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2006 DIGILAW 1236 (PAT)

Soni @ Sonu Lohar v. State Of Bihar

2006-12-12

CHANDRA MOHAN PRASAD

body2006
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 14/16.4.1992 of the lllrd Additional Sessions Judge, Bhagalpur passed in Sessions Trial No. 442 of 1990 whereby the appellants Soni @ Sonu Lohar and Gopal Lohar have been convicted under Sec.353 of the Indian Penal Code and Soni @ Sonu Lohar has been released on probation bond for a period of one year but the appellant Gopal Lohar has been sentenced to undergo R.I. for one year. 2. The prosecution case was that the officer-in-charge of Bhagalpur Kotwali P.S. received information that some criminals were exploding bombs with intention to spread communal tension and that on this information, the officer-in-charge recorded Sanha at the P.S. and went out with a police party for verification of the matter. The further case was that when the police party reached the spot and found that the appellants alongwith four other accused persons, who were tried under the trial, were engaged in throwing bombs and committing acts of arson. It was alleged that Sonu Lohar had thrown a bomb towards the police party but it fell in heap of garbage and did not explode. The appellant Gopal Lohar and other tried to set the police party on fire but injury was not said to have been caused to anybody. 3. The appellants were charged under Sec.307/34 of the Indian Penal Code as well as Sections 3, 4(a) and 5 of the Explosive Substance Act. The learned Trial Court did not find the charges under Sections 3, 4(a) and 5 of the Explosive Substance Act established. Hence, the appellants were acquitted of the charges. The learned Trial Court did also not find the charge under Sec.307/34 of the Indian Penal Code proved against the appellants, however, the learned Trial Court was of the view that on the basis of allegation as well as the evidence brought on record a conviction under Sec.353 of the Indian Penal Code could be made. Therefore, the conviction under Sec.353 of the Indian Penal Code was passed and sentence was also ordered as above. 4. Therefore, the conviction under Sec.353 of the Indian Penal Code was passed and sentence was also ordered as above. 4. During hearing, the learned counsel appeared for the appellants raised a point of law and therefore, submitted that when the charge under Sec.307/34 of the Indian Penal Code have not been proved, technically there could not have been conviction and sentence under Sec.353 of the Indian Penal Code because the offence punishable under Sec.353 of the Indian Penal Code is not a minor offence under Sec.307 of the Indian Penal Code. But it is a quite independent offence for which a conviction cannot be held because charge was not levelled on the accused under this Section i.e. 353 of the Indian Penal Code nor he was given an opportunity to defend himself on the ingredients of the charge. The learned counsel argued that the charge under Sec.307 of the Indian Penal Code is levelled on the premise that the accused had attempted to kill the victim and in such attempt he did some acts and had he caused death by that act he would have been guilty of murder. Whereas the charge under Sec.353 proceeds on the premise that some criminal force had been used with a view to deterring or preventing a public servant from discharging his duty as a public servant. The learned counsel continued to submit that in this case there was no case of prosecution that the officer-in-charge or the other police personnel were deterred in their performance of public duty due to overt acts committed by the appellants. Hence, it was further argued that when there was no such charge with such special ingredients nor the appellant was given an opportunity to defend himself on such charge he cannot be convicted and sentenced of offence under this charge. I find the submission of the appellants counsel carrying substantial reason and it is acceptable. 5. In view of the discussion, I find that the conviction of the appellants under Sec.353 of the Indian Penal Code cannot be sustained under law because no charge was framed under this Section and the appellants were not given any opportunity to defend them of this charge. 5. In view of the discussion, I find that the conviction of the appellants under Sec.353 of the Indian Penal Code cannot be sustained under law because no charge was framed under this Section and the appellants were not given any opportunity to defend them of this charge. At this stage, the learned A.P.P. even tried to suggests that a fresh trial on such charge may be considered but in view of the facts that trial is of the year 1990, I find no justifiable ground to remit the case for re-trial on the charge as suggested. Thus, in view of the discussion made above, I hold that the conviction and sentence as passed on the appellants is not fit to be sustained under law. Hence, the same is set aside. The appellants are acquitted of this charge. 6. The appellants will be discharge from their liabilities of the bail bonds. The appeal is, accordingly allowed.