Jharkhand High Court
Sk. Amiruddin vs The State Of Bihar (Now Jharkhand) on 28 April, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
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Criminal Appeal (D.B.) No. 45 of 1998 (P)
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[Against the judgment of conviction dated 21.01.1998 and order
of sentence dated 24.01.1998 passed by 1st Additional District
and Sessions Judge, Godda in Session Case No. 111 of
1996/Session Case No. 95 of 1996.
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1. Sk. Amiruddin, son of Sk. Makbul, resident of Village -
Bansipur, P.S. - Pathargama (Basantrai), District - Godda
2. Sk. Nasim, Son of Sk. Basier, resident of Village - Jagatpur,
P.S. - Pathargama, District - Godda
... ... Appellants
Versus
The State of Bihar (Now Jharkhand) ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Jai Prakash Jha, Sr. Advocate
For the Respondent : Ms. Nehala Sharmin, Spl.P.P.
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C.A.V. on 12.02.2025 Pronounced on 28.04.2025
Per Arun Kumar Rai, J.
1. Heard Mr. Jai Prakash Jha, learned senior counsel
appearing on behalf of the appellants and Ms. Nehala Sharmin,
learned Spl.P.P. for the State.
2. This appeal is directed against the judgment of conviction
dated 21.01.1998 and order of sentence dated 24.01.1998 passed
by 1st Additional District and Sessions Judge, Godda in Session
Case No. 111 of 1996/Session Case No. 95 of 1996, whereby and
whereunder, the appellants have been convicted for the offence
punishable under Sections 3/5 of the Explosive Substances Act,
1908 and sentenced them to undergo imprisonment for life under
Section 3 of the Explosive Substances Act, 1908 and RI for 14
years under Section 5 of the Explosive Substances Act, 1908.
3. In nutshell, the case of prosecution is based upon the
written application of informant-Vishnu Rajak, Officer-in-Charge,
Basantrai O.P., P.S. - Pathargama who stated therein that on
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24.08.1991 at about 08:00 P.M. in the evening, he received
secret information while he was at Basantrai O.P. that one Sk.
Amiruddin, S/o of Sk. Makbul, resident of Village - Bansipur,
P.S. - Pathargama (Basantrai), District - Godda along with 10-12
miscreants of his gang assembled at the house of Sk. Nasim, S/o
Sk. Basier, resident of Village - Jagatpur, P.S. - Pathargama,
District - Godda to commit an offence and they all are equipped
with weapon. Thereafter, entering the above-said information in
O.P. diary, the informant-Vishnu Rajak along with ASI Fani
Bhushan Marandi, Constable -Ram Avtar Singh, Hawaldar -
Mahendra Singh, Constable - Bajrangi Das, Constable - Shankar
Prasad Singh and Constable - Mokhtar Kha and Chowkidars
namely Jichhu Hazra, Ramji Murmu, Kapil Deo Paswan, Laxman
Paswan, Naresh Paswan and Panchanand Manjhi started for
Village - Jagatpur and reached Village - Jagatpur at round 09:00
P.M. and Jahir Ansari, S/o Bilal Ansari, Sigeshwar Yadav, S/o
Ghureti Yadav and Sk. Yakub, S/o Sk. Bhagami and Sk. Fekan,
S/o of Sk. Pachu were also taken together and informed
accordingly and all of them, reached to the door of Sk. Nasim,
then they saw 10-12 persons were sitting on cot and chauki and
were having interaction with one another and gang leader Sk.
Amiruddin holding a musket gun on his shoulder, then torch
light was flashed on them and they have been told that police had
reached and asked the miscreants to surrender, then the
miscreants started fleeing away towards North but two
miscreants were caught who divulged their names respectively as
Sk. Amiruddin, son of Sk. Makbul and Sk. Nasim Son of Sk.
Basier.
It is further stated by the informant that search of above-
said persons were taken in presence of Jahir Ansari and
Sigeshwar Yadav, then from possession of Sk. Amiruddin one
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musket gun and from the black colour rexin bag four live bombs
and one live cartridge whereas from the possession of Sk. Nasim
one country made loaded pistol and from black colour rexin bag
four live bombs got recovered and accordingly seizure list was
prepared and Jahir Ansari and Sigeshwar Yadav stood as witness
to the said seizure list.
