Bistu Pasi Son Of Hari Pasi vs State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 914 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. Appeal (DB) No.413 of 1994
                                   ------
      (Against the Judgment of conviction dated 11.05.1994 and Order of
      sentence dated 12.05.1994 passed by the 3rd Additional Sessions
      Judge, Deoghar in Sessions Case No.91 of 1991)
                                   ------
      Bistu Pasi son of Hari Pasi
      resident of mohalla Barmasia, Police Station Deoghar, District
      Deoghar                             .....         Appellant

                                       Versus

      State of Bihar (now Jharkhand)         .....         Respondent

                           PRESENT
             HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                  HON'BLE MR. JUSTICE SUBHASH CHAND
                                  .....
      For the Appellant    : Mrs. Anjana Prakash, Advocate
                           : Mr. Sudhanshu Kumar Deo, Advocate
      For the State        : Mr. Pankaj Kumar Mishra, APP
                                  .....


C.A.V. on 13.02.2023                         Pronounced on 27.02.2023

Per Sujit Narayan Prasad, J.

The instant appeal is against the Judgment of conviction

dated 11.05.1994 and Order of sentence dated 12.05.1994 passed

by the 3rd Additional Sessions Judge, Deoghar in Sessions Case

No.91 of 1991, whereby and whereunder, the appellant has been

convicted for the offence under Sections 302 and 307 of the

Indian Penal Code and Section 3/4 of the Explosive Substance

Act and directed to undergo rigorous imprisonment for life for the

commission of offence under Section 302 of the Indian Penal

Code.

2. The prosecution story in brief as per the fardbeyan of the

Anandi Mahatha (informant) recorded by S.I., A.K. Dalmia of

Deoghar P.S. at the emergency ward of Deoghar Hospital is that

on 18.04.1990 at about 9:00 p.m., Anandi Mahatha P.W.5 (father

of the deceased), his son Umesh Mahtha (deceased) along with

other family members were sitting on the door of their house

situated at mohallah Barmasia within the jurisdiction Deoghar

Police Station. In the meantime, the accused Bistu Pasi and

Budhan Pasi, both residents of the same mohallah, reached there

from the northern side.

The accused Bistu Pasi started abusing the informant and

asked him to come out. One Anil Pasi of his mohallah informed

the informant that the accused Bistu Pasi was taking bomb.

Hence, he advised the informant to go inside the house. The

informant Anandi Mahtha started fleeing towards his house. In the

meantime, the accused Bistu Pasi threw a bomb on his son Umesh

Mahtha (deceased) who was also sitting near the door of the

house. Accused Bistu Pasi, appellant herein, threw second bomb

on the informant but it could not hit him as he succeeded to enter

into his house. The bomb thrown by Bistu Pasi missed the target

and hit the wall of the house. In the meanwhile, the area was filled

with smoke. Accused Budhan Pasi who was also armed with

bomb was making announcement that whoever would try to save

the informant and his son, he would kill him.

According to the fardbeyan (Ext.4), when the informant-

P.W.5 found that his son did not enter into the house, he opened

the door and came out of the house and found his son Umesh

Mahtha lying near the door of house with profuse bleeding having

his skull badly damaged. He saw the accused Bistu Pasi and

Budhan Pasi (absconder) moving with bombs in their hands.

While the informant was pulling to take his injured son Umesh

Mahtha inside the house, Bistu Pasi threw another bomb on him.

However, the informant was saved since the bomb missed the

target and hit wall of the house. Thereafter, the accused persons

fled away, towards north side.

The motive behind the occurrence is said to be land dispute

between both the parties and accused Bistu Pasi was cousin

brother of the informant's wife and wife of informant is living

with her father and on the day of occurrence, accused Bistu Pasi

threatened the deceased to fact the dire consequences.

On the basis of the fardbeyan, F.I.R. was instituted. The

Police had conducted investigation and submitted charge-sheet

against the accused persons including the appellant for the

commission of offence under Sections 302 and 307 of the Indian

Penal Code and Section 3/4 of the Explosive Substance Act before

the learned Chief Judicial Magistrate, Deoghar. Thereafter, the

case was committed to the Court of Sessions for trial and the trial

was commenced. Another accused person Budhan Pasi has been

declared absconder and he had not been put on trial.

3. The prosecution altogether has examined 8 witnesses, basis

upon which, the learned trial Court has come to the conclusion

that the prosecution has been able to prove the charge against the

appellant beyond all shadow of doubts for committing offence of

causing murder of Umesh Mahtha (deceased) and as such, found

him guilty of commission of offence under Sections 302 and 307

of the Indian Penal Code and Section 3/4 of the Explosive

Substance Act and accordingly, sentenced him to undergo

rigorous imprisonment for life for the commission of offence

under Section 302 of the Indian Penal Code.

4. Mrs. Anjana Prakash, learned counsel appearing for the

appellant has taken the following grounds in assailing the

impugned judgment of conviction/sentence:-

(i) The prosecution cannot be said to have succeeded in

proving the place/time and manner of occurrence, since, the

witnesses have deposed about explosion of three bombs and as

such, in that situation, there should have been sufficient quantity

of bomb remnants at the place of occurrence. However, the

Investigating Officer, in his statement at paragraph-3 has stated

that he collected remnants of a live bomb and blood stained earth

smelling of explosives, no seizure witness has supported this fact.

