Jharkhand High Court
Against The Judgment Of Conviction ... vs Vrs on 25 April, 2019
Author: Kailash Prasad Deo
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
1
Criminal (Jail) Appeal (DB) No. 152 of 1998
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Against the judgment of conviction dated 07.01.1998 and order of sentence dated
09.01.1998 passed by Shri Swaroop Lal, 1 st Additional District & Sessions Judge,
Godda in Sessions Case No. 81/97/27/97.
Md. Sidique ............Appellant
Vrs.
The State of Bihar ............. Respondent
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For the Appellant : Mrs. Amrita Kumai, Amicus Curiae
For the State : Mr. Ravi Prakash, Additional Public Prosecutor
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PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
Per Kailash Prasad Deo,J.
Heard learned Amicus Curiae, Mrs. Amrita Kumari and learned counsel for the State, Mr. Ravi Prakash, Additional Public Prosecutor.
2. The instant criminal appeal has been preferred against the judgment of conviction dated 07.01.1998 and order of sentence dated 09.01.1998 passed in Sessions Case no. 81 of 1997/27 of 1997 passed by 1 st Additional District & Sessions Judge, Godda, whereby the appellant has been held guilty for the offence committed and punishable under Sections 4 and 5 of the Explosive Substance Act, 1908 and awarded Rigorous Imprisonment for 7 years for the offence committed and punishable under Section 4 of the Explosive Substance Act and Rigorous Imprisonment for 14 years for the offence committed and punishable under Section 5 of the Explosive Substance Act. Both the sentences are directed to run concurrently.
3. The prosecution case is based upon self statement of S. I., R. B Nanhe, Officer-Incharge, Mahgama Police station recorded on 8.11.1996 at 19:30 Hours at Nunajore Chowk, where the informant has alleged that he was on evening patrolling and reached to village Chandsar Khurhari at 17:30 and after checking the guard the informant along with A.S.I, Harendra Singh went to Nunajore Chowk on his private motorcycle at around 18.00 Hours. The informant has stated that he got a confidential information that a person having old plastic bag is moving in a suspicious condition at the chowk. Thereafter, the informant after making enquiry with Chowkidar 1/26 Kaleshwar Mirdha and Chowkidar, 1/25, Ganesh Manjhi started searching 2 Criminal (Jail) Appeal (DB) No. 152 of 1998 the person. After some time, they moved towards south, then they saw that one person having a bag in his hand is standing on the bank of the road. The informant after flashing the torch light asked him about his identity. Thereafter, the person started fleeing away carrying the bag properly. The person was chased by the informant and the co-villagers, namely, Jay Kant Yadav (P.W.1), Basuki Yadav, Ramdeo Yadav, Sushil Yadav, Pramod Kumar Yadav, all residents of Nunajore, Police Station Mahagama, raising brawl to catch hold of him. After some time, the person was caught and on inquiry, he disclosed his name as Md. Sidique, son of Sk. Jamaluddin, resident of village- Raha, P.S. Basantrai, presently residing at Hat Gamhariya, P. S. Mahgama and disclosed that he is carrying Bomb in his bag. The informant has further stated that in presence of the villagers, a live bomb was recovered from the bag, which was big in size. A bucket full of water was brought by Ramdeo Yadav and the bomb was kept in the same so as to diffuse it and a seizure-list was prepared, in which Jay Kant Yadav, Basuki Yadav and Ramdeo Yadav have put their signatures. Sidique Mian has also disclosed that he has been convicted earlier in a case of dacoity and today he has come to kill Basuki Yadav, resident of Nunajore and as such he has brought the bomb. The accused Sidique Mian was taken into custody and the written report was prepared at Nunajore Chowk. The informant has claimed that Sidique Mian has brought a bomb for committing a heinous cognizable offence, and as such he has been made an accused in a case under Sections 3/4/5 of the Explosive Substance Act and arrested the accused, informant proceeded towards the police station with the accused in custody.
