CRIMINAL APPEAL No. 90 OF 1998 (In the matter of an appeal us 374(2) of the Code of Criminal Procedure against the judgment of conviction dated 16th January, 1998 and order of sentence dated 19th January, 1998 passed by Shri Gopal Krishna Jha, 6th Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 319 of 1992/344 of 1992) ******** 1. AWAHESH MISHRA @ SRI AWADHESH MISHRA, SON OF LATE LALAN MISHRA 2. TRIBHUWAN MISHRA @ SRI TIRBHUWAN MISHRA, SON OF SARJUG MISHRA BOTH RESIDENTS OF VILALGE SARAIYA BADURAHA, POLICE STATION DUMARIAGHAT, DISTRICT EAST CHAMPARAN ……………………………………………………………………..…….APPELLANTS VERSUS THE STATE OF BIHAR ……………………………………………RESPONDENT ********* FOR THE APPELLANTS :- MR. SUSHMITA MISHRA, ADVOCATE MR. KRISHNA BALLABHA SHARMA, ADV. MR. SURYA NARAYAN SAH, ADVOCATE FOR THE S T A T E :- MR. S. N. PRASAD, A.P.P. ************ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The two appellants before this Court have challenged the judgment of conviction delivered on 16th January, 1998 by the 6th Additional Sessions Judge, East 2 Champaran, Motihari convicting them to undergo simple imprisonment for five years for the offences under Section 3 of the Explosive Substances Act (hereinafter referred to as “the Act”) and simple imprisonment for five years for the offences under Section 4 of the Act and also to pay fine of Rs. 2,000/-, in default of which further to go simple imprisonment for two months. The prosecution case is that the informant was sleeping in the night in his AANGAN along with other family members and suddenly he heard sound of the bomb explosion and felt that he had received pellet type injury. The informant does not name any one in the First Information Report. The names of the appellants transpired subsequently in the further statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure and in the protest petition filed by the informant and the involvement has been supported by other witnesses who have deposed before the Trial Court. The motive for the occurrence is said to be political rivalry as the appellants belong to the CPI (ML) Party whereas one Subha Narayan Mishra who has been examined as PW 2 belongs to the Congress Party and it is alleged that it is on his instigation the appellants have been made accused in this case. Two questions have been raised in this case. 3 Firstly, that the accused should not be convicted without proper sanction under Sections 3/4 of the Act. Second question is that the facts and the evidence disclose that infact the involvement of the appellants have been engineered by Subha Narayan Mishra and others and the names have been cropped up as an afterthought. In this case, eleven witnesses have been examined to substantiate the prosecution case. I shall begin with the evidence of PW 8 who is the informant of this case. The First Information Report was admittedly instituted on 13.05.1988 at 6:30 AM. It appears that apart from the informant and Ram Chabila Mishra, the First Information Report has not been signed by any other person. The admitted position is that in the First Information Report, the names of the appellants are not disclosed as it has been specifically stated by the informant that he tried to locate the person who had hurled the bombs but was not able to find anyone at the place of occurrence. In this background, the Court shall now examine the statement made subsequently by the informant in which he had claimed to identify the appellants. Before the Trial Court during the deposition, the informant has come forth with a different version to the First Information Report inasmuch as he has stated in Court that he was sitting while his sons were studying by a lantern light which was burning and he 4 identified the appellants by means of a torch light. The story of identification by means of lantern and torch light is the subsequent version revealed at the time of the trial. The informant further states that he had also heard the sound of the pistol and claims that he did not get himself treated by any doctor until he went to get medically treated on 14.05.1988. The fact that the informant and his father and sons were not treated by doctor after the occurrence is supported by the fact that the injury report also indicates that the informant went to the doctor for the first time on 14.05.1988. The informant also improves his case by saying that after the occurrence, several persons gathered at the place of occurrence. He claims to have visited the Police Station in the night of the occurrence as well, but it appears that the fardbayan was not recorded in the said night. All and all, the evidence of the informant (PW 8) indicates that he improved his case with respect to the manner of the occurrence from stage to stage and infact has also named the appellants as an afterthought. It is difficult to believe that the informant would have given his fardbayan without speaking with his son and father or the so-called witnesses who had come to the place of occurrence immediately after the occurrence, therefore, the introduction of the names of the appellants subsequently becomes highly suspicious and doubtful. 5 The subsequent introduction of the names of the appellants becomes doubtful also for the reasons that the witnesses that have been examined on behalf of the prosecution are either on enemical terms with the appellants or are related to the informant and there are proceedings under Sections 144 & 107 of the Code of Criminal Procedure between them and appellants. PW 1 Rajesh Kumar Mishra is the son of the informant. He has said to have been injured during the occurrence. This witness has tried to support the subsequent statement of his father by stating that he saw the appellants hurling the bombs. Although, he states that after the bombs exploded, he could not see anything because of the smoke that had spread after the explosion. This witness further states that he had disclosed the names of the appellants to the Mukhiya who had come on hulla and has also seen the occurrence. PW 1 claims that they went to the Police Station in the night and also got himself examined at the hospital. The evidence of PW 1 with respect to the identification is obviously an afterthought because if he had infact identified the appellants, he would have disclosed this fact to his father also and the fact would have come forth in the fardbayan of PW 8. Therefore, the Court can not rely on the evidence of PW 1 as far as it relates to the identification of the appellants. 