P.W.2 has stated in paragraph-9 that the bomb which did

not explode was taken away by the Daroga. However, she has not

stated about preparation of any seizure list.

It has come in the testimony of P.W.8 at paragraph-11 that

no seizure list has been prepared and has conceded that he could

not say as to before whom, it was seized and there is no entry in

the case diary as from where exactly it was seized.

The Investigating Officer has deposed at paragraph-13 that

he did not send the remnants of bomb for chemical examination

and he had sent a requisition for sanction for prosecution under

the Explosive Substance Act without an F.I.R. and any Forensic

Report.

The falsity of the prosecution story would be evident that at

the time of occurrence all the witnesses were witnessing the

Baraat party which was came to mohalla due to which hundreds of

people gathered there but not a single independent witness has

been produced by the prosecution to support the factum of

occurrence at the place and time so claimed.

(ii) The further falsity of the prosecution story would be

evident from the testimony of the doctor who has found semi-

digested food in the stomach indicating that the deceased may

have eaten four hours before which suggests that in all probability

the occurrence took place late afternoon and not at night as

claimed by the prosecution.

(iii) Further ground has been agitated by raising the doubt

in proving the manner of occurrence, i.e.,

(1) The witnesses have consistently stated that when the

accused were preparing to throw the bomb P.W.3 Anil

Pasi warned them but this fact has not been supported by

P.W.3.

(2) Had three bombs been hurled witnesses present at the

place of occurrence would have sustained splinter

injuries but none was injured.

(3) (i) P.W.1 at para-1 has stated that P.W.2, P.W.4 and the

deceased was sitting outside and her husband P.W.5 was

also sitting there. However, later she said that the

appellant had abused the deceased saying that he should

come out at which she and her husband came out and

told Bistu Pasi not to abuse at which Ranjan Pasi and

Subal ordered him to throw a bomb. Anil Pasi (P.W.3)

warned them and ran away. Bisthu Pasi threw two

bombs on P.W.5 but it did not hit him.

(ii) P.W.2 (Kanti Kumari) has stated she, P.W.1, P.W.4

and the deceased was sitting outside when the four

accused persons came out of which Bistu Pasi abused

the deceased and P.W.5 and asked them to come out,

then P.W. 5 came out and told him not to abuse. At this,

Ranjan and Subal ordered Bistu Pasi to kill. Anil Pasi

P.W.3 warned them but just then, the appellant threw a

bomb on the deceased who was sitting on a chair and he

fell off the chair. Bistu Pasi also threw two bombs on her

father P.W.5 but it did not hit him.

(iii) P.W.3 (Anil Pasi) stated that on the sound of bomb

he ran to the house of P.W.5 and many other persons

gathered there. Umesh Pasi (the deceased) was fallen

there. The door of the house was closed and none of the

family members were outside. They were screaming

from inside. He and other mohalla persons assured them

of their presence and then they opened the door. On

coming out, none of them disclosed the names of any

person.

(iv) P.W.4 (Lalita Devi) wife of the deceased stated that

P.W.1, P.W.2, deceased and P.W.5 were all sitting at the

door watching the Barat when the four accused persons

came and Budhhan and Bistu Pasi started abusing.

Ranjan ordered at which appellant Bistu Pasi threw a

bomb on Umesh Mahtha(deceased). Two bombs were

thrown on P.W.5 but it did not hit him. P.W.3 Anil Pasi

had tried to warn them.

(v) P.W.5 (Anando Matha) stated that he was sitting at

the door along with the deceased, P.W.1, P.W.2, P.W.3

and P.W.4 when the four accused persons came out of

which Bistu Pasi abused him and told him to come out.

P.W.3 Anil Pasi tried to warn them at which Ranjan and

Subal ordered him to throw the bomb. At this, Bistu Pasi

threw a bomb on the deceased due to which he fell down

injured. Two bombs were thrown on him but none of

them hit him.

It has been argued on behalf of the appellant, therefore, that

the testimony of P.W.3 Anil Pasi is an essential part of the manner

in which the occurrence took place but he has not supported the

witnesses on his role.

It has been submitted that four witnesses have positively

implicated Ranjan and Subal during trial with a specific role of

giving orders, even though, they were not named in the First

Information Report and as such, they have been acquitted of the

charges. Thus, a substantial part of the manner of occurrence has

been disbelieved.

It has further been agitated that if at all the deceased and

P.W.5 were sitting outside, there was no reason for the appellant

to ask P.W.5 to come out and as such, such testimony also cannot

be said to be reliable.

(iv) The ground has been taken that the prosecution cannot be said

to have proved the charge beyond all reasonable doubts, since,

P.W.1, P.W.2 and P.W.4 have not been named as witnesses in the

First Information Report, where it has only been stated that the

family members were sitting outside.

Even though, the place of occurrence appears to be a small

area where three bombs were thrown out of which two exploded

yet none of the witnesses sustained any splinter injuries or had

soot on their clothes to prove their presence there.

P.W. 1 has specifically stated that she has fallen on her

injured son but no blood-stained clothes have been seized or

produced in the Court.

