JUDGMENT
B.N.P. Singh, J.
1. Both the above cases have been heard together and are being disposed of by this common order.
2. Hasnain Akhtar Khan (deceased) said to be the Lecturer in Gaya College, Gaya had come to his native village Belhari on 31st December, 1992 and just on the following day which was the New Year’s day, he went to Gangta Canal to celebrate New Year’s day little knowing that he will not celebrate next New Year’s day, as it is alleged that on the day of 1st January, 1993, shortly after return from picnic, while he was near the mosque in the village, Md. Eqbal Hussain Khan, the appellant, indulged in altercation with him taking him to task for responding conclusively, and shortly thereafter hurled a bomb when Hasnain Akhtar Khan dropped on the ground and died with profuse bleeding flowing from the wound, when some persons made endeavours to come near the dead-body, he threatened them of dire consequences and no one ventured to do so, and only after he made good escape, the family members and villagers came to the corpse and noticed Hasnain Akhtar Khan dead. The genesis of occurrence was said to be land dispute persisting between the parties and with these narrations, fardbeyan of Konain Akhtar Khan (P.W. 5) was recorded by the police which is the First Information Report registered at Raushanganj Police Station, Gaya, pursuant to recording of the fardbeyan, the investigation commenced and Sri A.K. Singh. Investigating Officer (P.W. 8) visited place of occurrence, prepared inquest report, sent the dead-body to mortuary for post-mortem examination, noticed dead-body in the pool of blood and copious blood near the place of occurrence, seized blood stained earth for which seizure memo was prepared by him, recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, took step for apprehension of the appellant who was absconding, and on receipt of post-mortem report along with remanences of splinters of bomb found embedded in the dead-body of the deceased, on conclusion of investigation, laid charge-sheet before the Court and on committal to the Court of sessions, the appellant was put on trial.
3. The defence of the appellant before the trial Court and also this Court had been the total innocence scribing false implication due to persisting land dispute between the parties and as for presence of dead-body of Hasnain Akhtar Khan near the mosque, it was pleaded that he sustained injury while coming from picnic and his dead-body was dropped near the mosque by some unidentified persons.
4. In the eventual trial, the prosecution examined altogether ten witnesses including mother, father, brothers of the deceased, Ghulam Goss P.W. 4, some formal witnesses who brought some documents on the record, doctor and also the Investigating Officer. The defence to examined three witnesses obviously to suggest persisting hostility between the parties and also to impeach the credibility of Ghulam Goss who allegedly deposed at trial adverse to the appellant.
5. Sri Ram Bachan Lai, Havildar P.W. 7 brought station diary entry (Ext. 3) on the record. Nand Kishore Sharma P.W. 9 was a Head Clerk in the Legal Section, Gaya Collectorate, who brought on the record, the sanction accorded by the District Magistrate, Gaya for prosecution of the appellant under Sections 3 and 4 of the Explosive Substance Act. Sri Shyam Nandan Prasad P.W. 10 brought on the record a letter (Ext. 10) said to be in the handwriting of Suman Kumar Singh, Head of Department of Business Management of Gaya College, Gaya. Since these witnesses are quite formal and brought only some documents on the record, there was nothing material in their evidences to merit consideration. Now adverting to the evidences of the witnesses placed on the record, one would find Konain Akhtar Khan P.W. 3 reiterating his early version which he rendered before the police about having noticed altercation between the deceased and the appellant when appellant asked the deceased to reply conclusively in some matters, and shortly thereafter, hurled bomb when Hasnain Akhtar Khan dropped dead, when he and his family members tried to reach near the dead-body of Hasnain Akhtar Khan, they were threatened by the appellant to be the target, if they ventured to come there. The appellant remained wandering there for some time and only after he escaped in the northern lane, he along with is family members rushed to the place of occurrence and noticed dead-body of Hasnain Akhtar Khan in pool of blood, and after police came to the place of occurrence, he rendered fardbeyan. Nayeema Khatoon P.W. 1 happens to be the mother of the deceased. She was on the roof after offering namaz of Asar when she noticed altercation between the deceased and the appellant and shortly thereafter, appellant took out a bomb which he had concealed in the shawl, and lobbed on Hasnain Akhtar Khan. When she along with her family members went to Hasnain Akhtar Khan, she found him dropped dead. More or less in similar terms Tarique Akhtar Khan P.W, 2 also stated before the Court about having noticed altercation between appellant and the deceased when be come out of the house and saw the altercation that followed between them. He stated to have noticed appellant having lobbed a bomb on the deceased when Hasnain dropped dead. Since appellant threatened them not to venture to come to the dead-body, only after the appellant had retired from the place of occurrence, they reached there and noticed Hasnain Akhtar Khan dead. Alimuddin Khan P.W. 3 who happens to be the father of the deceased did not claim to be ocular witness of the incident, as he stated too have reached the place of occurrence only on the alarm raised by Tarique Akhtar Khan about the appellant having killed Hasnain Akhtar Khan. He along with his family members went to the place of occurrence and noticed his son dropped dead in the pool of blood. Ghulam Goss P.W. 4 was sitting with the deceased at Chabutra near the mosque, pursuant to which the appellant called Hasnain Akhtar Khan towards west when altercation ensued between them and soon thereafter, the appellant took out a bomb and lobbed on Hasnain Akhtar Khan who letter dropped dead. This witness has his house near the place where he stated to have been sitting with the deceased, preceding the incident.
