JUDGMENT
B.N. Sinha and N.P. Singh, JJ.
1. The sole appellant Ram Bharos Mahto was tried by the Sessions Judge in S.T. No 170/86 on the charge of committing dacoits with murder allegedly in the night between 12/13 January, 1986 along with 15 other dacoits in the house of Ram Binod Sharma, first informant (P.W. 9) during commission of which Ganaur Sharma, father of the first informant was killed by the dacoits and he has been found guilty under Section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
2. Facts relevant for disposal of this appeal may be briefly stated. On the night between 12/13th January, 1986 the first informant and his family members were sleeping in their house at village Keota Tole, Kagpur, P.S, Dalsingsarai, district Samastipur. At about 1 a.m. 15 dacoits entered into their house and committed dacoits. In course of commission of dacoits, they assaulted Ram Binod Sharma, first informant (P.W. 9), his father Ganaur Sharma (the deceased) and his brother Jagdeo Thakur (P.W. 8). As a result of injury sustained by Ganaur Sharma, the father of the first informant, he died. Subsequently, one of the dacoits named Mahendra Rai @ Gajua was caught by Jagdeo Sharma (P.W. 8), the brother of the first informant and other dacoits fled away after commission of the dacoits leaving his associate dacoit who was caught by Jagdeo Sharma (P.W. 8). It was found that the dacoit who had been caught by Jagdeo Sharma (P.W. 8) was none-else but a co-villager of the first informant named Mahendra Raj @ Gajua. On hulla the villagers arrived at the place of occurrence and in presence of the inmates of the house and the villagers Mahendra Raj @ Gajua confessed his guilt and also named appellant Ram Bharos Mahto as one of his associates who had taken part in the dacoits. Mahendra Raj @ Gajua was brutally assaulted by the villagers, as a result of which he sustained injuries. On the very night of occurrence S. I, S. P. Sinha (P.W. 14) of Dalsingsarai P.S. arrived at the place of occurrence and at 2 am. on the statement of Ram Binod Sharma (P.W. 9) he recorded the fard beyan (Ext. 4) on the basis of which formal F.I.R. (Ext. 7) was drawn up.
3. After completing investigation, the police submitted charge-sheet against the accused-appellant on the basis of which cognizance of the case was taken. Thereafter the case was committed to the Court of Sessions and the trial proceeded accordingly.
4. The appellant pleaded not guilty to the charge and claimed to be tried. His simple defense is that he has been falsely implicated in this case.
5. The prosecution examined all together 15 witnesses in support of its case. Out of them P.W. 6, Nandan Rai, P.W. 10 Milan Devi and P.W. 12 Sansaria Devi were tendered. P.W. 15 Rajeshwar Prasad Sinha was a formal witness who proved the protest petition (Ext 8) P.W. 1 Dr. R. P. Jaiswal had examined the injuries on the person of Mahendra Rai @ Gajua, a dacoit who had been caught in the spot. P. W, 2, Dr. V. B. Prasad held autopsy on the dead body of Mahendra Rai @ Gajua and he proved postmortem examination report (Ext. 2) P.W. 13 Dr. V. C. S. Verma held post mortem examination on the dead body of Ganaur Thankur, father of the first informant. P.W. 4, Ram Chandra Rai and P.W. 5, Faujdar Rai are witnesses on seizure. P.W. 3, Bisheswar Rai, P.W. 7 Ajab Lal Rai, P.W. 8 Jagdeo Thakur (Sharma) P, W. 9, Ram Binod Sharma, first informant and P.W. 11, Lalita Devi deposed as eye-witnesses to the occurrence and claimed to have identified the accused-appellant at the time of dacoits. P.W. 14, S. I. Shankar Prasad Sinha is the Investigating Officer of the case D. W. 1, Chandra Mohan Mishra was examined on behalf of defense who proved statement of P.W. 8 said to have been recorded in Darbhanga Medical College and Hospital by the police in the form of fard beyan while he was undergoing treatment for the injuries en his person.
6. The learned trial Court has based his findings regarding his guilt of this accused-appellant mainly on the evidence of P.W.s. 3, 7, 8. 9 and 11 and the extra judicial confession of Mahendra Rai @ Gajua.
7. Learned Counsel for the appellant has rightly pointed out that the trial Court ought not to have relied upon the evidence of P.W.s 3, 7, 8, 9 and 11 against this accused-appellant as they for the first time in their evidence in Court claimed to have identified this accused-appellant by name. It may be mentioned that none of these witnesses in their statement before the investigating officer named this accused-appellant as one of the dacoits who had taken part in the dacoits. P.W. 9, the first informant in his fard beyan has not stated that he had identified this accused-appellant amongst the dacoits. Rather it appears from the statement in the fard beyan that, the name of this accused appellant was disclosed by Mahendra Rai @ Gajua as one of his associates. In these circumstances the learned trial Court ought not to have placed reliance on the evidence of those witnesses so far identification of this accused-appellant is concerned. Of course, the factum of dacoits has not been challenged by the (earned Counsel for the appellant but so far identification of this accused-appellant is concerned, the evidence of these P.W.s on that point cannot be accepted.
8. So far extra judicial confession of Mahendra Rai @ Gajua is concerned it has been rightly pointed out by learned Counsel for the appellant that P.W. 3, Bisheswar Rai in his statement before the police during investigation has stated that the villagers were assaulting Mahendra Rai @ Gajua and they asked him to name his associates. Thus the so-called confession made by the Mahendra Rai @ Gajua appears to have been made under threat and hence it is hot legally admissible under Section 24 of the Indian Evidence Act (hereinafter called the Act which) clearly lays down that confession made by accused caused by inducement, threat or promise is irrelevant in criminal proceeding. Moreover, even this type of confession cannot be used against the co-accused as evidence because it is not an evidence as defined under Section 30 of the Act and secondly it cannot be used under Section 30 of the Act even for leading assurance to the decision which the trial Court was likely to arrive on the basis of further evidence as Mahendra Rai @ Gajua was not being tried along with this accused-appellant.
Section 30 of the Act reads as follows:
Section 30 Consideration of provision affecting proved confession making it and others jointly under trial for same offence:
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such person is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
9. It is evident from reading of this section that for application of this section it is imperative that confession of co-accused can be used against other co-accused of the case only when they are being tried jointly for the same offence. Thus on discussion of evidence and the facts and circumstances of this case, we find that the prosecution has utterly faked to prove charge against this accused-appellant and the conviction and sentence passed against him by the trial Court cannot be sustained.
10. In the result, this appeal is allowed. The conviction and sentence passed against this accused-appellant are hereby set aside. It appears that this appellant is stilt in custody, He is directed to be set at liberty forthwith if not required in any other case.