IN THE HIGH COURT OF JUDICATURE AT PATNA Death Reference Case No.11 of 2008. W i t h Criminal Appeal No.796 of 2008(D.B.) Toti Yadav son of Late Umraw Yadav, resident of Village-Mahapur, P.S.-Jhajha, District- Jamui. ………. Appellant. Versus The State of Bihar. …… Respondent. For the Appellant : Shri Pankaj Kumar Sinha, Adv. For the Respondent : Lala Kailash Bihari Prasad, Sr. Adv. Addl. P.P. PRESENT HON’BLE MR. JUSTICE NAVIN SINHA HON’BLE MR. JUSTICE DHARNIDHAR JHA J U D G E M E N T Navin Sinha, J. The sole appellant has been convicted under Sections- 302 of the Indian penal Code and Section-3 of the Explosive Substances Act, 1908 and sentenced to death in Sess. Trial No.598 of 1993 by judgement dated 26.6.2008 of the A.D.J., F.T.C. IV, Banka. Thus, the Criminal Appeal No.796/08 and Death Reference. Originally, there were three accused including the present appellant. The trial of co-accused Jhagru Yadav was separated on 20.6.1997 as he was found to be a juvenile. On 4.4.2005 the trial of co- 2 accused Marchu Yadav was also separated. The fardbeyan of the informant Hemanti Devi, P.W.11, was recorded at village- Bela Tinchunua by S.I. Rameshwar Singh of the Belhar police station on 8.10.1992 at 11.15 a.m. near her house. She stated that on 8.10.1992 at about 7.00 a.m. her elder brother- in-law Ram Lal Yadav (deceased) was tying stacks of Kudrum on the unpaved road in front of his house. She was also plucking Kudrum leaves. The appellant, Jhagru Yadav and Marchu Yadav, who are residents of the village, were clearing their creepers adjacent to them. The appellant along with Jhagru Yadav, carrying bombs wrapped in a piece of cloth, threw four bombs in quick succession. The right leg of Ram Lal Yadav got blown off from the thigh and landed near her. The accused persons ran away in the smoke that followed the blast. On the noise, her son Suresh Yadav, P.W.4, Daiya Devi, P.W.6, came and also saw the three accused running away. Ram Lal Yadav told the informant that she had seen the assailants and that he would not survive. There was serious injury on the deceased. He died approximately after two hours. The motive was previous enmity between the parties. She had also suffered simple injuries by the explosion. The police came at about 11.15 a.m. when 3 the seizure list was prepared. The inquest report was also prepared at 11.45 a.m. which noticed that the right leg was blown off from the thigh and the leg was broken below the knee with the bone protruding and other burn injuries on the left wrist and right side of back. Death appeared to be caused by a bomb blast. The formal F.I.R. was registered the same day at 5.00 p.m. The body was received for post mortem examination and so done at the Sub-divisional Hospital, Banka at 8.30. a.m. on 9.10.1992 and the post mortem report prepared on 9.10.1992. The following ante mortem injuries were seen during the post mortem examination:- (i) Burn injuries on the face, right ear and back of the right arm. (ii) Right upper arm fractured at the middle of the shaft of the humerus. (iii) Burn injury on the left hand at the wrist joint. (iv) Numerous burn injuries on the thorax and abdomen. (v) Right leg absent from the hip joint. 4 (vi) Left leg has numerous burn injuries and fractured just below the left knee joint. The above mentioned injuries are caused by explosive substance and the cause of death—shock and haemorrhage due to above mentioned injuries within 40 hrs. Charge-sheet was submitted under Sections-302, 324/34 of the Indian Penal Code and 3 and 4 of Explosive Substances Act. Cognizance was taken under Sections- 302, 324 and 34 of the Indian Penal Code. Charges were framed under Sections- 302 and 34 of the Indian Penal Code, and Section- 3 of the Explosive Substances Act. Sanction for prosecution under the latter was granted by the District Magistrate on 4.12.1992. The seizure-list was marked as Ext-1, the inquest report as Ext-1/1, the post mortem report as Ext-2, the formal F.I.R. and the statutory consent under Section-7 of the Explosive Substances Act were both marked as Ext-4, which is an obvious error, and the injury report of the informant marked as Ext-5, The prosecution examined 13 witnesses. P.W.1 Guli Yadav turned hostile and denied having seen 5 the appellant‟s running away from the place of occurrence. P.W.2 Chintaman Yadav is a formal witness who proved the seizure list and the inquest report, but stated that his signature had been obtained on a blank paper by the police at the police station. P.W. 3 