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15. Thereafter the learned Court below has convicted the
appellant for the offence under Sections 307, 326, 324, 448 and
also under section 3 and 5 of the Explosive Substance Act.
However, learned Court below has imposed the sentence of R.I
for five (05) years under section 3 of the Explosive Substance
Act, R.I. for five (05) years under section 307 of the IPC, R.I. for
six (06) months under Section 448 of the IPC.
But, no separate sentence for the offences under section
326 and 324 of IPC has been imposed and no separate sentence
for the offence under section 5 of the Explosive Substance Act
has been imposed. Hence this Criminal Appeal has been filed.
16. So far as prosecution evidence is concerned, P.W-1 is
Aniual Haque, who stated during his evidence that he is not
aware of the occurrence and the police has not recorded his
statement and this witness has been declared hostile by the
prosecution.
Even during cross-examination, he stated that he has not
given any statement before the police and hence he is not
aware of the occurrence.
Hence, the evidence of P.W-1 is not reliable.
17. P.W-2 is Purnanand Sharma who stated during his
evidence that occurrence took place in the night and at that
time he was in his house but could not locate the place.
Thereafter he went to the house of Sita Ram Choudhary i.e.
the informant and had seen there Manouri Thakur in injured
condition and even Sita Ram Choudhary had sustained injury.
He had not enquired there from any person and he is not aware
as to who has caused this incident. This P.W-2 has also been
declared hostile by the prosecution.
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18. During cross-examination, he stated that occurrence took
place in the night at around 10.00 p.m and it was sound like
crackers. He could not say as to whether it was sound of bomb
or cracker.
Thus, P.W- Purnanand Sharma has not supported the
prosecution case and hence the evidence of P.W-2 is also not
reliable.
19. P.W-3 is Rohit Prasad who has also been declared
hostile by the prosecution. He has stated that he is not aware
of the occurrence and he is not aware about the cause of
occurrence and the police has not recorded his statement.
Thus, the evidence of P.W-3 is not reliable.
20. P.W-4 is Tuleshwar Prasad Tanti who stated during
evidence that the occurrence took place around 9.00 p.m while
he was in his house and he heard three (03) sound and then he
came outside and saw that sound of bomb took place near the
house of Sita Ram Choudhary. He arrived there and saw that
Manouri Thakur had sustained bomb injury due to which he
was injured. Sita Ram Choudhary had also sustained injury
near abdomen due to splinter of the bomb and had seen
nothing. He heard that the informant Sita Ram Choudhary had
taken the name of Gopal Sah i.e. the appellant. This witness
was also declared hostile by the prosecution.
21. During cross-examination, he denied to have stated
before the police that while he along with villagers had gone
to the house of Sita Ram Sah then he had seen there Gopal
Sah coming out from the house of Sita Ram Sah and they tried
to chase but he fled away.
22. During cross-examination by the defence, he stated that
his shop is near the house of Sita Ram Choudhary and the Sita
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Ram is in the west side of road and his house is situated at a
distance of 100 Yard. He further stated that Manouri Thakur
was found fallen but he was not unconscious. He has not
enquired anything from Manouri Thakur.
Thus, from scrutinizing the evidence of P.W-4, it is
evident that he has been declared hostile by the prosecution
and he is a hearsay witness and he had not seen the appellant
fleeing away. Hence the evidence of P.W-4 is not reliable.
23. P.W-5 is Sokha Paswan who stated during evidence that
while he was in his house at 9.00 p.m., he heard the sound of
bomb then he went to the door of Sita Ram Choudhary i.e. the
informant where he had seen Manouri Thakur and Sita Ram
Choudhary in injured condition and they disclosed that the
appellant-Gopal Sah had hurled bomb and fled away. Then he
took both the injured persons to the Police Station. He stated
that both sides have got land dispute and due to which this
occurrence had taken place.
