IN THE HIGH COURT OF JUDICATURE AT PATNA Death Reference Case No.8 of 2008 Reference made vide letter no. 55 dated by Shri Radha Sharan Choudhary, Additional Sessions Judge, F.T.C.-IV, Banka in Sessions Trial No. 897 of 2002. ---------- THE STATE OF BIHAR …………………………………………… Appellant. Versus SHAUKAT MIAN ……………………………………… Respondent. W i t h Cr. Appeal No.665 of 2008 Shaukat Mian …………….. Appellant. Versus The State Of Bihar. ……………Respondent. W i t h Cr. Appeal No.540 of 2008 1. Buddhu Mian 2. Pasib Mian 3. Tudu Mian 4. Firdous Mian …. Appellants. Versus The State of Bihar. …. . Respondent. W i t h Cr. Appeal No.601 of 2008 1. Rahim Mian 2. Habib Mian @ Hasib Mian 3. Latif Mian …. Appellants. Versus The State of Bihar. …. Respondent Against the judgement of conviction and order of sentence dated 29.4.2008 passed by Shri Radha Sharan Choudhary, Additional Sessions Judge, F.T.C.-IV, Banka in Sessions Trial No. 897 of 2002. ------ For the Appellants: Mr. Akhileshwar Prasad Singh, Mr. Ajay, ……… Advocates. For the State: Mr. Lala Kailash Bihari Prasad, Sr. Advocate. 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. These three criminal appeals arise out of the judgement of conviction and sentence dated 26.4.2008 by the Additional Sessions Judge, F.T.C.-IV, Banka, in Sessions Trial No.897 of 2002. 2 Death Reference No.8 of 2008 arises out of Criminal Appeal No.665 of 2008 alone. Seventeen persons were put on trial. Nine have been acquitted, and eight convicted. Shaukat Mian has been convicted under Section-302, 148 of I.P.C., Section-3(b) of the Explosive Substances Act, and sentenced to death, in addition to rigorous imprisonment for three years under Section-148 of the Indian Penal Code and to rigorous imprisonment for life under Section-4 of the Explosive Substances Act. Rahim Mian has been convicted under Sections-307, 302/148/149 and 3/4 of Explosive Substances Act, and sentenced to seven years rigorous imprisonment under Section-3/4 (each) of Explosive Substances Act, three years rigorous imprisonment under Section-148 of I.P.C., ten years rigorous imprisonment with fine under Section-307 of I.P.C. and rigorous imprisonment for life under Section-302, 149 of I.P.C. Hasib Mian and Latif Mian have been convicted under Sections- 323, 325, 307, 302/147, 149 of I.P.C. and sentenced to one year rigorous imprisonment under Section-323 of I.P.C., five years R.I. under Section-325 of I.P.C., two years R.I. under Section-147 of I.P.C., ten years R.I. with fine of Rs.20,000/- under Section-307 of I.P.C. and R.I. for life under Section-302, 149 of I.P.C. The rest have been convicted under Section-302/147/149 of I.P.C. Buddhu Mian has further been convicted under Section-307/34 of I.P.C. They have been sentenced to R.I. for two years under Section-147 of I.P.C. and R.I. for life under Section-302/149 of I.P.C. and Buddhu Mian has further been 3 sentenced to R.I. for ten years under Section-307/34 of I.P.C. and fine imposed. Md. Himmat Ali, P.W.3, in his fardbayan recorded, at the Referral hospital, Bousi, on 8.7.2002 at 6.45 a.m., marked as Ext.1, stated that on the previous night he and his family members were asleep at their „Basa‟. About 4.00 a.m. in the morning his co- villagers, Buddhu Mian, his sons, Hasib Mian and Latif Mian came to his „Basa‟. Buddhu Mian ordered when Hasib Mian and Latif Mian assaulted his son Md. Shamshad Ansari, P.W.4, the informant‟s wife Bibi Mazida Khatoon, P.W.2, on the head with a „Khanti‟, causing injuries to them. Abul Basher and Israel came on hearing the commotion. The informant along with his wife and sons proceeded to the Bousi hospital for their treatment. When they reached near the Imambara at about 6.00 a.m., Hasib Mian, Latif Mian with a „Khanti‟, Rahim Mian with bomb, Shaukat Ali with bomb, Nawab Mian with bomb, Pasib Mian with „Lathi‟ , Tudu Mian with „Lathi‟ , Kamrul Mian, Buddhu Mian, Kabir Mian, Jannu Mian, Firdous Mian, Minhaz Mian, Nazrul Mian, Khurshid Mian, Islam Mian and Siddique Mian with „Lathis‟ in their hand lay in wait and surrounded the informant and his family members. Shaukat Mian threw a bomb which hit the informant‟s son, Fida Hussain, on his left shoulder „Pakhura‟ and he was seriously injured. Nawab Mian threw another bomb at his son Md. Hasnain, P.W.1, Rahim Mian threw a bomb from his terrace which hit Abul Basher causing injuries. The accused ran away when they saw the villagers coming. 