Ishwar Yadav, also a seizure list witness, states that his signature was obtained by the police on a blank paper at the police station. P.W.4, Suresh Yadav, an F.I.R. named witness, is the son of the informant. He stated that he was returning to his house in the village and on the sound of a bomb ran when he saw the three accused running away. The deceased who was his uncle told him that the three accused had thrown a bomb on him. His mother, Hemanti Devi, P.W.11, also suffered bomb-injuries on her face, neck and stomach. His uncle died immediately. In his cross-examination he admitted that he was not at home and had gone to the fields at about 400 yards with 5 houses in between. It took him 5 minutes to reach the place of occurrence. The house of the accused was situated 10 steps away. He stated that his brother, Jinna Yadav, P.W.7 immediately went to the police station by motorcycle where he met the Daroga within an hour and the statement of P.W.4 was recorded at 8.30 hrs. He denied any suggestion of false implication for reasons of previous enmity. P.W.5 Rubia 6 Devi is the married daughter of the informant, P.W.11. She claims to be an eye-witness naming Jhagru Yadav and Toti Yadav as having thrown the bomb while Marchu Yadav stood by. She witnessed the entire occurrence including the amputation and death of the deceased, as also, the bomb injuries on her mother. In her cross-examination she stated that her brother, P.W.4, was not at home. Her statement was recorded on the date of occurrence at 7.00 a.m. in the presence of her mother, P.W.11, by the Daroga and that her mother was along with her. She denied false implication because of previous enmity and litigation between the parties. P.W.6 Daiyba Devi, is the daughter-in-law of the informant, P.W.11. She claimed to be an eye- witness having seen Toti Yadav and Jhagru Yadav throw bomb on the deceased and which also caused injuries to her mother-in-law. She further stated that the right hand of the deceased was broken and left leg blown off. She stated that she did not the know the difference between left and right. That she was married 20 years ago. The village consisted of 20 houses. Her husband, P.W.7, was at home while P.W.4 had gone to the fields and came on the noise of the explosion. She heard the noise of the bomb from outside the house and 7 then immediately said that she heard it from inside the house. She heard four explosions. A portion of flesh of the deceased lay on the spot and a crater had been caused where the bomb had exploded and the deceased lay. She denied knowledge of litigation between the parties. The road was unpaved and there were pebbles on it. She has no concept of east, west, north or south. P.W.4 had not gone to the police station. The Choukidar had gone to the police station and came near the body one to one and a half hours later. P.W.7, Jinna Yadav, is the son of P.W.11 and husband of P.W.6. He saw the three accused running away after throwing bomb. The deceased was writhing in pain as his left leg was blown off and injuries caused on right arm. The deceased told him that the three accused had thrown a bomb on him. He then went to the police station where the Daroga recorded his statement. There was a land dispute between the parties. He gave his statement at the police station at 8.00 a.m. which was recorded by Jamadar Rameshwar Singh. His thumb impression was not taken and his statement was again recorded by the police at 9.00 a.m. For an earlier threat from Toti Yadav the deceased had lodged a Sanha, but subsequently denied that any Sanha had been lodged. He admitted litigation between the parties. He was at home 8 continuously on returning from the police station. He or his brother did not know how to ride a motorcycle. He met the Choukidar at 9.00 a.m. who stayed with the body throughout the day. He denied the suggestion that he had not made any statement to Jamadar Rameshwar Singh. He reiterated bomb injuries on the deceased, amputation, piece of flesh and blood stained clothes at the place of occurrence. He denied the suggestion that the deceased was carrying a bomb which exploded. P.W.8, Dr. Sunil Kumar Sinha, who conducted the post mortem examination, said that he did not find any splinters attached to the dead body. The dismembered body had no other bleeding injuries and opined that such type of injuries can be caused if the injured or deceased would be carrying bombs with him. P.W.9, Naubatia Devi, is the daughter-in-law of the informant, P.W.11 and wife of