JUDGMENT (Per: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH) The sole appellant, having been convicted under Section 302 of Indian Penal Code (IPC) and Sections 4 and 5 of the Explosive Substance Act, has been sentenced to rigorous imprisonment for life in respect of offence under Section 302 of IPC and seven years under Sections 4 and 5 of the Explosive Substances Act. The sentences have been ordered to run concurrently. The judgment of conviction and the sentence were passed on 25.04.1988 by the Additional Sessions Judge II, Saran in Sessions Trial No 111 of 1986/140 of 1986. 2. Let it be noted that when the appeal was called out, no one appeared for the appellant. This appeal has been pending for over twenty six years in this Court. Accordingly, on our request, Shri Ashok Kumar, Advocate agreed to assist the Court as amicus curiae. Heard learned counsel for the State. 3. The prosecution case, as per the first information report (FIR) which is Exhibit 12 and is based upon the statement of Dashrath Prasad (PW 6), the father of the deceased boy Shesh Nath, is that while celebrations and songs were sung outside his house in the afternoon of Holi on 21.03.1981, he heard a loud sound of explosion. He came out of the house and he was informed that his young son Shesh Nath had been killed by the appellant Nawal Singh. Nawal Singh had thrown a bomb on the head of Shesh Nath whose brains were blown out and he found Nawal Singh also lying grievously injured and unconscious near the body of his son. He has named five persons who had seen the occurrence. 4. Upon this FIR, police took up investigation and ultimately chargesheet was filed by IO, PW 9 Gauri Shankar Dubey and sanction having been accorded by the District Magistrate, consequent to cognizance being taken, charges were framed against the appellant for the murder of Shesh Nath by bomb. Two different and distinct charges were framed, one in relation to murder punishable under Section 302 of IPC and the other in relation to using of explosive (bomb). 5. The appellant pleaded total innocence and was put to trial. In course of trial, prosecution examined as many as 13 witnesses and as would be shown that there were only two material witnesses in fact. 5. The appellant pleaded total innocence and was put to trial. In course of trial, prosecution examined as many as 13 witnesses and as would be shown that there were only two material witnesses in fact. Apart from the informant (PW 6) who, as per the FIR itself, was not a witness to the occurrence, six persons were examined purporting to be witnesses to the occurrence. PW 1 Bindeshwari Singh, PW 3 Jugeshwar Mahto were declared hostile. They did not support the prosecution in any manner. There were two witnesses that is Punyadeo Tiwari (PW 7) and Sudhir Prasad (PW 8) who were injured allegedly in the same transaction but they also did not support the prosecution case. Thus, out of six independent witnesses which included two injured witnesses, four became hostile. Thus, there are only two witnesses that is PW 2 Yogendra Singh and PW 4 Beni Madhav Singh whose evidence has to be considered. PW 9 Gauri Shankar Dubey is the Investigating Officer (IO) who filed the chargesheet but he had not conducted the investigation. PWs 10, 11, 12 and 13 are formal in the nature that they proved sanction order, injury report and other signatures. PW 5 Bachcha Lal Singh proves the post mortem report of Shesh Nath Singh. 6. Upon prosecution evidence having been recorded, the appellant was examined under Section 313 of the Code of Criminal Procedure (CrPC) wherein apart from denying having any hand in the occurrence, he has specifically stated that it was in fact the informant who, on the afternoon of Holi in a drunken state, had come out of his house and lobbed a bomb which unfortunately killed his own son and grievously injured the appellant apart from causing injuries to others outside the house. 7. The learned Sessions Court, relying solely on the evidence of PWs 2 and 4, has convicted the appellant, as noticed above. 8. The first thing to notice is that as per FIR itself, when the informant (PW 6) went to the scene of occurrence, he found his young son Shesh Nath lying dead with his head blown off as also the appellant grievously hurt lying unconscious by the side. He is not an eye witness. The left hand of the appellant had been virtually blown. He is not an eye witness. The left hand of the appellant had been virtually blown. At this stage, we may also notice that apart from the statement of the appellant under Section 313 of CrPC giving a totally different version, the defence has brought on record the FIR that was instituted by the appellant while he was taken to the Hospital for treatment. It is a matter of record that he remained in the Hospital for treatment for over one and half months and was only thereafter arrested by the police. 9. Before proceeding further, we may also notice two other important facts. There are five persons named in the FIR (Exhibit 12) who have seen the occurrence but even though all five are chargesheet witnesses, only three have been examined out of which one has been declared hostile. For other two, there is no explanation why they have not been examined. 10. We may also notice one another aspect. In the FIR, the informant that is the father of the deceased, states that more than a year back, one of his nephews had an altercation with Nawal Singh over pushing of a jeep vehicle and Nawal Singh had threatened the informant with dire consequences. In the FIR itself, the informant states that he had not disclosed this to anyone earlier but when the informant is examined as PW 6 in the Court, he fails to point out any motive for the occurrence giving a goby to the story earlier set up. Thus, there is no plausible explanation as to why Nawal Singh would kill the son of the informant grievously injuring himself in the transaction. 