(v) The ground has also been taken that P.W.8 has contradicted

the testimony of eye witnesses by deposing that he had recorded

the statement of the deceased in an injured condition when he

assumed the charge of investigation on 18.04.1990 while the

witnesses have consistently stated that the deceased died at the

place of occurrence itself.

The further falsity of the prosecution story would be evident

that in the First Information Report, it has not been mentioned as

to whether the injured was died by the time, the fardbeyan was

recorded but if at all the deceased had died even before reaching

the Hospital, there was no reason for the case to have instituted

under Sections 307 and 34 of the IPC and not under Section 302

of the IPC rather it was only on 21.04.2019, Section 302 of the

IPC was added.

Further, non-preparation of the inquest report by the

Investigating Officer is also a reason to disbelieve the prosecution

story.

The argument has been advanced that the conviction of the

appellant is also under Section 3/4 of the Explosive Substance Act

but in absence of forensic report, which is to substantiate the

charge have not been sent before the sanctioning authority and

merely on perusal of the FIR has granted the sanction and as such,

there is no application of mind while granting sanction by the

concerned competent authority.

(vi) The ground has been taken for non-examination of a single

independent witness, even though the place of occurrence was

bustling with people has caused great prejudice to the appellant

when rest of the witnesses belong to the same family having a

common grouse to implicate.

5. Learned counsel for the appellant on the basis of the

aforesaid ground has submitted that the prosecution has not been

able to prove the charge leveled against the appellant beyond all

reasonable doubts but without taking into consideration theses

aspects of the matter, the judgment of conviction/sentence has

been passed, therefore, the same is not sustainable in the eye of

law.

6. Per contra, Mr. Pankaj Kumar Mishra, learned APP

appearing for the State-respondent has submitted by defending the

judgment of conviction on the ground that P.W.1 Chameli Devi,

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P.W.2 Kanti Kumari, P.W.4 Lalita Devi and P.W.5 Anando

Mahtha are the eye witnesses who have seen the occurrence and

as such, it is incorrect on the part of the appellant to take the

ground that the prosecution has not been able to prove the charge,

rather, it is a case where the prosecution has been able to prove

the charge on the basis of the testimony of eye witnesses who

have seen the occurrence of explosion of bomb resulting into

killing of the deceased.

7. The ground which has been agitated on behalf of the

appellant as referred hereinabove countering the said submission

made on behalf of the State that the same will not vitiate the

prosecution version on the ground that it is a case where the

prosecution version has been substantiated by the testimony of eye

witnesses, i.e., P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4

Lalita Devi and P.W.5 Anando Mahtha.

8. Learned APP on the issue of cryptic sanction order granted

by the sanctioning authority for prosecution under the provision of

Explosive Substance Act is concerned, it has been submitted by

referring to Ext.6, the order of sanction, since the same has been

granted after perusing the FIR and as such, it cannot be said that

the same is without any application of mind.

Learned APP, on the basis of the aforesaid ground, has

submitted that the judgment of conviction since is based upon the

cogent evidence and as such, the same may not be interfered with.

9. In response to the aforesaid submission, learned counsel

appearing for the appellant has submitted that the testimony of

P.W.3 Anil Pasi requires consideration, since, the reference of

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P.W.3 has also come in the F.I.R. by P.W.5 (informant) and he

although has been declared to be tendered witness but in the cross-

examination, he has completely disbelieved the version of the

informant P.W.5 and therefore, testimony of P.W.3 is required to

be considered.

10. We have heard the learned counsel for the parties, perused

the documents available on record as also the finding recorded by

the learned trial Court including the testimony of prosecution

witnesses as available in the lower Court record.

11. This Court before entering into the legality and propriety of

the impugned order is required to consider the testimony of

witnesses in order to come to the conclusion as to whether the

prosecution has been able to prove the prosecution version beyond

all shadow of doubts.

Chameli Devi has been examined as P.W.1 and has stated

by disclosing the name of the appellant, namely, Bistu Pasi as also

the name of Ranjan Pasi and Subal Pasi. It requires to refer herein

that Ranjan Pasi and Subal Pasi have been acquitted and accused

Budhan Pasi is still absconding.

It would be evident from the testimony of P.W.1 that she

has stated that the appellant has thrown bomb upon her son,

namely, Umesh Mahata due to which her son has fell down.

She has further stated that P.W.2, P.W.4 and the deceased

were sitting outside and her husband P.W.5 was also sitting there.

However, later she said that the appellant had abused the deceased

saying that he should come out at which she and her husband

came out and told Bistu Pasi not to abuse at which Ranjan Pasi

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and Subal ordered him to throw a bomb. Anil Pasi (P.W.3)

warned them and ran away. Bistu Pasi threw two bombs on P.W.5

(informant) but it did not hit him.

Kanti Kumari has been examined as P.W.2 and has stated

that she, P.W.1, P.W.4 and the deceased were sitting outside when

the four accused persons came out of which Bistu Pasi abused the

deceased and P.W.5 Anando Mahata and asked them to come out,

then P.W. 5 came out and told him not to abuse. At this, Ranjan

and Subal ordered Bistu Pasi to kill. Anil Pasi P.W.3 warned them

but just then, the appellant threw a bomb on the deceased who was

sitting on a chair and he fell off the chair. Bistu Pasi also threw

two bombs on her father P.W.5 but it did not hit him.

