Madhya Pradesh High Court

Lalit Lajras vs The State Of M.P. on 19 December, 2023

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           IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
  HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
                   ON THE 19th OF DECEMBER, 2023
                  CRIMINAL APPEAL No. 2155 of 2003

BETWEEN:-
Lalit Lajras S/o Denial
Lajras, Aged about 40
years, R/o Village Padhar,
Tehsil and District- Betul
(M.P.)

                                                                      .....Appellant
(By Shri Vikash Jyotishi - Advocate)
AND
The State of Madhya Pradesh
Through Police Station - Betul,
Tehsil and Distrit- Betul (M.P.)
                                                                    .....Respondent
(By Alok Tapikar - Panel Lawyer)
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Reserved on          : 13.12.2023
Pronounced on :19.12.2023
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        This appeal having been heard and reserved for judgment,

coming on for pronouncement this day, the Court passed the following:

                                  JUDGMENT

This appeal is filed by the appellant/accused against judgment in Session Case No.110/2002 dated 29.11.2003 passed by learned Sessions

Judge, Betul whereby the accused was convicted and sentenced to undergo rigorous imprisonment for 1 year and pay fine of Rs.2000/- under section 324 of IPC and, in default of payment of fine, to undergo additional rigorous imprisonment for three months, further convicted and sentenced to undergo rigorous imprisonment for 1 year and pay fine of Rs.2000/- under section 4 of Explosive Substance Act, in default of payment of fine, to undergo additional rigorous imprisonment for three months. Both the sentences shall run concurrently.

2. The case of the prosecution is that the complainant Karan Bahadur was residing in village Padhar. On 14.03.2001 when he was at home at about 8:00 p.m. he heard some voice of quarrel and he came out and saw that his sister-Pushpa was beaten by the accused and his wife and daughter and he intervened then the accused threw a hand grenade on him due to which he sustained burn injuries on his right leg and one Mr. Naval who was there sustained injury on middle finger of his right hand and neighbour Sunil' daughter Sweta also got injury on her right leg and the incident was witnessed by Rajju, Pushpa and Kirti and immediately after the incident the injured Karan Bahadur went to the Police Station-Betul and informed about the same in oral. PW-9 Jugal Kishore Singh recorded his statement and registered the same as an FIR in Crime No.21/2001 for the offences u/s 324, 506 and 307 of IPC and thereafter he sent Karan Bahadur, Naval and Sweta to the hospital for medical examination. On 15.03.2021, PW-9 Jugal Kishore Singh inspected the scene, prepared a map and seized the soil and other material objects and forwarding the same to the FSL and effected arrest

of the accused and sent him for judicial remand and examined the witnesses and recorded their statements, during investigation, it was found that there was a past enmity between the Karan Baharur and appellant/accused. After completion of investigation, filed charge sheet against appellant/accused for offence under sections 307, 324 and 506 (Part-II) IPC and section 4 of Explosive Substance Act, 1908 (for short "the Act of 1908") which was taken on file as Criminal Case No.2394/2001 on the file of Chief Judicial Magistrate, Betul for the offences under sections 307, 324 and 506 of IPC against the accused.

3. On appearance of accused, copies of documents as required under section 207 Cr.P.C. was supplied to him. As the case is triable by Court of Sessions, the case was committed to the Court of Sessions under section 209 Cr.P.C. Accordingly, the same was made over to the Court of learned Sessions Judge, Betul for trial and disposal in accordance with law.

4. Basing on material available on record, strangely the learned Sessions Judge framed the charges under sections 307, 324 and 506 (Part-II) of IPC and also framed the charge under the provisions of Explosive Substance Act, the trial Court was not specifically charged under section 4 of the Act of 1908 in which he was prosecuted. The same has been readover and explained to the appellant/accused to which he pleaded not guilty and claimed to be tried.

5. To substantiate its case, the prosecution examined PW-1 and PW- 10 and exhibited documents got marked Ex.P/1 to P/18. Out of 10

witnesses examined by prosecution, PW-3, PW-6 and PW-7 did not support the case of the prosecution and were treated them hostile by prosecution.

6. After closure of prosecution evidence, the appellant/accused was examined as under section 313 Cr.P.C. with reference to incriminating circumstance appearing against him in the evidence of prosecution witnesses, to which, he denied, however, he pleaded innocence and having past enmity and filed a false case against him.

7. Relying upon the evidence of PW-1, PW-2, PW-4 and PW-5 coupled with medical evidence, the learned Sessions Judge convicted the accused under section 324 of IPC and section 4 of Explosive Substance Act, 1908 (for short "Act of 1908") and sentenced him as stated supra against the said conviction under section 324 of IPC and 4 of the Explosive Substance Act, 1908 and the present appeal came to be filed.

