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2007 DIGILAW 477 (PAT)

Ballam Yadav v. State Of Bihar

2007-03-07

ABHIJIT SINHA

body2007
Judgment ABHIJIT SINHA, J. 1. The sole appellant, Ballam Yadav, has preferred this appeal being dissatisfied with the Judgment of conviction and order of sentence dated 16.9.2003 passed by Sri Ajeya Kumar Sinha, learned 8th Additional Sessions Judge, Munger in Sessions Trial No. 668 of 1988 arising out of Sheikhpura P.S. Case No. 150 of 1987. By the aforesaid Judgment and order the appellant has been convicted only for an offence under Sec. 307 of the Indian Penal Code and has been sentenced to undergo R.I. for 7 years. 2. The prosecution case hinges on the fardbeyan given by an injured, Ragho Yadav, at 7.00 hours on 11.10.87 at the clinic of Dr. Ramshray Prasad Singh, Chandani Chowk, Sheikhpura in respect of an occurrence which took place in the preceding night at about 10.00 P.M. According to the informant while he was sleeping in his house at the relevant time all of a sudden his co-villagers, Brahmdeo Yadav armed with lathi and Ballam Yadav armed with a bomb entered into his house alongwith eight others and the informant claims to have identified them in the light of the lantern burning in the verandah. It is said that the intruders assaulted the informant with fists and kicks and Brahmdeo Yadav assaulted his wife, Bhuwaneshwari Devi, with lathi causing her injury and on protest accused Ballam Yadav threw a bomb at the informant as a result whereof he has sustained injuries. It is said that accused persons thereafter departed and took away with them boxes containing clothes, ornaments etc. It is also alleged that they snatched some ornaments from the person of his wife. Attracted by the sound of bomb blast and the halla raised by the injured. Villagers Ganesh Yadav and Khublal Yadav alongwith others arrived and seeing the injured condition of the informant his son, Bino Yadav, Saran Yadav and nephew Tuntun Yadav took him to the clinic of Dr. Ramashray Prasad Singh for treatment. 3. On the basis of the said fardbeyan Sheikhpura P.S. .Case No. 150 of 1987 came to be registered under Sections 147, 148, 149, 323, 324, 307, 448 and 380 of the I.P.C. as also sections 3/5 of Explosive Substance Act. Ramashray Prasad Singh for treatment. 3. On the basis of the said fardbeyan Sheikhpura P.S. .Case No. 150 of 1987 came to be registered under Sections 147, 148, 149, 323, 324, 307, 448 and 380 of the I.P.C. as also sections 3/5 of Explosive Substance Act. After due investigation the police submitted a chargesheet and after commitment of the case to the court of Sessions charges under Sec. 307/149, 452 and 325 of the I.P.C. was framed against Brahmdeo Yadav and Ballam Yadav was charged under Sections 452 and 307 of the I.P.C. and Sec. 3/5 of Explosive Substance Act. 4. In course of the trial the prosecution examined altogether 8 witnesses of whom P.W. 6 and P.W. 7 are formal witnesses and they have appeared in court to prove the fardbeyan and the formal F.I.R. which have been marked as Exts. 1 and 2 respectively, P.W. 8 is the informant and his wife figures as P.W. 5 and she too had sustained injuries. The rest of the witnesses are material witnesses. 5. From the trend in the cross examination it appears that the defence has taken up the pleas of being falsely implicated in this case due to previous enmity and brought on record Exhibits A and B in support thereof. It is also pleaded that no occurrence as alleged had actually taken place. 6. It will not be out of place to mention here that after the closure of the prosecution evidence and before recording of the statement of the accused under Section 313 Cr.P.C, one of the accused, Brahmdeo Yadav, died and the trial so far as he is concerned was made to abate vide order dated 17.3.1998 leaving behind the present appellant to face the trial. 7. It appears that the trial court framed three issues for determination, namely, (i) whether the accused, Ballam Yadav, committed trespass into the house of the informant after making preparation for assault (ii) whether Ballam Yadav tried to kill the informant by hurling a bomb at him, and (iiii) whether the accused, Ballam Yadav, used explosive substance in order to kill the informant. 