Mahadeo Oraon vs State Of Jharkhand

Heard Mr. Dilip Kumar Prasad, learned counsel for the appellant and Mrs. Ruby Pandey, learned A.P.P. for the State.

The present appeal is directed against the judgment of conviction dated 10.03.2005 and order of sentence dated 14.03.2005 passed by learned IVth Additional Judicial Commissioner-cum-Special Judge No. II, C.B.I. (A.H.D.), Ranchi in Sessions Trial No. 361 of 2002, whereby and whereunder the appellant has been held guilty for the offence under Section 5 of the Explosive Substance Act and sentenced to undergo R.I. for four years.

The factual matrix giving rise to this appeal is that the informant got information that one person has been killed by the Member of M.C.C. The informant along with other police personnel went to Village – Honhe, where he received a confidential information that the appellant has kept a gun in his house illegally. The search was conducted on 25.06.2001 at about 12:00 hours in presence of independent witnesses namely, Anand Mahli (P.W.-4) and Gandru Lohra (P.W.-5). One Bharatua gun, one polythene containing yellow coloured powder, one small bottle containing steel coloured powder were seized and seizure list was prepared. The copy of seizure list memo was given to Anita Devi, wife of the accused.

On the basis of above information, Chanho P.S. Case No. 45 of 2001 was registered for the offence under Section 25(1-B)a & 26 of the Arms Act and Section 4 / 5 of the Explosive Substance Act.

After completion of investigation, charge sheet was submitted against the accused for the aforesaid offences. After cognizance, the case was committed to the court of Sessions, where S.T. No. 361 of 2002 was registered. The charge for the offence under Section 25 (1)(B) of the Arms Act and Section 4 & 5 of the Explosive Substance Act was framed against the accused. The accused denied the charges leveled against him and claimed to be tried.

In course of trial, altogether 09 witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidences has been adduced:-

Exhibit-1 : Entire Forensic Report of FSL No. 460/2001.

Exhibit-2 : Entire Forensic Report of FSL No. 459/2001.

Exhibit-3 : Entire seizure list.

Exhibit-3/1 : Signature of Anand Mahli on the seizure list.

Exhibit-3/2 : Signature of Sri Aloke Kumar, S.I. on the seizure list.

Exhibit-4 : Sanction order.

Exhibit-5 : Entire self-statement of O/c.

Exhibit-5/1 : Entire F.I.R.

On the other hand, the case of defence is denial from occurrence and of false implication. No oral or documentary evidence has been adduced by the defence.

The learned trial court, after scrutinizing the evidence available on record, recorded findings about guilt of the appellant for the offence under Section 5 of the Explosive Substance Act and sentenced him to undergo R.I. of 04 years, which has been assailed in this appeal.

Learned counsel for the appellant assailing the impugned judgment has submitted that the learned trial court has failed to properly appreciate the evidence available on record, although the entire seizure list witnesses have been turned hostile and have not supported the prosecution case. The seized materials were not sealed on the spot nor signed by the witnesses. The seized materials were also not produced during trial of the case, as material exhibit. It is also revealed that nothing incriminating article has been recovered from physical and conscious possession of the appellant and copy of seizure was not provided to him, rather signature / thumb impression of his wife has been taken forcibly by the police on the seizure list. What type of explosive substances were recovered from the house of the appellant has also not been proved conclusively. The appellant has not been held guilty and acquitted from the charges under Section 25(1-B) a of the Arms Act and Section 4 of the Explosive Substance Act, although some iron balls, yellow, black and ash colour power have been given chemical name in the FSL report (Exhibit-1), but there is no evidence to link that the appellant was involved in manufacturing bomb for any purpose whatsoever. Even it is not case of prosecution that any particles of bomb or prepared bomb were also recovered from the house of appellant. The appellant was also not involved in other case prior to this occurrence. Therefore, entire prosecution story is absolutely shrouded with doubt and no concrete evidence has been brought on record showing involvement of present appellant in manufacturing bomb or keeping possession of the same in order to held him guilty for the offence under Section 5 of the Explosive Substance Act. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside and this appeal may be allowed.

