Md. Habib son of Md Ramjan resident of village Bariyarpur P.S. Pier District Muzaffarpur v. State Of Bihar

Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 2 his fardbeyan at about 7.50 p.m. in injured condition at Bela Sakari More in presence of P.W 1 to P.W 3 to the ASI J.P. Rai, Officer-in- charge of Lalit Narain Mithila University police station, to this effect that on the same day, he along with the above stated prosecution witnesses was on duty near Bela Sakari More at the direction of Sub Inspector, Excise Sri Ram Prakash Rakesh and at about 7.30 p.m. he saw a person coming from eastern side carrying a plastic bag on his shoulder. He asked the aforesaid person to stop but the aforesaid person did not stop and started fleeing from there and thereafter, he and his companions doubted and chased the aforesaid person but the aforesaid person took out a bomb from his bag and hurled the said bomb towards him and others with intention to kill them. The aforesaid bomb exploded and caused injury to him. His companion continued to chase him raising alarm but the aforesaid person threw bag containing bombs on his companion which exploded but his companion did not sustain any injury. In the meantime, police party reached there and with the help of local people, police party apprehended the aforesaid person who disclosed his name as Rauf @ Habib. The aforesaid person, too, sustained some injuries.

4. On the basis of fardbeyan, Lalit Narain Mithila University P.S. case no.21/1993 for the offences under sections 307, 324 of the Indian Penal Code and 3 & 4 of the Explosive Substance Act was registered and accordingly, formal first information report was drawn against the appellant under the above stated sections and the matter was investigated and after completion of investigation, Investigating officer submitted charge sheet. Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 3

5. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way.

6. Appellant was put on trial and he was charged for the offences under sections 307, 324 of the Indian Penal Code and 3/ 4 of the Explosive Substance Act. The appellant denied the charges and claimed to be tried.

7. To substantiate its case, prosecution examined, altogether, four witnesses and also got exhibited seizure list as exhibit 1, signature on seizure list as exhibit 2, sanction order as exhibit 3, formal FIR as exhibit 4 and endorsement on fardbeyan as exhibit 5. The statement of the appellant was recorded under section 313 of the Cr.P.C in which he reiterated his innocence and claimed his false implication by the police.

8. The learned trial court, having relied upon the testimony of prosecution witnesses as well as documentary evidence, convicted and sentenced the appellant in the manner as stated above.

9. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order submitting that neither the informant nor Investigating officer was examined in this case and similarly, doctor, who is said to have examined the informant after alleged occurrence, was also not examined by the prosecution nor the injury report of the informant was produced before the trial court and, therefore, in absence of non-examination of the informant as well as doctor, prosecution could not succeed to prove this fact that the informant had sustained any injury caused by explosive substance and, therefore, prosecution miserably failed to prove charge under Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 4 section 307 of the IPC. He further submitted that nothing has been recovered from conscious possession of the appellant and remains of bomb were seized from the place of occurrence and, therefore, even if remains of bomb were seized by police, then also, it can not be said that the appellant was carrying bomb at the time of alleged occurrence and, therefore, conviction of the appellant under section 3 and 4 of the Explosive Substance Act is bad in law. He further submitted that all the prosecution witnesses, who have been examined in this case, are constable of Excise department and, therefore, no reliance can safely be placed upon the testimony of the aforesaid prosecution witnesses and in the aforesaid circumstances, the appellant is entitled to get privilege of benefit of doubt.

10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that according to the prosecution witnesses, appellant threw bomb on the informant causing bomb injury to him and just after the alleged occurrence the appellant was caught by the police and remains of bomb were recovered from place of occurrence and seizure list was prepared. He further submitted that the appellant put his signature on seizure list and, therefore, P.Ws 1, 2 and 3 are trustworthy and prosecution succeeded to prove its case beyond any reasonable doubt and, therefore, the learned trial court rightly convicted and sentenced the appellant.

11. As I have stated that prosecution examined, altogether, four witnesses. Out of them, P.W. 4 is a formal witness and he has Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 5 proved sanction order as exhibit 3 and he has stated nothing in respect of the alleged occurrence.