8. After considering the materials available on record, the learned trial court recorded a judgment of acquittal so far as issue nos. 8. After considering the materials available on record, the learned trial court recorded a judgment of acquittal so far as issue nos. (1) and (ii) are concerned on a finding that the prosecution had not been able to prove that the accused persons had committed house trespass having made preparations for causing hurt to any person (Section 452 I.P.C.) and that in the absence of a valid consent order authorising prosecution from the Central Government, as contemplated by Section 7 of the Explosive Substance Act, the charges under the Explosive Substance Act was not sustainable in law, but convicted and imposed sentence on the accused-appellant so far issue no. (iii) is concerned. 9. The impugned judgment and order are sought to be assailed by the appellant on several grounds. It was sought to be submitted that the cardinal principles which have always to be kept in mind in our system of administration of criminal justice is that a person arrainged as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of the burden, the Court cannot record a finding of guilt of the accused. On this premise it was pointed out that apart from the two formal witnesses, the five other witnesses examined by the prosecution were blood relations of the informant and therefore were interested or partisan witnesses, who in view of the existing enmity had an axe to grind. The appellant also raised a grievance of the doctor, the Investigating Officer and independent witnesses being withheld from being examined and with the injury report not having been proved and the P.O. not having been established the conviction for offence under Sec. 307 I.P.C. could not be sustained. Efforts were made to point out the discrepancies and loopholes in the prosecution case. The learned counsel for the appellant was also critical of the delay in lodging the F.I.R. for which there was no explanation. 10. Efforts were made to point out the discrepancies and loopholes in the prosecution case. The learned counsel for the appellant was also critical of the delay in lodging the F.I.R. for which there was no explanation. 10. According to the prosecution case the appellant with Brahmdeo Yadav and eight others had gone to the house of the informant in the depth of night, assaulted him and his wife and thereafter the appellant is alleged to have hurled a bomb, the blast whereof resulted in injuries on the person of the informant. However, the prosecution has failed to show any reason why the accused went to the house of the informant and assaulted him and his wife as also why the appellant suddenly hurled the bomb. It is not in dispute that apart from P.Ws. 3 and 7 all the witnesses examined by the prosecution are blood relatives of the informant and, therefore, were interested witnesses in view of the Exhibits A and B. 11. There is another aspect of the matter which needs consideration. Although the informant in course of his deposition in court sought to display the injuries Sustained by him, the court has not recorded any details of the location of such injury, their number and their nature. The doctor not having been examined and the injury report not having been exhibited, it cannot be said with certainty as to the nature of the injury and the relating cause therefor. With the I.O. not having been examined, it is a matter of conjecture as to whether he had inspected the P.O. and/or recovered and seized any remanants of the alleged bomb. That apart, there is no finding of an expert to lead to the conclusion that a bomb had been exploded and the alleged injuries on the informant were indeed caused by bomb explosion. 12. It was sought to be submitted on behalf of the appellant that though the appellant was convicted under Sec. 307 I.P.C. there was no evidence of credible nature to even suggest, taking the evidences to be true on its face value, that the bomb was hurled with the intent to kill the informant. It would appear from the testimony of the informant. It would appear from the testimony of the informant. It would appear from the testimony of the informant that he had sustained pellet injury on the face which is a non vital part of the human body, and the same is not buttressed by medical evidence. 13. Circumstances of the case, therefore indicated that there was ample room for doubt regarding the alleged participation of the appellant in the alleged occurrence. I am firmly of the opinion that the benefit of doubt should be extended to the appellant as the prosecution had failed to prove its case beyond all reasonable doubts. 14. In the result, this appeal is allowed and the order of conviction and sentence passed against the appellant is hereby set aside. The appellant is in custody. He shall stand released forthwith if not wanted in any other case.