CRIMINAL APPEAL (D.B.) No.267 OF 1995 WITH CRIMINAL APPEAL (D.B.) NO.323 OF 1995 ……….. (Against the Judgment of conviction and Order of sentence dated the 24th day of July, 1995 passed by Sri Ram Prabodh Singh, the then Additional Sessions Judge-I, Darbhanga, in Sessions Trial No.402 of 1993/79 of 1994 arising out of L.N.M.U. P.S. Case No.40 of 1993) CRIMINAL APPEAL(D.B.) No.267 OF 1995 1. ANIL KUMAR THAKUR 2. AMIT KUMAR CHOUDHARY @ MADHAV -------------------------------------------APPELLANTS. Versus THE STATE OF BIHAR ---------------------------------------- RESPONDENTS. With CRIMINAL APPEAL (D.B.) No.323 OF 1995 SANJAY KUMAR MISHRA-------------------------------------------------APPELLANT. Versus THE STATE OF BIHAR----------------------------------------------------RESPONDENT. ……….. For the appellants : M/s. Ajay Kumar Thakur and Bimal Kumar, Advocates (in Appeal No.267 of 1995) M/s. Vishwsanath Prasad Sinha, Senior Advocate and Durgesh Kumar Lall. Advocate (in Criminal Appeal 323 of 1995). For the State : Mr. Lala Kailash Bihari Prasad, A.P.P. (in both appeals). For the informant : M/s. Kamran and Md. Anisur Rahman, Advocates (in both Appeals. …………. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J Both these appeals have been taken up together as they arise out of the same Judgment and Order dated 24.7.1995 passed by Sri Ram Prabodh Singh, the - 2 - erstwhile 1st Additional Sessions Judge, Darbhanga and having been heard together are being disposed of by this common judgment. 2. The usual humdrum in and around Kaidarabad (Darbhanga) Private Bus Stand was suddenly shattered at around 5.45 P.M. on 20.4.1993 by the sound of explosion of bombs and people ran helter – skelter for safety. For the occurrence Md. Sahzada alias Nurul Ala (P.W.3) gave his fardbeyan(Ext.13) on the same day at the Private Bus Stand, Kaidarabad, at around 6.00 P.M., inter alia, stating that he was sitting at his tyre repairing shop from where he had seen accused Anil Kumar Thakur going towards east alongwith two unknown boys and they were looking towards his shop. The informant is said to have suspected their movements and had kept watch on them and in the mean time Anil Kumar Thakur gave a signal to the two unknown accompanying him and pointed his fingers at the informant’s son, Irphan(since deceased) who was sitting on a cot facing towards east alongwith two persons in front of the hotel of Dasrath by the side where a Ranchi-Tata bus was being parked. The informant was surprised and he stood up from his chair. In the mean time a boy of medium height aged about 20-22 years of white complexion wearing trousers and shirt accompanying Anil Kumar Thakur took something from his Jhola and threw it towards his son which exploded. The informant ran towards Irphan raising alarm and found his son lying dead on the cot in a pool of blood. The head portion, right side face, eyes, nose and ears of his son had been blown off and blood was oozing from his body. 3. The informant is said to have started crying and Md. Kamrul Zama(P.W.1) and other persons reached there and heard from the informant that Anil Kumar Thakur had killed his son and thereafter alongwith his two companions had fled towards the south and while departing they had exploded another bomb which had - 3 - exploded on the shoulder of the accomplice who had thrown the bomb at Irphan and he too fell on the ground injured. It is said that the other unknown accomplice who had a red colour Jhola slung from the shoulder, started threatening the people armed with a bomb in his hand and fled with Anil Kumar Thakur and the injured. It is also said that with the threat of the exploding bombs and one of the accomplices carrying a bomb in his hand the onlookers did not have courage to chase the assailants. The cause of the occurrence is said to be enmity resulting out of Anil Kumar Thakur, the erstwhile incharge of Sahi Tirupati Bus Service being thrown out of service by the proprietor and being replaced by Md. Irphan a few days prior to the occurrence and it was by reason thereof that Anil Kumar Thakur along with his hench men had committed the murder of his son. 4. On the basis of the said fardbeyan a formal F.I.R. (Ext.6) was drawn up and the L.N.M.U.P.S. Case No.40 of 1993 was registered under Sections 302/34 I.P.C. and 3/4 of the Explosive Substance Act against Anil Kumar Thakur and two unknown others. The I.O., Girish Kumar Jha, Incharge Tilkeshwar O.P., inspected the place of occurrence and seized small nails and a tin container of Zarda, pieces of bricks stained with blood and