P.W.4 Suresh. She claimed to be an eye-witness stating that Jhagru Yadav and Toto Yadav threw two bombs each. The right leg was amputated and right hand twisted. The deceased survived for two hours. She met her husband at 7.30 a.m. and P.W.7 at 7.00 a.m. when they returned. She had seen the police at 8.30 a.m. P.W.10, Sufal Yadav, a co-villager saw the three accused running away when the deceased told him that the three had thrown a bomb on him, and he 9 died two hours later. P.W.11, Hemanti Devi, is the informant. She stated that Jhagru Yadav threw a bomb on the deceased resulting in amputation of the right leg. The bomb thrown by the appellant, Toti Yadav, resulted in injury of his right hand which turned inwards. The deceased died two hours later. She was also injured by the bomb explosion. P.W.4 and 7 were at home at the time of occurrence. P.W.7 Jinna Yadav did not go to call the Daroga and that they did not have a motorcycle in their house. The police came at 11.00 O‟ clock. First there was sound of one bomb. People came within one minute and within two minutes the accused threw 4 bombs. She felt scared, but yet did not consider it necessary to run for safety. She admitted previous enmity and litigation, but denied any suggestion that the bomb which exploded was being carried by the deceased himself. P.W.12, Bhola Prasad Mandal, is a formal witness who proved the fardbeyan and the formal F.I.R. naming that it was recorded by Assistant Sub-inspector Shri Rameshwar Singh. P.W.13, Gouri Shankar Sahai, proved the injury report of P.W.11. The only defence witness, D.W.1, Girdhar Gopal Yadav proved the complaint case filed by the mother of accused Jhagru Yadav against P.W.7 Jinna Yadav marked as Ext.A. 10 At the stage of 313 Cr.P.C., the only question put to the appellant was with regard to amputation of the right leg of the deceased Ram Lal Yadav leading to his death. No question was put to him with regard to the injury and breaking of the right arm and left leg of the deceased, or the burn injuries. Learned counsel for the appellant urged false implication to submit that, in fact, there was no sanction from the District Magistrate under Section-7 of the Explosive Substances Act for the trial to proceed. It was next submitted that the occurrence did not take place in the manner as alleged, but in some other manner known to the prosecution only when the bomb being carried by the deceased exploded. Reliance was placed on Ext.1, the seizure list, to submit that no signs of burning or explosion have been noticed on the remnants of the alleged bomb said to have exploded and neither was any crater found at the site. Reliance was also placed on the post mortem report, Ext.2 and the deposition of the doctor who carried out the same, P.W.8, who stated that no splinters were attached to the dead body and there were no bleeding injuries. He had further stated that such injuries can be caused if the injured or deceased would be carrying bombs with him. From Ext.5, the injury report, of the informant, P.W.11, 11 it was submitted that no splinter injuries have been found on her body also. Referring to the statement of P.W.7, at paragraph-5, it was urged that a fardbeyan of the witness had been recorded at the police station by Jamadar Rameshwar Singh at 8.00 a.m. and the restatement of the witness also recorded at 9 O‟clock. This first information report having been made to the police, the investigation commenced thereupon which has been concealed and has been suppressed to falsely implicate the appellant, land dispute and animosity being admitted by the prosecution it its evidence. The death of the deceased in another manner provided the prosecution the opportunity for false implication. A.S.I. Rameshwar Singh, who was also the investigating officer and had recorded the first statement of P.W.7, has not been examined causing serious prejudice to the appellant. The death of Ram Lal Yadav having taken place in another manner, P.W.11, was not talking the truth as there was no occasion for the deceased to tell her as to who were the assailants if he died immediately as stated by P.W.4. It was on the first statement of P.W.7 at 8.00 a.m. that the Choukidar came to the village at 9.00 a.m. and stayed with the body. The Choukidar has also not been examined. The allegations against the appellant, as deposed in trial by P.W.11, 12 being that the bomb thrown by him fractured and broke the right arm of the deceased from the elbow and that the amputation of the right leg