CRIMINAL APPEAL (DB) No.377 OF 1989 Against the judgment of conviction and order of sentence dated 28.06.1989 passed by 5th Additional Sessions Judge, Gaya, in Session Trial No. 1 of 1989/138 of 1987. Prabhu Yadav ---------------Appellant Versus The State of Bihar -----------Respondent ***** For the Appellant : Mr. Shakil Ahmad Khan, Sr. Adv. Mr. Ziaul Hoda, Adv. Mr. Shailendra Kumar, Adv. For the State : Ms. Shashi Bala Verma, APP ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** S.K. Sharma & Akhilesh Chandra, J.J. The sole appellant, Prabhu Yadav, has preferred the appeal against judgment and order dated 28th June 1989 passed in Sessions Trial No. 1 of 1989/138 of 1987, whereby the appellant was found guilty under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. The appellant was further convicted under Section 307 of the Indian Penal Code and 3 of the Explosive Substance Act and was sentenced to undergo rigorous imprisonment for ten years under each count. The sentences were ordered to run concurrently. 2. Prosecution case has resulted on the basis of the fard-e-beyan (Ext.2) recorded on 13.09.1983 at 6.00 P.M. at village Madarpur, P.S. Barachatti in the district of 2 Gaya, in which Dillu Yadav (P.W.8) has stated on the same day i.e. Tuesday, that he was four brothers. The eldest brother Loki Yadav was working in colliery in Culcutta. The informant was second. The third brother Prabhu Yadav is the appellant and fourth brother is Rameshwar Yadav (P.W.6). All the three brothers partitioned amongst themselves and were having their separate abode. The youngest brother (P.W.6) was slightly deranged and he was living along with his parents. The informant was residing in one of the western room of the house whereas Prabhu Yadav was living in a room situated towards east behind the house of the informant. After narrating this family background, it was alleged by the informant that on the preceding date at about 7.00 P.M. the informant was grinding sattu. At that time his son Sheobalak was also there frying Maize. Light of dhibri was available. The informant’s mother was preparing tea. The informant’s father, having wound, was taking meal at the time of occurrence. He was taking his dinner in Verandah which was situated towards northern side. The informant’s brother Prabhu Yadav came inside the Angan and asked about his mother, as to whether she was preparing tea. She replied in affirmative. Prabhu Yadav went to the house of informant and threw a bomb upon him. It exploded and his room was filled with smoke. The informant received splinters injury on his right leg and blood started coming out. Prabhu Yadav escaped from the house after exploding the bomb. 3 The informant chased him. The informant’s mother and the informant’s son Sheo Balak (P.W.3) also joined the informant in chasing Prabhu Yadav. The informant’s mother was rushing ahead of the informant and Prabhu Yadav threw another bomb which caused injury on the chest of the informant’s mother who received injury and succumbed instantaneously. On the cry, Tarkeshwar Yadav (P.W.5), Dubraj Yadav (not examined), Dukhu Yadav (not examined) and others came. The occurrence was on account of the fact that four years earlier, on the eve of marriage of Prabhu Yadav and younger brother Rameshwar Yadav, one and half quintal of rice was taken from one Tejan Singh. It was not being returned. The informant anyhow returned the loan after selling she-buffalo for Rs. 14,00/-, where from the informant demanded money, Prabhu Yadav used to be assaulted. On account of this fact Prabhu Yadav has committed the offence. 3. Another motive for the occurrence has been noticed in the fard-e-bayan is that four kathas of land belonging to Tejan Singh was being desired by Prabhu Yadav but the informant’s mother got the deed executed in the name of the informant’s wife. This was the instant cause of the occurrence. The fard-e-bayan of informant was registered as Barachatti P.S. Case No. 128 of 1983 dated 14.09.1983 for offences under Sections 302 and 324 of the Indian Penal Code and under Section 3/5 of the Explosive 4 Substance Act and the matter was investigated and after investigation charge sheet was submitted. 4. The date of occurrence is 12.09.1983 at 7.00 P.M. and the fard-e-bayan of the informant was recorded on 13.09.1983 at 4.00 P.M. The case was registered on 14.09.1983 at 6.30 P.M. and the formal First Information Report (Ext.4) was sent to the court on 17.09.1983. 5. The charges were explained to accused person after taking cognizance. He pleaded innocence and trial proceeded. 6. The defence of the appellant/accused was of innocence, false implication and also that with a view to grab the informant’s ancestral property, the informant himself has committed the offence and has implicated this appellant. 7. In order to prove this case, the prosecution has examined altogether twelve witnesses. Budhani Devi (P.W.1) has been tendered, Baidya Nath Yadav (P.W.2) husband of the deceased and father of the informant and the appellant, in cross examination, has stated that his youngest son-in-law, Ram Chandra, was killed and in that case Dillu Yadav, the informant of the present case, was accused. Therefore, the deposition of this witness lends credit to the defence version and it has discredited the prosecution version. 