pieces of sutali from the P.O. vide seizure list (Ext.8). In course of investigation the involvement of accused Anil Kumar Choudhary alias Madhav and Sanjay Kumar Mishra was detected and after completing the investigation chargesheet was submitted against all the three accused persons under Sections 302/34 I.P.C. and Sections 3/4 of the Explosive Substance Act. 5. The defence version, as it appears from the trend of cross examination, suggestion given to the prosecution witnesses, the statements of the accused persons recorded under Section 313 Cr.P.C. and the deposition of defence witnesses, is a complete denial of the occurrence as alleged by the prosecution and that the son of - 4 - the informant sustained injuries and died as a result thereof while manufacturing bombs one of which exploded and other persons also sustained injuries as a result of the said explosion. It is also the defence case that the informant at the relevant time was at his home in village-Basant and he came to Darbhanga on the next day at 10 A.M. and got instituted the criminal case at 10 A.M. on 21.4.1993 in order to save his family members. The further defence version of Amit Kumar Choudhary and Sanjay Kumar Mishra is that they were arrested from their house on 21.4.1993 and the police got them identified by the informant and others prior to the T.I. Parade. 6. The prosecution in support of his case examined as many as 15 witnesses of whom Md. Sahzada(P.W.3) is the informant who proved his signature on all the pages of the farebeyan which are marked as Ext.1 and 1/2 . He also proved the certificate written and signed by Bhairab Jha, Manager of Tirupati Travels (Ext.2) which had been filed to show that the deceased was made incharge of Tirupati Travels at Darbhanga Bus Stand with effect from 15.4.1993. P.W.1 (Md. Kamrul Zama) and P.W.2(Sadrul Ala alias Bechan) claimed to be eye witnesses of the occurrence whereas P.W.4(Ram Prasad Mandal) is said to have been sitting at the P.O. on a cot alongwith the deceased and is also said to have sustained injuries by splinters of the bomb. P.W.5, Dr. Vijay Kumar Jha had examined Sanjay Kumar Mishra on 21.4.1993 and found injuries on his person and had granted certificate (Ext.3). On the same day he had also examined Amit Kumar Choudhary alias Madhav and having found injuries on his person had granted injury certificate (Ext.3/1). Mr. Vipin Bihari Srivastava(P.W.6), Judicial Magistrate, had held the T.I. Parade and had prepared the T.I. Parade chart(Ext.4). Dr. Akhauri Ravindra Kishore(P.W.7) performed the post-mortem examination on the dead body of Md. Irphan and the post-mortem report has been marked as Ext.5. The signature of - 5 - attesting witness, S.M. Rashad Hussain(P.W.8) on the fardbeyan is Ext.1/3 and he has also proved the signature of the other attesting witness, Shatrughan Prasad Yadav(Ext.1/4). P.W.9, Md. Safaque is a witness to the seizure list of the seizure of Rs.850/- from the ticket pocket of accused Amit Kumar Choudhary and his signature on the seizure list is Ext.1/7). He has certified the signature of Md. Usman(P.W.10), the other witness of the seizure list who was tendered for cross examination. Girish Kumar Jha(P.W.11) is the I.O. of this case who apart from proving the fardbeyan(Ext.13) has also proved the formal F.I.R.(Ext.6) written and signed by A.S.I., Surendra Prassad Rai. He also prepared the inquest report (Ext.7) and seized several articles from the P.O. for which a seizure list (Ext.8) was prepared by him and was signed by P.W.11. He prepared the injury slips(Exts.9 and 9/1) found on the person of Ram Prasad Mandal(P.W.4) and Arun Kumar Khanti(not examined) and those of injured Amit Kumar Choudhary and Sanjay Kumar Mishra(Exts.9/2 and 9/3 respectively). P.W.12 is Dr. Umesh Chandra Issar and P.W.13 is Ram Nandan Prasad whereas P.Ws.14 and 15 are Sevanand Singh and Atikur Rahman. Several other exhibits including some material exhibits were also brought on record. 7. The defence also examined as many as 8 witness and statements of accused Amit Kumar Choudhary and Sanjay Kumar Mishra under Sectioin 164 Cr.P.C. have also been brought on record. 