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Judgment
Sole appellant Md. Rajak has been found guilty for an
offence punishable under Section 307 of the I.P.C. and sentenced to
undergo R.I. for 10 years and to pay fine of Rs.5,000/- and in default
thereof, to undergo S.I. for six months, under Section 3 of the
Explosive Substances Act and sentenced to undergo R.I. for 10 years
and to pay fine of Rs.5,000/- and in default thereof, to undergo S.I. for
six months with a further direction to run the sentences concurrently
vide judgment of conviction and sentence dated 27.08.2015 passed by
the Additional Sessions Judge-II, Siwan in Sessions Trial No.86 of
2000.
Md. Khushru (PW-8) gave his fard-bayan while was
admitted at Primary Health Centre, Aandar on 06.07.1999 at 8.30 p.m.
divulging the fact that he has come to village-Firojpur, his Mamhar
and was staying at the place of his Mama Arshad Ali Siddique (PW-
7), on the same day at about 6.30 p.m. Md. Rajak, Md. Isha, Md.
Asgar, Md. Hussan, Noor Mohammad @ Bhuwan, Fakir Mohammad
armed variously came, stood in front of darwaza and began to abuse,
which was protested and on account thereof, Md. Rajak hurled bomb
causing injury over his hand. His Mamera brother Gausha Alam (PW-
1) was assaulted by means of lathi. Soon thereafter, he was taken to
Primary Health Centre, Aandar for treatment. Land dispute in between
accused with his Mama Arshad Ali Siddique has been shown to be
motive for the commission of the aforesaid offence.
On the basis of the aforesaid fard-bayan, Aandar P. S.
Case No.42 of 1999 was registered followed with an investigation as
well as submission of chargesheet, whereupon trial commenced
against Md. Rajak, Md. Isha, Md. Asgar, Noor Mohammad @
Bhuwan. Fakir Mohammad as well as Md. Hussan died. Consequent
thereupon, proceeding abated against them. After concluding the trial
by the judgment impugned, other three namely Md. Isha, Md. Asgar,
Noor Mohammad have been acquitted while Md. Rajak (appellant)
has been convicted and sentenced for, challenged under instant
appeal.
Defence case, as is evident from mode of cross- examination as well as statement recorded under Section 313 of the
Cr.P.C. is that of complete denial. It has further been suggested that
informant himself happens to be renowned goon of the area and on
the alleged date and time of occurrence, he visited the place in order
to grab the land and for that purpose, while he was preparing bomb,
got exploded, whereupon, with ulterior motive, implicated all the
persons with whom, Mama of informant had dispute. However,
neither oral nor documentary evidence has been adduced.
In order to substantiate its case, prosecution had
examined altogether 12 PWs, who are PW-1 Gaushe Ajam Siddique,
PW-2 Fauzdar Dubey, PW-3 Md. Safique, PW-4 Baliram Chaudhary,
PW-5 Nihal Ali Siddique, PW-6 Ravi Prakash Mishra, PW-7 Arshad
Ali Siddique, PW-8 Md. Khushru, informant, PW-9 Ravi Prakash
Mishra, PW-10 Dr. S. K. Aman, PW-11 Dr. Birendra Kumar
Upadhyay and PW-12 Dr. Umashankar Pandey. Side by side, had also
exhibited viz. Exhibit-1 series, signature of respective witnesses over
statement recorded under Section 164 of the Cr.P.C. as well as
signature of informant over fard-bayan, Exhibit-2 fard-bayan, Exhibit-
3 formal F.I.R., Exhibit-4 sanction order, Exhibit-5 series, injury
reports relating to PW-1 Gaushe Ajam Siddique as well as informant
(PW-8) Md. Khushru. As stated above, neither ocular nor
documentary evidence has been adduced on behalf of defence.
The learned counsel for the appellant while
challenging the finding recorded by the learned lower Court has
submitted that from perusal of the judgment impugned, it is manifest
that learned lower Court did not apply its judicial mind, whereupon
the finding so recorded happens to be cryptic as well as unsustainable
in the eye of law.