During cross-examination, he stated that his house is
situated at a distance of 500 Yard from the house of
informant-Sita Ram which remained busy for whole day and
night. He came to the place of occurrence on hearing the
explosion of bomb and then came to the house of informant
where he learnt about the occurrence. He had seen injury in
the leg of Manouri Thakur and had also seen minor injury
(i.e. wound) on the person of the informant Sita Ram.
However, Dhoti of Manouri Thakur was not found in burnt
condition. Both of them had gone to the Police Station in
injured condition and waste was deposited before the Police
Station. He admitted that he had not seen anybody throwing
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bomb and next day after the occurrence the police had
recorded his statement.
24. Thus, from scrutinizing the evidence of P.W-5, it is
evident that he is also a hearsay witness and he had not seen
the appellant hurling or throwing bomb and he had not
attributed any specific overt act against the appellant. Thus,
the evidence of P.W-5 does not support the prosecution case
so far as implication of appellant is concerned.
25. P.W-6 is Khokha Paswan who is Chowkidar of village
and has stated during his evidence that while he was at the
residence on the date of occurrence then he had heard sound
of bomb at around 9.00 p.m. then he went to the door of the
Informant-Sita Ram who was raising alarm. Manouri Thakur
had also sustained injury. Apart from this he had seen nothing.
He heard that the Gopal had thrown bomb.
During cross-examination, he stated that his Sasural is
situated at Vadaihi Thana. He is working in Vasantrai P.S as
Chowkidar. They used to remain in duty in night from evening
to morning. However, on the date of occurrence he was at his
house and not on duty but he had not given any application for
leave. He denied the suggestion for not on duty on the date of
occurrence.
26. Thus, from scrutinizing the evidence of P.W-6, it is
evident that he is Chowkidar of village and he is also a
hearsay witness and he had gone to the house of informant
Sita Ram in the night on the date of occurrence. He had
neither seen the occurrence nor seen the appellant fleeing
away rather he learnt the name of the appellant from the
informant. Thus, P.W-6 is hearsay witness and he is not
reliable.
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27. P.W-7 is Chandar Sah who is also a private Chowkidar
and stated during his evidence that the occurrence took place
around 9.15 p.m in the night and at that time he was at his
house. However, on hearing sound of bomb he went to the
house of Sita Ram. He claimed to have arrived firstly at the
place of occurrence and later on other people arrived. He had
seen the informant Sita Ram in an injured condition and even
Manouri was also in injured condition due to explosion of
Bomb. Sita Ram had sustained injury in his Ribs and who had
disclosed the name of the appellant Gopal Sah.
28. During cross-examination, he stated that he was not
doing job at the time of occurrence rather he was running a
Breakfast shop for running his house. His house is situated
behind the road and his shop is closed at around 8.00-8.30
p.m. in the night. He has got his shop behind his house and the
house of the informant is situated at a distance of 150 Yard
from the house of the informant Sita Ram Choudhary. He had
never hurled the bomb but fires the cracker. There is
difference in the sound of cracker and sound of bomb and he
had never seen sound of bomb prior to occurrence. The house
of Sita Ram Choudhary is single storied. After the occurrence
10-15 people arrived there. He had seen Manouri sleeping on
the road. Blood was oozing out from both the legs of Manouri.
He further stated that Manouri and Sita Ram Choudhary were
taken to Mehrama Hospital by horse cart and he had also
accompanied them. However, he was asked to move to the
Police Station from the hospital and then they arrived at the
Police Station and where statements of both the injured
persons were recorded. He denied the suggestion for not
accompanying the injured persons to the hospital.
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29. Thus, from scrutinizing the evidence of P.W-7 it is
evident that he is a private Chowkidar but he is also a hearsay
witness and he learnt the name of the appellant who thrown
bombs upon the informant and injured.
Thus, P.W-7 has not attributed any specific overt act
against the appellant. Hence his evidence is not reliable.
30. P.W-8 is Brahmdeo Yadav who also stated during his
evidence that while he was on the roof of the house and his
child and Teacher Rohit Yadav were also present then he
heard sound of the bomb. He remained to the roof and he
could not learnt as to who had hurled the bomb. He has given
statement before the police and he has put his signature on the
seizure list which is marked as 'X' for identification. Daroga
Ji had not recorded his statement separately. This witness was
also declared hostile by the prosecution.
