1. The captioned appeals arise out of a common Judgment hence they have been clubbed and heard together.
2. The appellants are aggrieved by the judgment of conviction dated 18th May, 2017, and order of sentence dated 23rd May, 2017, passed by the
learned Additional Sessions Judge-IX-Cum F.T.C Hazaribag (Jharkhand), in Sessions Trial No.418 of 1997, whereby, the appellants have been found
guilty and convicted for the offences under Sections 302, 307, 324 and 120(B) of the Indian Penal Code. The appellants, Prabhunath Singh and Dina
Nath Singh have also been convicted under Sections 3, 4 and 5 of the Explosive Substance Act read with 120(B) of the Indian Penal Code. All the
appellants have been sentenced to undergo imprisonment for life and pay a fine of Rs.40, 000/- for the offences under Sections 302 read with 120(B)
of the Indian Penal Code and in default, thereof, to undergo simple imprisonment of 5 months, and have been sentenced to undergo rigorous
imprisonment of 10 years and to pay a fine of Rs. 10,000/- for the offence under Sections 307 read with 120(B) of the Indian Penal Code and in
default, thereof, to further undergo simple imprisonment of 3 months. They have also been sentenced to undergo rigorous imprisonment of 3 year for
the offence under Sections 324 read with120 (B) of the Indian Penal Code. The appellants, namely Prabhunath Singh and Dina Nath Singh have also
been sentenced to undergo rigorous imprisonment of 10 years each for the offence under Sections 3,4 and 5 of Explosive Substance Act, read
with120(B) of the Indian Penal Code. All the sentences have been ordered to run concurrently.
3. The prosecution case as unfolded in the fardbeyan (Ext.-5), of the informant Chandni Devi (PW-11), is that on 03.07.1995 at 6.00 p.m., she was
sitting in the verandah of the official residence and her husband Ashok Singh (M.L.A) was sitting in the lawn along with Jitendra Kumar Singh (PW-
5), Sunil Kumar Singh (PW-7), Pradeep Singh, Sanjeev Kumar Singh, Jai Prakash Prasad (PW-1), Anil Kumar Singh, Kameshwar Singh(PW-17),
bodyguard Prahalad Paswan, Dalsingar Yadav and other six to seven persons. At about 7.00 p.m., a man wearing black pant and pink shirt, carrying a
shoulder bag, came and after talking to Raghwendra Kumar Singh (PW-8), the personal assistant of her husband, sat on the chair near her husband.
At about 7.20 p.m. when her husband stood up, then suddenly, the unknown person hurled a bomb at her husband, whereupon he fell down and the
people present ran helter-skelter. Some of the people tried to intercept the miscreant whereupon another bomb explosion took place. The informant
alongwith the body guard namely, Rustam and driver Swarth Mahto, brought the injured Ashok Singh to Patna Medical College and Hospital (PMCH),
Patna, where the doctor declared him brought dead. It is stated that, in the meantime the persons who were sitting with her husband in the lawn also
reached the Hospital. Jitendra Kumar Singh (PW-5) told the informant that the assailant, while fleeing, had thrown a bomb at Anil Kumar Singh who
died on the spot. That 2- 3 other persons had joined the assailant outside the quarter, and he had identified Dina Nath Singh, the younger brother of the
former MLA Prabhunath Singh as one of them. Jitendra Kumar Singh told her that while escaping the miscreant had hurled a bomb on the persons
chasing him due to which Pradeep Singh had sustained injury. She was told that a car and a motor-cycle were parked on the western side of the road
near Quarter no- 1M and accused Prabhunath Singh was standing near the car. It is alleged that Dina Nath Singh along with two miscreants got into
the car which was driven away by Prabhunath Singh and other two miscreants fled on the motor-cycle. She has alleged that Prabhunath Singh, Dina
Nath Singh and their supporters had killed her husband due to political rivalry.
4. On the basis of the fardbeyan, Gardanibag (Sachiwalaya) P.S. Case No.339 of 1995 (corresponding to G.R. No.2395 of 1995) was registered
against Prabhunath Singh, Dina Nath Singh and four unknown persons under Sections 302,307,324/34 of the Indian Penal Code (for short I.P.C), and
sections 3,4,5 of Explosive Substance Act. On completion of investigation, charge-sheet was filed and accordingly cognizance was taken. By order
dated 21.04.1997 passed in Cr.Misc. Case No- 1953/97, Gardanibagh (Sachiwalaya) P.S. Case No.339 of 1995 was withdrawn from the Sessions
Division of Patna and transferred for trial and disposal to the Sessions Division of Hazaribag. Thereafter, the record was received in the Court of
SDJM, Hazaribag, which committed the case to the Court of Sessions Judge.
5. The Sessions Judge transferred the case to the court of Additional Sessions Judge-IX-cum F.T.C, Hazaribag for trial and disposal. The trial court
read over and explained the charges under Sections 302,307,324/34 I.P.C, and sections 3, 4, 5 of Explosive Substance Act to the accused persons and
the additional charge under section 302/120(B) IPC, to which the accused persons pleaded not guilty and claimed to be tried.
6. During the trial, twenty-two witnesses (22) were examined by the prosecution. P.W.-9 LalBabu Singh, P.W.-21 Pramod Kumar Singh and P.W.-22
Ramesh Kumar Singh are formal witnesses. PW-2 Pradeep Kumar Singh and PW-17 Kameshwar Singh are the injured eye-witnesses. PW-7 Sunil
Kumar Singh and PW-8 Raghwendra Singh are the eye- witnesses. PW-11 Chandani Devi is the informant. PW-16 Lalan Prasad Singh and PW-18
Tarkeshwar Singh are the father-in-law and brother of the deceased. PW-3-Swarth Mahto, is the driver of the deceased and PW-12, Dalsingar
Yadav and PW-13 Prahalad Paswan are the bodyguards of the deceased. PW-14 LaxmanRai, PW-15Pankaj@ Bhola are other witnesses. PW-19
Dr. Ashok Kumar Yadav, is the doctor who conducted post-mortem on the dead body of Ashok Kumar Singh and Anil Kumar Singh and prepared the
post-mortem reports marked as Ext.-4 and 4/1 respectively. PW-20 Shashi Bhushan Sharma is the Investigating Officer (I.O.). PW-1 Jai Prakash
Prasad, PW-4 Sanjeev Kumar Singh, PW-6 Upendra Singh and PW-10 Barister Singh have been declared hostile by the prosecution.
7. Several documents were adduced during trial. Ext-1, 1/1 and Ext-3 are the signatures of Pradeep Kumar Singh, Jitendra Kumar Singh and Pankaj
@ Bhola respectively on the statement recorded under Section 164 Cr.P.C. Ext-4 and 4/1 is the post-mortem report of the deceased Ashok Singh and
Anil Kumar Singh. Ext-5 is the written report, Ext-2 is the signature of Chandani Devi on the fardbeyan. Ext-6 and 6/1 are the inquest report of Ashok
Singh and Anil Kumar Singh respectively. Ext-7 to 7/5 are the seizure lists and Ext-8 is the letter dated 03.07.1995 issued by competent authority to
provide extra police escort to MLA Ashok Singh. Ext-9 to 9/3 are the FSL Reports. Ext-10 and 10/1 are the sanction orders of District Magistrate,
Patna. Ext-11, 11/1 and 11/2 are the injury reports of Kameshwar Singh, Prahlad Paswan and Pradeep Kumar Singh respectively. Ext-12 and 12/1
are the letters written by the deceased Ashok Kumar Singh to police authorities for providing extra police security to him. Ext-13 and 13/1 are the TIP
Charts.
8. The defence produced the documents namely Ext-A-the statement of Sudhir Kumar Singh recorded u/s 164 Cr.P.C., Ext-B- C.C. of order sheet in
S.T. 1557/07. Ext-C- C.C. of judgment dated 19.12.2008 passed by ASJ-FTC-III, in S.T. No- 1557/07.
9. P.W.-1, Jai Prakash Prasad, is the domestic servant of deceased Ashok Singh. He has been declared hostile by the prosecution. He has deposed
that the occurrence took place at 7.30 p.m. on 03.07.1995 and at that time he was present at the official residence of the MLA Ashok Singh and
Kameshwar Singh (PW-17), Raghwendra Singh (PW-8), Pradeep Singh (PW-2) and others were also present there. The wife of the deceased was
sitting in the verandah. He has deposed that on the instruction of the deceased, he went to the kitchen to prepare tea and in the meantime, he heard a
bomb explosion. Thereafter Kameshwar Singh and Raghwendra Singh came inside the kitchen and closed the door. Kameshwar Singh told him that a
bomb had been thrown at the MLA. He heard two more explosions of bomb and when he came out he saw the MLA Ashok Singh lying in an injured
condition. Thereafter the wife of the MLA alongwith the bodyguard took the MLA to PMCH and, after sometime, Kameshwar Singh (PW-17) and
Raghwendra Singh (PW-8) also went to the hospital.
In his cross examination he has stated that Kameshwar Singh and Raghwendra Singh had locked themselves in the kitchen and came out after the
occurrence. He has stated that on the date of occurrence the father and mother of the deceased and Tarakeshwar Singh, Sunil Singh, Sanjeev Singh
and Jitendra Singh reached Patna at about 2.00 a.m.
10. P.W.-2 Pradeep Kumar Singh has deposed that on 03.07.1995 when he reached the official residence of Ashok Singh, he saw the MLA (the
deceased) sitting in the lawn and Kameshwar Singh (PW-17), Raghwendra Singh (PW-8), Anil Singh (since deceased) and the body guard of MLA
namely Prahalad Paswan and Dalsingar Yadav were also sitting there. He too sat with them. After sometime a person with a black bag came and sat
beside the MLA. Thereafter that person stood up and whispered to the MLA and on the pretext of showing something he took out a bomb from the
bag and threw it at the MLA. Then people started dispersing and Kameshwar Singh (PW-17) and Raghwendra Singh (PW-8) ran inside the house.
He chased the miscreants, whereupon the miscreants threw another bomb causing injuries to Anil Singh. The miscreant threw a third bomb due to
which he was injured. The miscreant threw away the black bag and fled on a black coloured motor-cycle. He had seen the M.L.A in an injured
condition and later came to know that the M.L.A was declared brought dead at the hospital. He has stated that he was given first aid and he did not
tell the police that he had seen Dina Nath Singh or Prabhunath Singh near the car. He identified his signature-Ext-1 on the statement recorded u/s 164
Cr.P.C. He identified the accused Prabhunath Singh and Ritesh Kumar Singh in court.
In para-11 of the cross-examination he has stated that Raghwendra Singh (PW-8) and Kameshwar Singh (PW-17) went towards the M.L.A's house.
