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Madhya Pradesh High Court · body

2007 DIGILAW 861 (MP)

Shrikrishna v. State of M. P.

2007-08-07

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 14.7.2000 passed by IV Additional Sessions Judge, Bhind (M.P.) in ST No. 14/99, by which the appellant has been convicted under sections 4 of the Explosive Substances Act, 1908 and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 1,000/- and under section 307 of IPC, sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 1,000/- with default stipulation. 2. In short, the story of the prosecution is that on 18.5.1990, Chottelal Ojha (PW 2) lodged the report at the Police Station Kotwali, Bhind that his younger brother Phool Singh (PW 3) and his mother were lying on the roof of his house, there is a Chabutara infront of his house, where appellant Shri Brahmana alongwith co-accused Raju Yadav were sitting and talking with each other. Appellant Shri Brahmana threw handgrenade towards the roof of the complainant Chottelal Ojha (PW 2), which exploded suddenly. On hearing the noise, Phool Singh (PW 3) jumped off the roof to catch them. Appellant Shri Brahmana and co-accused Raju Yadav caught hold by him but they were escaped in his custody and ran away from the spot. Thereafter, the persons of the locality gathered there. The house of the appellant Shri Brahmana, is situated near the house of the complainant. Chottelal Ojha (PW 2) lodged the report at the police station. Initially, the case was filed before the Court of CJM, Bhind. Subsequently, the case was committed to the Court of Sessions on 16.1.1999. The sanction was obtained after nine years of the investigation of the case. Charges under sections 4/5 of the Explosive Substance Act and under sections 436/34 and 307/34 of IPC were framed against them. After conclusion of trial, the appellant/accused was convicted and sentenced by the trial Court as stated in above para one of this judgment. 3. It is submitted by counsel for the appellant that the learned trial Court has not appreciated the evidence properly. The incident took place on 18.5.1990 while the explosive substance was seized on 19.5.1990. It is not established that there was the same substance which were alleged to be caused by explosion of hand-grenade. No body received injury due to explosion. It is also not established that injury sustained by Phool Singh (PW 3) caused by firearm like 'katta'. The incident took place on 18.5.1990 while the explosive substance was seized on 19.5.1990. It is not established that there was the same substance which were alleged to be caused by explosion of hand-grenade. No body received injury due to explosion. It is also not established that injury sustained by Phool Singh (PW 3) caused by firearm like 'katta'. The roof of appellant is 15 feet away from where the alleged explosive substance was thrown. It is also submitted that the allegation of throwing hand-grenade belongs to the co-accused Raju Yadav who has died and no offence is made out against the present appellant. This appeal has been filed only on behalf of present appellant Shrikrishna. 4. Chottelal Ojha (PW 2) deposed that the incident took place on 18.5.1990. He was sleeping on the roof of his' house. At about 10-11 in the night, appellant alongwith co-accused Raju Yadav were sitting on a Chabutara. Appellant Shrikrishna threw hand-grenade towards roof of his house and co-accused Raju was having a Katta in his hand. Due to thrown of hand-grenade, there was explosion and the articles of explosive substance were spread out suddenly. He informed the incident to Phool Singh (PW 3), Bachhu, Munnalal, Sewaram, Ochhi Bai. Thereafter, the persons of the locality came there. He lodged the report at the police station on the next day which is Ex. P-2. Police came to the spot and seized explosive articles. The seizure memo is Ex. P-4. 5. Phool Singh (PW 3) is an important witness, who deposed that the incident had nine years back. At about 11-12 in the night when he was sleeping alongwith sister Anguri and children, he heard the noise of explosion, then he jumped off the roof of his house and saw that the both the appellant and co-accused thrown hand-grenade towards the roof of his house. Co-accused Raju was having a katta in his hand. Both of them caught hold but they were escaped from his custody. He sustained injury on his left leg due to jump off the roof of the house. He further stated that when there was explosion, then he woke up and saw that the appellant alongwith co-accused are running from the spot. In his statement, the witness stated that he identified the accused at the time of incident which appears to be doubtful. Because in cross-examination of his previous statement Ex. He further stated that when there was explosion, then he woke up and saw that the appellant alongwith co-accused are running from the spot. In his statement, the witness stated that he identified the accused at the time of incident which appears to be doubtful. Because in cross-examination of his previous statement Ex. D-3, there are some contradictions and omissions came out. The evidence of Dr. M.D. Gupta (PW 11) shows that Phool Singh (PW 3) sustained simple injury. The report is Ex. P10. According to doctor, no external injury was found on his person. The injury may be caused by hard and blunt object and duration of injury was within 24 hours. The doctor opined that nature of injury can be given after x-ray examination. 