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2022 DIGILAW 952 (MP)

Om @ Omiya v. State of M. P.

2022-07-20

ANIL VERMA

body2022
ORDER 1. The appellants have filed present criminal appeal under section 374(2) of Code of Criminal Procedure (in short” Cr.P.C”) against the impugned order and judgment dated 22.9.1998 passed in ST no. 149/1998, wherby the both the appellants have been convicted under section 3 of the Explosive Substance Act read with section 34 of IPC and sentenced to undergo five years rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine, further undergo two months rigorous imprisonment. 2. Fact of the case in brief is that on 14.11.1997 at about 10-11 pm, both the appellants came to the house of the complainant Kamleshwar and started abusing him in filthy language. The complainant objected to do so. They told the complainant why his son lodged FTR against them, they would kill him. Thereafter, the complainant ran at his house and closed the door of the house. Thereafter, the appellant Om took out bomb from his pocket and threw it at the house of the complainant, which fell on the wall of the house, due to which, blast occurred. On the next day, the complainant lodged FIR at police station -Banganga, Indore, During investigation, the Investigating Officer seized some parts of the explosive substance from the spot. Spot map was also prepared by him vide Ex.-P/2 and after sanction of District Magistrate, Indore, charge-sheet was filed before the trial court. The trial Court framed the charges under sections 294, 506(part-II) of IPC and sections 3 and 4 of the Explosive Substances Act against both the appellants/accued. The appellants abjured their guilt and took a plea that they are innocent. They were not present on the spot at the time of the incident. They were implicated in the said offence due to previous enmity. The prosecution examined as many as eight witneness to prove their case, however, no witness had been examined by the defence. 3. The trial Court, after due consideration of the evidence available on record, acquitted the appellants/accused from the charges under sections 294, 506(part-II) of IPC, but convicted them under section 3 of the Explosive Substances Act readwith section 34 of IPC and sentenced to undergo five years R.I with fine of Rs. 500/- each with default stipulation. 4. 3. The trial Court, after due consideration of the evidence available on record, acquitted the appellants/accused from the charges under sections 294, 506(part-II) of IPC, but convicted them under section 3 of the Explosive Substances Act readwith section 34 of IPC and sentenced to undergo five years R.I with fine of Rs. 500/- each with default stipulation. 4. The appellants have preferred present appeal on several grounds that learned Court below has failed to appreciate the facts and circumstances of the case reasonably and properly. The trial Court has grossly erred in relying upon the version of prosecution witnesses. The trial court has not considered material omission and contradictions in the statements of the prosecution witnesses and discarded the defence version. The judgment passed by the trial Court is neither legal, nor proper and correct. Under these circumstances, present appeal be allowed and the judgment of conviction be set aside by acquitting the appellants from all the charges. 5. Per-contra, learned GA for the respondent/State has opposed the prayer made by learned counsel for the appellants and prays for dismissal of present appeal by submitting that the trial Court has rightly convicted and sentenced the appellants and the sentence in question is just and proper, therefore, no need to interfere in the findings of the trial Court. 6. Heard learned counsel for both the parteis at length and perused the records as well as evidence available on record. 7. Complainant Kamleshwar Mishra (PW-4) has stated in his statement that at the time of the incident, between 10-11 pm, accused persons came to his hosue and told that his son along with deshi lodged FIR against them and they would kill him. Thereafter, accused Om took out something from his pocket. The complainant closed the door of his house, but the accused Om threw bomb at his house, which fell on the tark of the door, due to which, explosion occurred and some bullets spread up. He lodged FIR (Ex-P/3) at police station – Banganga, Indore. After that, the police officials came to his home and recovered some bullets, hemp and tadi from the spot vide seizure memo Ex.-P/1). The police also prepared spot map vide Ex.-P/2. 8. Witness Munna Tiwari (PW-1) stated in his statement that at the time of the incident, some unknown persons threw hand bomb at the house of the complainant Kamleshwar. After that, the police officials came to his home and recovered some bullets, hemp and tadi from the spot vide seizure memo Ex.-P/1). The police also prepared spot map vide Ex.-P/2. 8. Witness Munna Tiwari (PW-1) stated in his statement that at the time of the incident, some unknown persons threw hand bomb at the house of the complainant Kamleshwar. After that, the police recovered some bullets, hemp from the spot vide seizure memo Ex-P/1 and also prepared spot map vide Ex.-P/2. 9. Witness Yashwarnt Singh (PW-2) and Deepak (PW-3) also corroborated the statement of the complainant by stating that in front of them, accused Om threw bomb at the house of the complainant, due to which, blast occurred, but nobody got injured in that blast. 