The first and foremost argument on that very score, is
with regard to non-appreciation of Section 7 of the Explosive
Substances Act in its right perspective. It has been submitted that
occurrence is of the Year 1999. The District Magistrate has been
vested with the power to grant sanction since 01.02.2002 and so,
procurement of sanction order, getting it exhibited and on that very
basis, convicting and sentencing the appellant under Section 3 of the
Explosive Substances Act itself speaks a lot. That means to say, on
the alleged date and time of occurrence, it was Central Government
the competent authority to grant sanction and for want of sanction by
a competent authority, the trial would not have proceeded and in
likewise manner, the conviction and sentence. The learned Senior
Counsel also referred 2007(2) P.L.J.R. 394 as well as 2009 CRI.L.J.
3886.
It has also been submitted that when prosecution under
Section 3 of the Explosive Substances Act is found properly erased,
then in that event, appellant could not have been convicted and
sentenced for under Section 307 of the I.P.C. Apart from this, other
kinds of infirmity persisting on the record have been highlighted to
isolate the finding recorded by the lower Court. It has been submitted
that the doctor, who had examined the informant, has not been
examined and further, during course of evidence, the other witnesses
have not disclosed regarding death or non-availability of the treating
doctor. Consequent thereupon, the impact of injury report melted
down. Furthermore, the objective finding of the I.O. did not come on
record on account of non-examination, consequent thereupon, the oral
evidence probablizes the defence version that an explosion took place
while informant (PW-8) was preparing bomb, due to material
exaggeration having in their evidence coupled with the fact that due to
non-examination of I.O., serious prejudice has been caused to the
appellant.
Apart from this, it has also been submitted that the
evidence in its entirety so deposed by the witnesses are if considered
in its right perspective that too, when the evidence has been rejected
relating to other appellants, then in that circumstance, it would have
been rejected against the appellant also, because of the fact that
presence of appellant was in same sequence along with the co-accused
(since acquitted) coupled with the fact that they are inconsistent to
each other to such extent resulting uncreditworthy.
It has also been submitted that acquittal of co-accused
suggests that neither there was an unlawful assembly nor there was an
assault over Gaushe Azam Siddique (PW-1) at the house of Arshad
Ali Siddique, then in that event, the version of the prosecution that
accused persons after forming an unlawful assembly, came at his
darwaza, abused and on protest, assaulted Gaushe Azam with lathi,
hurled bomb causing injury to Md. Khushru is found completely
discredited and that being so, a different kind of story relating to
occurrence incepted and in similar way, the activity of the accused has
been allocated and that being so, there happens to be complete change
and substitution in comparison to the initial version relating to motive
as well as manner of occurrence. So, did not justify the finding
recorded by the learned lower Court.
Per contra, it has been submitted by the learned
Additional Public Prosecutor that acquittal of co-accused is not going
to dent upon the prosecution case, because of the fact that manner of
occurrence has not been doubted rather some sort of relaxation while
scrutinizing the evidence of the PWs were allowed in favour of other
co-accused, who have been acquitted. Therefore, submission having
made on behalf of appellant has got legal force nor is recognizable in
the eye of law. In its continuity it has also been submitted that from
the evidence adduced on behalf of prosecution, it is apparent that they
are consistent over the manner as well as genesis of the occurrence
and that being so, the finding recorded by the learned lower Court is
fit to be confirmed.
PW-11 happens to be Dr. Birendra Kumar Upadhyay,
who on 06.07.1999, was posted at Aandar Primary Health Centre and
had examined Gaushe Azam (PW-1) and found the following injury:-
1) Swelling on left leg above and till joint 2" x 2".
Age of injury within six hours,
Nature-simple caused by hard and blunt substance.
On the same day, he had examined
Md. Khushru and found the following injury:-
Lacerated wound all over the right hand
with detached fingers. Fresh blood. Seals
packing done and referred to Sadar
Hospital Siwan for opinion as well as
treatment.
Abrasion back of thigh ?" x ?"
Age of injury within six hours,
Nature of injury reserved. During cross-
examination, nothing substantial has been
procured.