12. P.W. 1, Laxman Yadav is a constable of Excise department and he stated that on 17.2.1993 at about 7.30 p.m., he along with others was on duty and in the meantime, one person was seen coming from eastern side having a bag on his shoulder upon which Rajendra Paswan asked him to stop but the aforesaid person started fleeing and when he was chased, he threw bomb on Rajendra Paswan which exploded in front of the aforesaid Rajendra Paswan causing injury to him. The aforesaid person again threw bomb and in the meantime, police party came there and arrested the aforesaid person who disclosed his name as Rauf. This witness further said at para 21 of his cross-examination that the appellant was caught by the police and after that he was brought at the place of occurrence . At the same paragraph, he admitted that he was engaged to look after Rajendra Paswan. He further admitted at para 16 of his cross- examination that his statement was recorded in connection with the occurrence for the first time in court.

13. P.W 2, Kamaldev Yadav is also constable of Excise department and he also supported the prosecution case but he slightly contradicted the statement of PW 1 saying that the appellant threw bag containing bombs when he and others chased him. This witness further stated that the appellant was caught by the police and remains of exploded bomb were seized by the Officer-in-charge of Lalit Narain Mithila University police station and the aforesaid police official as well as the appellant put signatures on seizure list and copy Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 6 of seizure list was handed over to the appellant. This witness proved seizure list as exhibit 1. This witness admitted at para 8 of his cross- examination that distance between Bela Sakri More as well as Lalit Narain Mithila University police station is about one kilo meter. This witness further admitted at para 21 of his cross-examination that police brought the appellant before him after 5 minutes of alleged occurrence and after 20 to 25 minutes of alleged occurrence, seizure list was prepared. This witness, too, admitted at para 27 of his cross- examination that for the first time, his statement was recorded in court.

14. Almost, similar statement has been made by P.W. 3 who is also a constable of Excise department. At para 17 of his cross- examination, this witness, too, admitted this fact that the appellant was caught by the Officer-in-charge of Lalit Narain Mithila University police station. At para 20 of his cross-examination, he stated that he had made statement before the police and after that he never met the police.

15. On careful perusal of depositions of the aforesaid prosecution witnesses, it is apparent that after the alleged occurrence, the appellant was caught by the police and after that he was brought to the place of occurrence where seizure list was prepared and injured Rajendra Paswan was sent to hospital for treatment.

16. Admittedly, appellant challenged the very presence of prosecution witnesses on the place of occurrence at the relevant time and P.W 1 and P.W 2 have specifically stated that they had not made any statement before police after alleged occurrence and for the first Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 7 time, their statements were recorded in court in respect of alleged occurrence. Therefore, non-examination of Investigating officer has caused serious prejudice to the appellant. Furthermore, informant Rajendra Paswan has sustained injury on his person and, therefore, in my view, non-examination of the informant as well as non-production of injury report of the informant made the prosecution case doubtful and I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and in absence of the statement of the informant Rajendra Paswan and his injury report, the appellant could not have been convicted under section 307 of the IPC.

17. It is evident from the materials available on record that the appellant was caught and brought by the police at the place of occurrence after alleged occurrence and no incriminating article was recovered from the conscious possession of the appellant and whatever articles have been seized by the police, the same were seized from place of occurrence and, therefore, non-examination of Investigating officer has caused serious prejudice to the appellant because the appellant could not get opportunity to cross-examine the Investigating officer on the aforesaid important points.

18. On the basis of the aforesaid discussions, I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the appellant is entitled to get the benefit of doubt.

19. Accordingly, the impugned judgment of conviction dated 31.7.2001 as well as sentence order dated 1.8.2001 passed by Patna High Court CR. APP (SJ) No.296 of 2001 dt.29-01-2013 8 learned Addl. Sessions Judge V, Darbhanga in Sessions trial no. 92/1997 are, hereby, set aside and appellant is acquitted of the charges framed against him. He is on bail. He is discharged from the liabilities of bail bonds. Shahid/NAFR (Hemant Kumar Srivastava,J)