Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.86 of 2000 =========================================================== 1. Tahir Mian, son of Late Abdul Mian. 2. Sabid Mian @ Sabir Mian, son of Late Rahup Mian. Both are residents of Village Baraiya Bigha, P.S. Pakribarawan, District Nawadah. .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mr. Birju Prasad For the State : Mr. Jharkhandi Upadhyay, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 21-06-2012 S.A. Khan, J. This appeal arises out of a judgment passed in Sessions Trial No. 124 of 1999/121 of 1999, passed by the 4th Additional District & Sessions Judge, Nawadah on 22.7.1999 convicting the appellants Tahir Mian and Sabid Mian @ Sabir Mian under Sections 4 and 5 of the Explosive Substance Act. 2. On 29.3.1999 Jichha Yadav the Chaukidar of Baraiya Bigha police station in the district of Nawadah learnt that on the previous evening i.e. on 28.3.1999 at about 5 P.M. there was a bomb explosion in the house of Kasim Mian injuring the persons who were preparing the bomb. The informant went to the house of Kasim Mian and found that Kasim Mian and Rahup Mian were lying dead on a cot, whereas the two appellants were injured. The informant also Patna High Court CR. APP (SJ) No.86 of 2000 dt.21-06-2012 2 / 6 2 learnt from undisclosed sources that Kasim Mian had gone to Kolkata and purchased materials for preparing bombs. The informant did not find any sign of explosion within the premises of the house nor was there any blood stains which according to the informant had been cleaned and cleared away. 3. The post-mortem was conducted and the doctor has been examined as P.W. 8. The injury reports as well as the post- mortem reports which are exhibits 2 and 3 have been proved by the doctor and who has confirmed that the two persons died due to burn injuries caused by explosion of a bomb. An X-ray was also taken which unfortunately, has not been proved but it was on the basis of the post-mortem and the injury reports as well as X-ray produced in the Court by the doctor that he was able to confirm his finding. Therefore, there appears to be no doubt with respect to the fact that the injury was a burn injury which is unxplained. 4. The only question therefore, which arises in this appeal is whether the burn injury was due to explosion of bomb? 5. To substantiate the allegations, this Court must confess that the oral evidence is rather weak and does not clinch the issue. Nevertheless, this Court must give reasons for holding that the evidence is insufficient. P.W. 1 is a police Constable. He says that he was on duty when he learnt that there was a bomb explosion in which Patna High Court CR. APP (SJ) No.86 of 2000 dt.21-06-2012 3 / 6 3 some persons were injured. He identifies the appellants in Court. In his cross-examination he discloses that he did not go to the place of occurrence, see the persons in an injured condition and does not disclose the source of information from where he learnt that there was a bomb explosion in the house of Kasim Mian. 6. P.W. 2 is the Chaukidar. He is a hearsay witness and claims that he leant about the occurrence from P.W. 1. He has stated that he was not posted at the place of occurrence on the date of occurrence. P.Ws. 3, 4 and 5 are from Baraiya Bigha i.e. the same village where the occurrence took place. All three witnesses have stated that they have heard the sound of bomb explosion but they did not go to the house of Kasim Mian to investigate or find out the cause of the noise. According to P.W. 3 the bombs were being prepared for creating trouble between the two communities i.e. Hindus and Muslims. It may be noted here that none of the witnesses aforesaid saw the appellants in injured condition, they did not go to the place of occurrence nor did they take any steps on 28.3.1999 to inform the local police station regarding the said occurrence. 7. P.W. 6 has been declared hostile. P.Ws. 8 and 9 are hearsay witnesses and they learnt of the occurrence from the villagers and were not directly present at the time of occurrence and as such they had not heard the explosion or saw smoke coming out from the Patna High Court CR. APP (SJ) No.86 of 2000 dt.21-06-2012 4 / 6 4 house of Kasim Mian which will lead to the conclusion that there was an explosion in the process of preparing bombs. P.W. 11 has proved the sanction for prosecution under the Explosive Substance Act. The inquest report has been proved by P.W. 12. P.W. 13 i.e. the Investigating Officer. The Investigating Officer Suryadeo Kumar proved the First Information Report and all the exhibits in this case. While discussing the place of occurrence he had not been able to show that there was any sign of bomb explosion in the house of Kasim Mian. He submitted charge sheet under [STATUTE] , as well as Sections 3 and 4 of the Explosive Substance Act. The Investigating Officer seized the clothes worn by the injured as well as the deceased however, he has stated in his cross-examination that the burnt clothes worn by the injured were not produced to substantiate the finding of a bomb explosion. 8. The Trial Court while discussing all these aspects and also considering the provisions of [STATUTE] has come to the conclusion that no offence is made out under the aforesaid sections and as such, has only convicted these two appellants under Sections 4 and 5 of the Explosive Substance Act. Due to lack of oral evidence the Trial Court was also not in a position to convict the appellants under Section 3 of the Explosive Substance Act. Thus the Trial Court has on the basis of medical evidence held Patna High Court CR. APP (SJ) No.86 of 2000 dt.21-06-2012 5 / 6 5 that the two injured person

Applicable IPC Section: 304

Statute Text:
Section 304 of the Indian Penal Code. Culpable homicide not amounting to murder, If act by which the death is caused is done with intention of causing death, etc. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.