In para-16 he has stated that M.L.A's mother, father, cousin brother Sanjeev Kumar Singh, Sunil Kumar Singh and Jitendra Kumar Singh reached
Patna at 2:30 A.M. In para-18 he has stated that he had not seen Prabhunath Singh and Dina Nath Singh before or after the occurrence.
11. P.W.-3, Swarth Mahto is the driver of the deceased Ashok Singh. In his examination-in-chief he has deposed that the occurrence took place on
03.07.1995 at about 7:00 p.m. He was near the garage. He saw the M.L.A sitting in the lawn. Kameshwar Singh (PW-17), two bodyguards and 2-3
other persons were also sitting there. The wife of M.L.A was sitting on a chair in the verandah. People were coming to meet the MLA. He heard the
bomb explosion. He went near the M.L.A and found him lying in a pool of blood. He alongwith Rustam Khan the private bodyguard, and M.L.A's
wife took the M.L.A to PMCH, where the doctor declared him dead. He has stated that one more person was killed due to another bomb explosion.
He has deposed that he had not stated before the police that Jitendra Singh reached the Hospital and informed the wife of M.L.A that he and others
had chased the miscreants and out of the three people standing near Quarter No. 3M, he had identified Dina Nath Singh. He has stated that he did not
disclose before the police that the miscreants while fleeing, has exploded bombs due to which Pradeep was injured. This witness identified accused
Prabhunath Singh but he didn't identify accused Ritesh Singh.
In para-7 of the cross-examination PW-3 stated that Raghwendra Singh (PW-8) and Kameshwar Singh (PW-17) went inside the house of the M.L.A
at the time of the incident.
12. P.W.-4 Sanjeev Kumar Singh is the cousin brother of deceased Ashok Singh. He has deposed that the occurrence took place between 7:00 to 7:30
P.M on 03.07.1995 at the official residence of the deceased Ashok Singh. He was at his village Charihari and was not present at the place of
occurrence. He has been declared hostile by the prosecution.
13. P.W.-5, Jitendra Kumar Singh has proved his signature (Ext-1/1) on his statement recorded u/s 164 Cr.P.C. He has stated that at about 8:30 p.m.
on 03.07.1995, Sunil Kumar Singh (PW-7) and Sanjeev Kumar Singh (PW-4) arrived at his house on a motorcycle and informed him that Ashok Singh
was injured due to the bomb-explosion. He has stated that his statement had been recorded by the police, but he had not stated before the police that
at the time of the incident he was present in the lawn of the residence of the MLA.
In para-7 of his cross-examination he has stated that he had reached the M.L.A's residence between 1:30 to 2:00 A.M. In para-11 of his cross-
examination he has stated that he had identified Sudhir Singh as the person who regularly used to visit the residence of MLA.
14. P.W.-6, Upendra Singh and P. W.-10 Barister Singh have stated that they do not know anything about the incident. They have been declared
hostile. They have denied the suggestion of the prosecution that their statements were recorded u/s 161 Cr.P.C. by the police. P. W.-9 Lalbabu Singh
has stated that he does not know anything about the occurrence.
15. P.W.-7, Sunil Kumar Singh has stated that the incident took place at 07:30 p.m. on 03.07.1995. He was at Quarter No.5M, and Ashok Singh,
M.L.A was sitting in the lawn. The M.L.A was interacting with the people of his constituency. His bodyguard Prahalad Paswan (PW-13) Dalsingar
Yadav and Kameshwar Singh (PW-17) along with some other people of the constituency were also sitting there. The MLA's wife Chandni Devi
(PW-11) was sitting in the verandah. Anil Kumar Singh and Pradeep Singh went outside and Raghwendra Kumar Singh (PW-8), the Personal
Secretary, was attending to his duty. He saw a person following Raghwendra Singh (PW-8). The said person came to Ashok Singh who signalled him
to sit down. The MLA was writing something on his letter pad. That after sometime the MLA said that work for the day was over and the M.L.A
stood up, whereupon the said person threw a bomb at the M.L.A. The MLA sustained injury and fell down. There was smoke all over and the people
started dispersing. The person who threw the bomb ran towards the gate and he, along with other persons chased the assailant. That another bomb
exploded due to which Anil Singh was injured. The person who had thrown the bomb ran out of the gate towards west and reached near quarter
no.3M, where three persons joined him and he identified Dina Nath Singh as one of the person, who had fled alongwith the assailant. He has stated
that the miscreant exploded another bomb due to which Pradeep Singh was injured. He has stated that he along with other persons chased the
miscreants. He saw a white coloured car parked near quarter No. 1M where Prabhunath Singh was standing and a black coloured motor-cycle was
also parked behind the car. The miscreant and Dina Nath Singh got into the car and Prabhunath Singh drove away the car and other miscreants fled
on the motor-cycle. He has deposed that he continued chasing and when gun-shots were fired from the car, he stopped chasing and returned to the
M.L.A's residence. He saw that Anil Singh was dead. People took the M.L.A to PMCH. He also reached PMCH where he came to know that the
M.L.A was declared brought dead. He has deposed that several times, prior to the occurrence, the M.L.A had said that on account of political rivalry
Prabhunath Singh and Dina Nath Singh would get him killed. He stated that Prabhunath Singh and Dina Nath Singh had told in the constituency that
they would kill the MLA Ashok Singh within 90 days and the MLA was killed before the 90th day. He has identified the accused Dina Nath Singh and
Ritesh Singh.
In para-6 of cross-examination he has stated that the police recorded his statement a week after the incident and he was present at the residence of
the MLA. In para-7 and 8 of the cross-examination he has stated that after the occurrence, police reached there and stayed for one hour and during
that time Kameshwar Singh (PW-17) was also present at the residence. In para-13 he has deposed that he is an accused in Ishwapur P.S. Case
No.03/92, in connection with the murder of Awdesh Singh, the cousin brother of Prabhunath Singh. In para-19 and 23 he has stated that on explosion
of bomb there was smoke all over and he, along with PW-8 and 17 had chased the miscreant. He had seen the dead body of Anil Singh. In para-30 he
has stated that he does not remember the registration number of motor-cycle and the car. In para-36 he has stated that Chandni Devi had returned
with the dead body and since she was not feeling well, therefore saline drips were being administered to her. He has denied the suggestion that his
testimony was a lie.
16. P.W.-8, Raghwendra Singh, was the personal secretary of the M.L.A Ashok Singh (since deceased) on the date of occurrence. He has stated
that on 03.07.1995 he was present at the official residence of Ashok Singh (M.L.A). He has deposed that at about 5.00 p.m. Ashok Singh was sitting
in the lawn and interacting with the people of his constituency. At around 6:00 p.m. wife of the M.L.A came out of the house and sat on a chair in the
verandah. That after sometime Anil Singh and Pradeep Singh went for a walk towards the gate and at around 7:00 p.m. a person carrying a shoulder
bag accompanied by Ritesh Singh, came there and the person with the bag said that he had come from village Sahjeetpur, Pipra, P.S- Baniyapur and
wanted to meet the MLA whereupon he asked the said person to wait as he would ask the MLA whether he was willing to meet him, but the said
person approached and greeted the MLA who was busy writing something on his letter pad. The MLA signalled the person to take a chair and the
said person sat down on the chair on the eastern side in front of the MLA. He has stated that on the instruction of the MLA he went inside the
residence to keep the letter pad and while he was coming back, he saw the M.L.A rising from the chair and at that time the said person took out a
bomb from his bag and threw it at the MLA. On explosion of the bomb the gathering ran helter- skelter and the bomb thrower fled towards west of
the main gate. He has testified that he, along with others chased the miscreant and when they reached the gate, there was another bomb explosion,
due to which Anil Singh was killed. He has deposed that he thought it proper to return and take the M.L.A to the hospital. That Kameshwar Singh
(PW-17), Jitendra Singh (PW-5), Sunil Singh (PW-7), who had pursued the miscreant returned and told him that they had seen three other persons
with the miscreant, amongst whom they had identified Dina Nath Singh and told him that they had seen a white coloured Ambassador car, a black
colored motorcycle and ex-MLA Prabhunath Singh standing there. They disclosed that the person who had thrown the bomb and Dina Nath Singh sat
in the car which was driven away by Prabhunath Singh and the other miscreants fled on the motor-cycle southward. They had heard round of firing of
gunshots from the car. This witness has stated that when he reached the hospital the M.L.A was declared brought dead and the police had arrived at
the hospital. That at about 8.45 p.m., police recorded the statement of PW-11, the informant. He returned with the dead body, at about 11:30 p.m to
the M.L.A's residence. He has deposed that since 1991 there was political rivalry, between the deceased and Prabhunath Singh and the incident took
place on account of political rivalry. He has stated that earlier too, unsuccessful attempts were made on the life of the deceased Ashok Singh. He has
deposed that two days before the murder of MLA, two persons had come carrying a letter of Lalan Singh (PW-16) and disclosed their names as
Ashok Kumar Singh and Upendra Giri and they had met the MLA. The MLA had called him and told him to note down the names of 3-4 persons as
disclosed by Ashok Kumar Singh and Upendra Giri. He had noted down the names of four persons namely (i) Sudhir Kumar Singh (ii) Nand Kishore
Singh (iii) Kishore Kumar Singh (iv) Chhote Mistri, in the diary of Bihar Legislative assembly.
In para-10 he has stated that at night when police reached the residence of the MLA he was at PMCH and the police recorded his statement on the
next day. In para-13 he has stated that he had mentioned the name of Ritesh Singh to the police and has denied the suggestion of the defence that he
had not stated the name of Ritesh Singh before the police. He has deposed that he knew Ritesh Singh as he hails from the same constituency.