8. Sheo Balak Yadav (P.W.3) is son of the informant. He has supported the prosecution case. Shyam 5 Lal Yadav (P.W.4) is a formal witness on seizure of some splinters allegedly of the bomb. His evidence is not on the occurrence. Tarkeshwar Yadav (P.W.5) has been tendered and in his cross examination nothing has come. Rameshwar Yadav (P.W.6) is a named fard-e-bayan witness of the occurrence about whom it has been stated in the fard-e- bayan that he was slightly deranged. Somar Yadav (P.W.7) has been tendered, but in cross examination he has stated that it was the informant who killed the deceased. 9. Dillu Yadav, (P.W. 8) is the informant. Dr. Kapil Deo Prasad, (P.W.9) has conducted the autopsy. Lallan Jee Dubey A.S.I. (P.W.10) had recorded the fardbeyan (Ext.2) of the informant and thereafter investigation was handed over to S. Ahmad (P.W.11). He has deposed that Chaukidar had informed that a lady was killed by her son. This witness had prepared the formal First Information Report. P.W.11 is the Investigating Officer of the case and Subodh Kumar Mitra (P.W.12) is a formal witness who had proved the sanction order granted by the District Magistrate for prosecution under Section ¾ of the Explosive Substance Act. 10. On behalf of defence, Dhannu Yadav (D.W.1) and Suresh Yadav (D.W.2) have been examined. Firstly the evidence of the doctor has been discussed. 11. Dr. Kapil Deo Prasad has conducted the post mortem examination on the dead body of Mangri Devi, 6 wife of P.W.2 on 14.09.1983 at 11.45 A.M. and has found lacerated injury over the clavicular region of the chest of size 4”x3” thorasic cavity deep. Margin and surface of the wound were blackish and irregular. The injury was ante mortem and grievous in nature and it was caused by explosive substance such as bomb. According to the opinion of the doctor, the death was caused within 24 hours from time of post mortem examination (underlined by me). The evidence of this doctor is to the extent that killing of Mangri Devi was on account of the use of fire arm and according to his evidence, the death must have been caused after 10.45 A.M. on 13.09.1983. The prosecution case from fard-e-bayan and from the depositions, which would be discussed into later on, is that the occurrence was of 12.09.1983 at 5.00 P.M./7.00 P.M. and from post mortem report read with the evidence of the informant and his son, it appears that both are quite contradictory, so far as it relates to the time of occurrence. The time mentioned by the doctor cannot be stretched so long that would go up to 12.09.1983 at 5.00 P.M./7.00 P.M. 12. Learned counsel appearing on behalf of the appellant has submitted that in view of the opinion expressed by the doctor, it is apparent that the killing was not on the time which has been alleged by the prosecution and it has been argued that this becomes more important in view of the fact that the occurrence of 12.09.1983 was reported to the court for the first time at 17.09.1983 and this long delay has 7 caused grave doubt to the prosecution version. In view of delay, this alleged the entire case becomes doubtful. 13. The time of death mentioned by P.W.3 in paragraph 3, in the first line of deposition is at 5.00 P.M. The informant and others have mentioned that the bomb was thrown at 7.00 P.M. and the death was instant. Therefore, the oral deposition and the fard-e-bayan is indicative of the fact that death was in the evening of 12.09.1983 and if the post mortem examination report is considered the death was in the noon on or thereafter 13.09.1983. The quite contradictory version on the time of occurrence has remained unexplained. 14. Now the oral deposition of the witnesses have to be looked into. P.W.2 is the husband of deceased and he was main concerned person. He has stated that at the time of occurrence, he was inside the house and a bomb was thrown outside his house. He was not aware as to who was the person responsible for throwing the bomb. Thereafter this witness, who is husband of the deceased and father of the informant and the appellant, has not supported the prosecution version. His version is only that his wife was killed on account of throwing of bomb, but in cross- examination, this witness has stated that his youngest son- in-law was killed and in that case his son who is informant of the case was accused. Not only that he has stated that when the bomb was thrown then this appellant was serving his 8 father. Therefore, P.W.2 supports the defence version. 15. Shiv Balak Yadav (P.W.3) is another witness who has been relied upon by the prosecution. In the first sentence of deposition, he has given the time of occurrence at 5.00 P.M. which is at variance with the time given by the informant and others. He has stated that due to explosion of the bomb his father has received injury in his right leg. Learned counsel for the appellant has doubted the credibility of this witness and he has submitted that the evidence is already on record that the informant was accused in a case relating to killing his brother-in-law (Bahnoi). It has been submitted that this witness has concealed the important fact in his evidence when he has stated that he was not aware as to whether his father was accused in a case relating to killing of brother-in-law. This fact has been stated by P.W.2 who is none else but grand father of P.W.3 and so, on this score, it has been submitted that this witness is unreliable. 