Anil Pasi has been examined as P.W.3 and has stated that

on the sound of bomb, he ran to the house of P.W.5 and many

other persons gathered there. Umesh Pasi (the deceased) was

fallen there. The door of the house was closed and none of the

family members were outside. They were screaming from inside.

He along with other mohalla persons assured them of their

presence and then they opened the door. On coming out, none of

them disclosed the names of any person.

Lalita Devi (wife of the deceased) has been examined as

P.W.4 and has stated that P.W.1, P.W.2, deceased and P.W.5

were all sitting at the door watching the Barat when the four

accused persons came and Budhhan and Bistu Pasi started

abusing. Ranjan ordered at which appellant Bistu Pasi threw a

bomb on Umesh Mahtha (deceased) and he had died at the spot.

She has also stated that two bombs were thrown on her father-in-

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law, P.W.5 Anando Mahata but it did not hit him. P.W.3 Anil Pasi

had tried to warn them.

Anando Mahatha (informant) has been examined as

P.W.5 and has stated that at about three years eight months before

when he was at his house along with his family members.

Chameli Devi, his wife, his daughter, Kanti Devi, Lalita Devi,

daughter-in-law, his son Umesh Mahata were sitting at the door.

In the meantime, four accused persons came out of which Bistu

Pasi abused him and told him to come out. P.W.3 Anil Pasi tried

to warn them at which Ranjan and Subal ordered him to throw the

bomb. At this, Bistu Pasi threw a bomb on the deceased due to

which he fell down injured. Two bombs were thrown on him but

none of them hit him.

P.W.6, namely, Dr. Ashok Kumar Chateerjee is the

Doctor who had conducted the postmortem examination on the

dead body of Umesh Mahtha. Umesh Mahtha was identified

before him by the Constable No.261, namely, Singhrai Hembrom

and Chaukidar 7/1 Kashi Turi. The doctor has found the following

ante mortem injuries on the deceased Umesh mahtha:-

(i) Blast injury on left side of skull with complete laceration

of tissues and the brain matter was found out with bones of skull

in pieces. There was blackening around the wound.

(ii) Bleeding from the left ear.

(iii) one lacerated blast injury 2 ½" x 1/2" on left arm with

blackening around it.

(iv) Blackening on right forearm 2" x 1".

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On opening of the chest of the decease, his both lungs were

found pale. On opening his abdomen, stomach of the deceased

was found to have contained about 4 ounce of undigested food

particles. Liver, spleen and both kidneys were found pale.

The doctor has opined that the time elapsed since death was

within 18 Hrs. at the time of postmortem examination. He has

further opined that the death was due to shock and hemorrhage as

a result of above injuries caused by some explosive materials such

as bomb.

P.W.7, namely, Gangadhar Prasad (Judicial Magistrate,

Deoghar) has stated that on the order of Chief Judicial Magistrate,

Deoghar, he has recorded the statement of Kanti Kumari, Chameli

Devi and Lalita Devi by signing and verifying them.

P.W.8, namely, Shasi Bhusan Singh, the investigating

officer has inspected the place of occurrence. According to him,

the place of occurrence is the house of the informant situated at a

distance of 50 feet north from the Chowk of mohallah Barmasia.

In his deposition, he has stated in para-5 that he had

recorded Umesh Mahtha's statement in the hospital. At para-6, he

has also stated that at 11:18 p.m. on 18.04.1990, he visited Sadar

Hospital Deoghar. Umesh Mahtha was not in conscious state of

mind at that time. According to him, he was speaking very slowly.

Since it was night, the investigating officer did not make any

attempt to get his dying declaration recorded.

12. From perusal of the testimonies of witnesses, it is thus

evident that P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4

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Lalita Devi and P.W.5 Anando Mahtha have given their

testimonies of witnessing the occurrence.

13. The argument has been advanced on behalf of the appellant

that if the testimony of these witnesses will be considered

together, they cannot be said to be eye witnesses coupled with the

testimony of P.W.3 Anil Pasi.

P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4 Lalita

Devi and P.W.5 Anando Mahtha has stated that due to assault

given by the bomb upon the deceased, the deceased fell down and

he had died.

It has also come in their testimonies that there were two

more bomb explosions.

14. The question of their reliability has also been considered by

this Court by considering the testimony of P.W.3 who although

has been tendered but he has been cross-examined, wherein, it has

been stated by him that after hearing the sound of bomb, he came

near the house of Anando Mahata and when he has reached there,

then other people of the locality has reached to the place of

occurrence.

He has stated that he had seen that deceased was lying

senseless and the door of his house was closed. He has stated in

specific term that none of the family members of the deceased

were outside. He has also stated that the family members of the

deceased were raising alarm from inside the house.

It has also been stated by him that when he along with local

peoples have assured them that they had reached at the place of

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occurrence then only they opened the door and came out from the

house.