During cross-examination by the prosecution, he denied
to have stated before the police that he was working in the
shop of the informant and was present in the roof of the house
of the informant where one Teacher Rohit was teaching the
children of the informant. However, he also denied that the
informant had removed him from service. Hence, he was not
in collusion with the accused appellant.
During cross-examination, on being shown his signature
on the seizure list that he admitted to have put his signature on
the said seizure list marked as 'X' for identification.
Thus, P.W-8 has not supported the prosecution case and
he has been declared hostile by the prosecution and hence his
evidence is not reliable as he had also not seen the appellant
for doing any specific overt act.
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31. P.W-9 is Sita Ram Choudhary who is informant of this
case and he stated during the evidence that the occurrence
took place pm 05.06.1990 at around 9.15 p.m and at that time
he was washing his hand and legs in front of the Ice-Cream
Factory and light was burning at the door and his servant
Manouri Thakur was sleeping on the cot. In the meantime, the
appellant Gopal Sah had hurled a bomb upon him which
caused smoking and sound then he hide himself. Thereafter
the appellant-Gopal Sah again threw second bomb and then he
went inside the gate and his servant Manouri Thakur also fled
inside the gate. Again Gopal Sah threw third bomb and due to
which Manouri was got injured. On hearing his alarm the
nearby people came but the appellant Gopal Sah fled away.
The reason of occurrence is that one case is pending
before Sub-Divisional Officer, Godda and there is land dispute
between Gopal Sah and the informant which was decided in
his favour and due to which he wanted to kill him and grab his
land. After the occurrence, he arrived at the Police Station and
gave his fardbeyan and he proved his signature on the
fardbeyan marked as Exhibit-2. Thereafter the police sent him
and Manouri Thakur to the Hospital for the treatment.
However, Manouri Thakur died approx five (05) years ago.
He claimed that he i.e. Manouri was under treatment for
around one month as his leg was fractured and Manouri
Thakur was sent to Mehrama Hospital at Bhagalpur and where
he was treated for one month.
32. During cross-examination, he stated that he had not gone
to Bhagalpur with Manouri Thakur. He does not remember the
case number pending in the Court of Sub-Divisional Officer,
Godda which is pending since 1988 and which was decided in
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the year 1998 and he has got paper of the same. Prior to
judgment of said case, the occurrence had taken place eight
(08) years ago. Though firstly he stated that there is dispute of
the land between his house and house of Gopal Sah but later
on he says that accused has no house there rather it was his
rented house and his brother is one Arjun Sah and he has
allegation with his brother.
33. He admitted that one Ice Factory was being run by his
village which belongs to him. He claimed that the three (03)
bombs were thrown upon him from the distance of 10-12
hands. But none of the bomb collided with his body but he had
sustained injury due to splinter of the third bomb. At that time
he was wearing 'Phulpant' and 'Vest' (i.e. Ganji) and there
was hole of 1/2" in the Vest but the said Vest was not taken by
the police from him.
34. He sustained wound of bomb on his left rib at one place
of approx 1/2". He denied the suggestion for not hurling bomb
upon him and for having falsely implicated the appellant.
He admitted that his wife and small children were living
with him at the time of occurrence and his wife is aware of the
occurrence but his wife is not the witness in this case.
Doctor had not conducted any surgery for the wound of
his rib and nothing was extracted from his wound.
35. Thus, from scrutinizing the evidence of P.W-9, it is
evident that he has supported the allegation made in the F.I.R
against the appellant Gopal Sah. However, he admitted that
none of the three (03) bombs had collided with his body which
were thrown upon him and he had received splinter of third
bomb. He admitted that he has not made his wife as a witness
in this case. However, he stated that there was land dispute
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between the informant and the appellant Gopal Sah but failed
to produce any paper during trial.
The evidence of P.W-9 (i.e. the informant) will be
scrutinized again.