4 Fida Hussain died at the hospital. The motive for the occurrence was the on-going land-dispute between the informant and Nawab Mian, Buddhu Mian. The police investigated the matter and submitted charge-sheet against all the accused under Section- 302/149 and under Section-307/34 of I.P.C. against Buddhu Mian. Both the prosecution and accused are descendents of a common ancestor. P.W.3, Himmat Ali were three brothers, Samtulli and Mahboob Ali. Samtulli had four sons- Kabir, Nawab, Junno and Noor Nabi (deceased). The surviving three brothers are accused along with Khurshid, son of Kabir and Minhaz, Mirbous and Nazrul, sons of late Noor Nabi. Kabir, Nawab, Junno, Firdous sold certain lands to Buddhu Mian giving rise to the land-dispute for the family properties. The prosecution examined six witnesses and four court witnesses. P.W.1, P.W.4 and C.W.4, Md.Hasnain, Md. Shamshad Ansari and Gulam are the sons of the informant. P.W.2 is the wife of P.W.3. P.W.5 is the doctor who did the post mortem of the deceased and P.W.6 is a formal witness. C.W.2 is the doctor who examined the injured and C.W.3 is the Investigating Officer. The post mortem report of the deceased, Fida Hussain, marked as Ext.2, found the following ante mortem injuries:- I). Lacerated wound 9”x8” to the scapula with charred margin, lacerated and charred muscle over left scapular region with fracture of left scapula. 5 II). Several minute burn-injuries on the left leg. III). Lacerated wound ½ ” x 1/6” skin deep over the left foot. IV). Lacerated wound ½” x1/6” skin deep on right toe. V). Abrasion 1”x1” brown colour, forehead on right side. VI). Abrasion over right shoulder 2”x1” brown in colour. All the injuries were caused by explosives. Cause of death- shock and haemorrhage. Time of death- within 24 hrs. The injury report of P.W.2 stated:- i) One lacerated wound on Lt. side of head 1- 1/2”x1/4”. Nature of injury-simple caused by hard blunt substance. The injury report of P.W.4 stated 1. Lacerated wound frontal area of Lt. side of head 2-1/2”x1/4”x1/4” 2. Defused swelling on Rt. Elbow about 3”x2”. 3. Compound fracture of Rt. Leg, bone visible. 4. Defused swelling 3”x2” on left leg. Injuries 1 and 4 were simple and 2 and 3 were stated to be caused by hard blunt substance. The injury report of Abu Basher stated one lacerated wound on Rt. Leg on middle and outer post 1”x1/4”x1/4”, simple 6 caused by hard blunt substance. The injury report of P.W.1 Md. Hasnain Ansari stated:- 1. Abrasion on forehead ¼”x1/4”. 2. Abrasion left and right forearm 4”x1/4”. 3. One lacerated wound on Rt. Leg 2”x1/4”x1/4”, injuries being simple in nature caused by hard blunt substance within six hours. The injury reports were marked as Exts. 4, 4/1, 4/2 and 4/3. D.W.1 Ram Balak Roy, the erstwhile Sub-inspector of police, Barari P.S., Bhagalpur was the sole defense witness who proved Ext.A, the fardbayan of P.W.4 Md. Shamshad Ansari stated to have been recorded by him at the Bhagalpur Hospital on 30.7.2002. Learned counsel for the appellants, Shri Akhileshwar Prasad Singh, submitted that Mahboob Ali, Israel and Abul Basher named by the prosecution-witnesses to have been present, have not been examined. Abul Basher is also alleged to have suffered bomb- injuries near the Imambara. Gulam is also stated to have suffered bomb-injury near the Imambara, but there is no injury report on record. In his deposition he has said nothing with regard to any bomb-injury to him. P.W.1 was vacillating on the issue- whether his statement was recorded at 7.00 a.m. at the Bousi Hospital on 8.7.2002 or not. Contrary to his statement in his examination-in- chief that Hasib and Latif were the assailants of P.W.4, he has also 7 named Tudu in his cross-examination. Aware of the land-dispute between them, he denied the existence of 5-6 litigations between the parties or that the cause for occurrence was the sale of 14 Katthas of land to Buddhu Mian. He was not an eye-witness to the occurrence near the Imambara. The witness had made contradictory statements before the police under Section-161 Cr.P.C. and in the court. Having been confronted with the same, he stood discredited. Being an interested witness, related to the injured and the deceased he was not stating the truth. P.W.2, wife of the informant, was also an interested witness. She stated that her statement was recorded by the police at the hospital on 8.7.2002 at 7.00 a.m. and her thumb impression taken thereupon. This was the first true and correct narration of the occurrence disclosed before the police as a fardbayan and which has been concealed by the prosecution. This explains the delay in sending the F.I.R. to the Magistrate after deliberation on 10.7.2002. The fardbayan of P.W.3, stated to have been recorded at 6.45 a.m., is an afterthought and an ante timed fardbayan. P.W.2 has stated that they first went to the police station where they were told to go to the Bousi Hospital for treatment. It is not the case of the prosecution that any fardbayan