6 The evidence of PW 2 supports the prosecution case and stated that he too went to the place of occurrence immediately after the bombs were hurled. Apparently, there is rivalry between the appellants and this witness. This would be apparent from the documents which have been exhibited by the defence which has been mentioned at paragraph 9 of the Trial Court judgment. They are Exhibit-A to G which shows that the appellants have either been litigating with PW 2 or are witnesses in cases in which PW 2 is an accused. Even in proceedings under Section 107 of the Code of Criminal Procedure, the appellant Awadhesh Mishra has been noticed at the behest of this witness. These exhibits cannot be ignored and have wrongly been rejected on the ground that they are not relevant. On perusal of the exhibits, I find that these exhibits disclosed that PW 2 and the appellants are on litigating terms and, therefore, the evidence of PW 2 can not be relied upon for holding the prosecution case to establish the involvement of the appellants in this case. PW 3 claims that he was sitting with PW 2 at the time of the occurrence and both of them went to the place of occurrence after it had taken place. He further states that Ram Chabila Mishra i.e. the informant asked him to give evidence in this case and further states that they went to the Police Station to record the fardbayan. All 7 these facts do not find support from the evidence of PW 8 and as such this Court finds it difficult to believe the evidence given by the PW 3 before the Trial Court. PW 4 Moti Rai, on the other hand, has given evidence which is full of contradictions not only with respect to the manner of the occurrence but also his presence has not been acknowledge by any of the parties much less the informant. Further, in paragraph 8, he claims that he heard at the place of occurrence that these appellants were involved in the said occurrence. Therefore, this witness at the most is an heresay witness. PWs 5 and 6 are related to the informant and their evidence reveals that there are cases pending between the appellants and this witness which were later on compromised. PW 6 further stated that there was political rivalry between PW 2 and the appellants as both belongs to different political parties and oppose each other in all political matters including election of Mukhiya. This Court rejects the evidence of PW 7, Satya Narain Mishra, the father of the informant, on the simple grounds and for the reason that he was 113 years of age in the year 1998 which would necessarily mean that there would be some inherent difficulties for this witness to have see the occurrence at about 10:30 PM even in the lantern or torch light. Moreover, it is also not acceptable 8 that a man of 100 years of age would be awoke and alert at that time in the night. Again, PW 7 had not disclosed the name of the appellants to his son the informant immediately after the occurrence even though claims that he was with the informant at the time of occurrence. Lastly the Court will refer to the evidence of PW 9, the Investigating Officer, who has stated that there are series of litigation between Subha Narayan Mishra and the appellants. Further, he has stated that he has seized the articles which were found at the place of occurrence and sent the same for chemical examination, however, they were sent back without any report. The Investigating Officer has also stated that a number of persons infact did not support the prosecution version. The evidence of Investigating Officer infact indicates that there were sufficient reasons for the appellants to be implicated in this case. Surprisingly, the informant, his father and his son got themselves medically examined after a delay of more than 24 hours. The doctor has found simple injuries which he attributes to gun powder. The doctor has also stated in his cross-examination that such injuries could have also been caused by match stick. This Court would not like to comment on the report of the doctor except to say that the entire manner in which the informant has 9 conducted himself for the purpose of lodging of this case appears to be highly suspicious. I may point out that I have discussed the evidence of the witnesses because the learned A.P.P. had raised an issue that the appellants have been convicted not only under Section 3/4 of the Act but under Section 324 of the Indian Penal Code. As is apparent, it would appear that the appellants have been deliberately named by the informant and others due to enmity, after due deliberation with PW 2. The presence of PWs 3, 4, 5 and 6 at the place of occurrence is very doubtful and this Court feels that there is insufficient evidence with regard to the involvement as far as the appellants are concerned. The main point raised on behalf of the appellants is that the appellants could not be convicted under Section 3/4 of the Act as sanction for prosecution was given by the District Magistrate on 23.05.1989. It has been pointed out that at the relevant time the District Magistrate was not empowered to give sanction for prosecution. The power vested with the Central Government. Referring to Section 7 of the Act, which reads as follows :- 7. Restriction on trial of offences- No Court shall proceed to the trial of any 10 person for an offence against this Act except with the consent of the [District Magistrate]. The word District Magistrate was replaced in place of the word Central Government by Act 54 of 2001 with effect from 01.02.2002. Therefore, it is submitted that at the relevant time the sanction could not have been awarded by the District Magistrate. Learned Counsel for the appellants refers to two decisions to support the submissions aforesaid. In the case of Dilip Mandal vs. The State of Bihar reported in 1998 (3) PLJR 332, this Court has hold that the trial against the accused proceeding merely on the basis of a sanction accorded by the District Magistrate does not fulfill the terms of proper sanction in terms of Section 7 of the Act and the trial is not sustainable for this reason. A similar view has been taken in the case of Prakash Chandra Yadav & Others vs. The State of Bihar & Others, reported in 2007 (2) PLJR 394. In this case, the conviction was under Section 3/4 of the Act and Section 307 of the Indian Penal Code. The Court hold that the sanction was not in terms of Section 7 of the Act as it was given by the District Magistrate who was not empowered at the said time of the award of the sanction. In the present case, therefore, the conviction 11 under Section 3/4 of the Act is not in accordance with Section 7 of the Act. The conviction and sentence passed in Sessions Trial No. 319 of 1992/344 of 1992 is set aside and the appellants are acquitted of the charges leveled against them. The appellants are also discharged from the liabilities of the bail bonds furnished earlier before the Trial Court in this case. In the result, this appeal is allowed. ( Sheema Ali Khan, J. ) Patna High Court April 09, 2009 N.A.F.R./Anand