PW-12 is Dr. Uma Shankar Pandey, who was posted
as C.A.S. Sadar Hospital, Siwan and on 06.07.1999, he examined
Md. Khushru, who was referred from Aandar Primary Health Centre
for treatment and during course thereof, he found the following
injury:-
1) Whole right hand was blown up below
wrist joint. The wound was lacerated with
irregular and charred margin.
Furthermore, patient was treated by
Dr. S. K. Aman and so, with regard to
nature of the injury, opinion be procured
from the aforesaid doctor.
PW-10 is Dr. S. K. Aman, who had deposed that he
was posted as Deputy Superintendent, Sadar Hospital Siwan. Md.
Khushru was admitted at Sadar Hospital on 06.07.1999, as per injury
mentioned by Dr. U. S. Pandey, Sadar Hospital Siwan. As per injury
report prepared by Dr. U. S. Pandey, it was grievous in nature caused
by explosive substance. The report was in his pen and signature dated
25.08.1999 and exhibited the same. During cross-examination, he had
deposed that the original injury report prepared by Dr. U. S. Pandey
was before him. He had further stated that he is unable to say whether
it was self-handed injury.
Because of the fact that I.O. has not been examined
on account thereof, objective finding relating to place of occurrence
has not been brought up on the record. In absence thereof, now the
remaining evidences are to be seen in order to ascertain whether the
finding recorded by the learned lower Court happens to be based
upon the material available on the record as well as legal one.
Though, the statement of witnesses is also found recorded under
Section 164 Cr.P.C. on their own effort during course of investigation
and the respective witnesses has also exhibited their signature, but the
Magistrate, who had recorded the statement, has not been examined
and so its vitality apart from the fact that the same is not substantial
evidence. Apart from this, it is also evident from the record that PW-
9 happens to be formal in nature on account of simply exhibiting the
sanction order and that happens to be also the status of PW-6, who
had exhibited the relevant document in absence of the I.O. In the
aforesaid background, first of all, the evidence of PW-8 (informant)
is to be considered. As is evident from injury report, he was found
approximately 17 years of age at the time of occurrence and which
happens to be more appropriate as has not been challenged at the end
of the accused. He had deposed that on the alleged date and time of
occurrence, he was present at the place of his Mama Arshad Ali
Siddique at village-Firozpur. He was sitting at darwaza along with
Gaushe Azam Siddique. At that very time, Md. Rajak, Md. Isha, Md.
Asgar, Md. Hassan Mohammad, Noor Mohammad, Fakir
Mohammad armed with lathi, bhala and jhola carrying bomb, came
and began to abuse his Mama as well as family members. He, Gaushe
Azam Siddique forbidden them over which, Md. Isha ordered to
eliminate, whereupon Md. Rajak took out bomb and threw over him
aiming at his right hand which stroke over his wrist of right hand,
exploded as a result of which, right hand palm blown up. Some
splinters were also found over his right leg. They have also assaulted
Gaushe Azam with lathi. He fell down over sand. Then thereafter, he
was taken to Aandar Primary Health Centre where police came,
recorded his fard-bayan over which he put his L.T.I. and then, was
referred to Sadar Hospital, Siwan. He had further stated that Md.
Arshad, Md. Gaushe Azam, Baliram Chaudhary, Nihal Ali Siddique
had seen the occurrence. He had also stated with regard to filing of
protest petition. During course of cross-examination at Para-3, he had
stated that he was regular visitor to the place of his Mama,
whereupon was very much acquainted with the accused persons.
However, he had deposed that from 02.07.1999 to 15.07.1999, he had
not met with the accused persons. He had denied the suggestion that
he sustained self-inflicted injury during course of preparation of
bomb. He had further stated in Para-4, that he does not know what
kind of litigation is going on in between the parties. In Para-6, his
attention has been drawn up towards his previous statement (further
statement). In Para-7, he had stated that after sustaining of bomb
injury, he became stunt for sometime. He did not become
unconscious. Blood oozed out. Again at Para-11, there happens to be
contradiction. Thereafter, he has been suggested that this case has
been falsely instituted at the instance of his Mama with whom, there
was persisting land dispute.
