IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.153 of 1989 -------- Against the judgment of conviction and order of sentence dated 03.03.1989 passed by Shri T.P.Singh, Additional Sessions Judge XII, Munger in Sessions Case No. 45 of 1985. ========================================================== Gopal Ram son of Jageshwar Ram, resident of village Mananpur Bazar,P.S.Chanan Lakhisarai, District Munger ….. .... Appellant Versus The State Of Bihar …… …… Respondent ========================================================== Appearance : For the Appellant : Mr. Neeraj Kumar, Advocate (Amicus Curiae) For the Respondent : Ms. Shashi Bala Verma, Addl.P.P. ========================================================== CORAM:HONOURABLE MR. JUSTICE SHYAM KISHORE SHARM and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA -------- ORAL JUDGMENT ------ S.K.Sharma & R.K.Mishra,JJ. Sole appellant Gopal Ram has been convicted under section 302 of the Indian Penal Code for causing death of Sadashiv Paswan, under Section 307 of the Indian Penal Code for attempting to commit murder of the informant Bimla Devi and under Section 3/5 of the Explosive Substances Act for causing explosion to endanger life and has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for ten years under Section 307 of the Indian Penal Code but no separate sentence has been awarded under Section 3/5 of the Explosive Substances Act. The sentences were ordered to run concurrently. The order of conviction and sentence was passed by Additional Sessions Judge XII, Munger in Sessions Case No. 45 of 1985. 2. The fardbeyan (Ext.3) of Bimla Devi led to registration of Lakhisarai P.S.Case No. 98 of 1984 for offences under Sections 302 and 324 of the Indian Penal Code and under Section 3/5 of the Explosive Substances Act. The fardbeyan was recorded by S.I. Sri V.N.Jha (P.W.6) Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 2 at Mananpur Bazar at 9.45 P.M. on 19.03.1984 wherein informant Bimla Devi in presence of her Dewar Ram Snehi Paswan (not examined) and cousin father-in-law Bundi Paswan (not examined) has narrated that at about 8.30 P.M. her husband was sitting on a cot inside the Angan. The informant brought water for him and offered him to drink. At that very time, Goapl Ram (appellant) having bombs in his hands crossed inside through eastern side of Angan and threw a bomb upon the head of her husband, as a result thereof the entire portion of the skull over neck blew off and he died at the spot. When the informant wanted to catch the accused he again threw another bomb on her but it missed and exploded on the ground but its splinters caused injuries on her face, chest, hands and thigh. On hearing of her cry, Md.Sultan (not examined), Nand Kishore Yadav and many other persons of the locality came and witnessed the occurrence. The motive behind the occurrence was the land dispute between the cousin father-in-law Mishri Ram of the deceased and the appellant’s father Jageshwar Ram. After fardbeyan, inquest report (Ext.5) was prepared and in course of investigation, post mortem report Ext.7) was received, sanction order (Ext.2) for prosecution under the provision of Sections 3/5 of the Explosive Substances Act was received from the District Magistrate, Munger, seizure lists ( Exts.6 and 6/1) were prepared and statements of the witnesses were recorded. The case was found to be true and thereafter chargesheet was submitted. Charges under Section 302 of the Indian Penal Code for having intentionally caused the death of Sadashiv Paswan by means of bomb, under Section 307 of the Indian Penal Code for having committed attempt intentionally to cause death of the informant Bimla Devi by the same means and under Section 3/5 of the Explosive Substances Act for possessing and using explosive Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 3 device were framed and the same were explained to the accused who pleaded innocence and preferred to face trial. 3. The defence of the accused was of false implication. 4. In order to prove its case the prosecution has examined seven witnesses. They are : Mishri Paswan (P.W.1), Dhajo Paswan (P.W.2), Nand Kishore Pd.Yadav (P.W.3), Bimla Devi, the informant (P.W.4), Awadh Kishore Prasad. Assistant of Munger Collectorate (P.W.5), Veda Nand Jha, the Investigating Officer (P.W.6) and Dr.S.Sohail (P.W.7) who conducted the post mortem over the dead body of the deceased. 5. The defence has not examined any witness. 6. After hearing the learned counsel for the parties and after considering the oral and documentary evidences on record, the trial court came to the conclusion that the prosecution has been able to prove the charges against the accused beyond the shadow of all reasonable doubts and hence convicted and sentenced him, as stated above. 7. This court is required to reappraise the evidences on record and to see as to whether the prosecution was able to prove the charges beyond the shadow of all reasonable doubts against the appellant. 8. First of all, it is appropriate to discuss the evidence of the doctor who has conducted the post mortem over the dead body of the deceased. On 20.03.1984 Dr.S.Sohail (P.W.7) was posted as Civil Assistant Surgeon at Sadar Hospital, Munger and on that date he conducted post mortem examination on the dead body of deceased Sadashiv Paswan and found following ante mortem injuries on his person: (i) whole of skull except chin, lower lip and lower jaw was found blown at the level of first cervical vertebrae on the back. The margin of the Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 4 skin was completely lacerated, irregular and charred. The entire brain matter was found drained out. The chin and lower lip were found charred. Blood clots on the surface of the wound were present. (ii) Lacerated wound ¼” x ¼” on the right elbow with charring of skin around it. (iii) Multiple burn injury on the right shoulder, upper right wrist and right hand with blackening of skin around the injuries.” The injuries, according to opinion of the doctor, were ante mortem caused by explosive device. The time elapsed since death was 24 hours. The death was due to shock and haemorrhage as a result of Injury no.