36. P.W-10 is Dr. Naresh Prasad Sinha who had examined
the injured-informant on 05.06.1990 at 12.00 noon and found
the following injuries on his person:-
"(i) One black charred injury above left enguinan
wound size ½" x ½".
(ii) One black charred wound at the upper border
of left scapular of small size.
Both injuries are simple in nature and caused
by explosive substance.
Age of injury within 24 hours."
He has proved the injury report and proved his signature
which was marked as Exhibit-3.
37. However, during cross-examination, he stated that
injured was produced before him by the police on the same
day and he had examined the injured on the request of the
police. He admitted that on the reverse of requisition, he had
given the injury report and there is cutting on the injury report
which has been signed by him. By mistake, hard and blunt
substance was written on the injury report but it was deleted
by him and he has signed thereafter.
38. Thus, from scrutinizing the evidence of P.W-10 (i.e. Dr.
Naresh Prasad Sinha) who has examined the injured
informant, it would appear that he claimed to have treated the
injured on the date of occurrence on the requisition of the
police but he had opined that the injury was caused by the
hard and blunt substance which was deleted and explosive
substance were inserted. Thus, the cutting also raises
suspicion on the injuries sustained by the informant.
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39. P.W-11 is Dr. Chandramauli Upadhyay who has treated
the injured-Manouri Thakur and found the following injuries
on his person:-
"(i) Lacerated wound left knee with Charring of
margin 2" x 1" x depth not probed.
(ii) Multiple small lacerated wound with charring
on left leg and lower part of left thigh.
(iii) Lacerated wound Right knee with charring ½"
x ½" x skin deep
Age of injury more than 24 hours."
He has proved the injury report of Manouri Thakur as
Exhibit-4. After going through the X-ray Report and
supplementary injury report, he found Injury No.1 as grievous
because the X-ray report reveals left knee injury and fracture
of left femur bone.
He further proved the supplementary injury report
marked as Exhibit-4/1.
40. However, during cross-examination, he stated that X-ray
Place was not brought before him on the date of occurrence.
He clarified that femur bone comes up to knee and there was
fracture of knee. In his report, he had not mentioned fracture
of knee. He also admitted to have not mentioned Injury No.2
because it was multiple injuries.
41. Thus, from scrutinizing the evidence of P.W-11, it
would appear that he has proved the injury report of injured-
Manouri Thakur as Exhibit-4 and Exhibit-4/1. However, X-
ray Plate was not brought before him during trial.
42. P.W-12 is Sashikant Choudhary who is I.O. of this case
and has stated that on 05.06.1990 he was posted as Officer in-
charge, Meharma Police Station and on that day at around
10.00 p.m in the night the injured Sita Ram Choudhary
arrived at the Police Station. He proved the fardbeyan of the
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informant which was in the writing of Literate Constable and
his signature has been marked as Exhibit-5 and he had also put
his signature on F.I.R marked as Exhibit-5/1. Thereafter he
had instituted Meherma P.S. Case No.82 of 1990 and proved
his writing and signature on endorsement marked as Exhibit-
5/2 and thereafter he started investigation of this case.
Thereafter he recorded the subsequent statement of the
informant and then recorded the statement of injured Manouri
Thakur and had inspected the wounds of both and then he sent
them to Government Hospital, Meherma. He proved the injury
report (OD slip) in the writing of A.S.I- Shiv Chand Yadav
which is marked as Exhibit-6. Thereafter he arrived at the
place of occurrence and recorded the statement of witnesses
and had inspected the place of occurrence which is situated at
Godda Pirpainti road and the house is 'pucca house.' He
further proved the seizure list prepared in presence of witness
has been marked as Exhibit-7 and which also contains the
signature of Rohit Prasad has been marked as Exhibit-7/1.