of P.W.3 was recorded at the police station. The witness acknowledged that Buddhu Mian had purchased lands from her brother-in-law. She woke up only after the assault on P.W.4 Md. Shamshad Ansari and, therefore, was not an eye-witness to the assaults on him. Contrary to her statement of 8 bleeding after assault upon her when her clothes and the ground being soiled by blood or presence of remnants of the bomb and blood on the spot, the investigating officer, C.W.3, did not find any such thing. P.W.3, the informant also stated of first having gone to the police station at 6.00 a.m. with the injured when they were told to proceed to the hospital immediately. He does not say that any statement of his was recorded at the police station. He feigned ignorance and denied any land-dispute, more particularly, with regard to 14 Katthas sold by a faction of the family to Buddhu Mian. P.W.4, Md. Shamshad Ansari, was also an interested witness. He claimed to be an eye-witness to both parts of the episode, but did not make any such statement under Section-161 Cr.P.C. with regard to the occurrence at the Imambara. He denied having given any fardbayan to D.W.1 at Bhagalpur in which he had given a completely different version of the manner of first occurrence, that Nawab Mian and Firdous Mian had put a gun to his head and that there was animosity between them for pending litigation, or that he learnt of the death of his brother Fida Hussain in the hospital. If the informant and other injured had gone to the police station at 6.00 a.m. and the statement of P.W.2 was first recorded at the hospital at 7.00 a.m., there was no occasion for their injury report to be prepared by the hospital at 6.30 a.m. 9 The impugned judgement at paragraph-18 opines that in a constrained area of 15/15 feet of open space near the Imambara it was not possible for 17 accused to assemble and not to have suffered any bomb injuries themselves. This made the presence of all the accused doubtful. The other accused with the exception of the present appellants have been acquitted. But, the case of Pasib, Tudu and Firdous is the same as those acquitted. Even Nawab Mian, who is alleged to have thrown the bomb, has been acquitted. There was, thus, no justification for the conviction of Rahim Mian and the distinction sought to be drawn on basis of relationship of an accused with Buddhu Mian was wholly irrelevant. P.W.1 had made a specific accusation of bomb-injury to him and to Gulam by Nawab Mian. Abul Basher, alleged to have been injured by Rahim Mian, having not been examined, was also entitled to acquittal. Summing up the arguments it was submitted that P.W‟s.1 to 4 and C.W.1 were interested witnesses whose testimony could not be relied upon, given the fact that the parties were descendents of a common ancestor and there was serious land- dispute and several litigations between them. The prosecution-witnesses have been confronted with and questioned on the contradictions between their statements under Section-161 Cr.P.C. and that made in the court. They have been discredited and their evidence has to be tested by separating the truth from falsehood. If the truth and falsehood were inextricably mixed up, their entire evidence must be rejected. 10 Reliance was placed on (2002) 1 S.C.C. 487 on the issue of delay in the F.I.R. It was next submitted that failure to put questions to the investigating officer, C.W.3, with regard to the statements of P.W‟s.1 to 4 under Section-161 Cr.P.C. and which they had contradicted was not relevant. Putting of the questions to elicit contradictions to P.W‟s.1 to 4 was sufficient compliance with the provisions of Section-145 of the Evidence Act and the appellants cannot be prejudiced by non-compliance of Section-157 of the Evidence Act vis-à-vis the investigating officer, C.W.3, on these contradictions. Reliance was placed on AIR 1952 S.C. 214. It was lastly submitted that in any event of the matter, the present was not a case for imposition of death sentence. There was no charge under Section- 3(b) of the Explosive Substances Act with regard to special category of explosives and no statement of accusation made thereunder, at the stage of 313 Cr.P.C. The submission therefore was of a doctored F.I.R., false implication due to land-dispute to urge that the appellants deserved an acquittal. Learned Senior Counsel Shri Lala Kailash Bihari appearing on behalf of the State urged that the first occurrence took place at 4.00 a.m. at the „Basa‟ of the informant. They proceeded to the hospital around 5.00 a.m. It was natural that the only witnesses were family members at this early hour of the morning. Two of them are injured witnesses. Both the assaults