Criminal Appeal (DB) No.728 of 2008 Awadhesh Singh son of Kishundeo Singh, R/O village Ekadha, P.S. Chewara, Distt-Sheikhpura. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (DB) No. 838 of 2008 Santosh Singh @ Santosh Kumar, son of Raj Kishore Singh, Village- Ekarha, P.S. Chewara, Distt-Shiekhpura. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (DB) No. 863 of 2008 Manoj Kumar Singh aged about 36 years, Son of Rajendra Singh, R/O Ekarha. P.S. Chewara, Distt-Sheikhpura. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (DB) No. 1091 of 2008 Guddu Singh s/o Awadhesh Singh, Resident of village Ekadha, P.S. Chewara, Distt- Sheikhpura .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ========= Against the judgment and order of conviction dated 1.7.2008 and sentence 2.7.2008 passed by Additional Sessions Judge, Fast Track Court, IVth Sheikhpura. ---------- Appearance : (In CR. APP (DB) No. 728 of 2008) For the Appellant/s : Mr. Sanjeev Ranjan, Adv For the State : Mr. Abhimanyu Sharma, APP (In CR. APP (DB) No. 838 of 2008) For the Appellant/s : Mr. Rana Pratap Singh, Sr. Adv. Mr. Sumant Singh, Adv. 2 Mr. Sarvesh Kumar Singh, Adv. Mr. Rakesh Kumar, Adv. For the State : Mr. Dilip Kumar Sinha, APP. For Informant in all cases:- Mr. Ajay Kumar Thakur, Adv Mr. Imteyas Ahmad, Adv. (In CR. APP (DB) No. 863 of 2008) For the Appellant/s : Mr. Himanshu Kumar Akel Mr. Sumant Singh For the State:- Mr. Dilip Kumar Sinha, APP (In CR. APP (DB) No. 1091 of 2008) For the Appellant/s : Mr. Rana Pratap Singh, Sr. Adv. Mr. Sumant Singh, Adv. Mr. Sarvesh Kumar Singh, Adv. Mr. Rakesh Kumar, Adv. For the State : Mr. Ashwani Kumar Sinha, APP. ================================================== P R E S E N T HON’BLE MR. JUSTICE SYAM KISHORE SHARMA HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya Kumar Trivedi. Cr. Appeal No. 728 of 2008 has been filed on behalf of appellant-convict, Awadhesh Singh, Cr. Appeal No. 838 of 2008 has been filed on behalf of appellant-convict, Santosh Singh, Cr. Appeal No. 863 of 2008 has been filed on behalf appellant-convict, Manoj Kumar Singh and Cr. Appeal No. 1091 of 2008 has been filed on behalf of appellant-convict, Guddu Singh against the common judgment of conviction dated 1st July 2008 and sentence dated 2nd July 2008 passed by Sri Narayan Prasad Singh, Additional Sessions Judge, FTC-IV, Sheikhpura, Munger in Sessions Trial No. 256 of 2004/40 of 2008 3 convicting the appellant named above under Section 302 of the Indian Penal Code as well as 3/5 of the Explosive Substance Act and further directed each of them to undergo RI for life as well as appellant-convict, Monoj Kumar Singh, Santosh Kumar Singh and Guddu Singh independentally had been directed to undergo RI for life under Section 3/5 of the Explosive Substance Act and further directing the sentence to run concurrently. All these four appeals have been heard together and are being disposed of by a common judgment. 2. One of the deceased, Binay Kumar gave his fardbeyan while he was admitted at the Nursing Home of Dr.K. Purusottam at Sheikpura on 18.04.2001 at 7:00 P.M. (Exhibit-4) disclosing therein that on the same day at about 12 noon while he along with Manoj Kumar Singh S/O Naresh Singh, Rajeev Kumar S/O Dani Singh, Police Kumar S/O Shyamli Singh, Umesh Singh S/O Nikhedi Singh was playing cards near Kehuli tree, south to Shiv Mandir, all of a sudden, his co-villager, Awadhesh Singh S/O Kishundev Singh, Guddu Singh, Santosh Kumar, Rajendra Singh, Manoj Kumar Singh, Niranjan Singh came and on an order of Awadhesh Kumar, Guddu Singh, Santosh Kumar Singh, Manoj Kumar hurled bomb. Then, thereafter, they escaped and during said course they have also fired. He along with his other 4 companions have sustained bomb injury. After hearing sound of explosion, his brother Bipin Singh and co-villager, Shambhu Singh, Dukhi Singh along with others came and have seen the accused fleeing therefrom. Subsequently, they were taken to Sheikhpura for treatment where Manoj Kumar died during course of treatment. The genesis of occurrence has been disclosed as one of the booths for Mukhia election has been identified at Middle School, Ekadha lying behind his house and to facilitate booth capturing by the accused persons, they have committed such offence. 