Thereafter he had arrested the accused-appellant and obtained
the injury report and after obtaining the sanction order from
the District Officer which was marked as Exhibit-8 as public
document. Thereafter senior officials had supervised the
occurrence and found the allegation true and hence he had
submitted charge sheet against the appellant on 12.09.1990 as
per order of his superior officer. He claimed that witnesses
namely P.W-1-Aniul Haque, P.W-2- Purnanand Sharma, P.W-
3-Rohit Prasad, P.W-4-Tuleshwar Prasad Tanti had supported
the occurrence during his presence.
43. During cross-examination, he stated that the residue of
bombs, which were seized from the place of occurrence by
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him, have not been brought before the learned Court below.
He has not made the photograph of the bomb, sign of bomb at
the place of occurrence. He has not taken the photograph of
the articles and photograph of residue articles (i.e. Sutri, Ash
and Half Burnt Paper) have not been sent to the expert for
'Test' because it was not done and he is not expert of the
same. He could not remember as to what were worn by the
injured when they arrived at the Police Station. He denied the
suggestion for falsely implicating the appellant in collusion
with the informant Sita Ram Choudhary.
44. Thus, from scrutinizing the evidence of P.W-12, it is
evident that he has not done proper investigation and even he
had not stated as to when he had gone to the house of the
informant to record the sign of bomb which were hurled at his
door. He himself admitted that the residue of bombs such as
Sutri, Ash and Half burnt paper were not sent to expert. Even
he had not seen the splinters of the bomb. Therefore, the
investigation of the I.O is perfunctory.
45. D.W-1 is Wakil Thakur who is also an Ice-cream seller
and stated that Manouri Thakur was his uncle and he died. He
was working with him in the Ice cream Factory of the
informant Sita Ram Choudhary. The occurrence took place
12-14 years ago in the night and his house is situated at a
distance of 25 Yard from the Ice Factory. There was a sound
in the factory and upon which he went to the factor and saw
his uncle Manouri Thakur in the injured condition and he had
sustained minor injury on his leg and on asking he disclosed
that due to sound of engine of the factory, he sustained injury.
Firstly he was taken to Meherma Hospital and then he was
sent to Bhagalpur Hospital.
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46. During cross-examination, he stated that the house of his
uncle is situated very near at a distance of 25 Yard from the
factory of Sita Ram Choudhary. The police neither enquired
from him nor from his uncle. His uncle had sustained black
spot in his leg but there is no sign of broken articles in the
room of the informant.
47. Thus, from scrutinizing the evidence of D.W-1, it is
evident that he has denied the injury on the person of his uncle
Manouri Thakur and he has denied the prosecution case.
48. From scrutinizing the evidence of P.W-1, P.W-2, P.W-3,
P.W-4, P.W-5, P.W-6, P.W-7, P.W-8 namely Aniul Haque,
Purnanand Sharma, Rohit Prasad, Tuleshwar Prasad Tanti,
Sokha Paswan, Khokha Paswan, Chandar Sah and Brahmdeo
Yadav, it transpires that they have been declared hostile
witnesses and most of them are hearsay witnessed and hence
their evidence cannot be relied upon.
49. It further transpires from seizure list marked as Exhibit-7
and Exhibit-7/1 respectively prepared by the I.O-P.W-12 that
no articles i.e. Sutri, Ash and Waste paper etc. were recovered
from the place of occurrence and sent to Forensic Science
Laboratroy (F.S.L.).
Thus, no articles of explosives substance were sent to
State Forensic Science Laboratory.
50. It further reveals that even the sanction order has been
proved by the Investigating Officer i.e. P.W-12 during his
evidence as Exhibit-8, but Investigating Officer is not
competent to prove the sanction order. Hence, Exhibit-8
cannot be relied upon.
51. Thus, in view of not sending the residue articles i.e. i.e.
Sutri, Ash and Waste paper etc. before the F.S.L by the
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Investigating Officer, no case under Section 3 and 5 of the
Explosive Substance Act is made out against the appellant.
Accordingly, the appellant is acquitted for the offences under
Sections 3 and 5 of the Explosive Substance Act, as I.O has
not obtained the expert opinion i.e. report of Forensic Science
Laboratroy (F.S.L.) with regard to the Explosive Substance.