PW-1 is Gaushe Azam Siddique, whose presence has
been shown in the fard-bayan having been assaulted at the hands of
the accused persons. He had deposed that on the alleged date and time
of occurrence, while he was at his darwaza, he had seen Md. Rajak,
Md. Isha, Md. Asraf, Md. Hussan, Noor Mohammad, Fakir
Mohammad armed with lathi, danda as well as Jhola, came at the
darwaza of Arshad Ali Siddique and began to abuse, which was
protested by him as well as Md. Khushru whereupon, on an order of
Md. Isha, Md. Rajak hurled bomb causing injury over his right hand,
his right hand palm blown up. Also sustained injury over leg. He was
assaulted by Md. Hasan with lathi. So many villagers came at the
spot, whereupon accused persons flew away. They were taken to
hospital wherefrom Md. Khushru was referred to Sadar Hospital,
Siwan where his treatment was taken up. Police had recorded his
statement, identified the accused. His statement was also recorded
under Section 164 of the Cr.P.C. During cross-examination, he had
admitted that Arshad Ali happens to be his uncle. It has also been
admitted at Para-4 that both the parties are on litigating terms relating
to land. In Para-5, he has stated that bomb was hurled. It exploded at
the Sahan of Arshad Ali. At that very time, he along with Md.
Khushru was sitting face to face. His right palm along with all the five
fingers blown up. He had seen blood over sand. Md. Khushru was
wearing T-shirt and paint. In Para-6, his attention has been drawn up
towards his previous statement and then, there happens to be
suggestion that being nephew of Arshad Ali Siddique, he had falsely
deposed.
PW-2 is not an eye witness to occurrence. When he
reached at the place of occurrence, he had found Khushru in an
injured condition. On query, Arshad Ali had disclosed that Md. Rajak
had hurled bomb as a result of which, Khushru sustained injury.
During cross-examination, he had admitted that there happens to be
litigation amongst Arshad Ali and Md. Rajak since before the
occurrence. His statement was recorded after three days of the occurrence.
PW-3, in likewise manner, did not pose himself to be
an eye witness to occurrence. He had supported the prosecution case
to the extent of injury having sustained by Khushru, but did not say
with regard to assailants.
PW-4 had stated that on the alleged date and time of
occurrence, he was at the grocery shop and during course thereof, he
had seen Md. Rajak, Md. Isha, Md. Hussain, Noor Mohammad, Fakir
Mohammad running towards darwaza of Arshad Ali, shouting.
Furthermore, he had also seen Rajak taking out bomb and threw it
which exploded and caused injury to Khushru as a result of which, his
right palm blown up. He had also substantiated his statement having
been given before the Court under Section 164 of the Cr.P.C. During
cross-examination, he had stated that all the accused came shouting.
Further stated that P.O. happens to be house of Arshad Ali. He had
further stated that Md. Rajak took out bomb and hurled. Apart from
Khushru, Banne, Nihal and Arshad were also present. After hearing
uproar made by the accused persons, he also shifted himself from the
grocery shop to the place of Arshad Ali. He had gone alone. He had
further stated that his statement was not recorded by the police. He
had further stated that he is not aware whether both the parties are on
litigating terms.
PW-5 is Nihal Ali Siddique, who had deposed that on
the alleged date and time of occurrence, he was sitting at his darwaza.
Gaushe Azam, Md. Khushru, Arshad Ali were also sitting. At that
very time, Md. Rajak, Md. Isha, Md. Asgar, Md. Hussan, Noor
Mohammad, Fakir Mohammad came at his darwaza and began to
abuse, which was resisted by Gaushe Azam as well as Md. Khushru,
whereupon Md. Isha ordered to murder. Md. Rajak hurled bomb over
Md. Khushru as a result of which, his right palm blown up. Md.