6. Counsel for the appellant relied on Raju Dubey v. State of M.P. reported in 1998 (1) JLJ 236 in which it is held that under section 39, sanction is not properly proved. Sanctioning Officer should see the weapon, should satisfy that offence has prima facie made out under section 3 of the Arms Act. He also relied on State of M.P. v. Krishna Kumar reported in 1997 (1) MPWN 203 in which it is held that the Arms not brought to Court and got exhibited. Seizure not legal. Seizure firearms not exhibited in Court. Accused cannot be punished. He also placed reliance on Mohmmad Usman Mohammad Hussain Maniyar and another v. The State of Maharashtra reported in 1981 CAR 196 (SC) in which it is held that in case of section 5 of the Explosive Substance Act, 1908, the ingredients of offence shall be proved by the prosecution and possession of explosive substance means' conscious possession. 7. The main contention of the learned counsel for the appellant is that due to explosion, no one was injured. Phool Singh (PW 3) who sustained injury, not caused by firearm like 'katta', he sustained injuries due to jumping off the roof to catch the appellant with co-accused. The charges were framed against the appellant alongwith co-accused under section 4/ 5 of the Explosive Substance Act and under sections 436/34 and 307/34 of IPC. The learned trial Court convicted the appellant under section 4 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. The charges were framed against the appellant alongwith co-accused under section 4/ 5 of the Explosive Substance Act and under sections 436/34 and 307/34 of IPC. The learned trial Court convicted the appellant under section 4 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 1,000/- and under section 307 of IPC, sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 1,000/-. No separate punishment shall be given under section 436 of IPC. 8. Under section 4 of the Explosive Substance Act, 1908, the essential ingredients of offence is that: "The accused must be found to have in his possession or under his control some explosive substance with the intention of endangering life. A man may be in close proximity to an objectionable substance, such as a bomb or other explosive article, and the same may even burst where he is in that position. It can hardly be said that from this fact alone it is proved that he had 'possession' or 'control' over that article within the meaning of the said section. Thus words 'unlawfully' and 'maliciously' in the opening part of the section clearly indicate that the man charged must have knowledge of the existence of the article near him and that he must also have an intention to cause injury to life or property by means thereof'. 9. It is not necessary that injury should be caused due to explosion. In this case as discussed herein-above, the evidence against the appellant is sufficient that he exploded hand-grenade towards the roof, where the complainant along-with other members of the family were present. Although, there was no injury received by any of the person. 10. Yogendra Singh, Arms Clerk (PW 13) has proved on behalf of District Magistrate consent for prosecution which is Ex. P-12. The consent for prosecution accorded properly. The learned trial Court convicted the appellant under section 4 of the Explosive Substance Act and under section 307 of IPC. No separate punishment shall be given under section 436 of IPC. Due to explosion, none has been injured. Although, the act of the appellant had danger to life or property of the complainant. Hence, the offence under section 4 of the Explosive Substance Act is made out. 11. No separate punishment shall be given under section 436 of IPC. Due to explosion, none has been injured. Although, the act of the appellant had danger to life or property of the complainant. Hence, the offence under section 4 of the Explosive Substance Act is made out. 11. But looking to the facts and circumstances of the case, there is no proper conviction regarding section 307 of IPC. Hence the conviction and sentence under section 307 of IPC as recorded by the learned trial Court is hereby set aside. If the amount of fine is realized, it shall be refunded to the appellant. 12. Regarding section 4 of the Explosive Substance Act, it is submitted by the counsel for the appellant that the incident took place in the year 1990. First, the case was tried by the CJM for about 8 years but due to want of sanction under section 7 of the Explosive Substance Act, it was again committed to the Court of Sessions. When the sanction of the prosecution was obtained on 8.7.1999, then the charge was framed against the accused. The incident took place on 18.5.1990 and he appellant faced the trial about 17 years out of which, about eight years have elapsed in fruitless litigation due to want of sanction. Counsel for the appellant further submits that the appellant was in custody for about one year and one month during this period. Therefore, looking to the overall facts and peculiar circumstances of the case, I think while maintaining the conviction under section 4 of the Explosive Substance Act, in the special circumstances of the case, the sentence of seven years rigorous imprisonment is reduced to the period already undergone but it will not be treated as precedent in subsequent. The bail bond of the appellant shall stand discharged. With such modification, the appeal is partly allowed and disposed of accordingly.