(i). In cross- examination the doctor has stated that at the time of post mortem examination he found undigested rice in the stomach and no pakaura as food material was found. Further evidence of the doctor will be discussed after evidence of the ocular witnesses are discussed. 9. P.W.1 Mishri Paswan is a hearsay witness. He heard from Janak Paswan (not examined) regarding killing of Sadashiv Ram Mukhiya. Thereafter he rushed to his house and saw Sadashiv Ram lying dead on a cot and his head was blown off. Pieces of flesh were scattered and the residue of bomb were found scattered hither and thither. In presence of this witness, teeth of the deceased and blood stained earth etc. were seized by the Investigating Officer and seizure lists were prepared which were marked as Exts. 6 and 6/1. Therefore, this witness is not an eye witness of the occurrence rather he is a witness of seizure of certain articles. 10. P.W.2 Dhajo Paswan has stated that after hearing news about the murder of Sadashiv Ram he went to the place of occurrence and saw the Officer-in-charge there. In his presence, blood stained soil, Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 5 teeth of the deceased, sutli, pieces of karahi etc. were seized by the Investigating Officer and this witness has also signed the seizure lists. So this witness is also not an eye witness of the occurrence. He is a witness of seizure lists. 11. P.W.3 is Nand Kishore Pd.Yadav and he has stated that he was returning to his house from Mananpur Bazar and when he reached near the house of Mukhiyajee, he heard sound of bomb explosion. Second bomb explosion also followed and he saw a person coming out from the house of Mukhiyajee and escaping. This witness could not identify the person who was escaping. Thereafter this witness entered into the house of Mukhiyajee and saw Mukhiyajee found dead on a cot. His head was blown off and the wife of Mukhiyajee was weeping and telling that Gopal has killed her husband. He found blood stained on the person of wife of Mukhiyajee. Thereafter this witness has been declared hostile. This witness has merely supported the factum of killing and he has supported that after occurrence he rushed to the place of occurrence and saw Mukhiyajee found dead. His head was blown off and wife of Mukhiyajee was weeping by telling that Mukhiyajee was killed by Goapl Ram. The evidence of this witness supports the occurrence but identification of the accused has been refused. 12. P.W.4 is informant Bimla Devi. She is the sole eye witness of the occurrence. She has stated that on 13.03.1984 at about 8.30 P.M. she was in her house. Her husband was also sitting inside Angan on a cot. Her husband demanded water and the informant got it from a hand pipe and handed over to him. At that very time, Gopal Ram came in the eastern side of Angan having bombs in both hands and as soon as he barged into the Angan he threw bomb aiming at Sadashiv Ram Mukhiya. Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 6 The bomb which struck upon the head of Mukhiyajee which was very strong, the impact of which was that his head was blown off and he fell down and died immediately. When the informant tried to catch the accused Gopal Ram, then he threw another bomb which exploded on earth and its splinters caused injuries on her person. She was having some injuries alive and the same were shown to the Court on 21st April, 1988 when her evidence was being recorded. This witness has stated that after occurrence Nand Kishore Pd.Yadav (P.W.3) and Md.Suleman (not examined) came and knew about the occurrence. The motive behind the occurrence was dispute with regard to gairmazarua land as the informant’s husband had got settlement of gairmazarua land and upon that land after constructing a room the informant and her husband were residing there. In cross- examination she has stated that on the date of occurrence, her sautan Sona Devi was not present in this house rather she was at Mallia, the original house of her husband. The informant has claimed to be the second wife of the deceased and she used to live with her husband at the time of occurrence. She has further stated that from their wedlock, one female child was born. She has also stated that her husband Sadashiv Ram had not divorced the first wife. 13. Learned counsel for the appellant has submitted that the informant cannot be said to be the wife as under the provisions of Hindu Law no person without divorce to the first wife can perform marriage with another lady. As the informant herself has stated that her husband Sadashiv Ram has not divorced his first wife, the informant cannot be said to be the legally wedded wife and it has been submitted that she has been framed to implicate the accused. 14. The court while deciding the matter was not required to Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 7 decide the validity of the marriage of the deceased with the informant. The court is only required to look into the probability as to whether both were residing together or not. When both were residing together, then her presence at the time of occurrence cannot be denied. P.W.3 who has later on declared hostile has stated in paragraph 1 of his evidence that immediately after the occurrence, when he reached the informant’s house, he found the wife of Mukhiyajee weeping. This witness has not disclosed the name of the wife of the deceased. 