4. On the basis of written report, the police has registered Mahagama P. S. Case no. 122/96 dated 8.11.1996 under Sections 3/4/5 of the Explosive Substance Act. After completion of the investigation, the police has submitted charge-sheet vide no. 1 of 1997 dated 3.1.1997 under Sections 3/4//5 of the Explosive Substance Act, accordingly the cognizance of the offence has been taken and the case has been committed to the Court of Sessions. The charge has been framed against the accused under Sections 4 & 5 of the Explosive Substance Act vide order dated 27.6.1997. The charge has been read over and explained to the accused in Hindi, to which the accused has pleaded not guilty and claimed to be tried.
5. In order to prove the case, the prosecution has examined altogether 3 witnesses. Jay Kant Yadav, Sarpanch of the village has been examined as 3 Criminal (Jail) Appeal (DB) No. 152 of 1998 P.W.1, Kaleshwar Mirdha, a Chowikidar has been examined as P.W. 2 and Ganesh Manjhi another Chowikidar has been examined as P.W.3. Except seizure-list of the alleged bomb, which has been marked as Ext. 1. Nothing has been brought on record on behalf of the prosecution.
6. After closure of the prosecution case, the accused Md. Sidique was examined under Section 313 Cr.P.C on 12.12.1997, where he has denied his involvement in the case and recovery of bomb from his possession, but no defence witness or exhibit has been brought on record.
7. After hearing learned counsel for the parties and on the basis of materials brought on record, learned Trial Court has held the accused Sidique Mian guilty under Sections 4 & 5 of the Explosive Substance Act.
8. Heard learned Amicus Curiae Mrs. Amrita Kumari and learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor.
9. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that there is no legal evidence against the appellant. Even the article which was seized, has not been examined by the Forensic Science Laboratory to establish that the same is a Explosive Substance, as defined under Section 2(a) of the Explosive Substance Act. Learned Amicus Curiae has further submitted that even the seizure-list, which has been brought on record and marked as Ext.-1, has not been served upon the accused/appellant, Md. Sidique as his signature is not found on the same. As such, provision of Section 100(6) of the Cr.P.C has not been complied by the prosecution. Learned Amicus Curiae has further submitted that the Investigating Officer or the Informant of the case has also not been examined in this case. Learned Amicus Curiae has further submitted that from perusal of the First Information Report, which is on the basis of self statement of S.I., R.B. Nanhe and the evidence of P.W.1, Jay Kant Yadav, it appears that Basuki Yadav had some dispute with Md. Sidique (appellant), as such in a conspiracy, he has been falsely implicated in this case. Learned Amicus Curiae has further submitted that while going through the Fardbeyan, it appears that when the accused was chased by the Police Officer including the residents of the locality such as Jay Kant Yadav, Basuki Yadav, Ramdeo Yadav, Sushil Yadav and Pramod Kumar Yadav, they have not disclosed that the person, who is absconding is Md. Sidique, though from the evidence of P.W.1, it appears that Md. Sidique was known to Basuki Yadav and Jay Kant 4 Criminal (Jail) Appeal (DB) No. 152 of 1998 Yadav. Learned Amicus Curiae has thus submitted that in a well planned conspiracy, appellant has been implicated in this case. Learned Amicus Curiae has further submitted that the prosecution case states about a bomb in the plastic bag, but from the evidence of P.W.1 Jay Kant Yadav, it appears that such article has been recovered from the bag, which was white in colour and made of clothes. Learned Amicus Curiae has further submitted that the articles seized was a bomb has not been proved and established, as such, conviction of the appellant under sections 4 and 5 of the Explosive Substance Act is not sustainable in the eyes of law. Learned Amicus Curiae has further submitted that the criminal antecedent of the appellant has also not been brought on record to substantiate that the appellant has confessed his guilt before the Informant Sub Inspector R.B. Nanhe that he was earlier convicted in a case of dacoity. As such, he has been falsely implicated in this case in a well planned manner by Jay Kant Yadav and Basuki Yadav in connivance with Sub Inspector R.B. Nanhe. Learned Amicus Curiae has further submitted that as per the statement of the Informant, R.B. Nanhe, he was along with A.S.I. Harendra Singh. The said Harendra Singh has also not been examined in this case and from the evidence of P.W. 1, Jay Kant Yadav even the prosecution report based on self statement of S.I. R.B. Nanhe is not supported by P.W.1, Jay Kant Yadav, who has deposed in the Court that the informant was along with the constable. Learned Amicus Curiae has further submitted that the prosecution has been initiated and proceeded against the appellant without taking any sanction of the competent authority as contemplated under Section 7 of the Explosive Substance Act. Learned Amicus Curiae has thus submitted that on the basis of such flimsy ground and inconsistent evidence, the appellant has been convicted, whose conviction cannot sustain in the eyes of law and may be acquitted from the charge and conviction under Sections 4 & 5 of the Explosive Substance Act.
10. Learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor has vehemently argued and has submitted that the appellant was a convict as he was found with the material which has been identified by the Informant as Explosive Substance and the appellant could not give any satisfactory reply about the same. As such, learned Trial Court has rightly convicted the appellant on the basis of the evidence of P.W.1 Jay Kant Yadav, Sarpanch and a seizure witness of the case, P.W.2 Chowkidar Kaleshwar Mirdha and P.W.3 another Chowkidar Ganesh Manjhi. Learned State counsel 5 Criminal (Jail) Appeal (DB) No. 152 of 1998 has thus submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Court.
11. Heard, learned Amicus Curiae Mrs. Amrita Kumari and learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor and perused the materials brought on record i.e., First Information Report, framing of charge, evidence of 3 prosecution witnesses, 1 prosecution exhibits i.e., seizure list, statement of the accused recorded under Section 313 Cr.PC as well as the impugned judgment of conviction and order of sentence. We have gone through the prosecution report based on self statement of the Police Officer R.B. Nanhe. It appears that neither A.S.I, Harendra Singh nor Police Officer, R.B.Nanhe on whose self statement First Information Report has been instituted have been examined in this case. The entire case revolves around the evidence of P.W.1, Jay Kant Yadav, seizure witness and Sarpanch of the village and the evidence of two Chowkidar P.W.2 Kaleshwar Mirdha and P.W.3 another Chowkidar Ganesh Manjhi. Seized material has not been brought before the Court, nor anything has been brought on record by the prosecution to establish that the material seized was an Explosive Substance, as defined under section 2(a) of the Explosive Substance Act, 1908. We have also perused the seizure list. It appears that the seizurelist has never been handed over to the accused as signature of the accused has not been found on the seizure list which has been proved and marked as Ext.1. The criminal antecedent report of the appellant has also not been brought on record. From perusal of the evidence of P.W.1, it appears that there was some dispute or clash of interest between Md. Sidique (appellant) and one Basuki Yadav, resident of Nunajore and as such, the Sarpanch Jay Kant Yadav (P.W.1) has connived with the police officer and Basuki Yadav who was also a co-villager, in falsely implicating the appellant. Sanction has also not been obtained from the competent authority, which is precondition for prosecution.
12. Under the aforesaid circumstances, in view of lack of any legal material to hold the appellant guilty for the offence under Sections 4 and 5 of Explosive Substance Act, we are of the opinion that the impugned judgment of conviction and order of sentence passed by the learned Trial Court is fit to be set aside. Accordingly, the impugned judgment of conviction dated 07.1.1998 and order of sentence dated 09.1.1998 passed by the learned 1 st Additional District and Sessions Judge, Godda is hereby set aside. The 6 Criminal (Jail) Appeal (DB) No. 152 of 1998 appellant who is on bail, is discharged from the liability of his bail bonds.
13. The appeal is allowed. Let the lower court records along with a copy of this judgment be sent down to the Court concerned.
14. Before parting with, we appreciate the valuable assistance rendered by the learned Amicus Curiae Mrs. Amrita Kumari during hearing of this case. The Secretary, Jharkhand High Court Legal Services Committee is directed to release her admissible legal remuneration within a period of four weeks from the date of production of a certified copy of this judgment along with an application.
15. This Court feels that the record of this case must be placed before the Director (Prosecution), so as to place the same before the Home Secretary and Director General of Police for their perusal for appropriate action as may be deemed necessary.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Date 25th April, 2019 jk