17. P.W.11 Chandni Devi is the informant and wife of the deceased. She has identified her signature Ext-2(with objection) on the fardbeyan. She has
deposed that the occurrence took place at 7:20 p.m. on 03.07.1995. That at 5:00 p.m. her husband was sitting in the lawn. That after an hour she
came out of the house and sat in the verandah. Sunil Kumar Singh (PW-7), Kameshwar Singh (PW-17), Sanjiv Singh (PW-4), Jitendra Singh (PW-5),
Raghwendra (PW-8), bodyguard Dalsingar and Prahalad Paswan and some people of the constituency were seated in front of her husband and
Pradeep Singh and Anil Singh were also present there and people were coming and going. PW-8 Raghwendra Singh, the personal secretary, was
performing his duty. At about 7:00 p.m. Raghwendra and two other persons went for a walk towards the gate and two other persons came and talked
to Raghwendra whereafter one person, carrying a shoulder bag followed Raghwendra and came near the MLA. The MLA signalled him to take a
seat. The other person stood at the gate. That after 15 to 20 minutes the MLA handed over the letter pad to Raghwendra (PW-8) who went inside the
house to keep the pad, whereafter he returned and proceeded towards the lawn. She has stated that the person with the bag took out a bomb and
threw it at the MLA. The place was engulfed in smoke and people started dispersing. She has stated that another bomb explosion took place outside
the gate due to which Anil Singh was killed. She has deposed that some of the people present there chased the miscreant. That she, along-with
Raghwendra (PW-8), the bodyguard and other persons took her husband in an injured condition to PMCH where the Doctors declared him brought
dead. She has deposed that when her husband was being taken in the jeep, then Sunil Singh had come and he wanted to say something but she did not
pay any attention. She has deposed that Jitendra Singh (PW-5), Kameshwar Singh (PW-17), Sunil Singh (PW-7) ran after the miscreants, and
reached the hospital 10 minutes later and told that Dina Nath Singh was one of the miscreants who had escaped and Prabhunath Singh was standing
near a white car parked on the eastern side towards the end of the road and Ritesh Singh was also with them. The person who threw the bomb had
come with Ritesh Singh and was of the same village. She has deposed that the police recorded her fardbeyan between 8:00 to 9:00 p.m. and took her
re-statement on the next day. She has stated that since 1991 there was enmity between her husband and Prabhunath Singh and Dina Nath Singh. That
several attempts were made on her husband's life, but he had somehow survived. She has stated that since her husband was elected in the assembly
elections, therefore Prabhunath Singh and Dina Nath Singh had hatched a conspiracy to murder her husband. Her husband had written a letter to the
SSP, Patna for providing extra police security as escort and had also written a letter to the D.G.P. She has stated that the carbon copy of the letter is
in her custody. She has stated that she could not identify the person who had thrown the bomb and she identified accused/appellant Ritesh Singh, in
court, as the person who was standing near the gate.
In para- 16 and para- 17 of her cross-examination she has stated that due to strained atmosphere in the family she was unable to reside in the house
of her husband's elder brother and was residing in a rented house. In para- 32 she has stated that she has no knowledge that her earlier fardbeyan
was torn and thereafter another fardbeyan was prepared with the object and purpose to implicate Prabhunath Singh and his brother. In para-33 she
has stated that after the death of her husband, the elder brother of her husband namely, Tarkeshwar Singh contested the election against her. In para-
34 she has stated that she has no knowledge that her husband's elder brother has a criminal history. In para- 43 she has said that in her fardbeyan the
name of accused Ritesh Singh has not been mentioned as the person who had come with the bomb-thrower and stood waiting at the gate.
18. P.W.-12, Hawaldar Dalsingar Yadav was the bodyguard of the deceased MLA. He has deposed that on the day of the occurrence about 40-45
persons were waiting in the lawn to meet the MLA and there were three to four rows of chairs. At about 4:30 to 5:00 p.m., the MLA came and sat in
the centre. He along with other security guards, were standing 10 to 20 steps away from the MLA. He has stated that at about 7:20 to 7:25 p.m., a
bomb explosion took place and there was smoke all over. The people present there, started running helter- skelter. Another bomb explosion took place
after 2 to 3 minutes. That after the smoke had cleared, he searched and found the M.L.A lying in an injured condition in the lawn. That Anil Singh
was killed due to second bomb explosion. He has stated that Prahalad Paswan was also injured in the explosion. He has deposed that the M.L.A and
Prahalad Paswan were taken to PMCH where the MLA was declared dead and Prahalad Paswan was admitted for treatment in the hospital. He has
stated that Kameshwar Singh (PW-17) was with him and Jitendra Singh (PW-5) had not told him anything. He has stated that he had not told the
police that Jitendra Singh and others had chased the miscreant and they had not told the wife of the M.L.A that the miscreant had fled away towards
west and three persons who were standing near Quarter No.M3, had joined the miscreant and one of them was identified as Dina Nath Singh and
Pradeep Kumar Singh was injured in the bomb explosion by the miscreants during their escape. This witness has stated that he had not told the police
that Jitendra Singh had told the wife of M.L.A that ex-M.L.A Prabhunath Singh was standing near the car and a black coloured motorcycle was also
parked there. That he had not stated that the miscreant and Dina Nath Singh got into the car which was driven away by Prabhunath Singh and other
miscreants fled southwards on the motor-cycle. That he had not stated before the police that the M.L.A had cautioned him of Prabhunath Singh, Dina
Nath Singh and their associates. He has denied the suggestion that he has colluded and connived with the accused persons and suppressed the
material facts.
In para-8 of the cross-examination he has stated that after the bomb explosion Kameshwar Singh (PW-17) had entered into the residence of the
M.L.A. In para-12 he has stated that he had not seen Jitendra Singh (PW-5) at the place of occurrence.
19. P.W.-13, Prahalad Paswan was the bodyguard of the deceased Ashok Singh. He has deposed that when the MLA was having audience with the
people of his constituency, all of a sudden he heard explosion of a bomb with smoke all around and people started running helter-skelter. That, there
was another bomb explosion due to which he sustained injury on the forehead and lost his consciousness and when he regained consciousness, he
came to know that the MLA had died in the bomb explosion. This witness has stated that he was under treatment in the hospital for 15 days. He has
stated that he had not stated before the police that Jitendra Kumar Singh and others had chased the miscreants and identified Prabhunath Singh and
Dina Nath Singh. He has denied the suggestion of the prosecution that under the influence of the accused persons he was concealing the facts of the
case.
20. P.W.-14 Laxman Rai has stated that he does not know anything about the incident and he does not know Ashok Singh. He had seen Prabhunath
Singh at the time when he was shifting his residence. He has deposed that he has not stated before the police that while he was cooking, he had
overheard Prabhunath Singh, Dina Nath Singh and some men talking about Ashok Singh.
In cross-examination, he has stated that Kedarnath Singh is the younger brother of Prabhunath Singh.
21. P.W.-15 Pankaj @ Bhola has identified the signature on the statement recorded u/s 164 Cr.P.C, i.e. Ext-3.
In cross-examination he has stated that he had not seen any ambassador car at the residence of Kedarnath Singh (younger brother of Prabhunath
Singh).
22. PW- 16 Lalan Prasad Singh is the father of (PW-11) the informant and father-in-law of deceased Ashok Singh. He has stated that at the time of
the incident he was at Muzaffarpur. That few days prior to the occurrence, Upendra Singh of Hathi Chowk mohalla, Muzaffarpur, had informed him
that three persons of village Hasanpur, district Vaishali had come to his residence and told him that Prabhunath Singh and his brother Dina Nath Singh
had hatched a conspiracy to kill the MLA, Ashok Singh, and informed him that the said three persons wanted to meet him. He has deposed that on
01.07.1995 the said three persons had come to the shop of Upendra Singh, and he had met them there and he had identified Ajit Singh a relative of
Upendra Singh as one of them. They told him that the conspiracy to kill Ashok Singh was disclosed to them by Sudhir Singh and the persons
associated with Prabhunath Singh, but they had no knowledge about the time, date and the place for execution of the conspiracy. He has stated that
Upendra Singh informed him about the three persons as Ajit Singh, Ashok Singh and Upendra Giri and he had sent a letter to his son-in-law through
Ajit Singh. He has stated that on 03.07.1995 at 8:00a.m he had a telephonic conversation with his son-in-law. He has stated that in the night of
03.07.1995 at 9:00 p.m., he came to know about the occurrence from S.D.O, Muzaffarpur, who brought him and his wife to Patna where he saw the
dead body of his son-in-law.
In cross-examination he has stated that Ravindra Singh is his brother-in-law and he does not know that Rustam Khan the bodyguard of his son-in-law,
used to stay with Tarkeshwar Singh in Kolkata. He has denied the suggestion of the defence that on the dictation of the police a concocted letter was
written by him.
23. P.W.-17 Kameshwar Singh has stated that the occurrence took place on 03.07.1995 between 07:00 to 7:15 p.m. On that day he had come to
Patna from Chhapra and was present at the residence of Ashok Singh. He has stated that the M.L.A Ashok Singh was sitting in the lawn and 20 to
25 persons were also sitting there. He has deposed that the M.L.A had shown him the D.G.P's letter whereby order was issued for deployment of the
house guard as additional escort whereupon he had told the M.L.A to ask for one more vehicle. He has stated that two persons came to the gate of
the MLA's residence and one of them, after talking to Raghwendra Singh (PW-8), came near the M.L.A who signalled the person to sit down. The
M.L.A then handed over the letter pad to his personal assistant (PW-8). He has testified that the said person took out something from his shoulder bag
and threw it at the MLA due to which the MLA was injured and the miscreant fled whereupon he, along with Raghwendra Singh (PW-8), Sanjiv
Singh, Sunil Singh (PW-7), Jitendra Singh (PW-5) ran after and chased the miscreant, who threw a bomb at Anil Singh. He has testified that while
chasing the miscreant, they saw Dina Nath Singh and Prabhunath Singh standing near a white coloured car and a motorcycle parked there. That,
another bomb was exploded due to which Pradeep Singh was injured. He has stated that Prabhunath Singh got into the driver's seat while two persons
sat in the car and fled away. That he could not identify other three persons who had managed to escape. He has deposed that he returned to the
residence of the M.L.A and went to the hospital where the MLA was declared brought dead. That Anil Singh had died on the spot. He has stated that
the occurrence took place because Prabhunath Singh did not brook opposition and used to eliminate anyone who opposed him.
In para-7 of his cross-examination he has stated that Jitendra Singh, Pradeep Singh, Sanjeev Singh, Sunil Singh, and others were sitting with Ashok
Singh. In para-12 he has stated that he, Sunil Singh, Raghwendra Singh were in the vehicle in which Ashok Singh was brought to the hospital. In para-
15 he has stated that Tarkeshwar Singh is the elder brother of Ashok Singh. He has denied the suggestion of the defence that Prabhunath Singh and
Dina Nath Singh were neither seen nor were present at the time and place of occurrence.
24. PW-18 Tarkeshwar Singh is the elder brother of the deceased Ashok Singh. He has stated that after 1 ¼ months he returned from Kolkata and
had gone to Ara. In the reception counter of the hotel at Ara, he had met Seth Radha Charan and a teacher. That when Radha Charan enquired from
him whether he was the brother of Ashok Singh, he had replied in affirmative, thereafter the person came to his hotel room and told him that
Prabhunath Singh had asked him to kill Ashok Singh. He has stated that his brother had defeated Prabhunath Singh in assembly election due to which
Prabhunath Singh was making attempts to eliminate his family members.
In cross-examination at para-2 he has stated that he did not know whether Rustam Khan was the personal security guard of Ashok Singh or not. In
para-4 he has stated that after receiving information from Radha Charan Seth he did not lodge any FIR and in Para- 5 he has stated that it is true that
6 to7 cases of murder are pending against him.
