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2006 DIGILAW 757 (JHR)

Gandur Oraon v. State of Bihar

2006-06-26

R.R.PRASAD

body2006
JUDGMENT By Court.-Both the appeals were taken together and are being disposed of by the common order as they arise out of Sessions Trial No. 23 of 1998. In Cr. Appeal No. 56 of 2000(R) the appellant is Gandur Oraon whereas in Cr. Appeal No. 78 of 2000(R) the appellants are Manjhi Oraon and Bishnu Oraon. 2. The aforesaid three appellants, namely, Gandur Oraon, Manjhi Oraon, Bishnu Oraon were tried with Lohra Oraon (since acquitted) for the charges under Sections 3, 4 and 5 of the Explosive Substances Act and also under Section 304/34 of the Indian Penal Code. The trial court while acquitting Lohra Oraon, convicted these three appellants under Section 304/ 34 of the Indian Penal Code and also under Sections 3 and 4 of the Explosive Substances Act. Consequently, each of the appellants was sentenced to undergo R.1. for 10 years and to pay a fine of Rs. 1000/ - for each of the offences under Section 304/34 of the Indian Penal Code and 3 of the Explosive Substances Act. In default of payment they were ordered to undergo R.1. for 1 year. Further each of the appellants was sentenced to undergo R.1. for 5 years and to pay a fine of Rs. 1,000/-, for the offence under Section 5 of the Explosive Substances Act. In default they were ordered to undergo R.1. for 1 year. 3. The case of the prosecution is that when the informant, Laxman Oraon (P.W. 9) of village Dhangaon Gajatoli returned I10me at 10 P.M. on 12.3.97 after doing night duty, he heard sound of explosion of bomb coming from the side of the Behratoli. Upon it he went there and saw one person dead, who had received injury from the explosive substance. Subsequently he came to know that the name of the dead person was Prakash Minz and also came to know that these appellants as well as one Patras Kerketta had received injuries in course of the explosion of the bomb which took place in the house of the appellant, Bishnu Oraon where the appellant and the other accused had assembled for committing some offence. 4. The said Laxman Oraon gave his fardbeyan (Ext. 2) on 13.3.1997 at 6.30 P.M. to Sub-Inspector, R.P. Dordey (P.W. 11) at Dhangaon Gaza Toli where P.W. 11 on getting information that one person has died after receiving injury from the explosive substance, had reached. 4. The said Laxman Oraon gave his fardbeyan (Ext. 2) on 13.3.1997 at 6.30 P.M. to Sub-Inspector, R.P. Dordey (P.W. 11) at Dhangaon Gaza Toli where P.W. 11 on getting information that one person has died after receiving injury from the explosive substance, had reached. On the basis of which formal F.I.R. (Ext. 4) was lodged. In course of investigation P.W. 11, Ram Prakash Pandey, the I.O. made inquest on the dead body of Prakash Minz and sent the dead body to Dr. Ramesh Prasad (P.W. 12), who conducted post mortem examination and found the following injuries on his person:(1) Whole face, chest both forearm and lower leg was blacken and stitched multiple abrasion with dust particles. (2) Loss of right hand from wrist joint with black margin of wound. (3) Fracture of right humerous. (4) Loss of ring and middle finger of left hand with lacerated wound 3" x 2" with black margin. (5) Compound fracture with black margin of right lower tibia and bebula with lacerated wound 3" x 21/2". (6) Compound fracture of left tibia with blank margin 1" x 1/2" x bone deep. (7) Compound fracture of three metatarsals to bone of left foot with lacerated wound 4" x 2" x black margin. (8) Compound fracture with black margin of 1 st and 2nd metatarsals bone right foot 31/2" x 1" x bone deep. 5. The doctor issued post mortem examination report (Ext. 6) with an opinion that the death was caused due to hemorrhage and shock. In cross-examination this witness has said that all the• injuries sustained by the deceased may be possible by explosion of big bomb. In course of investigation I.O. collected remains of exploded bomb from the place of occurrence and sent it to Forensic Science Laboratory for examination. Upon its examination the report was submitted under Ext. 8 where it was reported that the substance sent for examination was residue of bomb explosion. 6. During investigation P.w. 11 seems to have arrested all the appellants and the appellants, Bishnu Oraon and Gandur Oraon were sent before doctor for examination of the injuries found on their persons. Accordingly, Dr. Ashish Kumar Lakra (P.W. 10) examined Bishnu Oraon and found the following injuries on his person:- Lacerated wound muscle deep 1" x 1" over left forearm. 7. The doctor issued the injury report (Ext. Accordingly, Dr. Ashish Kumar Lakra (P.W. 10) examined Bishnu Oraon and found the following injuries on his person:- Lacerated wound muscle deep 1" x 1" over left forearm. 7. The doctor issued the injury report (Ext. 2) with an opinion that injury is simple in nature and has been caused by hard blunt substance. On the other hand, Gandur Oraon was examined by Dr. A.D.N. Prasad (P.W. 13) and found following injuries on his person:- Three keloids on the fleyar aspect of left forearm. All about 3/4" long x 1/2' wide. 8. The doctor issued injury report (Ext. 7) with an opinion that the injury is simple in nature and has also reported that as per statement of the patient it was due to splinters from bomb blast about 2 and 1/2 month before. 