3. As the investigation of this case was taken up in an unusual manner and its repercussion will be dealt with at the later part of the judgment save and except incorporating the fact that from the evidence of PW-11, Ramesh Kumar Sharma, it is evident that after coming to know about the occurrence on 8.4.2001 at 2:10 P.M. he rushed to village- Ekadha after entering station diary no.304 dated 18.04.2001 and as none was eager to record fardbeyan therefore, he proceeded with the investigation simultaneously informing the O/C of Sheikpura P.S. to record fardbeyan of one of the injured admitted at clinic of Dr.K. Purusottam at Sheikpura on the basis thereof Exhibit-4 was recorded by PW-12, Mithilesh Kumar Jaiswal. O/C of 5 Sheikhpura P.S. which was later on transmitted to Ariari (Chewara) P.S. for registration and on the basis thereof Ariari P.S. Case No. 70/2001 was registered. 4. After completing investigation of Ariari (Chewara) P.S. Case No. 70/2001, final form was submitted showing the case as false. However, the learned A.C.J.M, Sheikhpura differing therefrom took cognizance vide order dated 12.07.2002 under Section 302 of the IPC along with other ancillary Sections and accordingly case was committed and subsequently, culminated in convicting the appellant-convict while acquitting two of them namely, Rajendra Singh and Niranjan Kumar. 5. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that appellant-convict are innocent and they have fallen prey of group rivalry, personal grudge as well as village politics. Further, it has been pleaded that the deceased had sustained injury on their own while they were preparing bomb at the Bathan of Naresh Singh, father of one of the deceased, Manoj Kumar Singh and to support the same two DWs have also been examined on this score. 6. While assailing the judgment of conviction and sentence, it has been argued on behalf of appellant-convict that 6 the judgment of conviction and sentence recorded by the learned lower court shows non application of judicious mind. Then submitted that the prosecution case suffers from improbability, illegality, development and in the aforesaid background, the whole prosecution is fit to be thrown out rightly. To support their plea first of all, it has been submitted that as per own admission of PW-11, he had conducted the investigation, recorded statement of witnesses, visited the place of occurrence before institution of the case which happens to be unknown to criminal jurisprudence, therefore, the evidence of PW-11 in consonance with the evidence of those witnesses who have been examined by the PW-11 before the institution of the FIR happens to be untenable in the eye of law as well as being inadmissible. Then coming to the sanctity of the FIR, it has been submitted that it cannot be accepted as an FIR because of the fact that before recording of the FIR, the investigation had already begun and so it happens to be hit by Section 162 of the Cr.P.C. 7. Alternatively, it has further been submitted that the same cannot be treated as solemn statement of deceased as it shrouds under doubt on account of non examination of Doctor as well as non examination of the FIR attesting witnesses. As such the statement on its face loses its sanctity under both counts 7 whereunder neither it could be accepted as the first information report nor it could be as a dying declaration. Therefore, the ultimate result happens to be the instant case has got no leg to standby. 8. Now coming to the evidence of the witnesses, it has been submitted that PW-1, Naresh Singh, PW-2, Kanchan Devi, PW-8, Savitri Devi are not eyewitnesses to the occurrence. PW-3, Manoj Kumar and PW-4, Abhay Singh have supported the case of defence. The remaining witnesses happens to be PW-5, Rajiv Kumar, PW-6, Police Kumar and PW,7 Umesh Singh who have claimed themselves to be partner during playing card along with deceased and have also claimed to have sustained injury at the alleged place of occurrence. But their conduct, their depositions are sufficient to discredit their claim and for that drew attention towards relevant paragraphs of their deposition. PW-9 and 10 are doctors who have conducted postmortem over the person of deceased and they categorically stated that these injuries can be self inflicted. PW-11, 12 are the part I.O. and their objective finding also belie the prosecution version. PW-13 happens to be formal in nature who had simply recorded the fardbeyan of deceased Binay Kumar. Further submitted that the prosecution knowingly and intentionally withheld the material 8 witnesses whose presence has been shown in the so alleged fardbeyan and some of them happens to be own family members of deceased and no explanation has been furnished on behalf of prosecution for their non examination. Then submitted that the death of both the deceased that means to say Manoj Kumar and Binay Kumar is not under dispute, the dispute is over the manner of occurrence as flashed by the prosecution which from the conduct of the prosecution witnesses is very much clear that deceased did not meet with their ultimate death as per prosecution version