Brahamdeo Sharma vs The State of Jharkhand

Jaya Roy, J.—Heard the learned counsel for the appellant and the learned counsel for the State.

The appellant has filed the instant appeal against the Judgment dated 29.11.2002 passed by the Vth Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 184 of 2002, whereby the appellant has been convicted for offences u/s 3 and 4 and 4(b) of the Explosive Substance Act, and by the order dated 30.11.2002 the appellant has been sentenced to under go Rigorous imprisonment for Seven years and fine of Rs. 10,000/- (Rs. Ten thousands) failing which to go for further Rigorous imprisonment of Six months.

The prosecution case in brief is that the fardbayan of the informant Braham deo Sharma (who is the appellant in this appeal) has been recorded by S.I. Sriniwas Kumar on 7.12.2001 at about 19.25 P.M. at his resident at Baralota stating therein that on that day at about 4.00 P.M. he received a parcel from the postman about which he had received a letter on 28.11.2001. The parcel was about one and half kilogram heavy and 6" x 4" and thickness of 2 1/2". As he has some suspicion he kept the packet on wooden stand after cutting the parchment by the blade. Thereafter, after opening the cardboard box, steel Box came out tied with a long wire in the latches portion of the box and the edge was stick with licoplast to the other portion. As the informant became suspicious, he left the box there and sent his nephew namely Babu for calling the Chowkidar of the village. Chowkidar Nand Kumar came and the informant showed him the said parcel in presence of his partner Ajay Sinha. Thereafter, the Chowkidar and Ajay Sinha went to the telephone booth for informing the Police Station. Thereafter, the police came and some known persons also came there. At that time Rajnish @ Dablu also came there and he removed the wire with pliers in his hand and also removed the Licoplast and as he tried to open the box, there was big explosion and huge smoke came out and said Rajnish @ Dablu fell there screaming and the other two police personals and Choukidar also received serious injuries. On hearing the sound of explosion, the Petrolling party reached at the spot and they took all the injured persons to the Hospital. The informant has further alleged that one Girja Shankar Tiwary with whom the informant had land dispute for which he earlier attempted to kill the informant, has made all this episode. On the basis of the aforesaid fardbeyan, a formal F.I.R. has been drawn and a case has been registered under Sections 3/4/5 of Explosive Substance Act against Girja Shankar Tiwary. After investigation the Police has submitted charge sheet against the Brahamdeo Sharma (the present appellant) u/s 3/4/5 Explosive Substance Act and u/s 120B I.P.C.

The counsel appearing for the appellant submits that the prosecution has examined five witnesses. P.W. 1 Jaglal Ram, P.W. 2 Nand Kumar Ram, P.W. 3 Ajay Kumar Sinha, P.W. 4 Srinivas Kumar, and P.W. 5 Dr. Mohan Prasad. Amongst them, P.W. 1 Jaglal Ram who had also received some injuries, has stated in his evidence that at the relevant time he was posted at Petrolling duty. He received the wireless message from the Choukidar that one Brahamdeo Sharma received a suspicious parcel. When he reached, there he found small box of steel was kept on wooden stand and copper wire was wrapped over the box, and an young man was trying to open it and while he opened it, there was an explosion. P.W. 1 has also sustained injures and became unconscious and he was taken to Sadar Hospital for treatment. He was put to cross examination. In his cross examination, he has stated that he became senseless for some time and when he regained conscious, he found the Choukidar lying as injured. But the P.W. 1 has not stated any thing which proves the involvement of the appellant in the commission of the offence.

P.W. 2 Nand Kishore Ram has stated in his evidence that Braham deo Sharma (appellant) told him that a parcel box had come and he wanted to show him. When Nand Kumar Ram P.W. 2 reached the house of the appellant, he found a box which was like as ''compounder box'' for keeping injection etc, was kept near the wall on a wooden stand. As he was informed that Petrolling party was coming so he could not take any step, simply stayed there. At about seven, when the petrolling party came to the place of occurrence, the driver has said that the parcel could be opened and there was no question of being afraid. Brahamdeo Sharma went to bring the pliers. He further stated that driver told that it was dark, he could not see. So he could only cut wire in half. Then Rajnish Prasad aged about 20 years, opened the box with the help of the pliers and as soon as he opened the box, there was a big explosion. But neither in his chief nor in the cross examination, he has stated any thing about the accused appellant Brahamdeo Sharma whether he requested any body to open the said box or he himself opened the box.

P.W. 3 Ajay Kumar Sinha, he has stated that he was not present at the relevant time at the place of occurrence but he had heard about the explosion and the death of a young boy. He has further stated that he knew Dablu @ Rajnish (the victim) and his house is at the distance of half kilometer from the house of Braham deo Sharma and he had a S.T.D. Booth.