16. Another inconsistency which has been pointed out in the evidence of P.W.3 is that he has stated that his father was hospitalized for two days in connection with treatment of his injured right leg and the treatment was being taken at Barachatti Hospital. 17. We have analyzed the record and wanted to get some proof regarding treatment. Only one doctor has been examined and he has proved the post mortem report. Nothing has come in the evidence that the informant was 9 ever given medical aid or was treated by any doctor of Barachatti Hospital. The deposition of this witness becomes more doubtful considering the delay between the occurrence and the report submitted to the court. Therefore, it appears that this witness has concealed major part. Many things have not deposed correctly. It cannot be perceived that a person will not know that another relative living with him was killed. In case of joint family and a person coming from rural background, all the persons know each other very well. This witness has come from a rural background and it cannot be believed that he was not knowing as to whether his father was accused in a case relating to killing of his ‘Fufa’. Therefore, the story of treatment of the father of this witness has not been supported by any witness including the informant and so this witness is not reliable. 18. Now remains P.W.6 who has been relied upon by the prosecution to support the case. Though P.W.6 has not been described as a witness by the informant in the fard-e-bayan, but the prosecution has relied upon the deposition of this witness. This witness has supported the prosecution version regarding throwing of the bomb by this appellant. In the examination-in-chief, in the first paragraph of his evidence he has stated that Prabhu Yadav has thrown a bomb which has caused death. Attention of this witness was drawn towards his statement under section 161 of the Code of Criminal Procedure. He has deposed in his evidence 10 that he informed the police that it was the appellant/accused who has caused the bomb injury. Attention of informant was drawn towards the statement of Rameshwar Yadav under section 161 of the Code of Criminal Procedure. 19. P.W.11, S. Ahmad, in paragraph 17 of deposition has contradicted the version of P.W.6 and P.W.12 and has stated that he was informed by Dillu Yadav that Prabhu Yadav has thrown the bomb and he has stated that when he came out of the house, then he saw his mother dead. Prosecution has relied upon only to that extent and has tried to make this witness but the evidence of P.W.12 shows that P.W.6 has not named this appellant as eye witness, rather he was hearsay witness during investigation. 20. The only witness who is required to be discussed is P.W.8. P.W.8 has stated that on the date of occurrence this appellant came and threw bomb which caused injury to him but when his mother chased then this appellant threw a bomb which caused death of his mother. In the next morning, he went to the police station. In the way, while he was returning then choukidar met and choukidar came to the house of the informant and recorded the fard-e- bayan and the fard-e-bayan was read over to him. In the fard-e-bayan this witness has described the manner of occurrence, but he has not named P.W.3 as a witness. This fact has come that occurrence was witnessed by P.W.3 also. There is nothing in the evidence of informant that he was 11 given any treatment with regard to his injury. The specific case of the informant was that initially throwing of bomb has caused injury to him, the blood has also come out. P.W.3 has stated that informant was treated of all his injury but informant has not stated anything to that extent. 21. D.W.1 is Dhannu Yadav is husband of Budhiya Devi. Therefore, he is brother-in-law of P.W.8. He has described the cause of occurrence and the defence has brought him to discredit the prosecution version. D.W.2 is Suresh Yadav, son of P.W.1. The deceased was his maternal grand mother. He is son of Budhiya Devi. He has given his version in court. The defence has relied upon the deposition of P.Ws. 2, 3, 4 and 6, P.W.2 not only become hostile but has given another version of the occurrence. P.W.3 given a different time of occurrence. P.W.6 has given different version in the court. The informant has tried to support his case but the version of the informant and other eye witnesses has been contradicted by the doctor whose evidence creates grave doubt with regard to time of occurrence. If the time of occurrence fails then the entire case become suspicious. Considering this long delay of about six days between time of occurrence and the report sent to the court and the fard-e-bayan is surprisingly missing the names of even one attesting witness, though, it was allegedly recorded at the place of occurrence where many persons were present. The prosecution case becomes 12 doubtful. 22. Considering the facts of the case, we are of the view that prosecution has not been able to prove the case against the appellant beyond all reasonable doubts. In the result, the judgment and order of conviction is set aside. The appeal is allowed. The appellant, who is on bail, is discharged from the liability of his bail bond. Patna High Court Date: The 27th January 2011 Rajeev/ N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)