25. PW-19, Dr. Ashok Kumar Singh on 3.07.95 was posted at PMCH, Patna as Assistant Professor and he has proved the post-mortem report Ex-4.
He conducted the postmortem on the dead body of Ashok Singh at 9:30 P.M and found the following:--
I:- One lacerated wound of size ½""x ½"" x ¼"" was found 2½"" below the right elbow. The margins were irregular and infiltrated with blood and
blood clots. II:- One lacerated wound of size 1""x ½"" x ¼"" was found on the medial surface of right arm, 3.5"" below the right armpit. The margins
were irregular and infiltrated with blood and blood clots.
III:- One massive lacerated blown up explosive injury was found over the right side of the head. The head and face up to mouth were destructed and
blown up and missing.
The right ear was found charred.
The above mentioned injuries were ante-mortem in nature. Injury No. (I) and (II) were simple and caused by hard and blunt substance. Injury No.
(III) was grievous and dangerous to life in ordinary course of nature and was caused by explosion of bomb.
Cause of death was hemorrhage and shock.
Time since death within 6 hrs from the time of P.M. examination.
Internal Findings: -- Skull with brain destructed and blown up. Head vessels lacerated and blown up. Heart empty. Stomach-- 200 ml mixed food,
other visceras were found pale and bladder was found empty.
26. On the same day at 10:00 p.m., he conducted post- mortem examination of deceased Anil Kumar Singh. He has proved the post-mortem report
Ext-4/1 and the injuries on the body of the deceased as under:--
(I) Rigor mortis was appearing. One massive destructed lacerated explosive injury was found over the head. The upper part of face skull, bone,
including soft tissue, blood vessel and brain were found blown up. Whole of the underlined area were filled with blood and blood clots.
Above mentioned injuries were ante-mortem, grievous and dangerous to life in ordinary course of nature and was caused by explosion of bomb. Cause
of death was hemorrhage and shock.
Time since death is within 6 hrs from P.M examination. Internal Examination: -- Destruction, laceration of skull and underlined meninges and brain are
blown up. Heart empty. Stomach 200ml mixed food.
In cross examination the witness has deposed that he found no foreign material like splinters or pellets on the body of Ashok Singh and Anil Singh.
27. P.W.-20, Shashi Bhushan Sharma is one of the I.O of the case. He has testified that in July 1995, the Dy.S.P Balinath Sahay had handed over the
charge to him to investigate Gardanibag P.S. Case No.339/95. He has proved the fardbeyan of Chandni Devi recorded in the writing of late Gopal
Prasad the then officer in charge of Sachiwalaya P.S, and identified his signature and writing and the writing and signature of Balinath Sahay. The
fardbeyan has been marked Ext- 5. He has stated that the inquest report of the dead body of Ashok Singh was prepared by ASI Harilal Rai and the
inquest report of deceased Anil Singh was prepared by ASI Lalbahadur Sharma. The inquest reports are Ext-6 and Ext- 6/1 respectively. He has
stated that seizure list was in the writing and signature of Dy.S.P Balinath Sahay. The seizure list has been marked Ext-7. He has identified the writing
and signature of Balinath Sahay on the seizure cum production list dated 4.07.95 marked as Ext- 7/1. Another seizure list is with respect to country
made bomb and is marked Ext- 7/2. He has identified the writing and signature of Dy.S.P Balinath Sahay on the seizure list dated 03.07.95 which are
Ext- 7/3, 7/4 and 7/5 respectively. He has stated that Memo No. 2005/22 dated 3.07.95 of D.I.G, Patna, bears the signature of S.K. Bhardwaj, which
is Ext- 8.
He has stated that FSL reports dated 30.09.95 and 9.10.95 bears the signature of B.Shankar, Senior Scientist, Forensic Laboratory and the report No.
659/95, dated 20.09.95 bears the signature of U.K Sinha and FSL report dated 5.7.95 bears the signature of S.M. Yadav, Senior Scientific Assistant
(Explosive), Forensic Science Laboratory, Patna. The aforesaid reports have been marked-Ext-9, 9/1, 9/2 and 9/3 respectively. He has stated that he
had recorded the statement of witnesses Sanjeev Kumar Singh, Jai Prakash Prasad, Tarkeshwar Singh, Kameshwar Singh, Sunil Singh and others at
the place of occurrence (P.O). He had received the post-mortem reports of the deceased and injury reports of injured Kameshwar Singh, Prahalad
Paswan, Pradeep Kumar Singh. He has testified that the sanction for prosecution dated 24.09.95 and 12.12.95 bears the signature of Ramesh
Abhishek the then District Magistrate, Patna. The sanction reports are Ext- 10 and 10/1. He has testified that witness Jitendra Kumar Singh (PW-5)
had identified the accused Sudhir Kumar in TIP.
He has stated that inquest report of deceased Anil Kumar Singh was prepared at 20 hrs on 3.07.95 at 5 Strand Road and the statement of witness
Sunil Kumar Singh was recorded on 09.07.1995 and witness Raghwendra Singh (PW-8) in his statement had not disclosed the name of accused
Ritesh Singh. He has denied the suggestion of the defence that he had submitted the charge-sheet under political pressure and the charge-sheet was
defective and replete with errors.
28. PW-21 Pramod Kumar Singh is a formal witness. He has stated that injury reports Ext-11 and 11/1 are of Kameshwar Singh (P.W-17) and
Prahalad Paswan (P.W.-13). The injury reports are in the writing and signature of Dr. A.K Sinha, PMCH, Patna. He has stated that the injury report-
Ext-11/2 is of Pradeep Kumar Singh (P.W.-2) which is in the writing and signature of Dr. Binay Kumar Sharma.
In cross-examination he has admitted that he was never treated by the aforesaid doctors and the injury reports were not prepared in his presence.
29. PW-22 Ramesh Kumar Singh has stated that the incident took place on 03.07.95 and at that time he was associated with Ashok Singh, who was
always cautious and wary of Prabhunath Singh. He has stated that on the date of occurrence, in his presence the MLA had written a letter to DGP,
Patna for providing him extra security. He has proved the letter dated 03.07.1995 marked as Ext- 12. He has identified the writing and signature of
Ashok Singh on the letter, dated 3.06.95, addressed to Senior S.P, Patna which is marked Ext- 12/1.
30. On closure of prosecution evidence the statement under Section 313 Cr.P.C of the accused/appellant was recorded and they have sweepingly
denied their involvement in the crime and the incriminating circumstances associated with them.
31. On consideration and appreciation of the material evidence the court below found the appellants guilty of the charges and convicted them by the
aforementioned impugned judgment.
32. Learned senior counsel for the appellants, while assailing the judgment has argued that the trial court has committed a manifest error as it has
failed to appreciate the fact that PW-4 and PW-5 in their testimony have disclosed that they were in their village and on getting information about the
occurrence they came to Patna at about 2.00-2.30 a.m which falsifies the testimony of P.W.-11, Chandani Devi the informant, that soon after the
incident P.W.-5 had narrated to her the names of the accused persons. It is contended that perusal of fardbeyan will reveal that PW-11 has not stated
that P.W.-7 and P.W.-17 had come to the hospital and had narrated the incident to her. It is strenuously argued that neither PW-7 nor PW-17 had, in
their testimony, stated that they had told PW-11 that they had seen and identified appellant Prabhunath Singh and Dina Nath Singh. It is canvassed
that the testimony of P.W.-1 and P.W.-2 falsifies the testimony of P.W.-7 and P.W.-17 that they had chased the miscreants because P.W.-1 and
P.W.-2 have deposed that P.W.- 8 and 17 had entered the kitchen after the blast. It is submitted that the learned trial court has overlooked and lost
sight of the fact that there is no plausible explanation as to why the statements of PW-7 and PW-17 were recorded after a delay of 6 and 13 days
respectively. To buttress his argument learned senior counsel has placed reliance on the judgment of the Supreme Court in Ramreddy Rajeshkhanna
Reddy and Anr v. State of Andhra Pradesh; AIR 2006 SC 1656, and contended that it is settled proposition that the evidence of a witness, whose
statement had not been recorded by the police immediately during investigation deserves to be discarded. It is contended that PW-7 and PW-17 are
highly interested witnesses and P.W.-7 had admitted that he is an accused in a case relating to the murder of the brother-in-law and cousin of
appellant Prabhunath Singh. It is submitted that P.W.-8 has testified that he had seen appellant-accused Ritesh Singh standing at the gate of the
residence of the deceased, but surprisingly P.W.-8 in his statement under Section 161 Cr.P.C, did not name Ritesh Singh despite the fact that he knew
Ritesh Singh from before the occurrence. In support of the contention, reliance has been placed on the decision of Supreme Court in Sampath Kumar
v. Inspector of Police, Krishnagiri; AIR 2012 SC 1249. It is submitted that the learned court below has erred in law by relying on the testimony of
PW-8. It is argued that on the contrary, inference should be drawn that PW-8's testimony is fabricated and manufactured by the prosecution to falsely
implicate the appellants. It is argued that accused/appellant Ritesh Singh was identified by PW-11 in court after thirteen and half years therefore, such
identification is not sustainable in law or in facts as held by the Apex Court in Dana Yadav alias Dahu and others v. State of Bihar; AIR 2002 SC
3325.
33. It is submitted that the prosecution has set-up a case that the deceased had written letters Ext-12 and Ext-12/1 to the police authorities expressing
apprehension of threats to his life at the hand of the accused Prabhunath Singh. It is contended that the said letters cannot be considered to be a dying
declaration as it is well settled that apprehension or perception of threat does not come within the purview of dying declaration, as observed by the
Supreme Court in the case of Babubhai Bhimabhai Bokhiria and Anr v. State of Gujarat and Ors; AIR 2014 SC 2228. It is argued that the testimonies
of the witnesses are replete with contradictions. In fact, PWs-7, 8, 11 and 17 have embellished and made material improvements in their depositions in
court vis-Ã -vis their statement under section 161 Cr.P.C. made before the police. It is canvassed that the first information report loses its authenticity
since it was lodged after preparation of the inquest report. Learned senior counsel has submitted that P.W.-16, in his testimony, has stated that
Upendra Singh and other person had told him about the conspiracy hatched by the appellant Prabhunath Singh to kill the deceased whereas
Tarkeshwar Singh (PW-18) has stated that one Seth Radhacharan had told him about the conspiracy. It is argued that the prosecution has not
examined the persons who had told PW-16 and PW-18 about the conspiracy, therefore, the testimony of PW-16 and PW-18 is of hearsay witness
which is inadmissible in law. In support of the argument, reliance has been placed on the judgment rendered by the Supreme Court in J. D. Jain v. The
Management of State Bank of India and Another; AIR 1982 SC 673. It is contended that the material contradictions in the testimony of witnesses
strikes at the credibility and trustworthiness of the witnesses and casts a grave shadow of doubt on the prosecution's case.