was a result of the bomb thrown by co-accused Jhagru Yadav, there was no occasion to convict and sentence the appellant to death under Section-302 of the Indian Penal Code with Section-3 of the Explosive Substances Act and at best he may be liable, if at all, under Section-302 read with 34 of the Indian penal Code. The present was not one of the rarest of rare cases warranting death sentence, if at all, the appellant could be convicted. Learned Senior Counsel Shri Lala Kailash Bihari Prasad urged that the fardbeyan of P.W.11, Hemanti Devi, an injured eye-witness has been recorded at 11.15 a.m. for an occurrence of 7.00 a.m. There has been no unreasonable delay giving opportunity for concoction, deliberation and false implication. Ext.5 is the injury report of P.W.11 corroborated by other witnesses. She was the sister-in- law of the deceased and an eye-witness who would be most interested to ensure justice prevails. Reliance was placed on (2008) 1 S.C.C. (Cri.) 538 on the credibility of an injured witness. The absence of any signs of any burns or explosion or the remnants of the bomb seized is inconsequential. The seizure list demonstrates that 13 the I.O. visited the place of occurrence the same day at 11.15 a.m. Relying on AIR 1978 S.C. 1091 it was urged that the credibility of a witness and evidence given ( read P.W.11 hear) has to be tested in totality and any one event or item will not affect the credibility of the witness otherwise. The truth suffering from some infirmity is irrelevant. Toti and Jhagru are stated to have thrown 4 bombs. P.W.4 reached within 5 minutes and has stated that the deceased named the appellant as one of the accused and assailants. This was in the form of a dying declaration. P.W.5 had also stated that the appellant and co-accused Jhagru had thrown the bomb. P.W.6, 9, 10 had all stated likewise and the statements of the deceased to P.W.10 and 7 was in the nature of a dying declaration. P.W.11 had denied any suggestion that the deceased was carrying a bomb which exploded. Even if there were two versions, one stating that the bomb was thrown and the other that a bomb was being carried by the deceased, the entire evidence was of a bomb thrown upon the deceased and there was no evidence that he was carrying a bomb which exploded without any external event. Shri Prasad next submitted that the motive for the bomb-blast was revenge with regard to the land- dispute and litigations between the parties. It is highly 14 unlikely and improbable that the deceased would be having a bomb on him when he was working in such close proximity of P.W.11, a lady. The first statement of P.W.7 alleged to have been given to the A.S.I. Rameshwar Singh, at the police station has not been produced and neither has the police officer been examined. There was, thus, no evidence of any statement given or recorded before the fardbeyan at 11.15 a.m. P.W.7 was a rustic witness unaware of clock time and was not aware of any difference in time between 8.00 a.m. and 11.15 a.m. Any forensic evidence based on the nature of injuries found on the deceased and P.W.5 was irrelevant unless the witnesses were confronted with this forensic evidence and opportunity to rebut the same. The Court has considered the evidence on record and the submissions of the parties. The allegations are with regard to an occurrence at 7.00 a.m. on 8.10.1992. The fardbeyan is stated to have been recorded at 11.15 a.m. the same day and the F.I.R. registered at 5.00 p.m. the same day. The distance between the police station and the court is approximately 22 k.ms. But, the F.I.R. has been sent to the Magistrate and seen by him on 20.10.1992, i.e. 12 days later. There is no explanation whatsoever for the 15 delay and the prosecution did not even attempt a pretence of an explanation. Section-157 of Cr.P.C. mandates that this report has to be sent „forthwith‟. True it is that mere delay in sending the F.I.R., and more so when the delay is explained, cannot vitiate the case of the prosecution. But, when there is an unreasonable delay with no explanation whatsoever by the prosecution for the same, taken along with attending circumstances the delay may be fatal leading to the conclusion of what may be called „a doctored and fabricated report‟ made after due deliberation. This shall become very relevant in the light of the attending circumstances and evidence. In AIR 2008 S.C. 2436 (Ashok Kumar Choudhary & Ors. Vs. State of Bihar) at paragraph-14 the law has been stated thus:- “14. It is trite that