8. Shri Vikash Jyotishi, the learned counsel for the appellant submits that the entire case has to be thrown out on the ground of incorrect framing of charge. He would submit that there is no sanction under the law authorizing to take cognizance and framed the charge under the Explosive Substance Act, further argued that this was a fundamental error which invalidate the cognizance as being without jurisdiction and further submits that as per section 7 of the Explosive Substance Act sanction is not obtained by the prosecution from the Competent Authority and filed charge-sheet in contrary to the Statute.

Further he would submit that the learned trial Court framed the charges without specifying the section under the Explosive Substance Act which is unknown to law and the learned trial Court was erred in framing the charge under the Explosive Substance Act without sanction from the Competent Authority. He would further submit that the conviction imposed would not stand to the test of legal sanctity under section 4 of Explosive Substance Act.

9. He would submit that Rajju, Pushpa, Kirti and Sweta are the eye witnesses to the incident, out of which, Rajju, Sweta and Kirti did not support the case of prosecution and turned hostile and rest of the witnesses PW-2 Naval, PW-4 Pushpa are remained their evidence which are contrary to each other, they have not stated the exact time of incident. In view of the above, the prosecution story set out does not appear to be a probable story and the supporting evidence led during trial of the witness and the facts also does not inspire confidence. Rather, there are material contradictions and the evidence of injured witness PW-1, PW-2 and PW6 contrary to the evidence of Doctor who treated them examined as PW 10. The fact is that the injuries sustained by them was not due to fire and hurled by hand grenade against them and those injuries sustained by them due to hard and blunt object, therefore, the prosecution failed to prove his case beyond reasonable doubt so as to convict the accused for the offfences above mentioned and, he prays to allow the appeal and set aside the conviction passed by the learned trial Court.

10. However, Shri Alok Tapikar, learned Panel Lawyer for the State opposed the same contending that the substance of the charge refers to the commission of offence under section 4 of the Act of 1908 may not matter much, and further he would submit that no prejudice is caused to the appellant/accused due to not quoting the section under the charge of Explosive Substance Act and further submit that after considering the material on record came to a conclusion that the prosecution had proved its case beyond reasonable doubt that it was the appellant who had committed the crime and accordingly, convicted him for the offence u/s 324 of IPC and section 4 of the Explosive Substance Act, 1908 and, thus, the appeal deserves to be dismissed.

11. Aggrieved by the said conviction and sentence imposed by learned trial Court, the present appeal is filed.

12. Now point that arises for consideration in this appeal is :

"whether the trial Court was right in convicting the appellant/accused for the offence u/s 324 IPC and 4 of the Explosive Substance Act, 1908 and whether there is any flaw or illegality or impropriety in the findings recorded by the trial Court ?"

13. Before proceeding further it would be appropriate to refer section 7 of the Explosive Substance Act which is as under :-

"Section 7 : No court shall proceed to the trial of any person for an offence against the Act of 1908 except with the consent of "District Magistrate."

The section 7 was amended and the words "Central Government" was substituted by the words "District Magistrate".

14. In the light of the above provision, the prosecution has not obtained sanction from the Competent Authority and filed charge-sheet under section 4 of the Act of 1908. The cognizance was taken by the learned trial Court when there was no sanction order under the law authorizing to take congnizance and framed the charge without specifying the section in the charge and convicted the accused under section 4 of the Act of 1908. This is a fundamental error which invalidate the framing of the charge without jurisdiction, in the absence of sanction this Court is of the view that the trial Court erred in convicting the accused for the offence punishable under section 4 of the Explosive Substance Act, 1908.

15. The lacuna in the prosecution must be understand as the inherent weakness or latent wedge in the matrix of the prosecution case. The advantage of it should normally go in favour of the accused in trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed for correcting errors, if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should not be magnanimous in permitting such mistake to be rectified. After all, function of criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. In the instant case, the learned Sessions Judge Committed error in convicting the accused for

the offence u/s 4 of the Act of 1908 without there being any sanction u/s 7 of the Act of 1908 from the Competent Authority, this was a fundamental error committed by learned trial Judge and convicted the appellant/accused under section 4 of the Act of 1908 and in view of the foregoing legal and factual analysis, this Court is of the view that the trial Court erred in convicting the accused for the offence punishable u/s 4 of the Act of 1908 is not sustainable.