On the other hand, learned Additional Public Prosecutor appearing for the State has defended the impugned judgment on merits and has submitted that the prosecution has proved its case beyond all reasonable doubt. Learned trial court has very meticulously examined the evidence adduced by the prosecution as well as defence. There is no illegality or infirmity in the impugned judgment of conviction and order of sentence of the appellant and there is no merit in this appeal, which is fit to be dismissed.

I have gone through the record the case along with impugned judgment in the light of contentions raised on behalf of both side.

The only point for consideration of this appeal is, as to “whether the impugned judgment of conviction and sentence suffers from any serious error or law calling for any interference in this appeal or not?”

Before imparting my verdict on the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

It appears that altogether 09 witnesses have been examined in this case.

P.W.-1 Saiyad Basir is the Scientific Assistant of the Regional Forensic, Science Laboratory, Government of Jharkhand, Ranchi. He has proved the chemical examination report dated 11.12.2001 of Iron balls and Iron pieces, black colour powder substance, yellow colour powder substance and ash colour powder substance, which has been marked as Ext. 1. He has stated that E.A. Khan, In-charge of Regional Director examined the exhibited materials sent by the C. J.M., Ranchi vide Memo No. 872 dated 24.02.01 and found the following:

P.W.-2 Brij Kumar Thakur is also one of the employees in the office of the Regional Director, Regional Forensic Science Laboratory, Ranchi and he has proved the examination report dated 29.11.01 of S.B.M.L. Gun about 52” long, which has been marked as Exhibit-2.

P.W.-3 Pharesh Ram & P.W.-9 Baleshwar Rai in their respective examination-in-chief have supported the prosecution case and stated that one Bhartua Gun and other alleged materials were recovered from the house of the accused.

In cross-examination, both these witnesses have stated that both these items were not sealed in their presence and they could not say whether it was sealed later or not.

P.W.-4 Anand Mahto & P.W.-5 Gandru Lohra have been declared hostile by the prosecution. Both these witnesses have not supported the prosecution case. However, P.W.-4 in his statement has admitted his signature on the seizure list which has been marked as Exhibit-3/1, but he has denied any recovery of gun in his presence.

In his cross-examination, this witness has stated that police has asked him to sign, therefore, he signed on the seizure list. P.W.-5 has also stated that police also obtained his thumb impression on a paper on which Anand Mahli (P.W.-4) had signed.

P.W.-6 Shyam Kumar Prahi is the formal in nature, who has proved the sanction order, which has been marked as Exhibit-4.

P.W.-7 Ram Swarath Ram. is the I.0. of this case. In his evidence, this witness has stated that by the order of the then officer-in-charge, he investigated the case and in course of investigation, he recorded the statement of the informant. He has further stated that he inspected the place of occurrence which was the KHAPARPOSE house of the accused situated at village Honhe within Chanho P.S., where a weapon was kept on the cot in the eastern side inside the room, and there was bed on it. He further deposed that in the western side of the bed, the Bhartua gun was recovered. This room was belonged to accused Mahadeo Oraon. The house was bound by west & north of the house of Bandhu Lohra and South was open. He recorded the statement of other witnesses in course of investigation including seizure list witnesses namely, Anand Mahli (PW-4) and Gandaru Lohra (PW-5). Both the witnesses told him that a Bhartua gun was recovered from cot in the house of accused and a polythene bag containing iron pieces and iron pellet, a plastic bag containing black colour powder, which was a kind of explosive and one bottle containing steel colour powder were recovered. He has further stated that he got all these materials examined from the Forensic Science Laboratory, Ranchi and sanction order to prosecute the accused was obtained. Later on finding sufficient evidence, submitted charge sheet against the accused. He proved the self-statement of the informant which has been marked as Ext.5 and the signature of Aloke Kumar, the then Officer-in-charge of Chanho P.S. on the self-statement which has been marked as Exhibit-5/1.