were contiguous in point of time. Even if the injuries found on P.W.1, Gulam, and Abul Basher are stated not to have been caused by a bomb, it definitely confirms 11 their presence during the second episode leading to injuries on them. In the facts of the case the issue of delay in the F.I.R. was not fatal, for which reliance was placed on (2002) S.C.C. (Cri.) 175. The basic charge was one under Section-302/149 of I.P.C. as members of an unlawful assembly actuated by a common object. Individual overt acts of assault were, therefore, hardly relevant and even if not proved shall be of no avail to the appellants. The acquittal of some of the co-accused on the ipse dixit of the trial court without any reasoning and sustainability in law was of no avail to the appellants. Reliance was placed upon (2003) S.C.C. (Cri.) 1543. The investigating officer, C.W.3, has deposed that having heard a rumour of the occurrence, he made a station diary entry at 5.00 a.m. and reached the Bousi Hospital at 6.45 a.m. where he recorded the statement of the informant. The inquest report and the dead body challan were then prepared at 7.00 a.m. The statements of P.W. 2 and P.W.4 were recorded at the Bousi Hospital itself before referring the latter to Bhagalpur for better treatment. There was no occasion for a fresh statement of P.W.4 at Bhagalpur, and if recorded, should have been sent to the Bousi police station for investigation, which has not been done. The investigating officer proceeded to the place of occurrence at 7.15 a.m. The absence of any blood or remnants of bomb at either of the two places referred to by the investigating officer is of no relevance. The occurrence was during the monsoon in the moth of July, more so, when the bomb explosion took place on an unpaved village street with all possibility 12 of wild vegetational growth in the monsoon. Even if the conviction under Section-3(b) of Explosive Substances Act were to fail, the lesser charge under Section-3(a) of Explosive Substances Act shall stand as no prejudice can be said to have been caused to the appellants in that event. Whether an offence under Section-307/149 of I.P.C. was made out against some of the accused or not, was to be tested on the nature of the assault and not the nature of the injury caused by the assault. The law with regard to interested witnesses states that the credibility of an interested witness cannot be doubted merely because he was an interested witness. Many a times no independent witness may be available or be willing to depose. If an interested witness was to be rejected simpliciter on that ground, there would be no evidence left. It has, therefore, been held by the Courts that the evidence of an interested witness shall have to be tested with caution for its credibility and shall be accepted if it was otherwise cogent, consistent and convincing. Moreover, an interested witness, especially a relative of the victim, would be the person most keen to ensure that justice is done to the victim vis-à-vis the perpetrator of the crime. It has likewise been held that weightage has to be given to the evidence of one who is injured in the same occurrence. It lends credibility to the allegations as he is an eye-witness and was injured in the same transaction. 13 The first assault is stated to have taken place at 4.00 a.m. at the „Basa‟ of P.W.3. It is but natural at this very early hour of the morning that no independent witness shall be available at the house of P.W.3, except the inmates, unless the house owner had any visitors staying overnight. In an occurrence of the hot and humid month of July, it is not unusual that on the commotion created by the assault, Abul Basher and Israel may have arrived at the spot. P.W.2 and P.W.4 are stated to have been injured by assault with a „Khanti‟. Both have consistently stated that Buddhu Mian ordered, when Latif and Hasib assaulted them. P.W.1 was not an injured witness. His statement under Section-161 Cr.P.C. that Tudu Mian was also one of the assailants is hardly relevant. The injury report of P.W‟s.2 and 4 at Ext.4 and 4/1 states that it was caused by a hard blunt substance which includes a „Khanti‟. The injuries have been found to be simple in nature on P.W.2 while injuries- 1 and 4 on P.W.4 were found to be simple and opinion reserved on injuries-2 and 4 awaiting X-ray report which never came. To urge that P.W.2 was not an eye-witness, but woke up only after the assault first made on P.W.4 and was therefore not an eye- witness, is nothing but a quibbling on what are essentially non- issues. She was sleeping in the same „Basa‟ as P.W.4. Assault was made on P.W.4 who shouted for help, when she ran to help and was also assaulted and suffered injuries. P.W.3, the informant, who was also sleeping there has consistently stated that on the order of Buddhu, Hasib and Latif assaulted P.W.4 first and then P.W.2. 