16. However, dealing with the said offence under section 324 of IPC, the trial court convicting the accused believing the evidence of PW-1, PW-2 and PW-4 coupled with the medical evidence. As per FIR, Rajju, Kirti and Pushpa are the witness to the incident. Rajju and Kirti were examined as PW-3 and PW-7, they did not support the case of prosecution and turned hostile, PW-9 forwarded the injured persons i.e. Karan Bahadur, Naval and Sweta for medical examination who were examined as PW-1, PW-2 and PW-6. The Doctor, who treated them, examined as PW-10 stated that PW-2 Naval did not sustain any injury and Sweta sustained injury on her right leg but the said injury was caused due to blunt and hard object and similarly Karan Bahadur PW-1 also sustained injury due to blunt and hard object. Considering the medical evidence, for a moment as per prosecution if the accused hurled hand grenade on them as stated in the FIR and, they would have sustained injuries otherwise. The injuries sustained by them not due to hurling of hand grenade, the injuries might have been caused due to scuffle and at the time of incident there was no illumination as stated by the prosecution witnesses PW-1, PW-2 and PW-6, their evidence reads together, time of incident is not tallied and PW-1 stated the incident

occurred 8:30 p.m. to 9:00 p.m., PW-2 stated the incident occurred between 8:00 p.m. to 9:00 p.m. and PW-4 Pushpa stated the incident occurred about 4:00 p.m. there was inconsistencies about the time of incident, according to the evidence of PW-1, PW-2 and PW-4 at time of incident there was no illumination. Considering their evidence at the time of incident when there was no illumination, identifying the appellant/accused who had hurled hand grenade is highly improbable and doubtful if they would have sustained injuries due to hurling the hand grenade, the PW-10 would have given opinion that the injuries might have sustained by them due to fire but his evidence is otherwise, therefore, having held that the ocular evidence of witnesses is believed the medical evidence does not support the prosecution case. The injuries sustained by them are not due to hurling hand grenade or throwing gun powder on them and further PW-10 the Doctor stated ballistic expert opinion should be taken in this regard whether the injuries sustained by them due to hurling hand grenade or throwing the gun powder on them. In the instant case, the prosecution did not obtain ballistic expert opinion to find out whether the injury sustained by them due to hurling of hand grenade and PW-8 and PW-9 who are investigated the case has not shown any interest to get ballistic report in this regard and the Doctor did not find any injury sustained by them by hurling hand grenade or fire.

17. In the light of above facts and circumstances which goes to the root of the matter, they creates a reasonable doubt about the presence of PW-1 to PW-3 and PW-5, 6 and 7, out of which, PW-3, 6 and 7 turned hostile, the rest of the evidence cannot be relied on in view of the

inconsistencies with regard to the time of incident and they too have stated there was no illumination at the time of incident, therefore, this Court is of the view that it is not safe to rely on their evidence and also not a fit case to base conviction relying on the evidence of PW-1, PW-2 and PW-4, who are admittedly inimical to the accused and appears to be planted witnesses, having regard to the above a doubt arises as to whether really the incident occurred as suggested by the prosecution, ergo, when there is any amount of doubt as to the incident in question, conviction of the accused for the offence under section 324 of IPC and 4 of Explosive Substance Act does not arise. Viewed for any angles conviction and sentence imposed in my view is not correct, hence this Court is of the view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt for the offence under section 324 of IPC and section 4 of the Explosive Substance Act and as such, the judgment of learned Sessions Judge is liable to be set-aside.

18. For the aforesaid reasons in the present case, the finding of trial Court is erroneous, unsustainable and committed error in convicting the accused due to lack of proper appreciation of facts and law as indicated above.

19. Accordingly, the criminal appeal is allowed. The conviction and sentence recorded against the appellant/accused in judgment dated 29.11.2003 in Session Case No.110/2002 on the file of learned Sessions Court, Betul for the offence punishable under section 324 of IPC and section 4 of the Explosive Substance Act, 1908 are set-aside and he is acquitted for the said offences.

20. Consequently, appellant/accused shall be set at liberty forthwith, if he is not required any other cases or crime, the fine amount, if any, paid by the appellant/accused shall be refunded to him.

21. Consequently, miscellaneous petitions, if any, pending shall stands closed.

22. The bail bonds submitted by the appellant are discharged.

23. Return the lower court records along with copy of judgment.

DUPPALA VENKATA RAMANA, J

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA ON THE 19th OF DECEMBER, 2023 CRIMINAL APPEAL No. 2155 of 2003

BETWEEN:-

Lalit Lajras S/o Denial Lajras, Aged about 40 years, R/o Village Padhar, Tehsil and District- Betul (M.P.)

.....Appellant (By Shri Vikash Jyotishi - Advocate) AND The State of Madhya Pradesh Through Police Station - Betul, Tehsil and Distrit- Betul (M.P.) .....Respondent (By Alok Tapikar - Panel Lawyer)

DATE OF JUDGMENT PRONOUNCED : 19.12.2023.