4. On the basis of above stated facts, an FIR being
Pathargama (Basantrai) P.S. Case No. 112 of 1991 under Sections
3/5 of the Explosive Substances Act, 1908 has been registered
against the above said two accused persons who are the
appellants herein.
5. After due investigation, charge-sheet against the accused
persons has been filed under Sections 3/5 of the Explosive
Substances Act, 1908.
6. The charges under Sections 399, 402 of IPC and Sections
3/5 of the Explosive Substances Act, 1908, have been read over
to the accused-appellants to which they denied and claimed to be
innocent.
7. After trial, learned 1st Additional District and Sessions
Judge, Godda has found that the accused-appellants have
already been acquitted under the charges under Sections 399 and
402 of IPC in Session Case No. 90 of 1993 and Session Case No. 4
of 1994, and, therefore, accused appellants convicted only under
Sections 3/ 5 of the Explosive Substances Act, 1908.
8. To prove its case, prosecution has examined as many as
thirteen witnesses and has brought on record the written
application of Vishnu Rajak, Officer-in-Charge, Basantrai, O.P. as
Exhibit - 2, charge-sheet as Exhibit - 1, formal FIR as Exhibit - 3,
Seizure list (photo copy) as Exhibit - 4, confessional statement of
Sk. Amiruddin as Exhibit - 5, report of FSL as Exhibit - 6 and
report of Sergeant Major, Dumka as Exhibit - 7.
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Defence has also brought on record the judgment dated
20.12.1994 of Sessions Case No. 90 of 1993/Sessions Case No.
4 of 1994, as Exhibit -A/b and judgment dated 11.10.1993 in
G.R. Case No. 1053 of 1990, T. R. No. 390 of 1993 as Exhibit -
A. Judgment dated 05.04.1994 in G. R. Case No. 751 of 1991,
Trial No. 681 of 1994 as Exhibit - A/a.
9. Learned senior Advocate appearing for the appellants
submitted that for the alleged same incident, three FIRs have
been lodged. One FIR being Pathargama (Basantrai) P.S. Case
No. 110 of 1991 under Sections 399 and 402 of IPC against the
above-said two appellants and nine other co-accused persons
and all of them acquitted in trial vide judgment in Sessions Case
No. 90 of 1993 and Sessions Case No. 4 of 1994 (Exhibit - A/b).
He further pointed out that 2nd FIR being Pathargama P.S. Case
No. 72 of 1990 under Section 25(A)/26 of the Arms Act, 1959
has been registered which has also been resulted into acquittal
of accused persons including the appellants in trial in G. R. Case
No. 1053 of 1990 and T. R. No. 390 of 1993 and in G. R. Case
No. 751 of 1991, T. R. No. 68 of 1994.
He further drew our attention towards 3rd FIR being
Pathargama P. S. Case No. 112 of 1991 under Sections 3/5 of
the Explosive Substances Act, 1908 on the basis of which in the
trial, appellants got convicted and has preferred present appeal.
It has also been brought to our notice that this is a false case
which is very much apparent from simple perusal of the
testimony of seizure witnesses and other witnesses. The
witnesses in the present case either not supported the case of
prosecution or even if they have supported the case of
prosecution, their testimony are so contradictory in nature,
therefore, it would not inspire confidence to this Court regarding
veracity of prosecution case.
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10. Learned Spl.P.P. submitted that member of raiding team
supported the case of prosecution and even if seizure witnesses
have not supported the case of prosecution, this is not a ground
to disbelieve the version of prosecution case and learned trial
court has rightly convicted the convicts and no interference is
required by this Appellate Court.
11. We have heard the learned counsel for the respective sides
and have also perused the Trial Court Records.
12. As per the written application of Vishnu Rajak, Officer-in-
Charge, Basantrai, O.P., (vide Exhibit - 2) one musket gun and
four live bombs from black colour rexin bag and one live cartridge
have been recovered from the possession of appellants Sk.