rather the probability of defence version was much found to be stronger, the circumstance visualizing therefrom negativates the whole prosecution case giving reliable alternative version that deceased along with PWs-5, 6 and 7 have sustained injury during course of manufacturing of bomb and during course thereof, there was explosion at the Bathan of Naresh Singh. It has further been submitted that the learned lower court totally ignored and overlooked this part of material visualizing from the record and sentenced the appellant-convict which is not at all justifiable. Further submitted that the conviction of appellant-convict under Section 3/5 of the Explosive Substance Act was not at all maintainable for want of sanction as per Section 7 of the Act. So submitted that the appeal is fit to be allowed. 9 9. Learned counsel for the appellant also referred the judgments reported in 1988 PLJR 621, AIR 2000(1) SCC 555, AIR 2000 SC 679, AIR (2004) SCC 583. 10. On the other hand, the learned Additional P.P. assisted by the learned counsel for the informant strenuously refuted the submission advanced on behalf of the learned counsel for the appellants and submitted that the FIR cannot be treated as hit by Section 162 of the Cr.P.C. as Section 157 Cr.P.C. permits the police official to make preliminary investigation before recording of the FIR. Therefore, contents of the first part of the investigation happens to be in accordance with law though exceeded to some extent nevertheless that part played by the Investigating Authority will make the FIR inadmissible in the eyes of law. Also submitted that in worst case whatever statement of witness has been recorded during course of first part of investigation before recording of the FIR, that could be kept out of purview. The FIR was recorded at Sheikhpura as both the injured were admitted at Sheikhpura and from Sheikhpura, the FIR was sent to Ariari where FIR was registered. So there has not been delay in registering the FIR and in likewise manner there has not been delay in compliance of Section 157 of the Cr.P.C.. Learned APP fairly submitted that during the course of 10 conduction of trial, certain deficiencies accrued which suggest that the learned Additional APP was not so diligent and in the aforesaid background the witnesses more particularly the FIR attesting witnesses along with others could not be examined on behalf of the prosecution. Then submitted that now the prosecution evidence has to be taken into consideration in the background of aforesaid deficiencies and for that submitted that PW-5,6 and 7, the victim-cum-eyewitness have consistently supported the case of the prosecution. Not only this, it has also been submitted that on account of death of Binay Singh, the Fardbeyan given by him has turned into dying declaration. Neither defence has been able to controvert the sanctity of aforesaid dying declaration nor there happens to be any occasion to discredit the same. When the dying declaration is taken together with the testimony of PWs-5,6, and 7, it is manifest that these are consistent on each and every point more particularly over place of occurrence as well as identifying and encircling the assailant. Also submitted that defence of accused by way of examining DW as well as exhibiting the document is not at all going to axe upon the prosecution case in its entirety and in likewise manner, mere answering over questionnaire put by the defence before doctor regarding possibility of self inflicted injury 11 is going to discredit the testimony when all happen to be consistent and corroborated. Then submitted that absence of sanction in accordance with Section 7 of Explosive Substance Act is not going to disapprove the prosecution case even nullifying the conviction and sentence under Explosive Substance Act. So submitted that the prosecution has succeeded in substantiating its case, consequent thereupon, the appeal is fit to be dismissed. 11. In getting the rival submission properly considered, first of all evidence has to be dealt with. 12. In order to support its case, the prosecution had examined altogether 13 PWs out of whom PW-1 is Naresh Singh, PW-2 is Kanchan Devi, PW-3 is Manoj Kumar, PW-4 is Abhay Singh, PW-5 is Rajeev Kumar, PW-6 is Police Kumar, PW-7 is Umesh Singh, PW-8 is Savitry Devi, PW-9 is Dr. Rajiv Ranjan Verma, PW-10 is Ashok Kumar Yadav, PW-11 is Manoj Kumar, PW-12 is Ramesh Kumar Sharma and PW-13 is Mithilesh Kumar Jaiswal. Side by side also exhibited Exhibit-1, Carbon copy of PM report, Exhibit-2 Copy of P.M report, Exhibit-3 seizure list, Exhibit-4 Fardbeyan and Exhibit-5 formal FIR. Defence has also examined altogether two DWs, DW-1, Anil Singh, DW-2, Karianand Singh as well as also exhibited signature of Kanchan Devi (PW-2) as Exhibit-A, A/1. 