15. The presence of Bimla Devi is normal but her presence has been challenged by the defence on the ground that the post mortem report reveals that undigested rice was found and the doctor did not find any pakaura as food material in the stomach though there is evidence of the informant (P.W.4) that prior to death the deceased had taken one or two pakura before drinking water. So it has been submitted that the doctor has belied the oral testimony of the informant P.W.4 and in a case which rests on the testimony of single witness other circumstances must be corroborated. If the testimony of single witness is fractured to any extent, then it cannot be said that the witness has told the truth and so a genuine doubt is created in the version of the single witness. In the present case, the offence has taken place at about 8.30 P.M. on 19.3.1984 and the doctor having examined the dead body found the time since death to have elapsed within 24 hours and this proves the time of occurrence as alleged. The cause of death is on account of hitting of bomb on the deceased’s head and the consequent blowing out of his skull. The doctor’s evidence in such view of the matter is not in contradiction to the evidence of the informant rather it is in conformity with the testimony of the sole witness. 16. In assessing the value of the evidence of an eye witness Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 8 the two principles considerations are: (i) Whether in the circumstances of the case, it is possible to believe his presence at scene of occurrence or in such a situation as it would make it possible for him to witness the fact deposed by him and (ii) whether there is anything inherently impossible or unreliable in his evidence. If both the conditions are satisfied, then the evidence of eye witness has to be considered to be reliable. As a rule of prudence, no order of conviction can be passed on the evidence of single witness if deposition of single witness is not fully trustworthy. In the background of the present case, it is apparent that the occurrence took place in a house of having only one room and angan. The informant P.W.4 was residing in that house along with her husband. These facts have been corroborated by other witnesses. Therefore, the presence of the informant Bimla Devi with the deceased at the time of occurrence cannot be doubted. Her presence was natural and it can be presumed to be correct. Once informant’s presence is found to be true, then the account given by her regarding manner of killing has to be considered. The Investigating Officer (P.W.6) had gone to the place of occurrence in the night of occurrence itself and has inspected the place of occurrence. At the place of occurrence, he found blood on the earth, broken teeth of the deceased and few pieces of flesh scattered hither and thither. The remnants of bomb were present and the dead body of the deceased was lying on a cot. Version of the informant as an eye witness account is corroborated and is found to be correct. In this background, the ocular evidence regarding finding of undigested rice can also be found to be proved and manner of killing as described by the prosecution cannot be doubted. 17. So far as the informant Bimla Devi is concerned, the splinters of bomb caused several injuries to her. In this connection, the Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 9 evidence of the Investigating Officer is that he sent the injured informant for treatment. The injuries were noted down by the Investigating Officer in the case diary but the doctor who treated her was not made a witness in the chargesheet and that is why the injury report was not made available as has been stated in paragraph 28 of his evidence by the Investigating Officer (P.W.6). No doubt, the court which has recorded the evidence of the informant has noted about some injury upon the informant in paragraph 2 of her evidence but upon this scattered evidence it is unsafe to convict the accused under Section 307 of the of the Indian Penal Code. For proving the offence under Section 307 of the Indian Penal Code, the prosecution is required to prove the circumstances in which the accused could have attempted to cause death but such circumstances are not available on record. In our view, the circumstances available on record were not sufficient for considering the offence under Section 307 of the Indian Penal Code to be proved. Therefore, the charge under Section 307 of the Indian Penal Code cannot be said to be proved beyond the shadow of all reasonable doubts. Thus, the appellant deserves to be acquitted of the charge under Section 307 of the Indian Penal Code. 18. So far as the other charges under Section 302 of the Indian Penal Code and under Section 3/5 of the Explosive Substances Act are concerned, we are of the view that the prosecution has been able to prove even on the testimony of sole witness that on 19.3.1984 at about 8.30 P.M. the informant’s husband Sadashiv Ram was killed by the appellant by throwing bomb. 19. In the circumstances, we find that the prosecution has been able to prove the charges under Section 302 of the Indian Penal Code and under Section 3/5 of the Explosive Substances Act against the Patna High Court CR. APP (DB) No.153 of 1989 dt.22-07-2011 10 appellant beyond the shadow of all reasonable doubts. 20. Accordingly, the order of conviction and sentence of the appellant under Sections 302 of the Indian Penal Code is upheld and order of conviction under Section 3/5 of the Explosive Substances Act is also upheld but the order of conviction and sentence under Section 307 of the Indian Penal Code is set aside. 21. In the result, this appeal is dismissed with the above modification in conviction and sentence. The bail bond of the appellant is cancelled and he is directed to surrender forthwith before the court below to serve out the sentence. The court below is also directed to take all coercive steps to take the appellant Gopal Ram into custody. 22. As none was appearing on behalf of the appellant, Mr.Neeraj Kumar, Advocate was appointed as Amicus Curiae to assist the Court on behalf of the appellant and he has argued well. We appreciate the assistance given by Mr.Neeraj Kumar, Advocate. 23. Let a copy of first page and last page of judgment be given to Mr.Kumar, so that he may get his prescribed fee from the High Court Legal Services Committee, Patna. (Shyam Kishore Sharma, J.) ( Rajendra Kumar Mishra,J.) Patna High Court, Patna Dated, the 22nd July, 2011 Tahir/(AFR).