Hassan had assaulted Gaushe Azam with lathi. Then had stated that he
had made statement before the Magistrate. During course of cross-
examination, he had stated that accused persons came from Southern
side making uproar. They have not stopped over road rather they came
upto their Sahan. They were shouting "to be murdered". After seeing
Khushru, they have stated that as his father had deposed against them,
on account thereof, he be murdered. At that very time, Khushru did
not escape. None of them had gone inside. Arshad Ali had scolded the
accused persons why they are making noise and during course thereof,
Md. Rajak hurled bomb over Khushru and then, escaped. Bomb had
exploded over right hand of Khushru. He denied the suggestion that
he had deposed under the influence of Khushru. He had also denied
the suggestion that Khushru sustained injury while he was preparing
bomb.
PW-7 is Arshad Ali Siddique, who had deposed that
on the alleged date and time of occurrence, he along with Nanhe were
talking sitting at his Sahan. Md. Rajak, Md. Isha, Md. Asgar, Md.
Hussan, Noor Mohammad, Fakir Mohammad came making uproar.
They were saying that they (prosecution party) be eliminated. They
were armed with lathi as well as Jhola. Khushru and Gaushe Azam
forbidden them, over which on an order of Md. Isha that father of
Khushru deposed against them, Md. Rajak took out bomb and hurled
over Khushru, which exploded at his right hand as a result of which,
palm of his right hand blown up. He had also sustained injury over his
leg. Md. Hassan had assaulted Gaushe Azam. Khushru was lifted to
Aandar Hospital where police came, recorded his fard-bayan. Then
thereafter, he was referred to Sadar Hospital, Siwan where he had
undergone treatment. He had further stated that he had made
statement before the Magistrate at an earlier occasion. During cross-
examination, he had admitted that all the accused persons belonged to
one family. In Para-4, he had admitted that both the parties are on
litigating terms since 1995. Series of litigations like civil as well as
criminal are pending in between. In Para-5, he had stated that accused
persons came using abusive language for them. They have not
escaped there from. Occurrence took place for 5-6 minutes, during
midst thereof, bomb was hurled as well as lathi blow was given. In
Para-6, he had further stated that after sustaining bomb injury,
Khushru became unconscious. Blood had fallen. He became stunt, but
had not lost his sense. In Para-8, there happens to be contradiction. At
Para-9, he had stated that accused persons came and hurled bomb. At
that very time, Md. Rajak was at a distance of 70 Yards. Then had
said that bomb was not hurled from by the side of the road. Then had
denied the suggestion that no occurrence had taken place in a manner
as suggested by the prosecution.
Though F.I.R. did not been considered to be
encyclopaedia of the occurrence and on account thereof, it has been
settled at rest that the lapses existing in the F.I.R., is to be seen in the
background of evidences having adduced during course of trial in
consonance with explanation, if any on that score, whether it happens
to be realistic, plausible, acceptable or not,. That being so, absence of
name of witness in the F.I.R. is to be seen in the aforesaid background
and should be considered through their evidences whether they stood
the test and if so, then in that circumstances, their evidence is to be
accepted otherwise, would be rejected.
So far instant case is concerned, it is evident that PW-
8 (informant/ injured) had shown presence of Gaushe Azam Siddique
(PW-1) during course of the occurrence only. In the aforesaid facts
and circumstances of the case, when the evidence of other witnesses
have been gone through, it is apparent that out of them, PW-2 and
PW-3 did not claim to be eye witness of the occurrence and further,
PW-3 had not named any of the accused. The remaining witnesses
that means to say, PW-4, PW-5 and PW-7, being family members are
so inconsistent over manner of occurrence in consonance with the
evidence of PW-8 (informant) that their absence as shown by PW-8
(informant) was much more acceptable.
Now, coming to the evidence of PW-8, the status of
the appellant has been duly acknowledged by him apart from the fact
that sustaining of bomb injury by the PW-8 is not under controversy.