On the said ground, it is contended that the impugned judgment deserves to be set aside as it is not sustainable in law or on facts.
34. Per contra, learned APP, assisted by Ms. Vandana Singh, learned counsel for the informant, has submitted that the prosecution has established its
case beyond reasonable doubt. It is submitted that the occurrence took place at 7.20 p.m. and the deceased was immediately brought for treatment to
PMCH, where the doctors declared him brought dead. The fardbeyan of the informant (PW-11) was recorded immediately thereafter, at 20.45 p.m.
in the emergency ward of PMCH, Patna. PW-11, in her testimony, has supported the narration made by her in fardbeyan and stated that PW-5, 7 and
17 reached the hospital and they simultaneously started telling her about the occurrence and the names of the accused persons, whereupon she told
that one of them should narrate the details of the incident. Thereafter, PW-5, in the presence of PW-7and PW-17, narrated the sequence of
occurrence and names of the accused persons. It is submitted that PW- 5 had identified Sudhir Singh in TIP as one of the accused. The TIP chart
Ext-13/1 establishes the presence of PW-5 at the place of occurrence. It is submitted that PW-4 and PW-5, during examination in court, have resiled
from the statement made by them before the police but PW-20, the Investigating Officer, in para-14 has testified that PW-5 had shown him the place
of occurrence. It is contended that the TIP chart-Ext-13/1 read with the testimony of PW-20, proves that PW-5 was present at the place and time of
occurrence. The prosecution has cross-examined PW-5 and given suggestion that PW-5 in collusion with the accused had concealed the material
facts. It is argued that due to the explosion of bomb PW-17 had sustained injury and Ext-11 is the injury report of PW-17 which substantiates his
presence at the time of occurrence. It is argued that the deceased was apprehensive of threats to his life, at the hand of accused/appellant Prabhunath
Singh, due to which he had written a letter Ext-12/1 to SSP Patna and a letter (Ext-12) to DGP, Bihar for providing him extra police escort. It is
contended that PW-11, the informant in Para-5 of her testimony, has stated that since 1991 there was political rivalry between her deceased husband
and appellant Prabhunath Singh and earlier unsuccessful attempts were made on the life of her husband. It is submitted that PW-7, 8, 11 and 17 have
testified the presence of PW-4 and PW-5 at the place of occurrence. PW-7, 8, and 17 have stated that they had chased the miscreants.
35. It is canvassed that the argument of the learned senior counsel for the appellant, that the testimony of PWs 7 and 17are unreliable as their
statement under 161 Cr.P.C. was recorded by the police after inordinate delay, is fallacious because the settled proposition is that the delay in
examination of witness by the police, during investigation, is material only when evidence is broughtforth to suggest there was unfair practice by the
investigating agency. It is submitted that the aforesaid proposition of law has been laid down by the Supreme Court in V. K. Mishra vs. State of
Uttrakhand; AIR 2015 SC 3043.
It is contended that the name of accused/appellant Ritesh Singh had surfaced in course of investigation after arrest of Sudhir Singh who confessed his
guilt and disclosed the complicity of the accused/appellants in the crime, therefore, the contention that the name of Ritesh Singh was disclosed for the
first time by PW-8 in his deposition is misconceived. It is submitted that PW-11 the informant, in para-7 of her testimony has identified Ritesh Singh as
the person who was standing at the gate of her residence. PW-16 has testified that the information regarding the conspiracy was communicated to the
deceased which has been corroborated by PW-8. It is submitted that perusal of Ext- 7/1(production-cum-seizure list) will disclose that the name of
Sudhir Singh has been mentioned in the seized diary. During investigation Sudhir Singh was arrested and disclosed the involvement of the appellants in
the commission of the crime. It is argued that letters Ext-12 and 12/1 were written by the deceased to D.G.P, Bihar, and SSP, Patna, for providing him
extra police security as he was apprehending threat to his life at the hands of Prabhunath Singh. The letter, i.e. Ext-12, was written earlier on the day
prior to the occurrence when the deceased received information from PW-16 regarding the conspiracy hatched by the appellants to commit the
murder of the deceased. The letters read with Ext-8, fall within the purview of section 32(1) of the Evidence Act as observed by the Hon'ble Supreme
Court in Ratan Singh vs. State of H.P.; (1997)4 SCC 161. It is submitted that while recording the statements under section 313 Cr.P.C, the
incriminating circumstances appearing in the evidence of prosecution witnesses were explained to the accused/appellants but the appellants have given
vague and evasive reply. They have made a sweeping statement of denial to the incriminating circumstances. It is argued that the evasive reply by the
appellants forms an additional link in completing the chain of circumstances to prove that the conspiracy was entered into by the appellants for
committing the murder of the deceased.
It is contended that the trial court, has meticulously examined and discussed the evidence on record and found the appellants guilty of the charges. It is
submitted that the impugned judgment does not suffer from any perversity in finding, hence it does not require any interference by this Court.
36. We have heard the rival submissions in detail. Now, the question which falls for determination before this Court is whether the prosecution has
been able to bring home the charges against the appellants beyond all reasonable doubt and whether the impugned judgment is sustainable in law or on
facts?
37. On perusal of the medical evidence, i.e. the post- mortem reports (Ext-4 and 4/1), it is evident that deceased Ashok Singh and Anil Singh met a
homicidal death. PW-19, the doctor who conducted the post-mortem on the dead bodies of the deceased persons has recorded the finding that the
injuries sustained by the deceased person were ante- mortem and caused due to blast of explosive substance. As per the FSL reports Ext-9 to 9/3, it is
evident that the material seized from the place of occurrence were explosive substance.
38. The plea of the learned senior counsel for the appellants is that PW-11 in her fardbeyan has stated that it was PW-5 who had narrated the
sequence of events and name of the accused to her but it would be evident that PW-5 in his testimony has categorically denied that he was present at
the place of occurrence, resultantly the testimony of PW-11 is of a hearsay witness which is inadmissible in law. Consequently terra-firma of the
prosecution case stands demolished.
39. In our view the plea of the learned senior counsel for the appellants appears to be misplaced, for the simple reason that it would be evident that the
informant, i.e. PW-11 in her testimony, in para-37 has categorically stated that P.Ws. 5, 7 and 17 had arrived at the hospital and all of them
simultaneously started narrating the sequence and manner of the occurrence, but she asked one person to narrate the events leading to the
occurrence, whereupon, P.W.-5 in the presence of P.W.-7 and 17 told her that they had chased the miscreant who was joined by other persons and
they had identified Dina Nath Singh as one of the person and had also identified Prabhunath Singh who was standing near a car where a motor-cycle
was also parked. In the fardbeyan it is mentioned that Prabhunath Singh got into the driver's seat and Dina Nath and the other miscreant also got into
the car, thereafter Prabhunath Singh, drove away the car and other miscreants fled on the motor-cycle. P.Ws. 7, 8, 11 & 17 have testified about the
presence of P.W-5 at the place of occurrence. Moreover, P.W. 20, the Investigating Officer has stated that P.W-5 had shown him the place of
occurrence. It is pertinent to notice that the prosecution had filed a petition under section 294 Cr.P.C for bringing on record the TIP chart, as an
exhibit and there was no objection by the defence. Accordingly by order dated 24.10.2012, the trial court admitted and marked the TIP charts as
Exhibits 13 and 13/1. In this context, it is relevant to state that section 291A Cr.P.C read with section 294 (3) Cr.P.C makes such identification memo
admissible and it can be read as evidence by the court without formal proof of the facts stated in the identification memo. Perusal of Ext.13/1 reveals
that P.W-5 had identified accused Sudhir Singh as the person who was fleeing away with the miscreant, as mentioned in the TIP chart by the judicial
magistrate, who conducted the TIP. Moreover PW-5 in his examination-in-chief has testified that he had participated in TIP.
40. Perusal of Ext- 13/1 establishes the presence of PW- 5 at the place of occurrence. Though PW-5, has resiled from his statement made before the
police and the prosecution has confronted him with the statement made by him u/s 161 Cr.P.C., nevertheless Ext-13/1 coupled with the testimony of
PWs-8, 11 and 17 establishes the presence of P.W.-5 at the place of occurrence. It appears that P.W-5 is a compulsive liar and he has resiled from
his statement to oblige the appellants/accused. In view of the materials on record it will be exceedingly unreasonable to accept the contention of the
learned counsel for the appellants that the testimony of P.W.- 11 is of a hearsay witness and unreliable, accordingly the above contention is, hereby,
rejected. The testimony of P.W.- 11 that P.W.-5 had narrated to her about the manner of occurrence in the presence of PW-7 and 17 cannot be
disbelieved, as PWs-8 and 17 have testified about the presence of PW-4 and 5 at the place of occurrence and they were supported the testimony of
PW-11.
41. At this juncture it is necessary to reiterate the settled legal position that the FIR is not supposed to be a catalogue chronicling the minutest details
of the occurrence. The narration of occurrence is bound to vary from person to person depending upon the mental state of maker of such a statement.
Moreover the statement at the first instance is made voluntarily and the maker is not subjected to interrogation by the police neither the police officer
who records the statement, resort to elicitatory exercise to cull out the minutest details of the occurrence. At times, the maker may also miss out in
mentioning important facts and such omission has to be considered and appreciated in the backdrop of the evidence available on record. The question
whether a person has been impleaded on after thought or not has to be decided on the basis of the material evidence adduced in a particular case and
if there is reasonable explanation for non-naming an accused then the testimony of the witnesses cannot be disbelieved.
In this context it is pertinent to state that the Supreme Court in the case of Kirender Sarkar and Ors. v. State of Assam; AIR 2009 SC 2513 had
observed that the FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events and when
essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of
the eye witnesses except that it may be used for the purpose of contradicting maker of the report.
42. It is contended by the learned counsel for the appellant that the testimony of PW-17 that he had chased the miscreant is falsified by the testimony
of PW-1 who has stated that PW-8 and PW-17 entered the kitchen after the bomb-blast and PW-2 has also stated that PW-8 and PW-17 ran inside
the house and this demonstrates that PW-17 had not chased the thrower of bomb therefore, the testimony of PW-17 is fit to be discarded. We are not
in agreement with the contention of the learned counsel because it would be evident that PW-17 has testified that pellets and shards of the bomb had
hit him below the jaw and the defence has not been able to elicit any material contradiction in cross-examination to discredit the testimony of PW-17,
moreover, the injury report i.e. Ext-11 of PW-17 has not been disputed. It is evident from Ext-11 that PW-17 had sustained injury due to bomb-blast.