It has also been stated by him that when he inquired the

name of the accused persons from members of deceased family,

then it has been said by them that they have not disclosed the

name and has also stated that they had not recognized. For ready

reference, deposition of P.W.3-Anil Pasi is being referred as

under:-

"Ikw.kZijh{k.k%& EkSa ceckjh dh vkokt luqdj vkuanh

iklh ds ?kj ij nkSM+ dj x;kA igys eSa ogk¡ x;kA ckn esa eqgYys ds yksx vk,A eSa ns[kk Fkk mes"k iklh vius njokts ds lkeus csgks"k fxjk gSA mlds ?kj dk njoktk cUn FkkA ifjokj dk dksbZ vkneh ckgj ugha FkkA Hkhrj ls yksx gYyk dj jgs FksA eSa iwjs eqgYys okys cksys dh ge vk x;s gSa rc os njoktk [kksysA vkUkanh] mldh iRuh] csVh ?kj ls ckgj vk,A iwNus ij pkjks esa ls dksbZ Hkh vfHk;Drks dk uke u rks cryk;k vkSj u igpkuus dk nkok fd;kA ?kVuk okyh jkr dksbZ Hkh e`rd ds ifjokj dk O;fDr vfHk;Drksa dh ppkZ ugha

fd;sA"

15. Learned counsel appearing for the appellant has given much

emphasis on the testimony of P.W.3 Anil Pasi, a tender witness in

order to question the testimony of eye witnesses, namely, P.W.1

Chameli Devi, P.W.2 Kanti Kumari, P.W.4 Lalita Devi and P.W.5

Anando Mahtha on the ground that even if P.W.3 has been

declared to be tendered but since he has been allowed to be cross-

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examined, wherein, he has disputed the prosecution version as

also the testimony of P.W.1 Chameli Devi, P.W.2 Kanti Kumari,

P.W.4 Lalita Devi and P.W.5 Anando Mahtha.

This Court, therefore, deems it fit and proper in order to

consider the testimony of P.W.3 Anil Pasi as to whether the

testimony of P.W.3 being a tender witness can be considered or

not.

16. This Court for considering the testimony of P.W.3 fell for

consideration before the Hon'ble Apex Court in the case of

Sukhwant Singh Vrs. State of Punjab, reported in (1995) 3 SCC

367, wherein while dealing with the issue of reliability of the

tender witness, it has been held at paragraph-20 as under:-

"20. The Division Bench, therefore, was considering a peculiar fact situation in that case and even in that context it was observed that the witness "could have been produced for cross-examination by the accused" and that "the accused were entitled to test his evidence". The observations of the Division Bench in Jaggo case [(1971) 2 SCC 42 : 1971 SCC (Cri) 401 : AIR 1971 SC 1586] , therefore, do not support the view that a material witness can be 'tendered' for cross-examination only. The observations from a judgment of this Court cannot be read in isolation and divorced from the context in which the same were made and it is improper for any court to take out a sentence from the judgment of this Court, divorced from the context in which it was given, and treat such an isolated sentence as the complete enunciation of law by this Court. The judgment in Jaggo case [(1971) 2 SCC 42 : 1971 SCC (Cri) 401 : AIR 1971 SC 1586] has in our opinion been misappreciated and that judgment

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cannot be interpreted as a sanction from the Supreme Court to the prosecution to adopt the practice of tendering a witness for cross- examination only, without there being any examination-in-chief, in relation to which the witness has to be cross-examined. All that the judgment in Jaggo case [(1971) 2 SCC 42 : 1971 SCC (Cri) 401 : AIR 1971 SC 1586] emphasises is that the mere ipse dixit of the prosecutor that a particular witness has been won over is not conclusive of that allegation and the Court should not accept the same mechanically and relieve the prosecutor of his obligation to examine such a witness. It was for this reason suggested by the Bench that where the prosecution makes such an allegation, it must keep the witness in attendance and produce him to enable the defence to cross- examine such a witness to test his evidence as well as the allegations of the prosecution and bring out the truth on the record. After the coming into force of the Criminal Procedure Code, 1973, which replaced the Code of 1898, recording of evidence in commitment proceedings has been totally dispensed with and Section 288 of that Code has been omitted. Consequently, the course suggested by some of the High Courts in the earlier quoted judgments regarding tendering of a witness for cross- examination who had been examined in the committal court, is also no more relevant or available. The Jaggo case [(1971) 2 SCC 42 : 1971 SCC (Cri) 401 : AIR 1971 SC 1586] , which was decided when the Code of 1898 was operating in the field could not, therefore, be pressed into service by the trial court while dealing with the instant case tried according to the Code of 1973. Thus considered, it is obvious that the trial court, wrongly

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permitted the prosecution to tender PW 4 and PW 5 for cross-examination only. Both PW 4 and PW 5 were, according to the prosecution case itself, eyewitnesses of the occurrence and had removed the deceased to the hospital. Their evidence was, of a material nature which was necessary for the unfolding of the prosecution story. The effect of their being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability."

The issue of reliability of the testimony of tender witness

fell for consideration before the Hon'ble Apex Court in the case of

Tej Prakash Vrs. State of Haryana, reported in (1996) 7 SCC 322

wherein, at paragraph-17 while putting reliance upon the

judgment rendered by the Hon'ble Apex Court in Sukhwant

Singh (Supra) has been pleased to hold therein at paragraph-17,

which reads as under:-

"17. As far as Dr O.P. Poddar is concerned, he was only tendered for cross-examination without his being examined-in-chief. Though, Dr O.P.