9. After completion of the investigation, the police• submitted charge-sheet. Accordingly the cognizance of the offence was taken and in due course the case was committed to the court of sessions and the charges were framed, to which the accused pleaded not guilty and claimed to be tried. 10. In course of the trial, the prosecution examined as many as 13 witnesses, out of them P.W. 1, Oahra Oraon, P.W. 2, Atwa Oraon, P.w. 3, Aghna Kharia, P.W. 4, Turia Pahan, P.W. 5, Samel Bara, P.w. 6, Leda Mahto have been declared hostile by the prosecution. P.W. 7, Somra Oraon and P.W. 8, Mangna Oraon are the hearsay witnesses. P.W. 7 has testified that there was explosion in the house of Badnu Oraon father of the appellant, Bishnu Oraon and in the morning he had been there where he found the dead body of Prakash Minz and came to know that appellants. Bishnu Oraon and Manjhi Oraon had sustained injuries. P.W. 9, Laxman Oraon has also testified that though he heard sound of explosion of the bomb, he went at the place of occurrence in the next morning and found Prakash Minz dead and came to know that Bishnu Oraon and Manjhi Oraon had also sustained injuries. 11. Bishnu Oraon and Manjhi Oraon had sustained injuries. P.W. 9, Laxman Oraon has also testified that though he heard sound of explosion of the bomb, he went at the place of occurrence in the next morning and found Prakash Minz dead and came to know that Bishnu Oraon and Manjhi Oraon had also sustained injuries. 11. On the basis of the evidences, the "learned trial court did hold that there was explosion of the bomb in the house of Bishnu Oraon as a result of which the appellant sustained injuries by explosive substance and one Prakash Minz died after receiving injuries from the explosive substance and therefore passed the order of conviction and sentence as aforesaid. 12. Learned counsel appearing for the appellants in both the cases submits that there was absolutely no evidence to the effect that the appellants, Gandur Oraon, Manjhi Oraon, Bishnu Oraon caused explosion of the bomb in the house of Bishnu Oraon, resulting into death of Prakash Minz and that the appellants sustained injuries during that occurrence by the explosive, substance and hence order of conviction and sentence is quite illegal and is fit to be set aside. 13. Heard learned counsel for the State. Having heard counsel appearing for the parties and on perusal of the record, I do find that it is the case of prosecution that on 12.3.97 at about 10 P.M. an explosion took place in the house of Bishnu Oraon and on hearing the sound of explosion of the bomb P.W. 9, the informant, who turned hostile came to the place of occurrence and found one Prakash Minz dead. According to his statement made in the fardbeyan (Ext. 3) he came to know subsequently that the appellants had also sustained injuries from explosive substance, but the case of the prosecution neither gets support from the informant (P.W. 9) nor by any of the witnesses examined by the prosecution. According to his statement made in the fardbeyan (Ext. 3) he came to know subsequently that the appellants had also sustained injuries from explosive substance, but the case of the prosecution neither gets support from the informant (P.W. 9) nor by any of the witnesses examined by the prosecution. It is to be stated here that the trial court, on the basis of the testimonies of P.W. 7 and P.W. 8, has given finding that these appellants caused explosion of the bomb, resulting into the death of Prakash Minz and that the appellants had also sustained injuries, but no such evidence is there in the testimonies of P.W. 7 and P.W. 8 on reading of their evidences, I do find that they have never said anywhere that the appellants caused explosion of the bomb and did sustain injuries by the explosion of the bomb. Both the appellants (sic) are the hearsay witnesses and they have only said in their evidences that they came to know that these appellants had sustained injuries by the explosive substance. The court below while coming to conclusion that the appellants did cause explosion of bomb took into consideration that the remains of the explosion of the bomb was collected by the Investigating Officer from the place of occurrence and sent for chemical examination, has been found to be the explosive substance under Ext. 8. But the court below failed to take notice that the prosecution has failed to prove that the remains sent for chemical examined wore seized from the place of occurrence i.e. house of the Bishnu Oraon, as the prosecution has failed to bring on' record the seizure-list and thus I do find that the prosecution has utterly failed in proving that the appellants caused explosion of bomb in the house of Bishnu Oraon, causing death of Prakash Minz. 14. Thus, I do find that there has been absolutely no evidence that these appellants committed offence as charged. Accordingly, the order of conviction and sentence is hereby set aside and they are acquitted of all the charges leveled against them. Consequently they are discharged from the liability of bail bond. In the result both the appeals are allowed.