8. At the trial, the charges under Sections 302, 302/34 and 120-B I.P.C. were framed against all the three accused whereas Anil Kumar Thakur and Amit Kumar Choudhary, were further charged under Section 4 of the Explosive Substance Act and Anil Kumar Thakur was charged under Sections 302/114 I.P.C. Sanjay Kumar Mishra was charged under Section 302 I.P.C. and Section 3 of the Explosive Substance Act. - 6 - 9. At the conclusion of the trial, accused Sanjay Kumar Mishra, was convicted under Section 302 and 302/34 I.P.C. but was sentenced to rigorous imprisonment for life only for the charge under Section 302 I.P.C. and no separate sentence was passed in respect of the conviction under Sections 302/34 I.P.C.. He was further found guilty of the charge under Section 3 of the Explosive Substance Act and sentenced to 10 years rigorous imprisonment. Accused Amit Kumar Choudhary and Anil Kumar Thakur were found guilty of the offences under Sections 302/34 I.P.C. and each of them were sentenced to rigorous imprisonment for life under Sections 302/34 I.P.C. No separate sentence was passed for the conviction under Sections 302/114 I.P.C of Anil Kumar Thakur. All the sentences were directed to run concurrently. 10. It has now devolved upon us to consider and test with explicit religiosity whether on the basis of the materials available on the records the conviction and sentence of the appellants of both the appeals was justified and warranted and/or is sustainable. 11. Findings of the Sessions Court was sought to be assailed by the learned counsel of the appellants on illustrative and multifarious grounds which even on synthesization into broad categories would add up to quite a wholesome number. 12. The first point that was sought to be agitated is that the informant was not an eye witness to the occurrence and even if his version is believed to be true then the place of occurrence for all practicable purposes would not be visible from the place from where he claims to have seen the occurrence. The location of the place of occurrence (hereinafter referred to as the “P.O.”) is also under serious challenge as there is great diversity and discrepancy regarding the location as spelt out in the fardbeyan and the deposition of the witnesses of the prosecution. Grievance has been also raised on the delay in receipt of the F.I.R. by the learned Chief Judicial - 7 - Magistrate which obviously creates serious doubts about the promptness of the F.I.R. Serious doubts have also been raised regarding the bonafides of the test identification parade and it has been submitted that the evidence is tainted and not worth placing of any reliance. A major procedural deficiency was sought to be pointed out inasmuch as the circumstances relied upon by the trial court had not been put to the undertrials in course of their examination under Section 313 Cr.P.C. It was next sought to be agitated that the acquittal of the appellants of the charge under the Explosive Substance Act clearly goes to show that the major portion of the prosecution case had not been believed and as such the appellants would ordinarily and in due course deserve an acquittal. Last but not the least the submission on behalf of the appellants was that the prosecution had failed to prove the motive and genesis of the occurrence and produced a tainted document during the trial which creates serious doubts about the credibility of the prosecution witnesses. 13. On the other hand, the learned counsels for the State as also the informant in putting forward their submissions in defence of the impugned judgment and order submitted that the prosecution had ably proved its case beyond all reasonable doubts through reliable evidence and no fault could be found therein so as to call for any interference by this Court. 14. The prosecution case appears to hinge primarily on the evidence of Md. Kamru Zama(P.W.1) , Md. Sadrul Ala alias Bachchan(P.W.2), the informant Md. Shahzada alias Nurul Ala(P.W.3) and Ram Prassad Mandal(P.W.4). 15. A sketch map of the entire premises of the Private Bus Stand of Darbhanga inserted herein would be of great benefit to understand the respective submissions of both the parties. - 8 - - 9 - 16. First of all I propose to deal with the evidence of the informant, Md. Sahzada alias Nurul Ala (P.W.3) with reference to the sketch map. His evidence is to the effect that at the relevant time he was in his tyre repair shop inside the private bus stand at Darbhanga and it is from here that he claims to have seen the arrival of the three accused and the resultant aftermath. He also stated that the deceased at the relevant time was sitting on a cot near the Tata-Ranchi Bus Stand. From the evidence of Girish Kumar Jha, the Investigating Officer of the case(P.W.11) it would appear that the shop of Md. Sahzada(P.W.3) was west of of the Bus Stand Office and that east of the Bus Stand office is the Patna-Muzaffarpur Bus Stand and that the Tata –Ranchi Bus Stand is still further east of Patna-Muzaffapur