Poddar was not examined-in-chief, this procedure of tendering a witness for cross- examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab [(1995) 3 SCC 367 : 1995 SCC (Cri) 524 : (1995) 2 Scale 482] held that permitting the prosecution to tender a witness for cross-examination only would be wrong and "the effect of their being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial". In the present case, however, non-

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examination of Dr O.P. Poddar is not very material because the post-mortem report coupled with the testimonies of Dr K.C. Jain PW 1 and Dr J.L. Bhutani PW 9 were sufficient to enable the courts to come to the conclusion about the cause of death."

The Hon'ble Apex Court in the case of Ashok Debbarma @

Achak Debbarma Vrs. State of Tripura, reported in (2014) 4

SCC 747 after putting reliance upon the judgment of Sukhwant

Singh (Supra) has been pleased to hold at paragraphs-40 and 41

which read as under:-

"40. When we apply the above test to the facts of this case, we are not prepared to say that the accused was not given proper legal assistance by the counsel (sic as counsel had) appeared before the trial court as well as before the High Court. As already discussed in detail, there is clinching evidence in this case of the involvement of the appellant. The evidence tendered by the eyewitnesses is trustworthy and reliable. True, PW 17 should not have been subjected to cross-examination without being put to chief examination. Section 138 of the Evidence Act specifically states that the witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. Consequently, there is no scope under Section 138 of the Evidence Act to start with cross-examination of a witness, who has not been examined-in-chief, an error committed by the trial court.

41. In Sukhwant Singh v. State of Punjab [(1995) 3 SCC 367 : 1995 SCC (Cri) 524] this Court held that after amendment of CrPC, tendering of witness for cross- examination is not permissible. Under the old Code,

- 21 -

such tendering of witnesses was permissible, while the committing Magistrate used to record the statement of witnesses, which could be treated at the discretion of the trial Judge as substantial evidence of the trial. In that case, this Court further held as follows: (SCC p. 367) "Section 138 of the Evidence Act envisages that a witness would first be examined-in-chief and then subjected to cross-examination and for seeking any clarification, the witness may be re-examined by the prosecution. There is no meaning in tendering a witness for cross-examination only. Tendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief."

(emphasis in original) Later, in Tej Parkash v. State of Haryana [(1996) 7 SCC 322 : 1996 SCC (Cri) 412] this Court, following its earlier judgment in Sukhwant Singh [(1995) 3 SCC 367 : 1995 SCC (Cri) 524] , held as follows: (Tej Parkash case [(1996) 7 SCC 322 : 1996 SCC (Cri) 412] , SCC p. 330, para 17) "17. As far as Dr O.P. Poddar is concerned, he was only tendered for cross-examination without his being examined-in-chief. Though, Dr O.P. Poddar was not examined-in-chief, this procedure of tendering a witness for cross-examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab [(1995) 3 SCC 367 : 1995 SCC (Cri) 524] held that permitting the prosecution to tender a witness for cross-examination only would be wrong and 'the effect of their being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial'. In the present case, however, non-examination of Dr O.P.

- 22 -

Poddar is not very material because the post-mortem report coupled with the testimonies of Dr K.C. Jain PW 1 and Dr J.L. Bhutani PW 9 were sufficient to enable the courts to come to the conclusion about the cause of death."

17. This Court on the basis of the consideration on the issue of

reliability of the testimony as recorded in the cross-examination of

the tender witness as per the consideration made in the judgment

rendered in the case of Sukhwant Singh (Supra) is of the view

that herein also the prosecution has tendered the P.W.3 but he has

been allowed to be cross-examined, wherein, the testimony has

been given by P.W.3 to the effect that at the time when the bomb

was exploded, none of the family members of the deceased were

outside the house, as would appear from the reference made in the

quoted part as referred and quoted hereinabove.

18. This Court on consideration of such testimony and after

considering it from the testimony of P.W.1 Chameli Devi, P.W.2

Kanti Kumari, P.W.4 Lalita Devi and P.W.5 Anando Mahtha,

wherein, these witnesses given their testimony to the effect that

they had seen the occurrence of assaulting the deceased by

exploding the bomb thrice, due to which, the deceased has died,

but P.W.3 has completely given a contradictory evidence

discarding the status of these witnesses to be of eye witnesses and

therefore, this Court applying the observation made by the

Hon'ble Apex Court in the case of Sukhwant Singh (Supra) is

of the considered view that testimony of P.W.3, Anil Pasi,

requires consideration in the facts and circumstances of the given

case and therefore, this Court is not hesitant in coming to the

- 23 -

conclusion that P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4

Lalita Devi and P.W.5 Anando Mahtha cannot be considered to be

eye witnesses after considering the version of P.W.3 Anil Pasi.

19. As per the prosecution version, injury caused by the bomb

explosion has been made out and not only that reference of two

bombs has also been narrated but it would be evident from the

testimony of investigating officer-P.W.8 who has stated that

remnants of a live bomb and blood stained earth had been found at

the place of occurrence and seized all the articles. But no seizure

list is available on record and as such, in absence of the

corroboration about the injury sustained by the bomb explosion is

not being confirmed by the investigating officer.