Amiruddin whereas from possession of appellant Sk. Nasim one
loaded country made pistol and four live bombs got recovered
from the black colour rexin bag.
13. In the present case, we found that P.W. - 3, Sigeshwar
Yadav and P.W. - 10, Jahir Ansari are said to be seizure
witnesses but they have not supported the case of prosecution
and have been declared hostile and despite cross-examination on
behalf of State nothing has been extracted from the mouth of
these two witnesses which could support the case of prosecution
qua the seizure.
14. It is the case of prosecution that after getting information
by the informant- Vishnu Rajak, he along with other police
personnel and chowkidars went to village - Jagatpur and had
taken together the villagers namely Jahir Ansari,(P.W. - 10),
Sigeshwar Yadav,(P.W. - 3), Sk. Yakub (P.W. - 1) and Sk. Feken
(P.W. - 2) and reached to the house of Sk. Nasim from where the
present two appellants caught and remaining co-accused persons
succeeded to flee away.
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All the aforesaid four villagers brought before learned trial
court as witness but they have not supported the case of
prosecution. Now we would like to analyze the evidence qua the
recovery of bombs/firearms, of chowkidars P.W. - 4 Laxman
Paswan, P.W. - 5 Nidhu Hazra, P.W. - 6 Naresh Paswan, P.W. - 7
Ramji Murmu, P.W. - 8 Panchanand Manjhi who are the
members of raiding team. P.W. - 4 stated in his deposition that he
remained in the vehicle and have not seen what articles recovered
from the accused persons. However, he saw musket gun, three
bombs in the police station. P.W. - 5 chowkidar Nidhu Hazra has
stated that two persons apprehended and they divulged their
name respectively as Nasim and Amir (appellants herein) and
when they were caught, nothing was with them and later on,
country made pistol and live bombs were taken from house. He
also deposed that seizure list was prepared but he is unable to
tell who put signature on the seizure list.
15. P.W. - 6, chowkidar Naresh Paswan has stated that he
along with constable- Ramavtar Singh were kept at the backside
of house of Sk. Nasim and they were called after apprehension of
Sk. Nasim and Sk. Amiruddin and bombs and country made
pistol were in balti (bucket). P.W. - 7, chowkidar Ramji Murmu
has deposed that he saw gun and bombs and all articles were
outside and he was also at the backside of house of Nasim. P.W. -
8 chowkidar Panchanand Manjhi has deposed that he was called
after apprehension of both the accused persons/appellants and
saw bombs and gun (country made gun) at the Basantrai O.P.
16. As far as deposition of above said five chowkidars are
concerned, they have not stated recovery of bombs/firearm from
the possession of either of the appellants, as P.W. - 4 has stated
that he saw the alleged articles in the police station. P.W. - 5 has
stated that above-said articles were taken from the house of
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Nasim P.W. - 6 has stated that it was in the balti (bucket). P.W. -
7 has stated that alleged recovered articles were outside the
house whereas P.W. - 8 has categorically stated that alleged
seized articles, he saw in Basantrai O.P.
The above-said chowkidars have not uttered a word in their
respective testimony that villagers (P.W. -1, P.W. - 2, P.W. - 3 and
P.W. - 10) were taken in raiding team from village Jagatpur before
visiting the house of Sk. Nasim rather P.W. - 7 in his cross-
examination has stated that Jahir Ansari (P.W. - 10) asked for
raid and he came at police station at 05:00 P.M.
17. As far as other witnesses are concerned, P.W. 9 is the I.O.
and has only given application to Superintendent of Police for
destruction of bombs and also for chemical examination of
bombs. P.W. - 11 is also part I.O. in the present case who
submitted charge-sheet. As far as, P.W. - 12 is concerned, he is
also part I.O. of the present case before whom bombs were
destroyed by Sergeant Major, Dumka.