PW-17 has stated that he, along with PW-4, 5 and 8 had chased the miscreants. PW-11 in her fardbeyan and her testimony, has specifically stated
that on the date of occurrence Jitendra Singh, Sanjeev Kumar Singh, Anil Kumar Singh, Sunil Singh (PW-7), Kameshwar Singh (PW-17) were sitting
in the lawn with Ashok Singh(since deceased). So far as presence of PW-7 is concerned, it is evident that the defence has raised the plea that PW-7
had reached Patna at 2.00 a.m. However the defence has not put any question to this witness as to when PW-7 had reached Patna. In this connection
it is necessary to state that PW-1 has stated that PW-5 and PW-7 had reached Patna at 2.00 a.m., whereas as discussed above and as per Ext-13/1,
PW-5 had identified accused Sudhir Singh as the person who fled away with the miscreant, i.e., the bomb- thrower. No doubt, the prosecution should
have declared PW- 1 hostile on this aspect which it has failed to do, this is only indicative of the slip-shod and lackadaisical approach of the
prosecution but such procedural irregularities of the prosecution cannot be a ground to discard the testimony of PW-7.
43. P.W.-7 Sunil Kumar Singh is an eyewitness of the occurrence and he has identified appellants namely Prabhunath Singh and Dina Nath Singh. In
Para-1 of his deposition he has narrated the manner of occurrence and in para-2 he has stated that Prabhunath Singh and Dina Nath Singh had
declared in the constituency that they would kill Ashok Singh within 90 days. He has been consistent in his testimony and no material contradiction has
been elicited to discredit his testimony. He has deposed that he along with PW-8 and 17, had run after the miscreants. P.W.-17 Kameshwar Singh, an
eyewitness to the occurrence, has also supported the testimony of PW-7. He has stated that he identified Dina Nath Singh as one of the accused who
had joined the miscreant at Quarter no- 3M and they had gone towards Quarter no-1M, where Prabhnath Singh was standing near the car, whereafter
Dina Nath Singh and the other accused got into the car which was driven away by Prabhunath Singh. In Para-7, PW-17 has testified that Jitendra
Singh, Pradeep Singh, Sanjeev Singh, Sunil Singh were sitting with Ashok Singh. In fact PW-7 and 17 have been cross-examined at length but their
evidence has not been dented by the defence. PW-8 and PW-11 have deposed that the miscreant was chased by PW-7 and 17 as well as by PW-5. It
appears that no material contradiction has been elicited by the defence to impeach the credibility of the testimony of PW- 8 and PW-11 on this point.
It is abundantly clear that the testimony of P.W.-7 and P.W.-17 has remained consistent and they have stated that when they chased the miscreant
they had seen the accused Dina Nath Singh along with two others joining the miscreant near quarter No. 3M and accused Prabhunath Singh was
waiting at the road side near quarter No. 1M where a white coloured car and a black colour motorcycle was parked. Accused Dina Nath Singh and
miscreant got into that car which was driven away by Prabhunath Singh and they fled southward.
44. Learned senior counsel's contention is that no plausible explanation has been broughtforth by the prosecution for the delay of 6 and 13 days in
recording the statement of PW-7 and PW-17 respectively by the investigating agency and the reason for non-disclosure of the name of Prabhunath
Singh and Dina Nath Singh during investigation, accordingly the testimony of PW-7 and PW-17 is not reliable. For appreciation of the aforesaid
argument we have perused the testimony of PW-7 who has admitted that the I.O. had recorded his statement after one week. Looking to the
deposition of I.O.- PW-20 - it appears that the Dy.S.P. had handed over the charge of investigation to PW-20 after five days of occurrence and the
possibility cannot be ruled out that in the given circumstances there was delay on the part of the I.O. in recording the statement of PW-7 and 17. In
this context it is necessary to reiterate that in case of delay in recording the statement of witness, the settled proposition is that the defence should ask
specific question to I.O. on this point, whereas in the instant case it is evident that no question was put or suggestion given to the I.O., i.e., the PW-20,
regarding the delay in recording the statement of PW-7and 17. Moreover, the well settled principle is that delay in recording the statement of witness
during investigation is material only when it indicates interpolation and unfair practice adopted by the investigating agency. It cannot be held as a rule
of universal application that testimony of a witness become unreliable merely because there is delay in examination of the witness by the police. The
judgment of Ramreddy Rajeshkhanna Reddy (supra) cited by the learned counsel for the appellants is not applicable to attending facts of the present
case for the reason that in the judgment relied upon by the learned counsel for appellants, the testimony of sole eyewitness was not relied upon since
he was examined by the police after a delay of two days and questions regarding the delay was put to the witness by the defence. In the instant case
it is apparent that no specific question on the point of delay has been put to the I.O., moreover the I.O. has stated that charge of the investigation was
handed over to him after five days, accordingly there is plausible explanation for the delay in recording the statement of PWs-7 and 17.
In Banti @ Guddu vs. State of M.P; 2004 CRI. L. J. 372 the Apex Court has held in Para-17 as under;
17. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically
asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be said down as a rule
of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend uopn
several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is
no reason to interfere with the conclusion.
45. It is canvassed by learned senior counsel for the appellants that PW-7 and PW-17 are highly interested witnesses because PW-7 has admitted in
cross-examination that he is an accused in the case relating to murder of the cousin of the appellant Prabhunath Singh, which is demonstrative of the
fact that he had a motive to falsely implicate the appellants on account of previous enmity. The aforesaid contention is not acceptable as it does not lay
down invariable rule that the evidence of interested witness is unreliable, rather the settled proposition is that the testimony of interested witness has to
be scrutinized with caution and if it is supported or corroborated by material evidence on record, then the court can rely on such evidence, if on such
scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable. Such testimony may, by itself, be sufficient for conviction
when it is supported in material particulars by the evidence available on record.
In Piara Singh and Ors. Vs. State of Punjab; AIR 1977 SC 2274 the Hon'ble Apex Court has observed as under:
It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of
being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on
the said evidence.
46. At the cost of repetition it is noticed that PW-11 has categorically stated that since 1991 there was political rivalry between the deceased and
accused Prabhunath Singh. PW-11 has stated that her husband was killed due to political rivalry. PW-8 has categorically stated that he, along with
PW-5, 7, and 17 had chased the miscreant, but he returned from the gate, because he realized that it was necessary to take the injured MLA for
treatment to the hospital. It is evident from the testimony and fardbeyan of PW-11 that she had mentioned the names of the accused persons as
narrated to her by PW-5 and at that time PW-7 and 17 were present there. PW-7 and 17 had chased the miscreant and they disclosed to PW-11 that
they had seen and identified Dina Nath Singh as one of the accused who had joined the miscreant at Quarter no-3M, whereafter the miscreants
proceeded towards Quarter no-1M where Prabhunath Singh was standing near the car and Dina Nath Singh along with the miscreant got into the car
which was driven away by Prabhunath Singh and the other miscreants fled on the motor-cycle. The testimony of PW-11 on this aspect has been
corroborated by PW-7 and PW-17.
47. The plea of the learned counsel for the appellants that in the letters Ext-12 and Ext-12/1 the deceased had expressed his apprehension and
perception of threat, hence the said letters cannot be treated as dying declaration since perception or threat do not come within the purview of dying
declaration.In support of the aforesaid contention reliance has been placed on the judgment of Hon'ble Supreme Court in Babubhai Bhimabhai
Bokhiria (supra).
Per contra learned APP has argued that the letters (Ext- 12 and 12/1) were written to higher authorities by the deceased for providing him extra
police personnel as escort, since he apprehended threats to his life from Prabhunath Singh. It is argued that the aforesaid letters read with Ext-7/3 and
8 are admissible under section 32(1) of the evidence Act.
48. In view of the rival submissions it is necessary to refer to the provisions of section 32(1) of the Evidence Act which stipulates that a statement of a
person who is dead becomes relevant regarding the cause of death however admissibility of such statement will be subject to the condition that (i)
either such statement should relate to the cause of his death or (ii) it should relate to any of the circumstances of transaction which resulted in his
death.
Hon'ble Supreme Court in Ratan Singh Vs. sate of H.P.; (1997)4 SCC 161 on elaborate discussion and deliberation of the provision of Section 32(1)
of the Evidence Act,in para-16, has observed -
16. Even apart from Section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act
on account of its proximity of time to the act of murder. Illustration 'A' to Section 6 makes it clear. It reads thus:
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or
after it as to form part of the transaction, is a relevant fact.
(emphasis supplied) Here the act of the assailant intruding into the courtyard during dead of the night, victim's identification of the assailant, her
pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity
of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence
Act.
17. In either case, whether it is admissible under Section 32(1) or under Section 6 of the Evidence Act, it is substantive evidence which can be acted
upon with or without corroboration in finding guilt of the accused.
The dictum of the provision of Section 32(1) is that a fact which, though not in issue, is so connected with the fact in issue ""as to form a part of the
same transaction"" that it becomes relevant by itself. Applying the ratio of the said judgment to the available material evidence of the instant case, in
our opinion the letters i.e. Ext-12 and 12/1 read with Ext-8 and 7/3 along with the testimony of PW-11, 16, 17, 20 and 22 are relevant and they form
part of same transaction, accordingly, they come within the purview of Section 32(1) of the Evidence Act and are admissible.
49. While assailing the judgment of the trial court, it is contended by learned senior counsel, that the inquest report of Anil Singh was prepared by the
investigating officer at 8.00 p.m. and the FIR was lodged by the informant at 08.45 p.m. on 03.07.1995, therefore, the first information report loses all
authenticity since it was lodged after the inquest report. This contention of learned Senior Counsel is a general proposition which cannot be universally
applied as it has to be ascertained and considered in the facts and circumstances of the particular case. The question as to who assaulted the
deceased or the circumstances, under which he was assaulted, is foreign to the ambit and scope of the provisions of Section 174 CrPC and the names
of the assailants and the manner of assault are not required to be mentioned in the inquest report. It is pertinent to mention that the inquest report of
deceased Ashok Singh was prepared after recording of the fardbeyan.
It is well settled that the inquest report is not substantive evidence therefore any discrepancy occurring therein, cannot in all cases be fatal to the
prosecution case. The settled legal position is that when information regarding a cognizable offence is furnished to the police then that information will
be regarded as an FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the FIR is registered
subsequently, as propounded by the Apex Court in Sambhu Das v. State of Assam; (2010) 10 SCC 374.