The investigating officer even has not prepared any seizure

list of any live bomb, bomb or its remnants or blood stained earth.

20. The question of corroboration of testimony of witnesses is

also in doubt on the ground that the eye witnesses, i.e., P.W.1

Chameli Devi, P.W.2 Kanti Kumari, P.W.4 Lalita Devi and P.W.5

Anando Mahtha had deposed in their testimony that the deceased

had died at the spot which they had seen but when this Court has

considered the testimony of investigating officer, wherein, he has

stated that he has recorded the statement of deceased in the injured

condition in the Hospital, therefore, the same also cast doubt upon

the testimony of these witnesses.

Further consideration has been given by this Court that it is

the case of the prosecution that at the time of occurrence of bomb

explosion, the area was crowded with the people who had come to

attend the marriage nearby house of Mahadev but none of the

- 24 -

independent witnesses has been examined by the investigating

officer in order to corroborate the aforesaid narration of the

prosecution story.

21. The prosecution is also against the Sections 3 and 4 of the

Explosive Substance Act.

22. Learned counsel for the appellant has argued that the order

granting sanction is absolutely cryptic and mechanical.

23. We, in order to examine the aforesaid argument has

considered the order granting sanction by the competent authority

and found therefrom that it is only on the basis of the F.I.R., the

sanction has been granted.

The question is that the sanction having been granted on the

basis of the F.I.R. can be said to be proper exercise of power by

the authority granting sanction.

24. The position of law is well settled as has been held by the

Hon'ble Apex Court in the case of C.B.I. Vrs. Ashok Kumar

Aggarwal, reported in (2014) 14 SCC 295 that while granting

sanction, it is the bounded duty of the prosecuting agency to

produce the entire material before the sanctioning authority for its

consideration and due application of mind before granting

sanction. For ready reference, the relevant paragraphs of the

aforesaid judgment are being referred as under:-

"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the

- 25 -

sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non- application of mind. (Vide Gokulchand Dwarkadas Morarka v. R.; Jaswant Singh v. State of Punjab7, Mohd. Iqbal Ahmed v. State of A.P., State v. Krishanchand Khushalchand Jagtiani, State of

- 26 -

Punjab v. Mohd. Iqbal Bhatti, Satyavir Singh Rathi, ACP v. State and State of Maharashtra v. Mahesh G. Jain.)

16. In view of the above, the legal propositions can be summarised as under:

16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

- 27 -

But here, in the instant case, the Police had investigated but

no other details have been produced, save and except the F.I.R.,

basis upon which, the sanction has been granted.

The sanction since goes to the root of the prosecution and in

absence of proper order of sanction, there cannot be any

prosecution.

25. This Court has considered that even accepting that the

sanction granted to initiate prosecution against the appellant for

commission of offence under Section 3/4 of the Explosive

Substance Act if said to suffer from an error, then only on that

ground, can it be said that offence committed under Section 302

of the IPC is not being made out.

26. The answer of this Court is that the specific case of the

prosecution of commission of murder caused due to bomb

explosion and there is no other reference of injury having been

given by the appellant for causing death of the deceased.

If the injury caused by explosion of bomb itself is found to

be improper due to want of proper sanction then segregating the

offence said to have committed under Section 3/4 of the Explosive

Substance Act, it cannot be said that offence under Section 302

will be made applicable.

27. The question of consideration is that the prosecution is

required to prove the charge beyond all shadow of doubts and then

only there can be a judgment of conviction snatching away the

right to liberty.

28. The Hon'ble Apex Court in catena of decision has

propounded the proposition that in the criminal trial, there cannot

- 28 -

be any conviction if the charge is not being proved beyond all

shadow of doubts, as has been held in the case of Rang Bahadur

Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454,

wherein, at paragraph-22, it has been held as under:-

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

Likewise, the Hon'ble Apex Court in the judgment rendered

in the case of Sheila Sebastian Vrs. R. Jawaharaj & Anr.,

reported in (2018) 7 SCC 581 has been pleased to hold at

paragraph-28 as under:-

"28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the

- 29 -

place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."

28. This Court considering the aforesaid principle as has been

settled by the Hon'ble Apex Court as referred hereinabove and

taking into consideration the fact that P.W.1 Chameli Devi, P.W.2

Kanti Kumari, P.W.4 Lalita Devi and P.W.5 Anando Mahtha

cannot be considered to be eye witnesses by considering the

testimony of P.W.3 Anil Pasi as above and since, the prosecution

has based his case on the testimony of P.W.1 Chameli Devi,

P.W.2 Kanti Kumari, P.W.4 Lalita Devi and P.W.5 Anando

Mahtha, therefore, on the basis of their testimony, it cannot be

said that the prosecution has been able to prove the charge beyond

all shadow of doubts.

The learned trial Court has given its finding that even

though P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4 Lalita

Devi and P.W.5 Anando Mahtha are related witnesses and as

such, their testimony cannot be discarded since they are eye

witnesses.

