Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 189 (PAT)

Nagendra Tiwary v. State Of Bihar

2013-02-08

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 15.9.2001 passed by Sri Anant Prasad Srivastava, learned Adhoc. Addl. Sessions Judge, Siwan in Sessions trial no. 14/1993 by which and whereunder he convicted the appellant and one accused Pramod Tiwari for the offence punishable under section 324/34 of the Indian Penal Code and directed them to undergo the period already undergone by them in jail custody and furthermore, he convicted accused Awdhesh Tiwari for the offence punishable under section 324 of the Indian Penal Code and the aforesaid accused was also sentenced to undergo the period already undergone by him in course of trial. 3. The prosecution case, in brief, is that the informant Ashok Kr. Singh gave his fardbeyan on 1.4.1992 at about 3.55 p.m. to the SI of Mairwa police station to this effect that on the same day at about 11 p.m. while he along P.W 2 and some others were returning from their school and reached south side of primary school of village, accused Awdhesh Tiwari along with accused Pramod Tiwari and the appellant came there and accused Awdhesh Tiwari ordered to kill him and after that accused Awdhesh Tiwari hurled bomb on him which hit him and he sustained injury. The accused Pramod Tiwari and the appellant were also carrying bombs but when he fell down on earth, the appellant and two others fled away from there. The aforesaid occurrence was witnessed by his co-villagers and after the occurrence, he was taken to Mairwa hospital. 4. On the basis of fardbeyan, Mairwa P.S. case no.34/1992 for the offences under sections 324, 307/34 of the Indian Penal Code and 3/ 5 of the Explosive Substance Act was registered and accordingly, formal first information report was drawn for the aforesaid offences against the appellant and two others. The matter was investigated by the Investigating officer and after completion of investigation, Investigating officer submitted charge sheet against the appellant and two others for the offences under section 307/34 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 5. The matter was investigated by the Investigating officer and after completion of investigation, Investigating officer submitted charge sheet against the appellant and two others for the offences under section 307/34 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 5. The appellant along with co–accused Pramod Tiwari was charged for the offence under section 307/34 of the Indian Penal Code and accused Awdhesh Tiwari was separately charged for the offence under section 307 of the Indian Penal Code. The appellant as well as other accused denied the charge and claimed to be tried. 6. In course of trial, prosecution examined, altogether, four witnesses and proved seizure list as exhibit 1. The statements of the appellant and the accused were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. No evidence was adduced on behalf of the appellant and other accused in support of their defence. 7. The learned trial court, having relied upon the testimony of P.Ws 1 and 2 coupled with seizure list and the materials available on the case diary, passed the impugned judgment and sentence order in the manner as stated above. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order submitting that injured of this case was not examined by prosecution nor any injury report was brought on record. He further submitted that neither Investigating officer nor doctor was examined and, as a matter of fact, the learned trial court convicted and sentenced the appellant only on the basis of surmises and conjectures. 9. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that P.W 2 has supported the prosecution story and claimed himself to be an eye-witness of alleged occurrence and similarly, P.W. 1 is a witness of seizure and he, specifically, stated that bomb and other articles were recovered from the possession of accused Awdhesh Tiwari in his presence. So, even if the informant has not been examined in this case, prosecution has succeeded to prove its case beyond all shadow of reasonable doubts. 10. As I have already stated that only four prosecution witnesses were examined in this case. Out of four prosecution witnesses, P.Ws. So, even if the informant has not been examined in this case, prosecution has succeeded to prove its case beyond all shadow of reasonable doubts. 10. As I have already stated that only four prosecution witnesses were examined in this case. Out of four prosecution witnesses, P.Ws. 3 and 4 have been declared hostile and they have stated nothing in respect of the alleged occurrence in their depositions. 11. So far as P.W. 1, Ram Naresh Yadav is concerned, this witness stated that one live bomb and other articles were recovered from the possession of accused Awdhesh Tiwari and seizure list was prepared in his presence. This witness proved his signature on seizure list. It is apparent from perusal of deposition of this witness that this witness admitted that injured Ashok Kr. Singh had disclosed him that accused Awdhesh Tiwari had hurled bomb on him at the order of the appellant. So, the aforesaid statement of P.W 1 indicates that he had not seen accused Awdhesh Tiwari hurling bomb on the informant. The attention of this witness was drawn by the defence towards this fact that he had not made the statement before the police that it was injured Ashok Kr. Singh who had disclosed the name of the appellant and others to him. Moreover, at para 2 of his cross-examination, this witness has admitted that brother of the appellant had filed criminal case against him as well as his father. 12. P.W. 2, Ram Pravesh Yadav has supported the prosecution story and claimed himself to be an eye- witness of alleged occurrence. This witness has stated that at the order of the appellant, accused Awdhesh Tiwari hurled bomb on the informant Ashok Kr. Singh as a result of which he sustained injury and fell down on earth. On being cross-examined, this witness expressed his inability to disclose this fact as to whether any proceeding under section 107 of the Cr.P.C was pending between accused persons of the case and his family members. 13. On careful examination of the aforesaid materials, it is apparent that P.W 1 came to know about the alleged occurrence from the informant Ashok Kr. Singh but admittedly, the informant has not been examined in this case. So, it is clear from the aforesaid facts that P.W 1 is not a competent witness on the point of assault. 14. 13. On careful examination of the aforesaid materials, it is apparent that P.W 1 came to know about the alleged occurrence from the informant Ashok Kr. Singh but admittedly, the informant has not been examined in this case. So, it is clear from the aforesaid facts that P.W 1 is not a competent witness on the point of assault. 14. So far as P.W. 2 is concerned, although he supported the prosecution story of throwing bomb but in absence of examination of the informant of the present case, it is difficult to believe on the testimony of the aforesaid witness because testimony of the aforesaid witness is not corroborated by the statement of the informant. Moreover, doctor has also not been examined and, therefore, prosecution has not succeeded to prove this fact that the informant Ashok Kr. Singh has sustained injury in the alleged occurrence. Apart from this, Investigating officer has also not been examined. So, non-examination of Investigating officer has caused serious prejudice to the defence. 15. From perusal of the impugned judgment of the learned trial court, it appears that the learned trial court, having perused the case diary, came to the conclusion that informant Ashok Kr. Singh sustained injury but, in my view, until and unless, injury report of injured Ashok Kr. Singh is not brought on record legally, the aforesaid injury report could not have been taken in evidence. 16. In the aforesaid circumstances, I am of the opinion that the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts and the learned trial court committed an error in convicting and sentencing the appellant. 17. Thus, on the basis of the aforesaid discussions, this criminal appeal is allowed. The impugned judgment of conviction and sentence order dated 15.9.2001 passed by learned Adhoc. Addl. Sessions Judge, Siwan in Sessions trial no. 14/1993 are, hereby, set aside. The appellant is acquitted of the charge.