Only theme happens to be for adjudication is that PW-8 sustained
self-inflicted injury during course of preparation of bomb, which save
and except suggestion, did not been substantiated, more particularly,
by way of cross-examining in that direction. Apart from this, the
possibility of self-inflicted injury is found completely ruled out as
during course of preparation of bomb is to be handled by both hands,
in sitting posture and on account thereof, it is expected that if during
course of preparation of bomb an explosion took place, it would cause
injury over both hands, front side of the body as well as inner side of
both legs. Neither such kind of injury was found over the person of Khushru nor the doctor confirmed the same. Moreover, the evidence
of PW-1, another injured, has also been found corroborating the
evidence of PW-8. So far reliability of injured witness is concerned, it
happens to be settled at rest that unless and until, there happens to be
ample material to discredit his version, in causal way, it should not be
brushed aside. PW-8, the injured being 17 years of age at the time of
occurrence having no criminal background, substantiating the
allegation, should not be discarded as appellant failed to place any
kind of disability relating thereto. So far non-examination of I.O. is
concerned, it has not caused prejudice to the appellant as nature of
injury has not been denied nor the place of occurrence. Furthermore,
there happens to be no material development in the evidence of PW-8,
the informant. So from the evidence of PW-8 as well as PW-1, the
allegation against appellant is found duly substantiated.
Furthermore, as per Section 134 of the Evidence Act,
number of witness is not at all found relevant to substantiate facts in
issue. The issue is regarding reliability of the evidence. Furthermore,
falsus in uno falsus in omnibus is not attracted and so, it is duty of the
Court to separate the grain from chaff. That means to say, even part of
evidence of a witness inspire confidence, the same could be relied
upon rejecting the remaining part. Even on that score, the evidence of
PW-8 as well as PW-1 are found reliable as well as acceptable.
Now, coming to another aspect, the learned counsel
for the appellant has rightly submitted that entrustment to grant
sanction to the District Magistrate in terms of Section 7 of the
Explosive Substances Act, has been effective from the date of
publication in official gazette and the same happens to ob 01.02.2002.
The occurrence is of the Year 1999 and that being so, the conviction
and sentence recorded by the learned lower Court relating to Section 3
of the Explosive Substances Act would not survive and is accordingly,
set aside.
Now, coming to the score of Section 307 of I.P.C.,
the nature of the injury which the doctor had categorized happens to
be grievous and not dangerous to life. Furthermore, no repetition has
been made in spite of absence of intervening circumstance and so, it
has rightly been pleaded at the end of the learned counsel for the
appellant that conviction and sentence recorded under Section 307 of
the I.P.C. happens to be bad. It is to be noted that setting aside
conviction under Section 3 of Explosive Substances Act will not
affect upon the criminal activity whereunder explosive injury has been
caused upon PW-8, as mere prosecution under Section 3 of the Act
has been found incompetent for want of proper sanction.
So far ingredients of Section 307 I.P.C. is concerned,
it basically prescribes an act with an intention or knowledge to
constitute murder irrespective of nature of injury and that has been
explained in Prakash Chandra Yadav vs. State of Bihar and others
reported in 2008 CRI.L.J. 438. In order to infer the same, it has to be
gathered from the surrounding circumstances, that means to say,
nature of the weapon used, manner in which, it has been used, motive
for crime, severity and the part of body aimed at. Furthermore, the act
should be an attempt capable of causing death. That means to say, the
act should be exposed in such manner, which could be patent enough
to endanger the life irrespective of injury having sustained by the
victim or escaped from the injury. That means to say, the action of an
accused is to be perceived whether it divulges intention or knowledge
concerning causing death of the victim.
From the facts of the case, it is apparent that bomb,
explosive substance is a dangerous weapon was possessed by the
appellant and the same was used at the end of the appellant. However,
it was sheer chance that victim, a boy aged about 17 years survived,
but after losing his right palm and fingers. Furthermore, it is evident
that no repetition of blow was ever made. There was no intervening
circumstance. Furthermore, the occurrence took place in the Year
1999. Doctor also not found injury to be dangerous to life.
Accordingly, the conviction and sentence recorded
under Section 307 of the I.P.C. is altered and modified under Section
326 of the I.P.C. reducing the sentence inflicted by the learned lower
Court to R.I. for 5 years as well as to pay fine of Rs.50,000/- (fifty
thousand) and in default thereof, to undergo R.I. for a year. In case of
deposit of fine amount, Rs.40,000/- (forty thousand) will be paid to
the informant on proper identification. Hence, appeal is partly
allowed. Appellant is under custody, which he shall remain till
saturation of the period of sentence.