Sunil Kumar @ Sunil Kumar Sao vs State Of Jharkhand

Heard Mr. P.C.Sinha, learned counsel for the appellant and Mr. Sardhu Mahto, learned A.P.P., appearing for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 30.01.2006 passed by Ram Dhari Yadav, Additional Sessions

Judge, Fast Track Court 9, Giridih in Sessions Trail No. 351/92 whereby and whereunder the appellant has been sentenced for the offence u/s 427 of

the IPC to undergo R.I. for two years and for the offence u/s 3 of the Explosive Substance Act R.I. for five years and for the offence u/s 4 of the

Explosive Substance Act R.I. for five years. All the sentences shall run concurrently.

On the written report of the informant, namely, Birendra Prasad Sao, Bagodar P.S. Case No.22/1992 has been registered at around 10 P.M.

As per the F.I.R., the informant while going to sleep in his newly built house, he saw Sunil Kumar standing on the boundary wall and when the

informant enquired to the accused-Sunil Kumar, he has been threatened by him and he could see the accused in the torch light that dynamite and

detonator are being fitted in the wall of the house and he was scared by threat given by the Sunil Kumar. He fled away and he could hear the sound

of explosion and thereafter he raised hulla upon which Manoj Kumar, Nageshwar Sao, Anil Kumar, Tulsi Sao and others had come to the place of

occurrence and they have seen a big hole in the wall. There was some live wire of detonator, torch of two cells and a polythene full of 2kg sand at the

place of occurrence. On receipt of such information F.I.R. has been lodged and investigation has been initiated. Seizure list has been prepared by the

Investigating Officer which has been marked as Ext.3 wherein recovery of palita, one torch, a bag of polythene of sand, one detonator etc. have been

seized.

After completion of investigation, charge-sheet has been submitted against the appellant under Sections 307, 427 and 3/ 4 of the Explosive Substance

Act. Thereafter, cognizance has been taken. Case has been committed to the court of sessions and charge has been framed under Sections 307, 427

of the IPC and 3/4 of the Explosive Substance Act to which appellant pleaded not guilty and claimed to be tried.

On completion of trial, the appellant has been acquitted from the charge under Section 307 of the IPC but he has been convicted under Section 427 of

the IPC and 3/ 4 of the Explosive Substance Act.

To substantiate the prosecution story, altogether ten witnesses have been examined.

P.W. -1, informant, namely, Birendra Prasad Sao has supported the story as disclosed in his written report. Some improvement has been made by

adding some more persons to be present at the place of occurrence, who has come to the place of occurrence and has seen the presence of the

appellant. It has been admitted that there was enmity between the parties. The alleged explosion has caused loss of Rs.5,000/- to the informant.

P.W.-2, namely, Arun Kumar is also a witness, who has come at the place of occurrence on hearing the sound of explosion and also he is a seizure

list witness and he has supported the seizure list.

P.W.-3 Ashok Kumar Sao has deposed that he has come on hulla raised by the informant and he had seen that the appellant was fleeing away from

the spot and also the seized articles.

P.W.-4 Lalji Prasad has also supported the story and has reached at the place of occurrence on hulla raised by the informant. It has been further

testified that the appellant has caused a mischief to the appellant by causing loss of Rs.5,000/- to Rs.6,000/-.

P.W.-5 Chandra Mouleshwar Prasad has proved the formal F.I.R. which has been registered by B. Bakla, S.I. of Bagodar P.S. which has been

marked as Ext.4.

P.W.-6, Etwari Mahto is a witness and he has proved the signature of the then D.C. of Giridih district granting sanction of prosecution under

Explosive Substance Act which has been marked as Ext.5.

P.Ws.-7, 8 and 9 have been declared hostile.

P.W.-10 is a formal witness.

Thus, neither there is any report regarding explosive substance nor material has been produced before the Court nor I.O. has been examined. The

entire case of the prosecution hinges around the oral testimony of the witness. Except P.Ws. 1 and 2, other witness has approached the place of

occurrence on hulla raised by the informant and not hearing the sound of explosion. It has been testified that only hole has been found in the boundary

wall. Whether the hole has been caused by the explosive substance or not, it could not be established by the prosecution by leading any evidence.

I.O. has not been examined in the present case which is fatal to the prosecution story. Ext.2 and testimony of witness suggests that there is enmity

between the parties and chances of false implication of the appellant cannot be ruled out.

In view of above discussion and considering the material available on record, this Court finds that the prosecution has failed to substantiate the charge

under Section 3/ 4 of the Explosive Substance Act and as such the appellant is discharged from this Section.

So far as conviction under Section 427 of the IPC is concerned, the prosecution witness has stated that the appellant was present at the place of

occurrence and damage has been caused to the property of the informant, the conviction under Section 427 of the IPC is sustained but sentence is

reduced from two years to the period already undergone i.e. six months.

Accordingly, the judgment of conviction and order of sentence dated 30.01.2006 passed by Ram Dhari Yadav, Additional Sessions Judge, Fast Track

Court 9, Giridih in Sessions Trail No. 351/92 is modified to the extent indicated herein above.

Accordingly, the appeal stands disposed of with above modification.

Since the appellant is already on bail, he is discharged from the liability of his bail bond.