9. Witness Sachin (PW-5), who is son of the complainant also corroborated the statement of the complainant by stating that at the time of the incident, he was inside the house. When he heard sound of some explosion, he came out of the house and saw that accused persons were running away from the spot, but in crossexamination, he admits that he did not see, who threw the said bomb. 10. Witness J.P. Singh (PW-7), Sub-Inspector stated in his statement that during investigation, he recovered some parts of explosive substance from the spot and prepared seizure memo Ex.- P/1 and also spot map (Ex,-P/2). He arrested both the accused/appellants vide arrest memo Ex.-P/5. Thereafter, he sent the seized articles for its chemical analysis vide Ex.-P/6. 11. Witness Suryadev Singh (PW-8) has stated that he lodged FIR (Ex-P/3) at the instance of the complainant Kamleshwar. 12. As per the statement of witness Nekram (PW-6), who is arms clerk in the office of District Magistrate, Indore, the District Magistrate, Indore has given sanction or consent for prosecution vide letter Ex._P/4. 13. Learned counsel for the appellant contended that the prosecution has failed to prove the sanction of Central Government as required under section 7 of the Explosive Substances Act, 1908. The sanction awarded by the District Magistrate does not satisfy the statutory mandate. Sanction must be awarded by the Central Government as per section 7 of the Explosive Substance Act, 1908, therefore, conviction of the appellant in the offence under section 3 of the Explosive Substances Act,1908 must fail. The sanction awarded by the District Magistrate does not satisfy the statutory mandate. Sanction must be awarded by the Central Government as per section 7 of the Explosive Substance Act, 1908, therefore, conviction of the appellant in the offence under section 3 of the Explosive Substances Act,1908 must fail. As regard to the submission of learned counsel for the appellant, learned public prosecutor has fairly submitted that there is no material on record to show that no prior sanction or consent from the Central Government for filing charge-sheet against the appellant. 14. Counsel for the appellants has relied upon the judgment delivered by Andhra Pradesh High Court in the case of Ahmed Bin Salim and another v. State of Andhra Pradesh reported in 1993(3) Crime 788, in which it has been held that no Court can proceed to trial on any offender for offence under the Explosive Substances Act without the sanction of the Central Government. Since admittedly, no sanction from the Central Government, as required under section 7 of the Explosive Substances Act, 1908, has been obtained or produced by the prosecution. Although w.e.f 1.2.2002 by the Act no. 52 of 2001, the word “ District Magistrate has been substituted for the Central Government in section 7 of the Explosive Substances Act, but in the instant case, the offence has occurred in the year 1997, therefore, the provision, which was effected from 1.1.2002 by the Act No. 52 of 2001, is not applicable in this matter and as per the earlier provision, sanction from the Central Government is necessary. As per the law laid down by Kerla High Court in case of Ahmed Bin Salim (supra), in absence of prior sanction or consent of the Central Government, the appellants are entitled for acquittal. The trial Court below has grossly erred in completely ignoring the fact of prior sanction of the Central Government, therefore, the impugned judgment of the trial Court cannot be sustained. 15. It is noteworthy to say that although the police recovered some parts of explosion from the spot vide seizure memo Ex.-P/1, but as per the requirement of section 4(d) of the Explosive Substances Act, 1908, burden to prove lies upon the prosecution that the seized articles are covered in the definition of the Explosive Substances Act. 15. It is noteworthy to say that although the police recovered some parts of explosion from the spot vide seizure memo Ex.-P/1, but as per the requirement of section 4(d) of the Explosive Substances Act, 1908, burden to prove lies upon the prosecution that the seized articles are covered in the definition of the Explosive Substances Act. Admittedly, the seized articles in the instant case were not sent for chemical examination, therefore, in absence of chemical examination report, it is not proved that the seized articles are explosove substances, therefore, in absence of expert report, the prosecution has failed to prove that the seized articles/ explosive substances falls within the definition of section 4(d) of the Explosive Substances Act. 16. Considering all the facts and circumstances of the case, aforesaid case law and evidence available on record, there is no hesitation to say that the prosecution has failed to prove the charge against both the appellants beyond reasonable doubts, therefore, present criminal appeal is allowed and the conviction and the sentence under section 3 of the Explosive Substances Act, 1908 is hereby set aside and the appellants are acquitted from the charge under section 3 of the Explosive Substances Act, 1908. The appellants are on bail, therefore, their bail bond stands discharged. The fine amount, if any, deposited, be refunded to the appellants Disposal of the property shall as per the order of the trial Court. 17. A copy of the judgment alongwith records be sent back to the trial Court concerned for information and necessary compliance. 18. In light of the aforesaid discussions, present Criminal Appeal is allowed and disposed of.