50. It is contended on behalf of the appellant that the material contradictions in the testimony of the witnesses strikes at the credibility of the
prosecution case. In response to the contention of the appellants it is pertinent to emphasize that it is settled legal proposition that not every
discrepancy or contradiction matters for assessing the reliability and credibility of a witness, unless the discrepancies and contradictions are so material
that it destroys the substratum of the prosecution case. It is natural for a witness to make minor improvements in the testimony in relation to the
occurrence, therefore such improvements cannot be said to be of material importance for disbelieving the testimony of the witnesses.
In the case of S. Govindaraju v. State of Karnataka; (2013) 15 SCC 315, it has been observed that minor contradictions, inconsistencies,
embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground
for rejection of evidence in its entirety.
51. It is imperative to note that the appellants/accused have given a vague and evasive reply in their statement under section 313 Cr.P.C. with respect
to the incriminating circumstances associated with them as pointed by the court inclusive of the exhibits 12 and 12/1. The appellants/accused have
denied the same and given vague and evasive reply. In a catena of decisions the Supreme Court has observed that simple denial by accused persons
to the pointed and specific question can be an additional link to complete the chain of circumstantial evidence for proving the guilt of the accused and
in Munish Mubar v. State of Haryana; 2013 CRI. L. J. 56, it has been observed that it is obligatory on the part of the accused while being examined
under Section 313, Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take
note of such explanation, even in a case of circumstantial evidence.
52. Though Ext-A, B and C has been filed in defence but no argument has been advanced regarding the relevancy of the documents to prove the
innocence of the appellants/accused. Be that as it may, there is no quarrel to the settled proposition that statement recorded under Section 164Cr.P.C
is not a substantive piece of evidence neither the maker of the statement has been examined, therefore Ext-A does not support the defence of the
appellants/accused. It appears that Ext-B is the c.c. order sheet dated 19.12.2008 and Ext- C is the c.c. of judgment dated 19.12.2008 passed in
S.T.No- 1557/07. On perusal of the same, it transpires that S.T.No- 1557/07 arose out of Mashrak P.S. Case No- 26/92 on the basis of fardbeyan of
informant Ram Parwesh Singh who is neither a witness nor connected with the instant case. The aforesaid judgment was rendered on the basis of the
evidence led in the said particular case and no argument has been advanced to establish the relevancy of the said judgment to the facts of the instant
case.
53. Learned counsel for the appellant has contended that PW- 16 Lalan Singh and PW-18 Tarkeshwar Singh have deposed that they came to know
from Upendra Singh, Ajit Singh and Radha Charan Seth that Prabhunath Singh and Dina Nath Singh along with others, had hatched a conspiracy to
kill Ashok Singh but PW-6 Upendra Singh has not supported the factum of conspiracy and RadhaCharan Seth and Ajit Singh were not examined by
prosecution to substantiate the same, therefore the testimonies of PW-16 and 18 has got no evidentiary value and the court below has erred in
recording the finding that the accused/appellant are guilty for the offence of conspiracy under section 120B of IPC, for conspiring to commit the
murder of Ashok Singh.
In view of the submission of learned senior counsel, we have perused the testimony of PW-16. It is true that PW-6, Upendra Singh has not supported
the theory of conspiracy but PW-16 has stated that on getting knowledge of the conspiracy hatched by Prabhunath Singh and others, he had sent a
letter through Ajit Singh to the deceased and telephonically informed the deceased. Though the prosecution has examined PW-6 but for reasons best
known to the prosecution, they have not examined Ajit Singh or Radha Charan Seth. These procedural irregularities, omissions and laches on the part
of the prosecution and the investigating agency cannot discredit the prosecution case in toto and cannot be a ground to throw out the case of the
prosecution. On perusal of the testimony of PW-16 it is evident that he has stated that in the presence of Ajit Singh he was informed by Upendra
Singh about the conspiracy and he had sent a letter through Ajit Singh to his son-in-law (the deceased) and also informed him telephonically. PW-8, in
para-3 of his testimony has stated that two days before the murder of MLA, two persons had come carrying a letter of Lalan Singh (PW-16) and they
had disclosed their names as Ashok Kumar Singh and Upendra Giri. Consequent thereto, the deceased vide letter i.e. Ext-12, had requested the DGP,
Bihar to provide him extra police escort as he apprehended threats to his life and had mentioned the name of Prabhunath Singh in the aforesaid letter.
It is evident that on receipt of the letter the competent authorities vide Ext-8 issued the order for deputation of extra police personnel as escort for the
deceased Ashok Singh. It is abundantly clear that the letter, Ext-12, was written on the same day prior to the occurrence and inference can be drawn
that on getting knowledge about the conspiracy from PW-16, the deceased apprehending threats to his life had immediately written the letter to the
competent authority. He had mentioned the name of Prabhunath Singh. It appears from Ext-7/1, i.e the production cum-seizure list, in the diary of
Bihar Vidhan Sabha, the name of Sudhir Singh was mentioned who was arrested by the investigating agency and he disclosed the complicity of
accused persons. PW-7 has testified that Prabhunath Singh had stated that he would get Ashok Singh killed within 90 days. PW- 8 Raghwendra Singh
has testified that there was political rivalry between Prabhunath Singh- the ex-MLA and Ashok Singh (the deceased). PW-11 Chandani Devi has
testified that in the previous election her husband (the deceased) had defeated Prabhunath Singh, thereafter, Prabhunath Singh and Dina Nath Singh
were conspiring to kill her husband.
54. Looking to the evidence on record, it is abundantly clear that the edifice of prosecution case is founded on the theory of criminal conspiracy. In this
context, it is pertinent to reiterate the settled legal proposition that in cases of conspiracy to commit a crime, usually it is very difficult for the
prosecution to adduce direct evidence since conspiracy is not an open affair, therefore, the prosecution has to rely upon evidence pertaining to the acts
of various parties to prove such an agreement of conspiracy on the basis of circumstantial evidence which can be inferred by necessary implication.
The Supreme Court in plethora of decisions has observed that for an offence punishable under section 120B of the IPC, the prosecution need not
necessarily prove that the propagators expressly agree to do or carried to be done an illegal act and such agreement may be proved by necessary
implication to be determined from the circumstantial evidence brought on record.
In State of T.N. through Superintendent of Police CBI/SIT Petitioner v. Nalini and others; (1999) 5 SCC 253, it has been observed by the Hon'ble
Supreme Court, as under-;
As stated above conspiracy is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of
criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful
agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express,
but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be
entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been
said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common
plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act
of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to
what is done by any of the conspirators pursuant to the originalagreement but also to collateral acts incident to and growing out of the original purpose.
A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new
member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in
groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
55. The most important aspect of the offence of conspiracy is that apart from being a distinct statutory offence, all the parties to conspiracy are liable
for the acts of each other. As per section 10 of the Evidence Act, once reasonable ground is shown for believing that two or more persons have
conspired to commit the offence then anything done by any one of them in reference to their common intention is admissible against the others as held
in State of Maharashtra v. Damu; (2000) 6 SCC 269.
In Mukesh and others vs. state (NCT of Delhi) and others' (2017) 6 SCC 1, the Supreme Court has elaborately deliberated and discussed the
prerequisites for constituting the offence of conspiracy and the manner in which it can be proved and propounded that meeting of minds for
committing an illegal act is sine qua non for the offence of conspiracy. It has been observed that it is neither necessary that each of the conspirators
take active part in the commission of each and every conspirationeal act, nor is it necessary that all the conspirators must know each and every details
of the conspiracy and the essence is an agreement to break the law as held in Major E.G. Barsay v. State of Bombay; AIR 1961 SC 1762.
56. On examination of the evidence on record it appears that Prabhunath Singh and Dina Nath Singh had a strong motive to kill the deceased Ashok
Singh and testimony of PW- 16 and 18 has been consistent on the point of conspiracy and they have withstood the test of cross-examination. Thus, we
find no force in the plea of the learned counsel for the appellants that the evidence of prosecution witness No.16 and 18 has no evidentiary value and
cannot be relied upon to establish the offence of conspiracy against Prabhunath Singh for committing the murder of Ashok Singh. In fact, the
conspiracy entered into by the appellants is substantiated by the testimonies of PW-11 Chandani Devi, PW-8 Raghwendra Singh, PW-16 Lalan Singh
and Ext.-7/1, 7/3, 12 and 12/1. The proposition as laid down in J.D. Jain (supra) was in connection with a case arising out of service jurisprudence and
it is well settled that each case has to be adjudicated on the basis of the facts of the case and evidence available on record of the particular case. It is
amply clear that the facts of J.D. Jain (supra) relied upon by the learned counsel for the appellants is distinguishable from the obtaining facts of the
case in hand.
57. Keeping in view the settled proposition of law for proving the offence of conspiracy and on examination of the evidence on record, it is evident
from the testimony of the witnesses, that-;
(a) PW-11-the informant on 03.07.1995 at 6 p.m. was sitting in the verandah and her husband (the MLA) was sitting in the lawn along with Jitendra
Kumar Singh (PW-5), Pradeep Kumar Singh (PW-2), Sanjeev Kumar Singh(PW-4), Jai Prakash Prasad(PW-1), Anil Kumar Singh(since deceased),
Kameshwar Singh(PW-17 an injured witness), Prahlad Paswan (the bodyguard), Dalsingar Yadav(PW-12) and other 6-7 persons.
(b) At about 7 p.m. a person wearing black pant and pink shirt, carrying a shoulder bag came and talked to Raghwendra Singh (PW-8) the personal
assistant of her husband which is corroborated by PW-8. The said person came and sat on a chair near Ashok Singh (since deceased).
(c) At around 7.20 p.m. when PW-11's husband was rising from the chair then the said unknown person suddenly stood up and hurled a bomb at her
husband who fell down and the people gathered there started dispersing and some people tried to intercept the bomb-thrower thereafter a second
bomb explosion took place.
(d) PW-11 along with Rustam-the bodyguard and the driver Swarth Mahto (PW-3) brought the injured Ashok Singh to PMCH, Patna where he was
declared brought dead.
(e) Kameshwar Singh (PW-17), Prahalad Paswan (P.W.-13) and Pradeep Kumar Singh (PW-2) received bomb injuries which is corroborated by Ext-
11, 11/1 and 11/2 i.e. the injury reports.
(f) PW-5, 7, 8 and 17 had reached the hospital and PW-5 in the presence of PW-7 and 17 had narrated the manner of occurrence and named the
accused persons.
(g) PW-7, 8 and 17 have stated that they ran after the miscreant and the miscreant threw another bomb, due to the explosion of which Anil Singh
died.
(h) PW-7 and 17 have testified that when they ran after the bomb thrower they saw other accused persons joining the miscreant. PW-7 and 17
identified Dina Nath Singh as one of the accused who had joined the miscreant and proceeded towards Quarter no-1M, where Prabhunath Singh was
standing and a white car and a black motor-cycle was parked.
