Criminal Appeal (SJ) No. 194 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Md. Usman, S/o Late Md. Salim. 2. Md. Ismail, S/o Late Md. Sirajul. Both resident of Village-Sarai, P.S.-Kotwaliin the district of Bhagalpur. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants: Mr. Mustaque Alam, Adv. For the State : Mr. Binod Bihari Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 4-B and 5 of the Explosive Substance Act and sentenced to RI for seven years and five years respectively by the 2nd Additional Sessions Judge, Bhagalpur in S.Tr. No. 190 of 1990 by a judgment dated 08.08.1996. 2. The prosecution case is that on 14.11.1989 when the informant was proceeding for investigation he surrounded the house of one Md. Rafique Ahmad @ Butto Mian on suspicion and on entering the same he found 22 bombs and four persons present in the house two of them were appellants. 3. During trial the prosecution in all examined ten witnesses out of whom P.W. 7 and P.W. 10 had been declared hostile. P.W. 3 and P.W. 6 have been tendered whereas P.W. 8 is the informant. P.W. 9 2 is the Investigating Officer. P.W. 1, P.W. 2 and P.W. 5 are Home Guards who had formed the raiding team whereas P.W. 4 has proved the sanction order. 4. On going through the evidence of P.W. 1, P.W. 2, P.W. 5 and P.W. 8 all that has transpired against the appellants is that they were found inside the house of Md. Rafique Ahmad from where some incriminating article was recovered. However, whether the said incriminating article was bomb has not been specifically proved by the prosecution and, therefore, it is difficult to maintain the conviction of the appellants on the basis of Exhibit-7 which has not been proved by the prosecution. 5. In the result, the appeal is allowed and the judgment dated 08.08.1996 passed by the 2nd Additional Sessions Judge, Bhagalpur in S.Tr. No. 190 of 1990 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 16th May, 2011. NAFR/Vikash/-