Toti Yadav v. The State of Bihar

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 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:- itself the case of “14. It is trite that mere delay in lodging the first information report is not 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 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 accusation against the appellant was, therefore, not explained to him properly and therefore he was unable to make out his defence properly with regard to the nature of accusation.

This has certainly caused serious prejudice to him. This Court has no hesitation in holding that in absence of proper statement of accusation having been put to the appellant, he cannot be stated to have had a fair trial. P.W.11 is stated to be an eye-witness sitting adjacent to the deceased plucking Kudrum leaves at the time of explosion while the deceased was tying stacks of the stems of plucked Kudrum leaves. The investigating officer, in the seizure-list, does not mention any Kudrum leaves or even stems of the plucked Kudrum leaves having been found at the place of occurrence. P.W.11 states that despite four bombs having been exploded she did not run for her life. This, to the court, appears to be a highly unnatural conduct doubting the truthfulness of the witness. The normal human reaction at such a time would be to run helter skelter driven by the innate desire for survival. One would not wait for the fifth bomb to be thrown upon.

It 20 is, therefore, apparent that the three witnesses are consistent that P.W.7 went to the police station at 8.00 a.m. It is apparent that his statement was recorded at the police station at 8.00 a.m. The statement of P.W.4 was recorded at 8.30 a.m. It is only in pursuance of the same that the Choukidar came at 9.00 a.m. and the restatement of P.W.7 was recorded by the police at 9.00 a.m. In this background, the undue delay of 12 days in sending of the first information report to the Magistrate assumes great significance. The non-examination of the investigating officer and the Choukidar, in the aforesaid background, also assumes great relevance causing serious prejudice to the appellant. If a police statement recorded one hour after the occurrence, investigation commenced and re-statement recorded, what happened to the same and what was the story therein, why did the prosecution not produce the investigating officer to deny that, in fact, no statement of P.W.7 was recorded at 8.00 a.m. or 9.00 a.m. or that of P.W.4 at 8.30 a.m.

Unfortunately the order-sheet of the court below reflects that after issuance of summons to the investigating officer no steps, whatsoever, were taken in law to secure his attendance. P.W.5, Rubia Devi, daughter of informant, P.W.11, states that she was at home at the 21 time of occurrence. That her statement was recorded by the police at 7.00 a.m. when her mother was also with her. The case of P.W.11 is that the police came only at

11.15 a.m. The contention that the disclosure of the name of the appellant by the deceased to the witnesses after the assault and injury was in the nature of a dying declaration does not satisfy the Court. Dying declaration is stated in law to have a certain sanctity attached to it. But, only if, the links be complete. In a case like the present, this Court is not satisfied that merely on what is alleged to be a dying declaration, when several questions arise, as discussed, and to be discussed hereinafter, that the appellant can be convicted upon the same. P.W.8, the doctor, has clearly stated that he did not find any splinters on the body of the deceased or any bleeding injuries. What was found was burn injuries only on different parts of the body with amputation of the left leg and the fracture of the right upper arm. He has opined that such injuries can be caused if the deceased was carrying a bomb.

Ext.5, the injury report of P.W.11, also refers to burn injuries only and no splinters have been found on her person. This becomes relevant in light of the recitals in the seizure-list which shows that the remnants of the 22 allegedly exploded bomb included small pieces of China clay and small stones shrapnel. The other remnants of paper, threads or cloth did not bear any signs of explosion or burn. Read together, this assumes vital significance in the background of the allegations that the deceased died of a bomb thrown upon him. There is even no crater at the place of explosion despite P.W.6 having stated to that effect. The investigation done by the police is archaic, unscientific, perfunctory, bordering on irresponsibility. Despite the availability of a plethora of materials for a proper and scientific investigation, the investigating officer not only thought it irrelevant, but also has displayed complete disdain in discharge of his duties for enforcement of the law and appearing in court to depose also.

Bombs are classified as or high or low explosion capacity. What appears from the seizure-list is a crude country-made bomb. The explosive capacity of such a bomb is bound to be low. The intensity shall get enhanced when it is thrown creating an impact by external force, but when such a bomb explodes by itself the intensity of the flying debri shall neither be strong nor shall it travel wide. While in the former situation the shrapnel may cause injuries, in the latter it may only result in burn injuries to one near the bomb. From the 23 seizure-list it appears that the alleged remnants of the bomb were found clustered at one place. It was a bomb thrown at the deceased, surely, shrapnel would have been found in the body of the deceased, if not in the injured, P.W.11. If P.W.11 was in close proximity, as stated by her, surely, there would have been shrapnel injury on her also. None have been found.

Forensic Science states that where a victim is in close proximity of a bomb, the force of the explosion may disrupt the body resulting in dismemberment or fragmentation. The direct effect of the hot expanding gases and physical shock associated can disrupt the body causing shattering of the skeleton also. Such an explosive device may cause severe burns due either to the flash burn from the primary explosion of the bomb or secondary burns from ignition of the victim‟s clothing. A bomb exploding on the ground may well cause severe damage, even traumatic amputation, to the lower legs, without causing too much damage to the body. A bomb which explodes whilst the victim is bending over it or actually holding it, may cause severe damage to arms, face and front of the face. In conclusion, commencing with evidence of P.W.7 having gone to the police station and his statement recorded at 8.00 itself leading to the 24 Choukidar coming at 9.00 a.m. and the re-statement of P.W.7 at 9.00 a.m., the failure of the prosecution to explain what the statement was, the failure to examine the investigating officer who recorded his statement, and the unreasonable and unexplained delay forwarding the F.I.R. to the Magistrate, all satisfy this Court that there was an earlier report with regard to the occurrence having taken place in a different manner and which has been suppressed and is not being allowed to see the light of the day.

There are contradictory statements of the witnesses that the deceased died immediately and that he died two hours later. The investigating officer does not find any crater at the place of occurrence when the witness has specifically stated so and visits the place of occurrence much belatedly, are all issues creating serious doubts on the prosecution-case. The deceased died of a bomb explosion. But the question is-did he die of a bomb thrown on him or did he die as a result of an explosion of a bomb carried by him. If two versions are possible and serious doubts are arising on the version of the prosecution that the bomb was thrown on the deceased, the appellant is definitely entitled to the benefit of doubt and it cannot be said that the accusation had been proved beyond all reasonable doubt. 25 This Court is, therefore, satisfied that the prosecution has failed to prove beyond all reasonable doubt that the appellant was the assailant of the deceased.

The conviction of the appellant and the death sentence imposed is, therefore, clearly not sustainable. They are, accordingly set aside. The appellant is acquitted. The appellant who is in custody, is directed to be released forthwith, if not wanted in any other case. ( Navin Sinha, J.) Dharnidhar Jha, J. ( Dharnidhar Jha, J.) Patna High Court, Dated:17th of July, 2009. N.A.F.R./ KC/