52. So far as injury report is concerned, it is evident that
although the injury report of Manouri Thakur is proved by Dr.
Chandramauli Upadhyay which were marked as Exhibit-4 and
Exhibit-4/1 respectively. But, as Manouri Thakur has not been
examined by the prosecution and such injury on the person of
injured-Manouri Thakur is not proved.
Thus, case under Section 307 of IPC for hurling bomb is
also not made out against the appellant for causing injury to
Manaouri Thakur.
53. So far as injury on the person of the informant-P.W-9 is
concerned, the injury report of informant proved as Exhibit-3
reveals that the injuries of the Informant were simple in
nature, although, it reveals that there are certain charred
injuries i.e. Injury No.1 and 2 are shown. But the same are
simple in nature in absence of report of F.S.L and the injury
cannot be considered as has been caused from the splinters of
the bomb and at best injury can be treated as simple injury on
the person of the informant.
54. Therefore, it is evident that conviction of the appellant
for the offence under Section 307 IPC is illegal and not
sustainable in law and at best it can be conviction under
Section 324 of I.P.C.
55. Accordingly, the conviction of the appellant-Gopal Sah
is altered from 307 of IPC to section 324 of IPC.
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56. It further reveals that the appellant had remained outside
the house and as such no offence under section 448 of the IPC
is made out. Accordingly, the appellant is acquitted under
Section 448 IPC and the appellant is also acquitted for the
offence under Section 326 of IPC.
57. It is evident that the occurrence took place 35 years ago
in the year 1990 and in the meantime, 35 years has been
passed and hence, it is desirable that the appellant can be
given the benefit of Section-4 Probation of Offenders Act.
58. At this stage, it would be relevant to refer Section 4 of
the Probation of Offenders Act, 1958 which reads as under:-
"4. Power of Court to release certain offenders on
probation of good conduct. - (1) When any person is found
guilty of having committed an offence not punishable with
death or imprisonment for life and the Court by which the
person is found guilty is of opinion that, having regard to
the circumstances of the case including the nature of the
offence and the character of the offender, it is expedient to
release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the
time being in force, the Court may, instead of sentencing
him at once to any punishment direct that he be released on
his entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such period
not exceeding three years, as the Court may direct, and in
the meantime to keep the peace and be of good behaviour:
Provided that the Court shall not direct such release
of an offender unless it is satisfied that the offender or his
surety, if any, has a fixed place of abode or regular
occupation in the place over which the Court exercises
jurisdiction or in which the offender is likely to live during
the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the
Court shall take into consideration the report, if any, of the
probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the
Court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a probation
officer named in the order during such period, not being
less than one year, as may be specified therein, and may in
such supervision order impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-
section (3) shall require the offender, before he is released,
to enter into a bond, with or without sureties, to observe the
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conditions specified in such order and such additional
conditions with respect to residence, abstention from
intoxicants or any other matter as the Court may, having
regard to the particular circumstances, consider fit to
impose for preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The Court making a supervision order under sub-section
(3) shall explain to the offender the terms and conditions of
the order and shall forthwith furnish one copy of the
supervision order to each of the offenders, the sureties, if
any, and the probation officer concerned."
59. Considering the fact and circumstances of this case, the
appellant-Gopal Sah is directed to be released giving the
benefit of Section 4 of the Probation of Offenders Act and as
such the appellant-Gopal Sah is directed to be released on
execution of bond of Rs.5,000/- for a period of one year
before the learned court below.
The appellant-Gopal Sah is further directed to appear
and receive sentence when called upon for a period of one
year and in the meantime, the appellant-Gopal Sah is directed
to keep the peace and be of good behaviour.
60. Thus, this Cr. Appeal (SJ) No.346 of 2005 is allowed in
part with the observation as mentioned above.
61. Let the L.C.R along with the copy of this judgment be
sent back before the Court of Sri Jagannath Mishra, learned Ist
Additional Sessions Judge, Godda/or his Successor Court.
(Sanjay Prasad, J.)
Saket/-
NAFR
