JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal was preferred by appellant against judgment and order dated 7.8.1981 passed by Vth Additional Sessions Judge, Varanasi, in S.T. No. 40 of 1980, convicting and sentencing him to seven years R.I. under Section 307, I.P.C. 2. Occurrence is alleged to have taken place on 10.9.1979 at 5:00 p.m. in Mohalla Madmeshwar, Police Station Kotwali, District Varanasi. First information report was lodged by Nand Lal Seth, PW-1, on the same day at 6:10 p.m. at Police Station Kotwali, District Varanasi. 3. The prosecution case as unfolded is that complainant Nand Lal Seth lived in House No. K53/91 Madmeshwar, P.S. Kotwali, District Varanasi. It is four storied house. The complainant runs a shop of Sarrafa on the ground floor. This shop has three doors with wooden shutter which used to open towards west on the road. Outside of these, the southern door had a channel collapsible gate, which is made of iron bars. This channel collapsible gate was stuck on the date of occurrence and could not be raised. There is a lane leading to Nawapura just in front of this southern door. Another door is on the northern side of the house, which is used as an exit from house. This door also leads to staircase through Galiyara for upper storey of the house. There was Chauki on the southern side inside the house on which the complainant used to sit. Gaddi of shop is in the north eastern corner and customers sit in the north western corner. On the first floor, there is a balcony in front of room, projecting upon road and there is a telephone bracket under its one corner. Upper stories of house are used by family of complainant for residential purposes. 4. Accused is also resident of the same Mohalla. Co-accused Radhey Shyam, who is absconding, used to move in the company of accused Mohan @ Bichchia. Both accused were known to informant and his family members from before occurrence. 5. On 10.9.1979 at about 5:00 p.m., informant was sitting inside his shop on the ground floor on the southern side on a Chauki. His minor daughter, Kiran was also sitting nearby towards north west. Ramji Singh, an employee of informant was sitting in the shop near Km. Kiran. Gopal Das and Jiwan Das were sitting on Gaddi in the shop. Krishna Kumar was on the first floor. His minor daughter, Kiran was also sitting nearby towards north west. Ramji Singh, an employee of informant was sitting in the shop near Km. Kiran. Gopal Das and Jiwan Das were sitting on Gaddi in the shop. Krishna Kumar was on the first floor. All three wooden shutters of shop were open but collapsible gate was down. A few customers were also there. All of sudden, informant heard a loud sound of explosion of a bomb and simultaneously shop was filled with smoke. The informant got up and ran towards the north. He felt that something had been thrown at the shop and had struck collapsible gate. Informant came out on the road from exit on the northern side followed by other occupants of the shop. He saw that accused Mohan was standing along with co-accused Radhey Shyam in the lane leading to Nawapura just by side of road on the western side of shop. Krishna Kumar son of complainant also came out of balcony of first floor and shouted, “what are you doing?” Just then Radhey Shyam exhorted the accused Mohan to kill, whereupon he threw a bomb, which he was holding in his hand, towards Krishna Kumar. This bomb struck against bracket in the balcony and exploded. Its component fell down on the road. Both the accused fled away towards Nawapura. Bracket as well as collapsible gate had bent due to explosion of bomb. Bomb had been hurled out with an intention to kill the complainant and his family member, Krishna Kumar and also to loot his shop. 6. Two persons namely Ramji Singh and Km. Kiran, aged about 9 years, are alleged to have received injuries in the incident. Injuries were examined by Dr. R.K. Singh, who was posted on the said date in emergency ward in the capacity of Medical Officer. Following injury is found on person of Ramji Singh, which is Ext. Ka-3 and detailed below : M.I.:- Old scar 2 cm x 1.5 cm on back of right side neck. Injury:- Traumatic swelling 1.5 cm x 0.5 cm on left termporal region seen above left ear ..sic... No definite opinion can be given regarding duration. Injury was caused by blunt object and reported to be simple in nature. Injuries received by Km. Kiran, is Ext.Ka-4 and is quoted below:- M.I.:- Black mole on ...? of right ring finger. Injury:- Traumatic swelling 1.5 cm x 0.5 cm on left termporal region seen above left ear ..sic... No definite opinion can be given regarding duration. Injury was caused by blunt object and reported to be simple in nature. Injuries received by Km. Kiran, is Ext.Ka-4 and is quoted below:- M.I.:- Black mole on ...? of right ring finger. Injuries:- (1) Abrasion 0.5 cm x 9.25 cm on outer aspect of right shoulder. (2) C/o pain right leg no visible injury seen. Injuries were caused by blunt object and reported to be simple in nature. Duration fresh. 7. The prosecution examined as many as four witnesses namely Nand Lal PW-1, Krishna Kumar PW-2, Dr. R.K. Singh PW-3 and Jagdish Tewari S.I. PW-4, who investigated the case. Though first information report was lodged against present appellant as well as Radhey Shyam but only present appellant was charge sheeted. Charge was framed only under Section 307, I.P.C. No charge was framed under Explosive Act. 8. The counsel for appellant submits that two injured namely Ramji Singh and Km. Kiran have not been examined by prosecution. Km. Kiran is a young girl aged about 9 years yet she was injured witness but Ramji Singh, who also received injury, should have proved injury, which prosecution has withheld without any explanation. 