witness Shishupal Singh came toBelhar Police Station and submitted a written report to the Officer InCharge. The informant has proved the hand writing and his signaturewhich has been marked as Ext.1. His re-statement was taken andthe informant claimed that he was in a position to identify themiscreants at the test identification parade. While the informant wasdeposing then he has identified these two appellants and theinformant stated that these appellants were the persons who were responsible for throwing him into the water and at the time ofoccurrence they were armed with rod and knife. They were alsothreatening all the persons. In the next morning seven dead bodieswere recovered from the dam and those dead bodies were identifiedto be of Biplav Kumar Singh, Santosh Kumar, Pankaj Bhagat andothers were not identified by the informant.