11. Now let us examine the evidence of PW 2 Yogendra Singh. In his examination-in-chief, he states that he had seen Nawal Singh throwing the bomb on the head of Shesh Nath consequent whereof Shesh Nath died on the spot but when he comes to cross-examination, he is not clear. He admits that he had not seen Nawal Singh, the appellant carrying any bag for carrying the bomb. He had not seen Nawal Singh throwing the bomb. He goes further to state that he had not seen Nawal Singh getting injured in the process. He states that it is on the next day he learnt that two other persons had also got injury. He had not seen Nawal Singh throwing the bomb. He goes further to state that he had not seen Nawal Singh getting injured in the process. He states that it is on the next day he learnt that two other persons had also got injury. If we see these statements in totality, one has serious doubts whether Yogendra Singh was in fact an eye witness or not or whether he is speaking the truth or not. This is so because if we see the evidence of PW 6, the informant, his son and Nawal Singh, who was grievously injured with his left hand blown off, were lying side by side. They were both injured in the same transaction yet PW 2 pleads ignorance about the injury to Nawal Singh. He does not even know how others were also injured that is PWs 7 and 8. He gets to know this only on the next day. 12. In our view, taking the entire deposition as a whole, this witness does not inspire confidence about being an eye witness or a truthful witness of the occurrence. The learned trial Court wrongly placed reliance on this witness. 13. We then have only one witness left that is PW 4 Beni Madhav Singh who is named in the FIR and who, to some extent, supports the prosecution but again when we examine his deposition as a whole, he does not state as a matter of fact or give any explanation as to how Nawal Singh got the grievous injury. The injury on Nawal Singh, which is grievous and has been proved, is not in dispute. Virtually, his left hand has been blown off. If Nawal Singh was to lob a bomb then if the bomb exploded prematurely, it is his right hand that would normally received the injuries but here the fact is otherwise. This is sought to be explained by evidence that before lobbing the bomb, he took the bomb from his right hand to his left hand. All this happened while the Holi songs and celebrations were going on. What we find more intriguing is that PW 4 Beni Madhav Singh as well as PW 2 Yogendra Singh talk of scuffle between Shesh Nath and one Kauleshwar followed by Kauleshwar trying to hold and pull back Nawal Singh in an effort to stop him from throwing the bomb. What we find more intriguing is that PW 4 Beni Madhav Singh as well as PW 2 Yogendra Singh talk of scuffle between Shesh Nath and one Kauleshwar followed by Kauleshwar trying to hold and pull back Nawal Singh in an effort to stop him from throwing the bomb. Kauleshwar is not examined nor anyone alleges that he has been injured. That is highly unnatural. If in fact Kauleshwar had caught hold of Nawal Singh while Nawal Singh was lobbing the bomb which grievously injured Nawal Singh, killing Shesh Nath, injuring other people around, what happened to Kauleshwar? How he escaped unhurt? Surely, explanation was due from the prosecution and Kauleshwar ought to have been examined. There is no explanation for his non-examination nor why he did not sustain any injury while the person, whom he was holding, sustains grievous injury. 14 Thus seen, in our view, the evidence of PW 4 also does not inspire confidence justifying the finding that it was Nawal Singh, the appellant who had thrown the bomb killing Shesh Nath and in the process causing grievous injuries to himself as well. 15. As noticed earlier, the case of the defence was that it was in fact the informant who lobbed the bomb unwittingly killing his own son, grievously injuring the appellant. This is apparent from the statement made under Section 313 of CrPC of the appellant as well as Exhibits B and C, the FIR lodged at the instance of the appellant from the Hospital where he was taken for treatment. From the records, it is apparent that inspite of the FIR lodged by the informant, the appellant was not arrested by the police even though he was taken to the Hospital and remained in Hospital for over one and half months for treatment. It was only when he was discharged from the Hospital that police took steps to arrest him. This clearly shows that had the incident, as narrated in the FIR, actually taken place in the manner, as alleged, police ought to have arrested the appellant there and then when he was lying unconscious grievously hurt next to the dead body of Shesh Nath. 16. Another issue has been raised by the learned Amicus Curiae that there is no explanation why the IO was not examined. 16. Another issue has been raised by the learned Amicus Curiae that there is no explanation why the IO was not examined. His examination was all the more necessary because if one goes through the evidence of PWs 2 and 4 with the evidence of PW 6, the informant, the place of occurrence radically shifts, their being no reconciliation or explanation. The informant was inside his house when he hears the sound of the bomb exploding. All along there are people who are dancing to the songs as a part of Holi celebrations. He is told that Nawal Singh has killed his son. He finds the dead body of his son lying next to the body of Nawal Singh who was unconscious. The other witnesses moved the place of occurrence to the Sahan of one Ram Vinay Singh who has not been examined though named in the FIR. PWs 7 and 8, who are the injured witnesses, have been declared hostile. They say that the incident took place at the Darwaza of one Mani Singh but Mani Singh has not been examined. Thus, where actually the incident took place and who committed the offence cannot be ascertained. Further, it is pointed that two persons have signed the FIR apart from the informant. They are Krishan Mahto and Ram Dayal Mahto. Neither of them have been examined by the prosecution. 17. Thus, taking the overall view, we are unable to conclusively hold that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt. As a consequence, we allow the appeal, set aside the convictions of the appellant and he is discharged from the liabilities of his bail bonds.