Bus Stand. From the deposition of P.W.11 it would appear that the deceased was sitting still further east of the Tata-Ranchi Bus Stand. In paragraph-56 of his deposition P.W.3 has stated that the distance of Tata-Ranchi Bus Stand from Patna-Muzaffapur Bus Stand was 10-15 laggas. As such, if a proper scrutiny is made of the location, it would appear that the distance between the deceased and the informant was about 16-20 laggas keeping in mind the fact that the shop of the informant was further west of the Madhubani-Jainagar Bus Stand which was on the west of the Bus Stand Office. Added to this is the evidence of Md. Kamrul Zama(P.W.1) who in paragraph-9 of his deposition stated that the Bus Stand in stretched over an area of 25-30 laggas from South to North and 40-50 laggas from east to west. It is an admitted position that the Bus Stand was a very busy place and the Bus Stand appears to be spread over a very big area. From a simple calculation of the distances given by the witnesses one can safely gather/conclude that the informant must have been sitting at a place some 40 laggas from the deceased. In usual course of events the attention of any person is always drawn upon hearing some sound but in the - 10 - instant case the informant claims to have kept a close watch on the assailants from the very time of their arrival at the Bus Stand. It is quite improbable that from a distance of some 40 laggas the informant would have seen accused Anil Kumar Thakur pointing out Irfan to his accomplices. 17. There is another aspect of the matter. P.W.3 in course of his deposition in court in paragraph-7 produced a letter on 15.11.1994, i.e., almost after 1 ½ years of the occurrence to prove the fact that the deceased had been made incharge of Sahi Tirupati Bus Service in place of Anil Thakur. This document had not been produced before the Investigating Officer in course of investigation and was for the first time produced in court after 1 ½ years. The evidence of P.W.3 faces discredit in view of his subsequent statement in paragraph-9 wherein he stated that he had got a photocopy of the letter before the T.I. Parade was held. Admittedly, the T.I. Parade took place on 7.5.1993, i.e., 16 days after the occurrence but it does not appear to have been shown to the Investigating Officer since it is not a part of the chargesheet. The learned court below has rightly observed that Ext.2 (the letter in question) does not carry much evidentiary value in view of the fact that the author of the letter has not been examined. Another angle of the matter is that a fabricated letter has been produced in the court at a belated stage which discredits the evidence of P.W.3, the father of the deceased and the informant of the case. 18. In view of the discussions made above, I am reluctant to accept the version put forth by the informant and he too does not appear to be a truthful witness. This becomes all the more secure when the deposition of the other witnesses are taken into account. It is apparent from their evidence that the place where the deceased was sitting was not visible from where the informant claimed himself to be placed. The place is quite a busy place with more than 100 shops and other buildings - 11 - and yet not a single independent eye witness has been examined to prove the manner of occurrence. 19. From paragraph 29 of the deposition of the informant (P.W.3) it transpires that the deceased was an accused in a criminal case relating to possession of bomb. This is, in fact, an admission. P.W.3 in course of cross-examination could not recall to mind and pretended ignorance of 7 cases of Arms Act pending against the deceased. As such the defence suggestion that while the deceased was engaged in making bombs one of them exploded causing injury to him which eventually resulted in his death cannot be rejected outright. 20. In view of the facts discussed above the sending of the F.I.R. after a delay of two days creates serious doubts about the promptness of the F.I.R. Sections 154 and 157 Cr.P.C. uses the expression “forthwith” which has fallen for interpretation in Ishwar Singh Vs. State of Uttar Pradesh (AIR 1976 S.C. 2423) where there had been an unexplained delay of two days in sending the F.I.R. to the Magistrate. It was held by the Apex Court that the extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set out a distorted version of the occurrence. As in the case cited above even in this the suspicion hardens into a definite possibility when the case made in court differs at least in two very important particulars