(i) PW-7 and 17 saw Dina Nath Singh and the accused getting into the car which was driven away by Prabhunath Singh and other miscreants fled on
the motor-cycle.
(j) The testimonies of PW-8, 11 and 17, regarding the presence of PW-5 at the place of occurrence, have not been dented.
(k) Ext-4 and 4/1, the post-mortem reports prove that Ashok Singh and Anil Singh met homicidal death due to the injuries caused by bomb-explosions.
(l) PW-16 has stated that on getting knowledge about the conspiracy hatched by Prabhunath Singh to kill his son-in-law (the deceased), he had sent a
letter through Ajit Singh in the presence of Upendra Giri and Ashok Kumar Singh. This statement of PW-16 is corroborated by deposition of PW-8
and by Ext-7/1. PW-8 in para-3 of his testimony, has stated that two days before the murder of MLA, two persons had come carrying a letter of
Lalan Singh (PW-16) and they had disclosed their names as Ashok Kumar Singh and Upendra Giri and on the instruction of the MLA, he had noted
down the name of Sudhir Singh in the diary of Bihar Vidhan Sabha which was subsequently seized by police and marked Ext-7/1.
(m) PW-16 had also informed the deceased telephonically about the conspiracy hatched by Prabhunath Singh on the same day prior to the
occurrence. Thereafter deceased had written a letter i.e Ext-12, to the DGP Patna, to provide him extra police escort as he had apprehended threat to
his life at the hands of Prabhunath Singh and the competent authority had issued the order vide Ext-8 for providing extra police escort to the deceased.
(n) In Ext-7/1 the production-cum-seizure list, of the Bihar Vidhan Sabha diary, the name of Sudhir Singh has been mentioned and Sudhir Singh was
arrested and identified by PW-5 in TIP as mentioned in the TIP Chart i.e. Ext- 13/1 and PW- 5 has admitted in his deposition that he had identified the
accused Sudhir Singh in TIP.
(o) PW-8 and 11 have stated that there was political rivalry between Prabunath Singh and the deceased since 1991. It is evident that the deceased
had defeated Prabhunath Singh in the last assembly election. PW-7 has stated that Prabhunath Singh had stated that he would get Ashok Singh killed
within 90 days.
58. As discussed, the testimonies of PW-7 and 17 have not been dented and they identified Prabhunath Singh and Dina Nath Singh as the persons
who joined the bomb-thrower immediately after the occurrence and had fled in the car with the miscreant.
Hon'ble Supreme Court in Binay Kumar Singh v. State of Bihar (1997); 1 SCC 283 has held that there is no rule of evidence that no conviction can be
based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It has been
observed, it is axiomatic that evidence is not to be counted but only weighed. The aforesaid ratio has been reiterated in Chandra Shekhar Bind v. State
of Bihar (2001) 8 SCC 690, the Supreme Court has observed that where a large number of accused participated in the incident and several persons
would have seen the incident, it would not be unreasonable or irrational to adopt the test that conviction could be sustained only if it is supported by at
least two or more witness who give consistent account of the incident.
59. To reiterate, it is abundantly clear from the discussion made hereinabove and the testimony of the witnesses, that the fardbeyan was recorded
promptly and there was no scope of interpolation or improvisation in the fardbeyan. In our considered opinion the testimony of PWs-7, 8, 11 and 17 are
reliable and trustworthy as no material contradiction has been elicited by the defence to discredit their testimony. As discussed above, PW-11 in her
testimony, supported the case and deposed that PW-5, 7 and 17 reached the hospital and PW-5 in the presence of PW-7 and 17 narrated the
sequence of events of the occurrence and identified accused persons Dina Nath Singh and Prabhunath Singh. PW-7 and 17 are natural witnesses.
PW-16 has deposed that he had informed the deceased regarding the conspiracy which is corroborated by the testimony of PW-8. The testimony of
PW-1 and 2 establish the presence of PW-8 and 17 at the place of occurrence.
60. In the instant case, it is unfortunate state of affairs that some witnesses have resiled from their statement made by them under section 161 Cr.P.C.
and in their deposition before the trial court. The conduct of the said witnesses cannot be a ground for discarding the testimonies of PW-7, 8, 11 and
17 whose testimonies have not been dented by the defence and their presence at the place of occurrence is established. The law of Evidence is alike
both for the prosecution and for the defence .Therefore, the argument of defence regarding ""suggestions"" made to PW-7, 8, 11 and 17 has no ground
to stand and cannot be considered for drawing an inference of innocence of accused persons in the absence of any evidence led by the defence to
corroborate the ""suggestions"" made in defence. It is well settled principle that procedural irregularities by the prosecution and laches, omissions or fault
on the part of investigating agency cannot be a ground to disbelieve the case of prosecution in its entirety.
61. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from
the beginning to end. The maxim ""falsus in uno falsus in omnibus"" has no application in India. The maxim ""falsus in uno falsus in omnibus"" has not
received general acceptance nor has this maxim come to occupy the status of rule of law. In catena of decisions Hon'ble Supreme Court has
observed that the doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was
evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy
of acceptance, and merely because in some respect the court considers the same to be insufficient for placing reliance on the testimony of a witness,
it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.
62. On the basis of the discussion made hereinabove and after meticulous examination of the circumstantial evidence available on record, it is amply
clear that the prosecution has been able to establish that accused/appellants namely Prabhunath Singh, Dina Nath Singh on account of political rivalry
had entered into a conspiracy to commit the murder of MLA Ashok Singh (since deceased). In pursuance to the conspiracy, the miscreant had thrown
the bomb and killed Ashok Singh (the deceased) and while escaping had exploded another bomb due to which Anil Singh died and also exploded a
third bomb. P.W.-2, P.W.-13 and P.W.-17 had sustained injuries due to the bomb explosion. The testimony of P.W.-7 and 17 establishes that
Prabhunath Singh was waiting with a get away car and Dinanath alongwith the culprit who had thrown the bomb got into the car which was driven
away by accused Prabhunath Singh. The evidence on record establishes the charges against accused Prabhunath Singh and Dina Nath Singh.
63. So far as accused/appellant Ritesh Singh is concerned, it appears that the charge-sheet No-61/1996 was filed showing him as an absconder. PW-
11 during her deposition in para-7, has identified accused Ritesh Singh in the dock of the court as the person who had come with the miscreant and
was standing at the gate. From perusal of the FIR as well as from the testimony of PW-11, it is evident that though PW-11 is a witness to the
occurrence but she is not a witness on the point of identification of the accused persons. As per narration in the fardbeyan and her testimony, it is
evident that she was told about the role of accused persons namely Prabhunath Singh and Dina Nath Singh and she mentioned their names in the
fardbeyan but has not mentioned the name of Ritesh Singh. In para-3 of her examination-in-chief, she has stated that PW-5, 7 and 17 had told her that
Ritesh Singh was also present there. But it is evident from the testimony of PW- 7 and 17 that they had neither mentioned the name of Ritesh Singh as
an accused or participator in the crime, nor they had mentioned the name of accused Ritesh Singh to PW-11. PW-11 in para-43 of cross-examination
has admitted that she had not mentioned the name of Ritesh Singh in her fardbeyan or before the police. It also appears that charge-sheet was
submitted showing Ritesh Singh as an absconder. It is pertinent to mention here that accused Ritesh Singh was a stranger to PW-11 and even after
arrest Ritesh Singh was not put in TIP. It is amply clear that PW-11 identified Ritesh Singh for the first time in the dock after more than 13 years. The
identification of the accused for the first time in the court by PW-11 creates a doubt regarding involvement of accused Ritesh Singh in the crime in the
absence of corroboration of PW-11 by PW-7and PW-17. The Hon'ble Supreme Court in Dana Yadav v. State of Bihar; (2002) 7 SCC 295 has
categorically observed that if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon,
especially when they did not disclose name of the accused before the police.
64. PW-8 Ragwendra Singh, in his testimony has stated that on the day of occurrence, at around 7:00 p.m. appellant/accused Ritesh Singh had come
at the gate of the residence with the miscreant who had hurled bomb at the MLA Ashok Singh. In Para-13 of cross-examination this witness has
stated that he had named Ritesh Singh in his statement before the police and has denied the suggestion of the defence that he has not mentioned the
name of Ritesh Singh before the police. From perusal of the testimony of PW- 8 it is evident that he knew appellant/accused Ritesh Singh due to
political connection and Ritesh Singh hailed from the same constituency. However PW-20- the Investigating officer, in para-16 of his deposition, has
categorically stated that in the statement under section161 Cr.P.C, PW-8 had not mentioned the name of accused Ritesh Singh as one of the accused
involved in this crime. Therefore the statement of PW-8 that he had mentioned the name of Ritesh Singh in his statement under section 161 Cr.P.C. is
uncorroborated and does not find support from the testimony of the investigating officer (PW-20). Further PW-8 has admitted that he knew Ritesh
Singh as he hails from the same constituency, but surprisingly this witness had not disclosed the name of accused Ritesh Singh immediately to PW-11,
when he had accompanied her to the Hospital, which creates a doubt regarding the veracity of the testimony of PW-8 to that extent. The Hon'ble
Supreme Court in Sampath Kumar v. Inspector of Police; (2012) 4 SCC 124, at para-25 has observed as under:
25. In the present case the statement made by Palani (PW 7) is in complete contrast with the statement made by him before the police where the
witness stated nothing about having seen the appellants standing near the deceased around the time of the incident. This omission is of very vital
character. What affects the credibility of the witness is that he did not in his version to the police come out with what according to him is the truth, but
withheld it for a period of five years till he was examined as a prosecution witness in the court.
65. Thus, in the backdrop of the evidence on record and discussion made hereinabove especially in para-63 and para- 64, we find that the prosecution
has failed to establish the charges under section 302,307, 324 read with 120(B) of the Indian Penal Code against appellant Ritesh Singh beyond all
reasonable doubt.
66. For the foregoing reasons, in our opinion the appellant/accused Ritesh Singh is entitled to the benefit of doubt and is hereby, acquitted of the
charges. Accordingly, the judgment of conviction passed by the learned Additional Sessions Judge in Sessions Trial No.418 of 1997 is set aside in
favour of Ritesh Singh, and is affirmed as against Prabhunath Singh and Dina Nath Singh.
67. In the result, the Criminal Appeal (D.B.) No.990 of 2017 is, hereby, allowed and Criminal Appeal (D.B.) Nos. 985 of 2017 and 989 of 2017 stand
dismissed, and the judgment dated 18.05.2017 passed by the learned Additional Sessions Judge in Sessions Trial No. 418 of 1997 is modified to the
extent as indicated above.
The appellant Ritesh Singh is directed to be released forthwith from jail custody, if not wanted in any other case.
68. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.