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2013 DIGILAW 76 (PAT)

Binod Singh @ Binod Kr. Singh v. State Of Bihar

2013-01-17

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel appearing for the appellant as well as learned Additional 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 06.12.2000 passed by 5th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 502 of 1992 by which and whereunder he convicted the appellant for the offence punishable under Section 323 of the Indian Penal Code and acquitted him of the charge framed against him under Section ¾ of Explosive Substance Act, 27 of the Arms Act as well as 307 of the Indian Penal Code and, accordingly, he directed the appellant to enter into a bond of rupees one thousand with one surety of the like amount each for a period of three years and in default to execute the bond, the appellant was ordered to undergo six months rigorous imprisonment and furthermore, the appellant was directed to keep peace and be of good behaviour and further to appear and receive sentence when called upon during the said period. 3. The prosecution case, in brief, is that P.W.3., namely, Munna Singh gave his Ferdbeyan to S.I. of Murarpur Police Station on 05.04.1991 to this effect that on the same day at about 08:30 A.M. he along with P.W.4. was going by motorcycle and reached near Chhapariya market and in the meantime, appellant and one Sharwan Kumar were standing there and the appellant hurled bomb which was fallen in front of the motorcycle. The P.W.3. speeded the motorcycle but again the bomb was hurled which caused injury to him and P.W.4., Diwakar Kumar Singh and after that above named Sharwan Kumar opened fire but the said firing did not hit anyone. P.W.3. and P.W.4. came at Garhpar and again returned to the place of occurrence where police reached and recorded the Ferdbeyan of P.W.3. 4. On the basis of aforesaid Ferdbeyan, Bihar (Murarpur) P.S. Case No. 120 of 1991 under Sections 307, 324/34 of the Indian Penal Code, ¾ of Explosive Substance Act and 27 of the Arms Act was registered and, accordingly, formal first information report was drawn against the appellant and the aforesaid Sharwan Kumar for the above stated offences. 4. On the basis of aforesaid Ferdbeyan, Bihar (Murarpur) P.S. Case No. 120 of 1991 under Sections 307, 324/34 of the Indian Penal Code, ¾ of Explosive Substance Act and 27 of the Arms Act was registered and, accordingly, formal first information report was drawn against the appellant and the aforesaid Sharwan Kumar for the above stated offences. The matter was investigated by the Investigating Officer and after completion of investigation, Investigating Officer submitted charge sheet for the offences under Sections 307, 323/34 of the Indian Penal Code and 27 of the Arms Act. The cognizance of the offences was taken and, accordingly, the appellant as well as aforesaid co-accused, Sharwan Kumar were put on trial. 5. The appellant along with the aforesaid co-accused, Sharwan Kumar was charged for the offences under Sections 307 of the Indian Penal Code, ¾ of Explosive Substance Act and 27 of the Arms Act to which they denied and pleaded not guilty and claimed to be tried. In support of its case, prosecution examined, altogether, five witnesses and also got exhibited formal first information report as Exhibit-1, Ferdbeyan of P.W.3. as Exhibit-2, signature of P.W.3. as Exhibit-2/1. 6. The statements of appellant and co-accused, Sharwan Kumar were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced either on behalf of the appellant or on behalf of co-accused, Sharwan Kumar in support of their defence. 7. The learned trial court having relied upon the deposition of P.W.4. passed the impugned judgment of conviction and sentence order by which he convicted the appellant and sentenced him in the manner as stated above whereas co-accused Sharwan Kumar was acquitted of the charges. 8. Learned counsel appearing for the appellant submitted that out of five prosecution witnesses, P.W.1. and P.W.2. are formal witnesses and they have stated nothing in respect of the alleged occurrence and P.W.3., the informant of this case has been declared hostile by the prosecution and this witness has, specifically, admitted in his examination in chief that he could not say who had hurled bomb and had fired on him. He further submitted that similarly, P.W.5. has also been declared hostile and except P.W.4., there is no other witness in support of the prosecution case. He further submitted that similarly, P.W.5. has also been declared hostile and except P.W.4., there is no other witness in support of the prosecution case. He further submitted that in the present case, the doctor has not been examined nor the injury report has been brought on the record. He further submitted that it is specific case of the prosecution that P.W.3. and P.W.4. sustained injury by throwing of bomb and it is not case of the prosecution that P.W.3. and P.W.4. were assaulted by hard and blunt substance and, therefore, unless and until the injury report of P.W.3. and P.W.4. has not proved, the appellant cannot be convicted for the offence punishable under Section 323 of the Indian Penal Code. It is further contended by him that although, the prosecution suppressed the injury report of injured persons but at para 98 of the case diary, the contents of injury reports of P.W.3. and P.W.4. have been mentioned by the Investigating Officer and the aforesaid paragraph of the case diary reveals that both the injured had sustained injury caused by hard and blunt substance and, therefore, the story of throwing bomb is completely demolished. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W.4. has specifically stated in his examination in chief that this appellant hurled bomb causing injury on his abdomen and, therefore, the appellant has rightly been convicted and sentenced by the learned trial court. 10. On perusal of the evidences available on the lower court record, I find that except P.W.4., none of the prosecution witness has supported the prosecution story. P.W.4. has admitted in his examination in chief that appellant hurled bomb on him which caused injury on his abdomen as well as on the leg of P.W.3. Admittedly, the doctor, who examined the P.W.3. and P.W.4., has not been examined nor any injury report has been brought on the record. In absence of injury report of P.W.4., it is very difficult to say as to whether P.W.4. Admittedly, the doctor, who examined the P.W.3. and P.W.4., has not been examined nor any injury report has been brought on the record. In absence of injury report of P.W.4., it is very difficult to say as to whether P.W.4. had sustained any injury on his person or not and, therefore, I do agree with the submission of learned counsel for the appellant that examination of doctor in the present case was essential, particularly, in the circumstance, when there is specific case of prosecution that injured had sustained injury by bomb and non examination of the doctor as well as non production of any injury report is fatal to the prosecution case. 11. On the basis of aforesaid discussions, I am of the opinion that the learned trial court has committed an error in convicting the appellant under Section 323 of the Indian Penal Code and, accordingly, this criminal appeal is allowed and the impugned judgment of conviction and sentence order dated 06.12.2000 is, hereby, set aside and the appellant is acquitted of the charge framed against him. He is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.