14 P.W.1 has stated likewise. Even C.W.1 has corroborated the first assault at the „Basa‟. P.W‟s.1 to 4 have consistently stated of his presence also at the time of assault at their „Basa‟. Merely because there may have been some variations in their statements made under Section-161 Cr.P.C. and during deposition in court, peripheral in nature, when the contradictions have not even been proved in accordance with law shall hardly be relevant. The Court shall deal with this aspect subsequently. There is no allegation of any bomb-explosion at the „Basa‟. The Investigating Officer, C.W.3, states that he did not find any remnants of a bomb at either place of occurrence. That he did not state about blood being present or not at the first place of occurrence is irrelevant, in view of the consistent evidence of witnesses, including injured witnesses, of assault with a „Khanti‟ and bleeding injuries corroborated by the injury reports. The failure to mention blood spots or seizure of blood-stained clothes or earth is inconsequential. The second part of the occurrence at the Imambara draws its sustenance for truthfulness from the first occurrence at the „Basa‟. P.W.1-4 have consistently stated that Abul Basher arrived at the first place of occurrence immediately after the assault on P.W.2 and P.W.4. It is the case of the prosecution that immediately after the assault all of them proceeded to the Bousi Hospital for treatment. The second assault near the Imambara took place when they were on way to the hospital. Abul Basher is also 15 stated to have suffered bomb injury as a result of the bomb thrown by accused Rahim. The continuity of the sequence of events certainly lends credence to the allegations. Fida Hussain is stated to have been deceased as a result of the bomb thrown by accused Shaukat Mian and P.W.1 and C.W.1 are stated to have been injured by the bomb thrown by accused Nawab Mian. The inquest report and the post mortem report of Fida Hussain both refer to death being caused by explosives. The fact that the Investigating Officer, C.W.3, may have stated that he found no remnants of a bomb at the place of occurrence is not of much avail to the accused. The place of occurrence was an unpaved road and an open area. It was the month of Monsoon, in July. The possibility of wild vegetational growth in a village environment where the remnants may have got scattered and camouflaged, cannot be ruled out. The bomb thrown on Fida Hussain landed on his shoulder directly and exploded immediately causing injury to him. The mere absence of any remnants, does not persuade this Court to hold that the entire allegations are false and fictitious when the medical evidence is to the contrary. Lacerated wounds have been found on P.W.1 and Abul Basher. Modi‟s book on Medical Jurisprudence and Toxicology states that lacerated wounds can also be caused by bomb explosions also. Quite obviously, the bombs used in the present occurrence in a village was a crude bomb which has its limits of causing injuries dependent on various factors of its ingredients which unfortunately is not the subject matter of the investigation. 16 This Court on consideration of the above, is satisfied that the evidence of the witnesses cannot be disbelieved simply on the ground of their being interested witnesses, but is otherwise cogent, convincing and credible. In AIR 2004 S.C. 313 (Choudhary Ramji Bhai Narsan Bhai vs. State of Gujarat) it has been held as follows at paragraph- 4:- “4. In appeal the High Court found that the trial Court's approach was erroneous. It was of the view that if a particular fact stands established by the evidence of trustworthy and reliable witnesses, the record is not to be burdened by examining other witnesses for proving the same fact as it would amount to multiplicity only. If the witness is otherwise reliable and trustworthy, the fact which is sought to be proved by that witness need not be further proved through other witnesses. Even if a witness is related to the deceased there is no reason to discard his evidence if he is reliable and trustworthy. What is required is the cautious and careful approach in appreciating the evidence because a part of the evidence might be tainted owing to the relationship and the witnesses might be exaggerating the facts. In such an event, the Court is to appreciate the evidence in the light of other evidence on record which may be either oral or documentary. It was noticed that the presence of the informant was not challenged in