12 13. PW-9 happens to be Dr. Rajiv Ranjan Verma who had conducted postmortem over the dead body of deceased, Manoj Kumar on 19.04.2001 and found the following:- (1) Explosive tattoo marks present at most places all over the body with lacerated wounds at many places including chest and scalp of ½-1” x 1/3”x1/3”. (2) On dissection both lungs were found lacerated, plural cavity filled with fluid and blood clots. Death due to shock and haemorrhage as a result of above injuries caused by some explosive substance. Time elapsed since death about 24 hours. 14. During cross-examination at paragraph-7 had said that I have not mentioned that any foreign body was found in the dead body at the time of postmortem report. At para-11 had said that injuries found by him are possible by an explosion while manufacturing bomb. 15. PW-10, another doctor who had conducted postmortem over the dead body of another deceased, Binay Kumar Singh. Following ante-mortem injuries were found:- (a) ½” diameter explosive burn injury was found on the lateral side of left side of chest between left 7th and 8th ribs up to muscles (b) explosive burn injuries were found over the both lower extremities on its medial and frontal side. (c) one explosive burn injury was found over the 13 right upper extremities. (d) explosive burn injuries were found on the right side of chest extending up to sternum. (e) multiple explosive burn injuries were found on the head, face, neck and upper part of right side of chest. After opening of body following internal findings were found:- Chest cavity was full of fluid. Trachea and lungs were found highly congested. No any projectile was found. The aforesaid ante-mortem injuries were sufficient in ordinary course of nature to cause death and were caused by explosives. The death was caused due to asphyxia and shock due to explosive injury and its complications. Time since death within 12 to 24 hour. At paragraph-7 of his cross-examination has admitted that injuries stated above are possible in course of explosion during preparation of bomb. All the injuries were in the front side of the body of the deceased. 16. So from the aforesaid finding of the respective doctors, it is crystal clear that both the deceased died on account of explosive substance having it exploded. Moreover, the appellants also did not challenge the factum of death by means of explosive substance. 14 17. Now, the other aspect happens to be relating to complicity of appellants-convict as an assailant. 18. Presence of appellant-convict is right from the FIR of Binay Kumar who subsequently died. As per narration of the FIR, while he along with Manoj Kumar, Rajeev Kumar, Police Kumar, Umesh Singh were playing cards, all of a sudden, Awadhesh Singh, Guddu Singh, Santosh Singh, Rajendra Singh, Manoj Kumar and Niranjan Singh came and on an order of Awadhesh Singh, Guddu Singh, Santosh Singh and Manoj Singh hurled bomb on account of which they all sustained injury. 19. Now coming to status of witness, first of all, we would like to begin with evidence of the witnesses who as per FIR, were present at the spot and were engaged in playing cards. 20. PW-5 happens to be one of the injured. He had deposed that on 18.4.2001 at about 12 noon he along with Police Kumar, Binay Kumar, Manoj Kumar and Umesh Singh were playing cards beneath Kehuli plant near Sheo Mandir. Awadhesh Singh, Rajendra Singh, Manoj Kumar, Niranjan Singh, Santosh Kumar, Guddu Kumar came from northern side and on an order of Awadhesh Singh, Guddu Singh and Santosh Singh hurled bomb upon them as a result of which Manoj Singh and Binay Singh sustained severe injuries while he along with Police 15 Singh and Umesh Singh sustained superficial injuries. He has sustained injury over his left leg. Others fired and then they escaped from there. Injured were taken to Sheikpura. Manoj died there while Binay Singh died thereafter. During cross- examination at para-2 accepted that they were sitting over earth. Cards were thrown over towel. It was of white colour having black border. Two persons were sitting north faced while three were south faced. They were playing since 11 0’Clock. At para-6 had said that he had got no animosity with accused persons. In para-7 had said that the bombs were hurled over the injured. First bomb fell over testicle of Binay Singh while second and third bombs fell down over the earth in between Manoj and Binay. Because of the fact that all the three bombs fell simultaneously therefore, he could not get an opportunity to escape. At para-8 had said that lungi and ganji which Manoj worn had burnt at front side. Blood had