P.W. 4 Srinivas Kumar, the I.O. has recorded the fardbeyan of Brahamdeo Sharma. He has stated that he went to the Hospital from where he came to know about the death of Rajnish @ Dablu. He made the inquest report and body was sent for conducting for postmortem. He has further stated that the Nephew of the accused appellant (Babu) came to the house of Choukidar about 6.00 P.M. He further proved that he recorded the statement of the injured persons. He also stated that he made investigation against Girija Tiwary. He further stated that he recorded the statement of Girija Tiwari on 27.12.2001. He referred the para no.87 and 94 of the case diary whereof it appears that this accused fled away from the residence of the S.P., Palamau which was caused suspicion against him. He further stated that after recording the statement of the witness Ajay Kr. Sinha u/s 164 Criminal Procedure Code, he obtained warrant of arrest against accused Braham deo Sharma. P.W. 4 has also admitted that the Assistant of the post office namely Shyam Bihari told him some unknown persons came to post the said parcel and number of the parcel was 180.

P.W. 5 Mohan Prasad, the Doctor, who conducted the postmortem and opined that death occurred due to explosive injury.

The learned counsel for the appellant has submitted that except the statement of Ajay Kumar Sinha (P.W. 3) before the P.W. 4 which is recorded in the case diary, there is nothing against the present appellant. He has further pointed out that the said Ajay Sinha P.W. 3 has very specifically stated in his evidence before the trial court that he was not present at the place of occurrence at the relevant time. He has also stated in his cross examination that he had not given any statement before the police. Furthermore, he has stated that on 27.12.2000 (witness has wrongly mentioned the year which will be actually 2001, instead of 2000) the police called him at the Police Station and assaulted him and kept him in the police custody for few days and on the application made by his mother, he was released by the police and thereafter he went to the Hospital for his treatment. He has further stated that the application filed by his mother is marked as Exhibit-A in this case.

Counsel of the appellant has submitted a certified copy of the order dated 12.08.2003 passed in W.P. (S) No. 4640 of 2002 which was filed by the father of the victim namely Rajnish @ Dablu for payment of compensation and also to provide appointment to the dependent of the aforesaid victim. In the said Writ application after hearing the parties, the Hon''ble High Court has observed:

However, and as has already been held in the foregoing paragraphs, there may not have been gross negligence but there was certainly an element of negligence because instead of calling experts to diffuse the live bomb, the police took upon itself the burden of opening a box, the contents whereof was not known to them but was suspected to be containing a live bomb. In their curiosity, they allowed the petitioner''s son to participate and even if he had himself volunteered to open the parcel, the members of the police party should not have allowed him to do so.

The counsel for the appellant has submitted that even the statement made u/s 164 Criminal Procedure Codeby the P.W. 3 does not prove the commission of the offence by the accused appellant.

The Counsel for the State Mr. Mahto has very fairly submitted that except the statement of P.W. -3, Ajay Kumar Sinha, before the police and also his statement recorded u/s 164 Criminal Procedure Code, there is no other material against the present appellant which can prove his involvement in the commission of this offence. He has further submitted that from the statement made u/s 164 Criminal Procedure Code by P.W. 3 is not very clear about the involvement of the present accused-appellant.

After scrutinizing the evidence of the prosecution witnesses, I find none of the witnesses has stated any thing against the accused appellant that he either requested Rajnish or any other person, to open the said box. On the other hand, the appellant after receiving the said box and having some suspicion, he informed the Choukidar and also the Petrolling party which shows his bonafide. Though the counsel of the state has submitted that the P.W. 3 has made statements u/s 164 Criminal Procedure Code., but the said P.W. 3 has very specifically stated in his cross examination that he has given his statements u/s 164 Criminal Procedure Codeonly due to fear of the police party as he was taken by the police party in their custody for few days and he was also assaulted by the police party. Furthermore, there is no other evidence to prove the guilt of the accused appellant and even the statement made u/s 164 Criminal Procedure Code does not prove the allegations made against the appellant.

I find only thing that admittedly the said Steel box was in the custody of the accused appellant. But the accused appellant received the said parcel by post which has also come in the evidence of P.W. 4 (the I.O.) who has stated before the trial court in his evidence that one assistant of the Garhwa Post office told him that some unknown person had posted the said parcel and the parcel number was 180. After receiving the said parcel and after removing parchment of the parcel as soon as the appellant doubted about the contents of the packet, he immediately informed the choukidar and other persons which is a very normal conduct. Furthermore, there is no evidence that the accused appellant requested Rajnish (the victim) or any body to open the box.

Considering all these aspects as discussed above, in my opinion the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts. The trial court has erred in holding the appellant guilty under sections 3 and 4 and 4(b) of the Explosive Substance Act. I, therefore, allow the appeal and set aside the aforesaid judgment of conviction and the order of sentence recorded by the trial court. As the appellant is on bail, the appellant is discharged from his liability of the bail bonds.