Rakesh vs The State Of M.P.
2023 Latest Caselaw 10553 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                            BEFORE
             HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                       ON THE 11 th OF JULY, 2023
                  CRIMINAL APPEAL No. 1047 of 1998

BETWEEN:-
RAKESH MAHOBIA, S/O VISHRAM, AGED ABOUT 22
YEARS, R/O VILLAGE TILHERI, P.S. CANTT., DISTRICT
JABALPUR (MADHYA PRADESH)

                                                            .....APPELLANT
(BY SHRI RAJMANI SINGROL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH

                                                          .....RESPONDENT
(BY SHRI DEVENDRA SHUKLA - PANEL LAWYER)

      Reserved    on : 6.7.2023
      Pronounced on: 11.7.2023
      ________________________________________________
      This appeal coming on for final hearing this day, the court passed the

following:
                                 JUDGMENT

I n this criminal appeal, the judgment passed by Additional Sessions Judge, Jabalpur, on 10.3.1998 in Sessions Trial No.342/1997 is challenged whereby the appellant has been convicted under section 353 of IPC and sections 3 and 5 of the Explosives Substances Act, 1908 and sentenced to RI of one year, two years and six months respectively.

2 . The facts of the case as submitted by the prosecution are that the

appellant had absconded in a crime registered at Police Station Garha and a case under section 324 of IPC was registered against him. Through informer, it was communicated on 31.1.1997 that the appellant was hiding in hillocks of village Tilehri. Thana Prabhari Rajendra Singh (P.W.6) of Police Station Cantt., Jabalpur, proceeded to the designated spot along with his staff and witnesses. On seeing the police party, the appellant tried to flee away and further, to terrorize the police party, he exploded a bomb. Despite this, he was nabbed and five live bombs were recovered from him. The remains of exploded bombs and the handcuff were also seized and recovered on the basis of information provided by him. Thereafter, he was arrested and a case was registered. The

seized live bombs as well as the remains of exploded bombs were sent for examination from where a positive report was received. After investigation, the charge-sheet was filed and on its basis, a trial was conducted wherein the appellant was convicted and sentenced as aforesaid.

3. The grounds raised in this criminal appeal are that the whole story of prosecution is fabricated. It was wrongly claimed that the appellant was hiding in a forest nearby Tilheri while his residence was in Tilheri itself. The story developed on the facts that the appellant had escaped and was hiding his whereabouts and to escape the police party, he exploded the bomb and was carrying five live bombs should not have been believed by the trial court. The exact spot where the appellant was hiding was not identified during the entire trial. There were no injuries to the police party despite the alleged explosion of bomb. Therefore, no mens rea could have been imputed against the appellant. The chemical expert report does not indicate the existence and extent and the proportionate quantity of chemical ingredients. There is no evidence to show that the bomb was dangerous enough to cause risk to any life. The independent

witnesses did not support the prosecution story. Therefore, it is prayed that the conviction and sentence being bad in law should be set aside and the appellant be acquitted.

4. The State has opposed the present appeal claiming that the finding of conviction is based on legal appreciation of facts and the sentence awarded is proportionate to the crime proved, hence, the impugned judgment cannot be interfered with.

5. Heard learned counsel for both the parties and perused the judgment and record of the court below.

6. The case as narrated by the prosecution is based upon the information received from the informant regarding the whereabouts of appellant who was wanted in Crime No.216/1996 registered under section 224 of IPC at Police Station Garha. Had the Sanha entry regarding the receipt of that information been produced, it could have given support to the prosecution story, but defence did not raise any objection about its non-production. In support of received information, Rajendra Singh (P.W.6), Thana Prabhari of Police Station Cantt., Jabalpur, has appeared as prosecution witness and testified to that fact on oath. His cross-examination, which was conducted by the appellant himself, failed to challenge this part of testimony. Though it is claimed by the appellant in this appeal that the place where he was allegedly hiding was actually his

residence, no evidence to that effect was produced by the appellant before the trial court. Even the cross-examination of Rajendra Singh (P.W.6) does not reveal that any such suggestion was given to him during his cross-examination. It casts reflection that an altogether new story was created and pleaded by appellant before this appellate court.