fallen over the earth. At para-9 had said that on account of explosion of bombs, towel and cards were torn. At para-12 had said that accused persons came towards north side, bomb was hurled towards northern side. No ditch was formed on account of explosion. They have not come raising alarm. Awadhesh Singh had ordered from the distance of two to four hands away followed with hurling of bomb. At para-13 had said 16 that he along with Police Singh and Umesh Singh had not gone to Sheikhpura hospital for their treatment as they had sustained superficial injury. At para-14 had said that there was no dense fog formed on account of explosion. Accused persons escaped soon thereafter before arrival of villagers. Then at para-16 and 17 have said that they are associated with Shambhu Singh while accused persons were supporters of Awadhesh Singh who were Mukhia candidate. Then had denied the suggestion that the deceased had sustained injury while manufacturing bomb. At para-30 he had admitted to record his statement before the police one month after the occurrence. At para-34 have said that police had seized towel having in burnt condition. 21. PW-6 (renumbered as PW-5), Police Kumar. He had deposed that the occurrence is of dated 18.04.2011 at about 12:00 noon and at that very time, he was playing cards beneath Kehuli plant along with Binay Singh, Manoj Singh, Rajendra Singh, Umesh Singh since 11:00 A.M. At that very moment, Awadhesh Singh, Rajendra Singh, Manoj Singh, Niranjan Singh, Santosh Kumar, Guddu Singh came and on an order of Awadhesh, Manoj and Guddu hurled bomb over body of injured and then escaped from there after making fire. Manoj Singh and Binay Singh sustained splinter injury. He along with 17 Rajeev and Umesh also sustained minor injury. He had shown the mark of wound. Manoj Singh and Binay Singh were lifted to hospital where Manoj died. Binay Singh was taken to Patna through Begusarai where during course of treatment he died. The motive for occurrence has been shown as they happened to be supporters of Shambhu Singh who was contesting against the accused, Awadhesh Singh in the Mukhiya election. The aforesaid election was going to be held on 19.04.2001. Then had identified the accused. During cross-examination at para-3 had said that they occasionally played cards beneath Kehuli plant. Then had said that house of Shyam Singh lies south to that place. None has got their house at northern side. House of Naresh Singh lies east at the distance of 100-150 feet. In western side there happens to be open space. At para-4 had said that all were playing cards. Cards were brought by Rajiv Kumar. He is not remembering what was scribed at the back of cards. All were sitting over earth. Then had said that all the fives had got their cards. Umesh Singh was seeing the game while remaining four were playing. He is not remembering who was winning at that time. Then had said that three persons were sitting from northern side having their face towards southern side and two persons were sitting from southern side having northern face. During the aforesaid period none had 18 come. They have seen the accused when they were at the distance of 1-2 hands away. At para-5 had said that he could not escape at the time of hurling bomb because no opportunity was available. All the three bombs were hurled in same sequence. Smoke came out but was not so densed. There was sound. The remittance of bomb was present there. At para-6 had said that after 15 to 20 plots, the houses of Suro Singh and Pramod Singh lie . Houses of Mantu Singh and Naresh Singh lie 100 to 150 feet away at southern side. Middle school lies 200 to 250 feet away at western side. House of Shyam Singh and Bhanu Singh lies 150 feet away. At para-8 had said that the bombs were hurled from northern side. None of the bomb fell on earth rather it fell on the body of Manoj and Binay. Injury was caused. Thigh and whole body of Manoj was burnt and in likewise manner, Binay also sustained grievous injuries. Blood fell down over the earth but he cannot say exact area. He had not seen the black spot or ditch at the place of occurrence. Then had elaborately dealt with the injury sustained by the injured. At para-11, had said that he had met with police 20-25 days after the occurrence. Police had not gone in between. At para-12 had said that at the time of occurrence he was sitting at northern side facing south along with Rajiv and Umesh. Then he said that whether the cards were burnt or not, he cannot say. In 19 para-14, there happens to be contradiction. At para-18 had said that non had gone to the P.S.. Chebara, police had come to his village on the same day at about 4:00 p.m.. He had not disclosed to police