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2012 DIGILAW 447 (UTT)

STATE OF UTTARANCHAL v. ARVIND BISHT

2012-08-01

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2012
JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. The government has preferred this appeal against the judgment and order dated 5.7.2003, rendered by learned Additional Sessions Judge/F.T.C., Tehri Garhwal in S.T. No.33 of 2002, “State Vs. Arvind Bisht”, whereby the accused/respondent was acquitted from the offences punishable under Section 304 (Part II) IPC r/w Sections 2/3 of the Explosive Substances Act, 1908 (hereinafter to be referred as the Act). 2. Heard learned counsel for the parties and perused the entire material available on record. 3. The facts of the case are that an FIR (Ex.A-6) was lodged at Police Outpost, New Tehri on 20.5.2002 at 12:10 PM by one Sadhu Naik, the Chik report whereof is Ex.A-21. As per the contents of the same, a heavy explosion occurred at about 10:15 AM on 20.5.2002 near the residence of one Ajay Pal Rana, who was an employee of the Forest Department. On hearing the uproar, the complainant rushed to the spot and found that there was a commotion among the children present there. He also noticed that two children, namely, Rohit and Pintu, aged about six and eight years respectively, had died on account of this explosion. The complainant also noticed a battery and a broken clock besides many pieces of wire at the spot, which were indicating that they were used in the explosion. It was also mentioned in the FIR that some children, namely, Arun, Somi and Km. Roma have also been seriously injured as a result of this explosion, who were sent for treatment at the government hospital. 4. The matter was investigated by the police which resulted into the submission of a chargesheet against the accused Arvind Bisht under Sections 302/307 IPC r/w Section 2/3 of the Act. 5. Thereafter, the charge was framed against the accused under Section 304 (Part II) IPC instead of Sections 302/307 IPC, as also under Sections 2/3 of the Act. The accused pleaded not guilty and claimed to be tried. 6. Before the trial court, the prosecution has examined as many as six witnesses. 7. After the prosecution evidence, the accused was examined u/s 313 Cr.P.C. The accused has stated that the police, in order to avoid its responsibility, have submitted a false chargesheet against him. 8. The accused pleaded not guilty and claimed to be tried. 6. Before the trial court, the prosecution has examined as many as six witnesses. 7. After the prosecution evidence, the accused was examined u/s 313 Cr.P.C. The accused has stated that the police, in order to avoid its responsibility, have submitted a false chargesheet against him. 8. Learned trial court, having gone through the statements of the witnesses and after considering the merits of the case, passed the judgment of acquittal which is under challenge by the State. 9. Out of the six witnesses, PW1 Sunny is a child witness, who disclosed his age as seven years at the time of deposition, which was done after one year of the incident. It can be inferred that at the time of incident, his age should have been at the most six years. Learned Sessions Judge, however allowed him to be examined by the prosecution, assessing his prudence by asking a question whether one should speak the truth! The child replied in affirmative. So, the learned Judge was of the view that the child witness understands the sanctity of oath as well as true and false. 10. However, having gone through the statement of PW1, he has named one ‘Motu uncle’ as the person who had planted this bomb. The said ‘Motu uncle’ was not present in the court at the time of his deposition and this could not be further clarified whether that ‘Motu uncle’ is the accused Arvind Bisht. That apart, at the time of recording his statement by the Investigating Officer under Section 161 Cr.P.C., he had disclosed his father’s name as Laxman, whereas at the time of his deposition in the court, the name of his father has been disclosed as ‘Ramchandra’. This witness has specifically denied that his father is not called by the name ‘Laxman” rather his father’s name is ‘Ramchandra’. So, it is also not sure whether this child witness ‘Sunny’ is the same person who was examined by the Investigating Officer u/s 161 Cr.P.C. This witness simply says that he heard from the people that ‘Motu uncle’ has planted a bomb, however he is unable to identify any such person. In his cross-examination, he has deposed that whatever he was stating in the court was at the instigation of the police. So, this witness has rightly been disbelieved by the trial court. In his cross-examination, he has deposed that whatever he was stating in the court was at the instigation of the police. So, this witness has rightly been disbelieved by the trial court. Apart from the testimony of this child, there is no other evidence against the accused. 11. Another witness of fact is said to be PW6 Manish Soni, who has specifically denied to have seen the planting of the bomb by the accused. He had not even seen the accused on the date of occurrence, though he lives adjacent to his house. He has not even seen any such occurrence in respect of the explosion of bomb. So, this witness is also worthless. The 4 prosecution version thus, does not get any strength from the above two fact witnesses. 12. PW2 is Dr. Manoj Badoni who has conducted the autopsy on the dead bodies of deceased Rohit and Pintu. Thus, merely the availability of post-mortem report, about the above said two children, cannot point out any guilt towards the accused Arvind Bisht. 13. PW3 is Dr. Yatendra Singh who has examined the injured children and has proved the injury reports Ex.A-3, A-4 and A-5 in respect of injured children Soni, Arun and Km. Roma respectively. So, this witness is also a formal one. 14. PW4 is Sadhu Naik who has lodged the FIR. It is quite remarkable to be noticed that he is the resident of ‘Orissa’ but he was living in Tehri for providing the labourers/workers to the needy persons. He did not know Hindi nor he was present at the spot on the relevant date and time. Even he has denied the dictation of report by him. He has also clarified that the police called him and asked to report about the matter. When he expressed his inability about having any knowledge of Hindi language, then the police personnel themselves drafted the report and obtained his signatures thereon. So, this witness is also worthless. 15. PW5 is S.S.I. Ashok Kumar Tyagi, who conducted the investigation and submitted the chargesheet. He has also given the formal witness. 16. In our considered view, the trial court has rightly passed the judgment and order of acquittal in the present case which is not interferable at all by this Court. There was even no reason for the Government, much less any substantial ground, to prefer this appeal before this Court. 17. He has also given the formal witness. 16. In our considered view, the trial court has rightly passed the judgment and order of acquittal in the present case which is not interferable at all by this Court. There was even no reason for the Government, much less any substantial ground, to prefer this appeal before this Court. 17. The appeal preferred by the State is thus, devoid of any merit and liable to be dismissed. It is accordingly dismissed. Let the lower court record be sent back.