- 30 -

29. The position of law is well settled that merely because the

witnesses are interested and even though, they are eye witnesses,

their testimony cannot be discarded, as has been held by the

Hon'ble Apex Court in the case of Mallanna and Ors. Vrs. State

of Karnataka, reported in (2007) 8 SCC 523, wherein, at

paragraph-22, it has been held as under:-

"22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3 is that no reliance should be placed upon these witnesses as PW 1 and PW 2 are close relations of the deceased and PW 3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses, PW 1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly bodyguard of the deceased and PW 1 and PW 3 came with the deceased to the house of PW 2 which was in Gulbarga the previous night for appearance of the deceased in sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad daylight. So far as PW 2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor (PW 6) to

- 31 -

the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence."

[Emphasis Supplied] Likewise, the Hon'ble Apex Court in the judgment rendered

in the case of Kulesh Mondal Vrs. State of W.B., reported in

(2007) 8 SCC 578, wherein, at paragraph-11, it has been held as

under:-

"11. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) '25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ

- 32 -

547] (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.''

But position of law is well settled that the judgment is to be

made applicable on the basis of the facts of the given case, as has

been held by the Hon'ble Apex Court in the case of Dalbir Singh

Vrs. State of Punjab, reported in (1987) 3 SCC 360, wherein, at

paragraph-15, it has been held as under:-

"15. Learned Counsel on question of

appreciation of evidence referred to number of

decisions but it could not be disputed that no

hard and fast rule could be laid down about

appreciation of evidence. It is after all a

question of fact and each case has to be

decided on the facts as they stand in that

particular case. In our opinion, therefore not

much assistance could be sought from the

decisions referred on the question of

appreciation of evidence."

The Hon'ble Apex Court again in the judgment rendered in

the case of Swamy Shraddananda v. State of Karnataka, reported

in (2007) 12 SCC 288, wherein, it has been held at paragraph-34

as under:-

"34. If it is proved that the deceased died in an

unnatural circumstance in her bedroom, which

was occupied only by her and her husband, law

- 33 -

requires the husband to offer an explanation in

this behalf. We, however, do not intend to lay

down a general law in this behalf as much would

depend upon the facts and circumstances of each

case. Absence of any explanation by the husband

would lead to an inference which would lead to a

circumstance against the accused."

30. As per the position of law that the testimony of related

witnesses cannot be discarded but its reliability is required to be

seen. The reliability of eye witnesses of testimony of P.W.1

Chameli Devi, P.W.2 Kanti Kumari, P.W.4 Lalita Devi and P.W.5

Anando Mahtha can be said to be acceptable if there was no

version of P.W.3 deposing about their non-presence at the spot,

rather, according to his version, they were inside the house,

therefore, this Court is not discarding the testimony of these

witnesses, i.e., P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4

Lalita Devi and P.W.5 Anando Mahtha on the ground of related

witnesses, rather, their testimonies have been shown to be in

contradiction with the testimony of P.W.3 who happens to be the

independent witness.

31. This Court has also found from the material available on

record that the testimony as was recorded of P.W.5 in paragraph-

15, wherein, it has been stated that before going to the Hospital,

P.W.5 had gone to the Police Station where the Daroga has told

him to go to the Hospital immediately but he has conceded that he

did not disclose any names then merely stated that his son had

been hurt by bomb. The said statement can only be verified by the

- 34 -

Station Diary Entry if made but as would appear from the

testimony of investigating officer (P.W.8) that no Station Diary

entry has been made since the same has not been produced.

32. This Court after having discussed the fact in entirety and

has scrutinized the judgment passed the learned trial Court but

find therefrom that the learned trial Court has not examined the

fact by taking into consideration the testimony of P.W.3, rather,

the learned trial Court has solely based its finding upon the P.W.1

(mother of the deceased), P.W.2 (sister of the deceased), P.W.4

(the wife of the deceased) and P.W.5 (father of the deceased) and

considering them to be eye witness has come to the finding of

proving the charge against the prosecution beyond all shadow of

doubts.

But, while considering the same, the learned trial Court has

failed to appreciate the legal position regarding the consideration

of the testimony of P.W.3 whose testimony reflects that these

witnesses, i.e., P.W.1 Chameli Devi, P.W.2 Kanti Kumari, P.W.4

Lalita Devi and P.W.5 Anando Mahtha cannot be considered to be

eye witnesses as per the details discussion made hereinabove

basing upon the judgment rendered by the Hon'ble Apex Court in

the case of Sukhwant Singh (Supra).

Further, the learned trial Court has also not appreciated the

fact about non-preparation of seizure list and not making any

Station Diary Entry, has passed the judgment of conviction, which

according to us based upon the reasoning made hereinabove,

cannot be said to be proper consideration of fact as also the legal

- 35 -

position and therefore, the impugned judgment, according to the

considered view of this Court, requires interference.

33. In consequence thereof, the Judgment of conviction dated

11.05.1994 and Order of sentence dated 12.05.1994 passed by the

3rd Additional Sessions Judge, Deoghar in Sessions Case No.91 of

1991, is hereby quashed and set aside.

34. Accordingly, the instant appeal stands allowed.

35. The appellant is discharged from criminal liability.

36. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, J.) I agree (Subhash Chand, J.)

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated, the 27th February, 2023.

Rohit/-A.F.R.