6. Dr. Mukti Nath Singh P.W. 6 stated to have held autopsy over the the dead-body of Hasnain Akhtar Khan and noiiced lacerated would about 10″x 9″x size extendinng from the oral cavity roof above and the upper part of front of chest mostly on left side slightly over lapping to the right side near the super. External Scotch and extending on left side up to left shoulder and above left nipple (sic) and a would over the chest being 6 “wide and chest cavity deep. The death of the deceased in the estimation of the doctor was due to blast injury sustained by the deceased from the close range.
7. Sri Akhelesh Kumar Singh, the Investigating Officer P.W, 8 stated to have drawn up Station Diary entry (Ext. 3) on receipt of message about killing of Hasnain Akhtar Khan by the appellant, pursuant to which he proceeded to the place of occurrence and recorded fardbeyan of Konain Akhtar Khan, noticed dead-body in pool of blood, and also copious blood on the place of occurrence, inspected place of occurrence which was vacant land, west to mosque. He stated to have seized blood stained earth from the place of occurrence for which prepared seizure memo, recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, took steps for apprehension of the appellant who was absconding, received post-mortem report along with recovered remanences of splinters of bomb found embedded in the dead-body and submitted charge-sheet before the Court on conclusion of investigation. The defence to examined three witnesses as has been stated above. The trial Court on meticulous appreciation of evidences placed on the record, while negativing contentions raised at Bar, recorded finding of guilt under Section 302 of the Indian Penal Code and also under Sections 3 and 4 of the Explosive Substance Act against the appellant and sentenced him to undergo rigorous imprisonment for life on the first count and for the second count the appellant was sentenced to rigorous imprisonment for seven years with a direction that both the sentences shall run concurrently.
8. Manifold submissions were canvassed at Bar for the appellant to assail the finding recorded by the trial Court and it is sought to be urged by learned Counsel for the appellant that though P.Ws. 1, 2, 4 and 5 were projected by the State to be ocular witnesses of the incident, from the tenor of their evidences, the claim of the witnesses to be eye-witnesses is totally belied and in that view of the matter, the possibility of witnessing occurrence by these four witnesses was completely ruled out. Commenting on the credibility of P.W. 1 learned Counsel would urge that in view of positive admission of the witness about she having only heard sound emanating from explosion of bomb, shortly after she stood up after offering Namaz the possibility of the witness seeing the incident was extremely remote. The credibility of P.W. 2 was sought to be impeached on the premises that he to stated before the Court that shortly after he came out from his house, he noticed P.W. 1, his mother and father inside the house and only after he came out of the house, he heard explosion of bomb and on these premises it is sought to be urged that in view of admission made by him, there was no occasion for any of the family members to witness the incident. The answer to these questions about there being no possibility of family members to witness the incident can be well found in the evidence of those witnesses whose credibility is sought to be impeached. The narrations made by P.W. 1 about sound emanating from the explosion of bomb cannot be read in isolation as she would state before the Court that shortly after she stood up after offering namaz, she heard altercation between the appellant and the deceased and the focal point of the prosecution case was that preceding the incident, there was altercation between the deceased and the appellant. In the same fashion the credibility of P.W. 2 cannot be questioned, as he was narrating before the Court that shortly after the incident he went inside the house to inform his father, pursuant to which he came out and saw Hasnain Akhtar Khan dead.