P.W.-8 Aloke Kumar is the informant of the case. In his evidence, this witness has supported the prosecution case and stated that on 25.06.2001 S.I. Jai Ram Singh at Kuru P.S. informed him on telephone that one person was killed by the MCC at Kuru and asked to co-operate him to raid the places situated near to the border. That thereafter a Sanha being numbered 516 was entered and he alongwith S.I. Bindeshwari Jha, one Platoon C.R.P.F. went from Thana. In course of raid, he reached to village Honhe at 11:30 A.M alongwith Officer-in-charge of Kuru P.S., S.I. Baleshwar Rai. Inspector of Mandar Circle namely Mahesh Ram alongwith police force. They got information there that the accused concealed illegal arms in his house. They reached to the house of accused at 11:45 A.M. but the accused was not present in the house. They searched is house in presence of two independent witnesses. On search one Bhartua gun, a plastic bag containing black colour gun powder, one bottle containing yellow colour powder & one bottle steel coloured powder were recovered. All these materials were seized and a seizure list was prepared. A copy of the seizure list was handed over to Anita Devi, the wife of accused, who put her L.T.I. on it. This witness has proved the seizure list which was marked as Ext.3. He has further proved his signature on the seizure list which has been marked as Ext.3/2. He has proved his written statement on the basis of which F.I.R. was lodged.

Before coming to analysis, it is necessary to quote the relevant provisions of law:-

It appears that to constitute an offence under Section 5 of the Explosive Substances Act, 1908, the prosecution has to prove three ingredients and they are ;

'Explosive substance' has been defined in Section 2 of the Explosive Substances Act. The definition is as follows:

"Explosive substance" has a broader and more comprehensive meaning than the term "explosive". "Explosive substance" includes "explosive". The term "explosive" has not been defined in the Explosive Substances Act. The dictionary meaning of the word "explosive" is "tending to expand suddenly with loud noise"; "tending to cause explosion". In the Explosives Act, 1884, the term "explosive" has been defined as follows:

The burden of proof of the above three ingredients is solely on the prosecution. The moment the prosecution has discharged that burden, it shifts to the accused person to show that he was making or possessing the explosive substance for a lawful object.

The onus can be shift on the accused as per section 5 of the Explosive Substances Act only after the prosecution has proved beyond reasonable doubt that he was having the same Explosive substance in his possession. The possession within the meaning of Section 5 of the Explosive Substances Act means "conscious possession". Therefore, to held guilty under section 5 of Explosive Substances Act it is necessary to prove that the appellant was in "conscious possession" of the substance seized.

In the present case both the seizure list witness PW-4 Anand Mahto and PW-5 Gandru Lohra have not supported the prosecution case rather PW-4 in his cross examination has stated that the police has asked to sign him and he simply signed on the seizure list and PW-5 in his cross examination has stated that police obtained his thumb impression on a paper on which PW-4 has also signed. Both the seizure list witnesses have been declared hostile by the prosecution. Therefore, in this case the substance which are alleged to be recovered from the house of the appellant has not been proved beyond reasonable doubt that these substances were in the "conscious possession of the appellant. Although in the FSL report, it is mentioned that the substance sent for chemical analysis is low explosive mixture, but whether it has been found in the conscious possession of the appellant has not been proved by the prosecution.

Therefore, there is no hesitation in concluding that the prosecution has failed to prove the charges against the appellant beyond reasonable doubt.

Accordingly, this court is of the considered view that the trial court has erred in convicting the appellant without proper appreciation of evidence.

In view of aforesaid discussions and reasons, the impugned judgment of conviction and order of sentence dated 10.03.2005 / 14.03.2005 passed by learned IVth Additional Judicial Commissioner-cum-Special Judge No. II, C.B.I. (A.H.D.), Ranchi in Sessions Trial No. 361 of 2002 is hereby set aside. The appellant is acquitted from the charges levelled against him.

Accordingly, this appeal is allowed.

The appellant is on bail. He is discharged from the liability of bail bond and sureties shall also be discharged.

Pending I.A., if any, stand disposed of.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.