7. Rajendra Singh (P.W.6) has repeated the facts of prosecution story in his testimony given on oath wherein he has stated that he went to the place identified by the informant along with the police party and witnesses and on seeing them the appellant got a bomb exploded with an intent to terrorize them and in the meantime tried to run away from the spot but he was nabbed and on search five other live bombs were recovered from his possession. In support of this narrative, the prosecution has relied upon the testimony of independent witnesses namely, Prahlad Shrivastava (P.W.1), Rajesh Pillai (P.W.2) and also Head Constable Satish Kumar (P.W.5) who were accompanying the police party. Though the eyewitnesses have turned hostile and could not state a single fact in support of the prosecution, the statements of Rajendra Singh (P.W.6) and Head Constable Satish Kumar (P.W.5) remained stable and unchallenged despite their cross-examination. No reason has been put forth by the appellant to disbelieve the testimony of these two witnesses. Again, it may be observeed that ravangi and wapsi Rojnamcha Sanha entries were not produced by the prosecution to support its case but the appellant too had failed to challenge the credibility of prosecution story on the basis of non-production of these documents.

8. The statements given by Satish Kumar (P.W.5) and Rajendra Singh (P.W.6) have been challenged at this stage for the simple reason that they were the members of police party and on their sole testimonies the prosecution story should not have been disbelieved but the case of Tahir v. State (1996) 3 SCC 338 lays down the principle that "where the evidence of police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witnesses of the locality to lend corroboration to their evidence, does not in any

way affect the creditworthiness of the prosecution case". The appellant neither before the trial court nor before this appellate court has pleaded any reason to believe the story of his false implication in the case. On the basis of appreciation of facts proved by the prosecution, it is established that the appellant was hiding to escape the arrest in a case which was already registered against him, he tried to avoid the police party by throwing a bomb on it which exploded and on being nabbed he was found in possession of five more bombs. Ex.P10 is the FSL report in which the remains of exploded bomb as well as the contents of seized bombs were examined and it was reported that the remains seized were the parts of exploded bomb and the seized bombs were live country made hand grenades, which could have caused damage to human lives on explosion. The opinion given under this report was never a subject of challenge by the defence before the trial court.

9. On the basis of this discussion, it is established that the appellant has failed to challenge the correctness of finding given by the trial court regarding his conviction under section 353 of IPC and sections 3 and 5 of the Explosives Substances Act, 1908. This appeal, thus, fails on the point of conviction.

10. The impugned judgment shows that the appellant was sentenced to one year RI under section 353 of IPC, two years RI under section 3 of the Explosive Substances Act and six months RI under section 5 of the Explosive Substances Act. All these imprisonments were directed to run concurrently. The fact of the case establish that neither any person was injured nor any property was damaged in the explosion of bomb caused by the appellant. Further, five live bombs were in his possession but despite apprehending arrest, he caused no further explosions. Looking to the facts and circumstances of the

case and also the fact that he had already undergone an imprisonment of one year, one month and ten days during trial stage and two months and five days during the pendency of this appeal, this Court is of the opinion that the jail term suffered by the appellant in this case is sufficient against the charges proved. Accordingly, the sentence of one year and six months RI passed respectively under section 353 of IPC and section 5 of the Explosive Substances Act is confirmed while for the offence of section 3 of the Explosive Substances Act, he is sentenced to the period of imprisonment already undergone.

11. Accordingly, this appeal is partly allowed on the point of sentence. The appellant is directed to be released from custody forthwith, if not required in any other case. The decision of trial court regarding disposal of seized property is confirmed.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.07.12 10:37:26 +05'30' Adobe Reader version: 11.0.23