mere delay in lodging the first information report is not by itself fatal to the case of the prosecution. Nevertheless, it is a relevant factor of which the Court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse inference may be drawn against the prosecution. However, in the event, the delay is properly and satisfactorily explained; the prosecution case cannot be thrown out merely on the ground of delay in lodging the F.I.R. Obviously, the explanation has to be considered in the light of the totality of the facts and circumstances of the case.” 16 The investigating officer is stated to have drawn up the seizure-list at the place of occurrence on 8.10.1992 itself. P.W.6, Daiba Devi, wife of P.W.7, states that a crater was created by the explosion. The investigating officer does not state that he collected the debri of the bomb or any part of the debri from a crater. In fact, the case diary at paragraph 90 states that the investigating officer visited the place of occurrence much belatedly on 25.1.1993. The place of occurrence is stated to be an unpaved road, but he does not mention the existence of any crater caused by explosion. The alleged remnants of the bomb stated to have been seized by him bear no signs of burn or explosion. P.W.4, Suresh Yadav, an F.I.R. named witness and son of the informant, P.W.11, has stated in his deposition at paragraph-7 that his brother, P.W.7, Jinna Yadav immediately went to the police station on a motorcycle to inform and met the Daroga within an hour. The statement of P.W.4 was recorded at 8.30 a.m. The police station is stated to be 15 k.ms. only from the place of occurrence. P.W.7, Jinna Yadav, brother of P.W.4 and son of informant, P.W.11, states in his deposition at paragraph-2 that he went to the police station where his statement was recorded by the police 17 at 8.00 a.m. In cross-examination he explains that he went to the police station at 8 O‟clock and his statement was recorded by A.S.I. Rameshwar Singh, but his L.T.I. was not taken on the statement. His further statement was then recorded at 9.00 a.m. He then states at paragraph-10 that the Choukidar Janki Yadav came to the place of occurrence at 9.00 a.m. and stayed with the dead body. The witness strongly denied the suggestion that he had not given any statement to A.S.I. Rameshwar Singh. Contrary to the statement of P.W.4 that P.W.7 went to the police station on a motorcycle, P.W.7 states at paragraph-9 that he does not know how to ride a motorcycle while their mother, P.W.11, at paragraph-18 of her deposition states that she had sent her son to the police station, but there was no motorcycle in the house. While P.W.4 and P.W.7 have both stated that they came from outside after hearing the explosion, P.W.11 states that they were both at home. P.W.11 in the fardbeyan stated omnibus that the appellant and Jhagru Yadav threw the bomb resulting in amputation of the right leg of the deceased. There is no mention of any other injury on the deceased by fracture and breaking of his right arm from the elbow or left leg. P.W.4 stated that apart from the 18 deceased his mother suffered bomb injuries on her face, neck and stomach. He also did not mention the fracture and breaking of the right arm and left leg of the deceased. P.W. 7 also did not mention any such injury on the deceased, but only mentioned of the piece of flesh blown off. Contrary to the fardbeyan, P.W.11 in court stated that the bomb thrown by Jhagru Yadav resulted in amputation of the right leg of the deceased while the bomb thrown by the appellant resulted in fracture and breaking of the right hand of the deceased. The injury of amputation is, therefore, not attributed to the appellant. P.W.4 & 6 stated that the deceased died immediately after the occurrence. P.W.7 states that when the smoke caused by the explosion cleared, he saw the corpse of his uncle lying. P.W.11, the eye- witness, states that the deceased died after about two hours of the attack and that P.W.4 and 7 were present at that time. Both P.W.7 and 11 have denied the suggestion that the deceased died of his own by explosion of the bomb that he carried and not as a result of any bomb thrown on him. In the statement of accusation under Section-313 Cr.P.C., the only question put to the appellant was that he with his accomplices threw 4 bombs on Ram Lal Yadav which resulted in amputation 19 of his right leg and consequent death. P.W.11 in her deposition has attributed this injury to co-accused Jhagru Yadav alone. The statement of