Criminal Appeal (SJ) No.344 of 1998 Against the judgment and order of conviction dated 01.08.1998 and order of sentence dated 03. 08. 1998, passed by Shri Devi Dayal Prasad, 2nd Additional Sessions Judge, Darbhanga, in Sessions Trial No. 126 of 1988. Lakhan Mandal, son of Tirpit Mandal, resident of Village-Nehra, Police Station- Manigachhi, District- Darbhanga. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant : Mr. Bimal Kumar, Advocate. Mr. Kripa Nand Jha, Advocate. Mr. Birendra Kumar, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 4 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for seven years with fine of Rs. 100/ (one hundred) and in default to undergo simple imprisonment for seven days. The appellant has further convicted under Section 323 I.P.C. but not sentenced. 3. The Fardbeyan recorded by S.I. at Nehra Tola Rajwara in the Dalan of Raghu Nandan Ram on 21. 12. 1980 at 6. 30 P.M. On the Fardbeyan of the 2 informant, Ram Prit Paswan that he used to drive rickshaw and was going to his house along with Ram Bilas Paswan on the said village and reached near the toddy shop and he overtake another rickshaw which was going slowly and two persons were on the rickshaw they are Lakhan Mandal and Suraj Sahni, they started abusing the informant on which informant stop the rickshaw and then both persons came, Lakhan catch hold of his collar and Suraj Sahni catch hold of Ram Bilas Paswan (P.W.7) and start assaulted on which Mahabir Paswan (P.W. 6) (not examined) Jagdish Paswan (P.W. 5), Nunu Paswan (P.W.2), Soman Paswan (not examined) and other several persons came there and save the informant and Ram Bilas Paswan. The further case of the prosecution in the Fardbeyan that both accused Lakhan Mandal and Suraj Sahni took out bomb from their pocket and pointed on the informant and others and threatened that who ever come to them, they will blast by bomb. All the persons flee away and informant also flees away out of fear of bomb in their hand. Thereafter, both Lakhan and Suraj went away on Rickshaw. After sometime Darogaji came and informant and others disclosed him about the 3 possession of bomb with Lakhan Mandal and Suraj Sahni. Further the case of prosecution that on disclosure, Darogaji chase Lakhan and catch hold of Lakhan Mandal near the toddy shop of Soman Paswan. The Daroga after catching hold of Lakhan brought him back to the informant and from possession of Lakhan Daroga took out the bomb and iron knife. 4. On the Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. After commitment, charge was framed under Section 3/4 of Explosive Substance Act and Section 323 and 341 of Indian Penal Code. During trial nine witnesses were examined who are P.W. 1 Mani Kant Chaudhary, P.W. 2, Nanu Paswan, P.W. 3, Sebanand Singh, P.W. 4 is informant Ram Prit Paswan, P.W. 6 Mahabit Paswan, P.W. 7 Ram Bilas Paswan, P.W.8 Parmeshwar Mandal and P.W. 9 Jagat Tiwary, I.O. The documentary evidence proved are Ext. 1, signature of Mani Kant Chaudhary, Ext. 2 is sanction order of District Magistrate, Ext. 3 is the report of Forensic Science Laboraty, Ext. 4, Fardbeyan, Ext. 5, Seizure list, Ext. 6 4 Formal F.I.R. and Ext. 7 and 7/1 of case diary. 5. The trial court on the evidence of P.W. 8 to the effect that he has accepted his signature in the seizure list even though, denied seizure in his presence accept the seizure. Further relied upon evidence of P.W. 5 that accused Lakhan was chased by the police and apprehended near the shop of Soman Paswan and statement of P.W. 4 that P.W. 8 is Sarpanch and further taking into consideration the seizure list, sanction report of D.M. and F.S.L. report convicted and sentenced the appellant as aforementioned. 6. Learned counsel for the appellant however, contends that there is no evidence at all who andwhere the appellant apprehended by the police and there is no evidence that who brought the appellant to the place where seizure was made and there is no evidence of seizure and not support the search and seizure. Mere proof of signature on seizure list will not prove the signature. 7. Learned counsel for the State however, supported the prosecution as prosecution has been able to prove the charges and order of conviction and 5 sentence is maintained. 8. However, the prosecution case itself as appears from the Fardbeyan recorded by S.I., S. Baitha, who has not been examined. The informant P.W. 4 in his Fardbeyan stated that he was going on rickshaw with Ram Bilas Paswan, P.W. 7. His rickshaw overtakes the rickshaw of appellant Lakhan Mandal and one Suraj Sahni. So lakhan abuse and assaulted him. Thereafter, Mahabir Paswan, P.W. 6, Jagdish Paswan, P.W. 5, Nunu Paswan, P.W. 2, Soman Paswan (not examined) came there. 9. However to this part of the prosecution story P.W. 7 has not been supported the prosecution and has declared hostile. P.W. 6 has not also supported the prosecution case. However, P.W.5 has come to support the prosecution case and has stated that he had seen some quarrel between Ram Prit Paswan and Lakhan Mandal and Suraj Sahni and then Suraj Sahni and Lakhan Mandal threatened to bring the bomb. However, he does not state that he saw the bomb. Hence supported the prosecution case only to the extent that there was some quarrel between Ram Prit Paswan and Lakhan 6 Mandal and Suraj Sahni. 10. Hence, the prosecution case as first part is concerned, only one person has come to support the prosecution case is P.W. 5 only to the extend that there was some quarrel between Ram Prit Paswan and Lakhan Mandal and Suraj Sahni. 11. However, the second part of prosecution story is concerned that police came then he was informed about bomb then police chase Lakhan catch hold of him near toddy shop of Soman Paswan and then brought him to Dukhin Sah then called the informant and there alleged bomb was recovered from pocket of lakhan and seizure list prepared. However, there is no witness has come to support this part of the prosecution story except P.W. 8 who is also not a witness of quarrel or apprehension of Lakhan at the toddy shop of Soman Paswan. S.I., S. Baitha has not been examined in this case. P.W.1 however, stated that Daroga did not seize any article before him and has been declared hostile, though, has proved his signature on the seizure list. In cross-examination he has stated that he signed at the instance of Sarpanch. P.W. 8, though, he has proved his 7 signature on the seizure list as Ext. 1/1 but denied the seizure of any bomb and dagger before him. Hence P.W. 1 and 8 have not supported the prosecution case about seizure of bomb from the possession of Lakhan. 12. However, Dargo (I.O.) who catch hold of Lakhan brought him and conducted search and seizure of bomb from Lakhan and prepared seizure list has not been examined. 13. P.W. 4 in his evidence supported the prosecution case, but he is not a witness about recovery of bomb nor seizure proved by other witnesses. However, in his cross-examination he has developed the third case that accused persons throw bomb. However, there is no case of throwing bomb or any explosion. P.W. 6 and 7 have been declared hostile and have not supported the prosecution case. 14. Having regard to the facts and circumstances, seizure of the article from the possession of the appellant has not been established. None of the witness of seizure list supports the prosecution case about seizure. P.W. 5 who supported the prosecution case in part has not supported the prosecution case about 8 bomb in possession of Lakhan. The I.O. who apprehended the appellant also has not been examined. Hence there is no evidence at all except the evidence of P.W.4 to support the prosecution case about recovery of bomb from the possession of the appellant. 15. Hence order of conviction and sentence recorded by the lower court is hereby set aside as the prosecution has not been able to prove the charges and hence the appeal is allowed. Patna High Court, The 25th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)