Shreekant Sharma vs The State Of Madhya Pradesh
2024 Latest Caselaw 12312 MP

Madhya Pradesh High Court

Shreekant Sharma vs The State Of Madhya Pradesh on 2 May, 2024

                                                             1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                                  ON THE 2 nd OF MAY, 2024
                                            CRIMINAL APPEAL No. 2552 of 2000

                         BETWEEN:-
                         SHREEKANT SHARMA S/O SHARDA PRASAD SHARMA,
                         AGED ABOUT 22 YEARS, R/O SHASTRI COLONY, KATNI,
                         DISTRICT KATNI (MADHYA PRADESH)

                                                                                        .....APPELLANT
                         (BY SHRI KAPIL PATHAK - ADVOCATE )

                         AND
                         THE STATE        OF    MADHYA       PRADESH   (MADHYA
                         PRADESH)

                                                                                     .....RESPONDENTS
                         (BY SHRI VINOD TIWARI- PANEL LAWYER )

                               Th is appeal coming on for hearing this day, t h e court passed the
                         following:
                                                            JUDGMENT

This Criminal Appeal has been filed under Section 374(2) of Cr.P.C

being aggrieved by the conviction and sentence passed by the First Additional Sessions Judge, Katni District Katni in ST No. 345/1999 dated 21-09-2000 by which appellant has been convicted for the offence punishable under Section 5 of Explosives Substance Act,1908 and sentenced to RI for one year with fine of Rs. 250/- with default stipulations.

2. The prosecution case before the trial Court in nutshell was that on 20- 05-1999, a Police Inspector-B.D.Pandey got a telephonic information at 13:40 hours that the accused has exploded a bomb and on that information he went to

the spot. The accused was present over there and a live bomb was recovered from the possession of the appellant and the remains of the exploded bomb were collected and recovered in presence of independent witnesses Vinod Tiwari and Ballu Tiwari. The accused was arrested and after returning to police station Crime No. 336/99 under Sections 3/5 of Explosives Substance Act,1908 was registered. The bomb and the remains of exploded bomb were sent for FSL examination and after investigation, charge-sheet was filed. On committal, the case was submitted for trial before the Trial Court.

3 . The learned Trial Judge framed charges against the appellant for the offence punishable under Sections 3 and 5 of Explosives Substance Act,1908.

The appellant abjured the guilt and prayed for trial.

4 . The trial Court recorded the evidence of prosecution witnesses and upon examination of the appellant, the impugned judgment was passed by which the appellant was acquitted for the offence punishable under Section 3 of Explosives Substance Act,1908 but, convicted as stated in column-1 of the judgment hence, this appeal.

5. Learned counsel for the appellant has submitted that no independent witness has supported the prosecution case and the fact is also strange that after explosion the appellant remained on the spot till the police came.

6. Learned counsel for the appellant has also submitted that in this case, explosives substance which is said to be recovered from the possession of the appellant was not sealed packed and thus, which article was seized from the possession of the appellant was sent to FSL is doubtful and he has relied on the judgment of the Apex Court in the case of Jasbir Singh Vs. State of Punjab AIR 1998 SC 1660.

7. Learned Panel Lawyer for the State Shri Vinod Tiwari has supported

the judgment and requested that the judgment passed by the learned trial Court is proper and no interference is called for.

8. Heard the parties.

9. I have gone through the record.

10. In this case, the Investigating Officer in FIR Ex. P/8 has stated that he got information on telephone and entered in daily dairy No. 1579 at 13:40 hours but, copy of that daily diary has not been submitted before the Court.

11. The independent witness Vinod Tiwari (PW-1) and Rishab Tiwari @ Ballu Tiwari (PW-3) has also not supported the prosecution case and in the cross-examination by the prosecution, nothing has been brought on record.

12. The trial Court has discussed that in each case it is not required that without the support of the independent witnesses, the conviction cannot be held. The Investigating Officer- B.D. Pandey (PW-4) has stated that he got the information from one unknown person that the accused has exploded a bomb and after that he reached on the spot and collected the remains of the exploded bomb and prepared seizure memo Ex. P/2 at 15:00 hours in the presence of witnesses. He recovered a bomb from the possession of the accused and prepared seizure memo Ex. P/3 and prepared spot map Ex. P/4. He arrested the appellant and when returning to police station, he lodged an FIR.

13. In pragraph-2 of cross-examination, he has admitted that he has not

filed any entry in the daily diary ( Rojnamchasanha No. 1579). He has also admitted that when a police officer gets information of cognizable offence, he is duty bound to register the FIR. In paragraph-8 of cross-examination, he has admitted in Ex. P/2 and P/3 that there is no remark regarding sealing of explosives substance.

14. On this point Ex. P/2 and Ex.P/3, there is no remark that the seized items were sealed on the spot. The Apex Court in Jasbir Singh (supra) in paragraph-3 has held has under :-

"3. What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and the cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were not sealed. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the Court was not established by the prosecution. Having gone through the evidence, we find that the contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same the police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial court. As the identity of the incriminating articles has not been established by the prosecution."

15. Thus, when the incriminating articles were not sealed on the spot, no inference can be drawn from Ex.P/10 that the articles recovered from the appellant were sent for FSL examination and the report Ex.P/2 is examination report of the material seized from the possession of the appellant.

16. Hence, the conviction of the appellant cannot be maintained. As a result thereof, the appeal is allowed and the appellant is acquitted from the charge under Section 5 of the Explosives Substance Act,1908. The appellant's bail bond and surety bond are being discharged. The fine amount deposited by the appellant in pursuance of order of the trial Court be refunded to the appellant.

17. With the copy of judgment, record of the trial Court be returned

back.

18. Record of this appeal be consigned to record room.

(DEVNARAYAN MISHRA) JUDGE PG