Criminal Appeal (SJ) No.284 of 1998 Against the judgment and order of conviction dated 27. 07. 1998 and order of sentence dated 30. 07. 1998, passed by Sri Dilip Kumar Sinha, 1st Additional Sessions Judge, Jamui, in Sessions Case No. 647 of 1990. Nago Tanti, son of Amrit Tanti, resident of Village- Taroun, P.O. Goura, Police Station- Laxmipur, District- Jamui, Bihar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Ranbir Singh, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned Amicus Curiae and learned counsel fort the State. 2. The appellant has been convicted under Section 3 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for a period of seven years and fine of Rs. 1,000/- and in default of payment he has further been sentenced to imprisonment for six months. 3. The prosecution case as alleged in the Fardbeyan with regard to uprooting the Masoor crop by the accused persons which was grown by the informant and when the informant protested then Nago Tanti 2 hurled bomb for which the informant had injured and so case was instituted for offence under Section 148, 307 and 411 of Indian Penal Code and Section 3 of Explosive Substance Act. 4. After investigation charge sheet was submitted in this Sections and cognizance taken and case committed to the Court of Sessions. During trial ten witnesses were examined. However, in this case doctor has not been examined nor injury report has been proved. However, learned lower court considered the injury and observed that allegation of hurling bomb by Nago Tanti and injury report suggest charring injury caused by explosive and hence held that Section 3 of Explosive Substance Act has been proved against Nago Tanti. However, with regard to the complicity of other accused persons for offence under Sections 307/149 I.P.C. held that there is no material that accused persons were the members of unlawful assembly and there is consistent evidence that accused persons were uprooting the Masoor crop since before and there is proceeding under Section 145 Cr.P.C. and hence acquitted the other accused persons, but convicted the appellant. 3 5. Learned Amicus Curiae however contends that injury report which is Ext. 9 does not speak about any injury much less any laceration on the belly of the victim and only material witnesses in this case are P.W. 3, 4 and 5 and other witnesses are only formal and further doctor has also not been examined nor tins of the alleged explosive. Ext. 2/1 has been proved by P.W. 3. However, Daroga has not been examined nor report of Forensic Science has been proved that tins of the alleged explosive were explosive substance. 6. After going through the evidence, I find that P.W.3, 4 and 5 supported the prosecution case that Nago Tanti hurled bomb causing injury to Sadhu Tanti. However, the doctor who examined the Sadhu Tanthi has not been examined and the injury report has formally been proved. Fourth case of Section 60 of Evidence Act provides that opinion of the doctor is required to prove by direct evidence i.e. the doctor who examined the injured is required to prove the injury. The injury report is not a substantive evidence and mere prove of injury report will not prove the opinion about injury on the injured. Hence injury report proved by the formal witness 4 is not acceptable evidence. Moreover, I.O. has not been examined who has collected tins and further the said tins was not sent to Forensic Science Laboratory to establish that said articles were explosive substance. Hence There is no cogent and reliable evidence to hold thatg the alleged explosion if any was explosion of a bomb and hence on the evidence on record does not make out a case for establishing that offence under Section 3 of Explosive Substance Act made out. Hence order of conviction and sentence recorded against Nago Tanti is not sustainable as prosecution has not proved the case beyond reasonable doubt. 7. Hence order of conviction and sentence is hereby set aside and the appeal is allowed. Patna High Court, The 24th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)