9. The credibility of Ghulam Goss who is shown to be the solitary independent witness was also sought to be impeached on premises that neither be was suggested to be a witness in the fardbeyan of Konajn Akhtar Khan nor family members, who claimed to be ocular witness of incident, stated his presence at the material time of incident. However, this argument too of the learned Counsel for the appellant was quite meritless for the simple reason that the presence of Ghulam Goss was well transpiring from the testimony of P.Ws. 1, 3 and 5 and presence of Ghulam Goss at the material time of incident cannot be questioned only because his name had not transpired in the fardbeyan of Konain Akhtar Khan, as it is now well established and well recognised principle of law that simply for omission of name of a witness in the First Information Report, his credibility cannot be questioned as the First Information Report was not the last word of the prosecution. True it is that the First Information Report is safeguard for the prosecution and the defence also, nevertheless such omission would not persuade the Court to reject evidence of even a probable’ witnesses. True it is that the name of Ghulam Goss was not transpiring in the charge-sheet as a witness, there was evidence of none-else but the Investigating Officer that statement of Ghulam Goss was recorded by him under Section 161 of the Code of Criminal Procedure during investigation, and if his name did not appear in the charge-sheet, for lapses on the part of the Investigating Officer, the prosecution cannot be a casualty. The contentions were raised on behalf of the appellant that though it would appear from the testimony of P.W. 5 that while altercation ensued between the appellant and the deceased, there was hardly a distance of 3 and 4 steps from each other when appellant allegedly lobbed a bomb on the deceased, and it is urged that once this situation is accepted, it was most unlikely that the appellant would not suffer injury on his person from the splinters of the bomb. Though the argument appears to be attractive but is quite innocuous, and for that, we can refer the evidence of P.Ws. 2, 3 and 4 who were stating before the Court in most uncertain terms that after the appellant lobbed a bomb on the deceased, there was little smoke and even the sound of explosion was not loud. None of the witnesses examined by the State had been stating before the Court about witnessing the remanences of bomb, at the place of occurrence and that is also the objective finding of the Investigating Officer. It was only on autopay carried out over the dead-body, that the splinters of bomb embedded in the body of the deceased was recovered by the doctor and in that view of the matter, the possibility of the appellant sustaining injury on his person, did not appear to be probabic. Next it is urged on behalf of the appellant that referring to testimonies of P.Ws. 2, 3, 4 and 5, it would appear that hostility persisted between the parties and in that backdrop false implication of the appellant cannot be ruled out. However, we find that the evidence of the witnesses are quite otherwise, as P.W. 2 though admitted that there was some land dispute between the appellant and his family, he had no occasion to see quarrel or dispute between two families. P.W. 2 would state that there was some sort of dispute between two families and P.W. 5 strongly refuted suggestion for there being any dispute between the parties. Some documents were brought on the record by the appellant obviously to suggest hostility persisting between the parties, but even accepting some sort of hostility between the parties that was not good and valid ground to reject the testimony of ocular witnesses who appear to be credible. It is urged that though the deceased was suggested to have gone for pictured in the company of Hashim and Daud Khan as has been evidenced by P.Ws. 3 and 5, none of then were examined at trial and in quick succession it is urged that apart from non-examination of these two witnesses, though host of persons flocked to the place of occurrence, none of them were examined by the State on the lame execuse that the witnesses had gone in collusion with the appellant. However, we find that testimony of reliable eye-witnesses cannot be rejected on that score alone and profitably we can refer decision of the apex Court , State of Rajasthan v. Teja Ram, in which observations were made by the apex Court that testimony of probable witness had not to be rejected only on the premises of there being no testimony of independent witnesses though some sort of amity was sought to be suggested. It is urged that since Alimuddin P.W. 3 had stood bailor in a case of arson against Ghulam Goss, credibility of Ghulam Goss was open to question, as he had come to Court only to oblige Alimuddin who stood bailor for him in a case of arson, but since we have found the witness credible and his presence probable, his good testimony cannot be rejected on this score. The other contention raised at Bar on behalf of the appellant was that since the witnesses claimed to have witnesses the incident after namaz of magrib which usually happens after sunset, the possibility of visibility of the incident by the witnesses, when the night had fallen in the winter reason, was extremely remote. In our view, the trial Court had rejected this convention raised on behalf of the appellant on good and sound reasoning in view of coherent statement of the witnesses that they witnessed the incident shortly after namaz of Asarwas offered, and as has been evidence of P.W, 3, the namaz of Asaris offered at 3.45 p.m. to 4 p.m. Since the incident is shown to have happened at about 4 p.m., even in the winter season, the visibility of the incident must be exposed to the witnesses, and the last contention raised at Bar was that as the Investigation had commenced shortly after the police officer made entry of station diary Ext. 3, the fardbeyan of Konain Akhtar Khan P.W. 5 cannot be treated too be earliest version of the prosecution, and the trial Court too has found good reason in not treating Ext. 10 as First Information Report, as the investigation had commenced shortly after station diary Entry No. 3 was recorded by the police officer but even rejection of fardbeyan of Konain Akhtar Khan as an early version of the prosecution would not detract the probative value of the ocular witnesses.
10. The evidence of P.W. 3 corroborates testimony of P. Ws. 1 and 5 about they having witnessed the incident from the roof of the house and he also corroborates the testimony of P.W. 2. The testimony of ocular witnesses find complete assurance and corroboration from the finding recorded by the doctor who noticed corresponding injury on the body of the deceased. The objective finding recorded by the Investigation Officer too had lent good assurance to the prosecution version about there being copious blood near the corpse of Hasnain Akhtar Khan and the splints of bomb extracted from the dead-body, which remained embedded on receipt of injury by the deceased.
11. Having given our anxious and deepest consideration to the evidences placed on the record and also the facts and circumstances of the case, we find that the verdict of guilt and sentence imposed on the appellant was based on meticulous appreciation of the evidences placed on the record and we find no good reason for interference with the finding recorded by the trail Court. The finding of conviction and sentence recorded by the trial Court is accordingly upheld and the appeal being maritless is dismissed. Since we do not find the instant case to be rarest of rare warranting imposition of extreme penalty prescribed by the Statute, finding no merit, we also dismiss Cr. Revision No. 411 of 1995.
R.N. Prasad, J.
11. I agree.