from that narrated in the F.I.R. In the instant case, the occurrence took place at the Private Bus Stand in the town of Darbhanga. The distance of the court from the place of occurrence was not so much as to consume two days time. The unexplained delay in sending the F.I.R. to the court becomes very relevant and will adversely effect the prosecution case. It is also - 12 - to be noted that if the earliest statement is not truthful, it effects the entire case. 21. The evidence of P.W.4 (Ram Prasad Mandal), an injured witness, also becomes doubtful in view of the evidence of Dr. Ram Nandan Prasad (P.W.13) who produced the admission register. In paragraph 6 of his deposition he has stated that he could not say as to how Ram Prasad Mandal came to the hospital. He also claims not to have informed the police. He went on to state that no obvious mark of injury was found on the person of Ram Prasasd Mandal. P.W.4 according to the doctor was admitted on 20.4.1993 in the Emergency (Casualty) Ward of D.M.C.H. at 11.20 P.M. for examination of complaint of loss of hearing after bomb blast and was discharged on 23.4.1993. The evidence of the doctor creates serious doubts about the presence of P.W.4 at the place of occurrence more so when he is said to have been sitting on the very cot on which the deceased was sitting when the bomb was allegedly thrown at the deceased and exploded. The injuries found on the deceased shows that the bomb explosion was of such intensity that it would naturally cause injuries to others sitting by the side of the deceased on the same cot. It is to be noted that the prosecution did not produce Arun Khatik who had also sustained injuries as he was also sitting on the same cot as given out by P.W.4. Non-examination of injured Arun Khatik would also adversely effect the prosecution case. 22. P.W.4 in his deposition is court stated that as he had been threatened prior to the holding of the T.I. Parade, he out of fear did not attend the T.I. Parade. This appears to be a statement of despair and by way of an after thought. As such his identification of the two appellants in court for the first time becomes meaningless and valueless. It also reveals that P.W.4 is not a trustworthy witness and was trying to implicate the two accused in the court for the first time. The learned trial court has rightly not accepted his version that it was due to the threats advanced that he - 13 - had not attended the T.I. Parade. 23. The presence of Md. Kamrul Zama(P.W.1) at the place of occurrence at the relevant time also appears to be doubtful in view of his evidence that there are shops in the west, north and south of the Bus stand building. P.W.1’s purported presence at the place of occurrence was due to the fact that he had a shop in the Ranchi-Tata Bus stand but he has not divulged this fact to the Investigating Officer. That apart his evidence regarding the bus stand office and place of occurrence is also contradicted as the Patna-Muzaffarpur bus stand is just east of the Bus stand office. This further creates doubt about visibility from his shop. Existence of his shop in the Bus stand is also doubtful. 24. I have in the earlier paragraphs expressed my opinion that the tyre repairing shop of the informant, Md. Sahzada(P.W.3) was at a fairly far distance from the place of occurrence and in such a position that seeing the occurrence from there would fall within the regime of doubt. I have also doubted the reliability of the evidence of Md. Sahzada (P.W.3), the informant. For the same reason the evidence of Md. Sadrul Ala(P.W.2), the brother of the informant would become equally doubtful since he claims to have seen the occurrence from the same tyre repairing shop of Md. Sahzada(P.W.3) and is not worth reliance. My opinion is further aggrandized by the fact that P.W.2 in paragraph 20 has stated that at the time of occurrence there were only 7 persons at the place of occurrence which appears to be palpably absurd in the face of the other witnesses stating that the Bus stand was a very busy place and there were 40-50 shops and that several buses used to come or leave at that hour. It goes without saying that there is only one private bus stand at Darbhanga from where buses departed for Patna, Tata, Ranchi, Madhubani, Muzaffarpur etc. The occurrence took place in the evening at around 6 P.M. which - 14 - is quite a busy hour with several buses arriving and several others departing. 25. For the reasons stated in the foregoing paragraphs the credibility of P.W.2 is extremely doubtful and his deposition of having seen