P.W. - 13 is also a member of raiding team ASI Sashi
Bhushan Marandi and has stated that on 24.05.1991, he was
posted at Basantrai O.P. and Vishnu Rajak was O. P. In-charge at
that very point of time. He has also stated that he was also the
part of raiding team and visited Jagatpur village and found
miscreants there who were making preparation of dacoity and Sk.
Nasim and Sk. Amiruddin apprehended and on search, one
country made loaded pistol and one black colour rexin bag from
which four live bombs got recovered from Sk. Amiurddin. He has
also stated that seizure list was prepared by Vishnu Rajak and
same has been marked as Exhibit - 4. Confessional statement
has also been marked as Exhibit - 5. Chemical examination of
bombs by Forensic Science Laboratory, Bihar, Patna has also
brought on record by this witness and it is marked as Exhibit - 6
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and test report of sergeant Major, Sadan Kumar, as Exhibit - 7.
This witness has also stated that accused persons brought to
police station at 07:30 A.M. in the morning. He has categorically
stated in his testimony for the same incident, three FIRs have
been registered, one under Sections 399 and 402 of IPC and other
two under Arms Act and the Explosive Substances Act, 1908.
18. Admittedly, informant-Vishnu Rajak, Officer-in-Charge,
Basantrai, O.P., Pathargama has not been examined in the
present case. Seizure list witnesses (P.W. -3 and P.W. -10) have
not supported the case of prosecution and even the members of
raiding team are having their own different version regarding
alleged recovery of bomb(s). This is admitted position that for the
same incident, three FIRs one under Section 399 and 402 of IPC,
second one under Section 25A/26 of Arms Act and third one
under Section 3/5 of Explosive Substances Act, 1908 have been
lodged and appellants have faced three trials on the basis of
above-stated three FIRs and in cases registered under IPC and
Arms Act, after appreciation of evidence available in those cases,
appellants have been acquitted (vide Exhibit - A, Exhibit - A/a
and Exhibit - A/b).
19. It is apposite to discuss Section 7 of the Explosive
Substances Act, 1908 for the appreciation of consent for
prosecution given by the concerned authority. Section 7 of the
Act, 1908, states as follows:-
"7. Restriction on trial of offence.--No court shall proceed to the
trial of any person for an offence against this Act except with the
consent of the 6[District Magistrate]."
20. The plain reading of the above stated Section of the Act,
1908, clearly states that trial of a case against the accused
against whom allegations are for commission of offence under
the said section, the same cannot proceed unless the District
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Magistrate accords consent/sanction as envisaged under
Section 7 of the Act.
Coming to the present case, we find that original copy of
sanction order/consent order of the District Magistrate, Godda
is not available in trial court record, rather a copy is available
which does not bear the signature of District Magistrate,
Godda and that too has not been proved in accordance with
law. In these circumstances, we can say that there is no
requisite consent/sanction required under Section 7 of
Explosive Substances Act, 1908 is available in the present
case.
21. As far as, the seizure list is concerned, photocopy of the same
has been exhibited in the present case and nothing is on record
explaining non-production of the original copy of seizure list,
therefore, we are of the considered view that this seizure list
(photocopy) has not been proved in accordance with law.
22. As, the evidence stated above qua the recovery of bombs is
not consistent and cogent and even original seizure list is not
available on record, we are of the considered view that
prosecution has not able to establish beyond reasonable doubt
that the live bombs have been got recovered from the respective
possession of both the appellants.
23. As a result, we set aside the judgment of conviction dated
21.01.1998 and order of sentence dated 24.01.1998 passed by 1st
Additional District and Sessions Judge, Godda in Session Case
No. 111 of 1996/Session Case No. 95 of 1996, whereby and
where under, the appellants have been convicted for the offence
punishable under Sections 3/5 of the Explosive Substances Act,
1908 and sentenced them to undergo imprisonment for life under
Section 3 of the Explosive Substances Act, 1908 and RI for 14
years under Section 5 of the Explosive Substances Act, 1908.
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24. Resultantly, this appeal is allowed.
25. Since, the appellants are on bail, they are discharged from
the liability of their respective bail bonds.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 28th day of April, 2025.
Umesh/-N.A.F.R.