9. Next argument is that injuries are reported to be simple in nature. Since no charge sheet was submitted against appellant under Explosive Act, entire theory of hurling out bomb, which according to prosecution caused injuries, stands negated. 10. The counsel for appellant has placed statement of the doctor wherein he has opined that injury of Ramji Singh could have been caused if he collided with some hard object. Injuries of Km. Kiran could be caused by friction. This alone substantiates and falsifies the entire prosecution case. Besides, learned counsel has also placed statement of the accused under Section 313, Cr.P.C. wherein it has been mentioned that police as well as complainant were highly inimical and they colluded to implicate appellant in this false case. In fact, he was neither present nor participated in the crime. To support this contention, a number of documentary evidence has been brought on record. (i) A true copy of a postal receipt of telegram. The date of booking is not legible. It is Ex.Kha-1. In fact, he was neither present nor participated in the crime. To support this contention, a number of documentary evidence has been brought on record. (i) A true copy of a postal receipt of telegram. The date of booking is not legible. It is Ex.Kha-1. (ii) A receipt of copying fee charged by telegraph department for copy of telegram No. A3 dated 19.3.1978 is Ex. Kha-2. (iii) True copy of the said telegram dated 19.3.1978 sent by Mata Prasad to D.I.G. Police Varanasi and District Magistrate, Varanasi, is Ex. Kha-3. (iv) Copy of judgment dated 9.12.1980 passed by IIIrd Additional Sessions Judge, Varanasi, in S.T. No. 41 of 1980, State v. Mohan son of Mahadeo Prasad, is Ex.Kha-4. (v) Copy of judgment dated 22.7.1980 passed by Sessions Judge, Varansi, in criminal appeal No. 122 of 1980, Mohan @ Bichchia v. State, against his conviction under Section 380, I.P.C. by Vth Munsif Magistrate, Varanasi, is Ex. Kha-5. (vi) Copy of application of the counsel for accused Mohan @ Bichchia dated 10.4.1978 moved in the Court of Chief Judicial Magistrate, Varanasi in connection with case crime No. 143/75, under Sections 307, 147, 148, 149, I.P.C. along with a copy of report dated 11.4.1978 on the said application, is Ex.Kha-6. (vii) Copy of judgment dated 20.3.1980 passed by Sri R.N. Srivastava, A.D.M. City, Varanasi, in case No. 61 of 1978 under Section 3 U.P. Control of Goondas Act, is Ex. Kha-7. (viii) Copy of judgment dated 14.9.1978 passed by City Magistrate, Varansi, in case No. 43 of 1973 under Section 294 I.P.C. is Ex. Kha-8. 11. It is also urged on behalf of defence that police of Kotwali circle is deeply annoyed with the accused, who had prosecuted S.I. Chaituram and whose brother Mata Prasad sent telgram against said S.I. Chaituram and some constables of Kotwali circle for committing trespass in his house at night before 19.3.1978. Copy of telegram has been filed in defence. Police of Kotwali circle prosecuted the accused on a charge under Section 307, I.P.C. on the report of S.I. Chaituram in respect of an offence alleged to have taken place at night between 12/13.11.1979. Learned IVth Additional Sessions Judge, Varanasi, acquitted the accused in Session Trial No. 41 of 1980 vide judgment and order dated 9.12.1980, Ex. Kha-4. Police of Kotwali circle prosecuted the accused on a charge under Section 307, I.P.C. on the report of S.I. Chaituram in respect of an offence alleged to have taken place at night between 12/13.11.1979. Learned IVth Additional Sessions Judge, Varanasi, acquitted the accused in Session Trial No. 41 of 1980 vide judgment and order dated 9.12.1980, Ex. Kha-4. He was also prosecuted by police on a charge under Section 380, I.P.C. but he was acquitted in appeal by learned Sessions Judge, Varanasi, vide Ex.Kha-5. Police had to submit a final report against the accused in case crime No. 143 of 1975 under Sections 307, 147, 148, 149, I.P.C. on 11.4.1978. He was also prosecuted under Section 3 of U.P. Control of Goondas Act but notice was discharged by Additional District Magistrate (City) Varanasi on 20.3.1980. Copy of judgment is Ex.Kha-7. Police was also unsuccessful in getting the accused convicted under Section 294, I.P.C. Copy of judgment is Ex. Kha-8. On the basis of these unsuccessful prosecution, it is urged on behalf of defence that police had animus against the accused, therefore, investigation has not been conducted fairly. 12. Learned A.G.A. has disputed each and every argument advanced by Ms. Anita Srivastava, amicus curiae for appellant. 13. It is true that police had an axe to grind against appellant for the reason already detailed above. Since neither charge sheet was submitted nor charge was framed, which can substantiate hurling out of bomb, this itself belies the entire prosecution story. Merely collection of certain particles of bomb, which is Ex. Ka-2 and recovery of pieces of bomb is not sufficient to substantiate as propounded by prosecution that bomb was hurled out with an intention to kill the injured. No motive has been assigned by prosecution on the contrary prosecution witnesses had motive to falsely implicate appellant. If there was an intention to kill PW-1 on account of animosity then an attempt would have been made on him. Two persons, who have admittedly not come forward to support prosecution case, I do not think that conviction recorded by Sessions Judge can be upheld. 14. For the reasons detailed hereinabove, judgment and order dated 7.8.1981 passed by Vth Additional Sessions Judge, Varanasi, is set at naught. Sureties and bail bonds of appellant are discharged. The instant appeal is allowed. ————