HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT, JABALPUR SINGLE BENCH PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.2053/1996 Makhan Singh Vs. State of Madhya Pradesh ........................................................................................................... For the appellant : Shri G. S. Ahluwalia, Advocate. For the respondent: Shri Ajay Tamrakar, Panel Lawyer ........................................................................................................... JUDGMENT
(Delivered on the 28th day of September, 2012) The appellant has preferred this appeal against the judgment dated 2.11.1996 passed by the Additional Sessions Judge, Khurai, District Sagar in ST. No.74 of 1994 whereby the appellant was convicted for offence punishable under Section 304-A of I.P.C and Sections 5 read with Section 9B(1)(a) of the Explosives Act and sentenced for 2 years rigorous imprisonment with fine of Rs.500/- and two years rigorous imprisonment respectively. In default of payment of fine, two months simple imprisonment was also awarded. Both the sentences to run concurrently. 2 Criminal Appeal No.2053 o”
2. The prosecution's case in short is that on 14.3.1992 at about 8.00 p.m in the evening, a blast took place in the hotel of Ramswarup (PW1) and his son Dilip sustained injuries in that blast and ultimately expired. A panchayatnama lash Ex.P/5 was prepared and dead body was sent for post mortem. Dr. Rakesh Saxena (PW7) did the post mortem on the body of the deceased and gave his report Ex.P/11. He found that the deceased died due to shock and coma caused in the explosion. Ramswarup (PW1) father of the deceased, had stated before the Police that he required some suarmar bombs to protect his crops and therefore, he contacted Balram (PW3) who, informed him that such bombs were available with the appellant and therefore, the witness Ramswarup contacted the appellant. The appellant directed him to visit his field and he will affix such bombs in the field of Ramswarup to protect his crops. On the day of incident, Makhanlal provided four bombs in a blue bag to Pradeep Kumar, son of the witness Ramswarup, in the hotel who kept the bag in a safe place. The deceased was not aware of those bombs and therefore, an explosion took place in the hotel causing the death of the deceased. After due investigation a charge sheet was filed before the JMFC Khurai, who committed the case to the Sessions Court Sagar and ultimately it was transferred to the Additional Sessions Judge, Khurai.
3. The appellant abjured his guilt. He did not take any 3 Criminal Appeal No.2053 of 1996 specific plea but has stated that he was falsely implicated in the matter. He did not supply any bomb to the witness Pradeep. In his support Balram (DW1) was examined.
4. After considering the evidence adduced by the parties the learned Additional Sessions Judge acquitted the appellant for offence punishable under Section 25 of the Arms Act, Section 12 of the Explosives Act and Section 5 of the Explosive Substance Act and convicted him for the offence punishable under Section 304-A of I.P.C and Section 5 read with Section 9B(1)(a) of the Explosives Act and sentenced as mentioned above.
5. I have heard learned counsel for the parties.
6. The learned counsel for the appellant submitted that the case is dependent upon the evidence given by Pradeep (PW4) but, he was not at all a believable witness. Similarly it is told that the appellant gave an extra judicial confession before the witness Ramswarup whereas such type of confession was not required to be given by the appellant. Actually Ramswarup was to shift the guilt of himself upon any other person and therefore, he shifted his guilt upon the appellant. It is no where proved that any explosive was provided by him to the witness Pradeep. Under such circumstances, the appellant is convicted without any basis. Therefore, it is prayed that the appellant be acquitted.
7. On the other hand the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial 4 Criminal Appeal No.2053 of 1996 Court appears to be appropriate and no interference can be done in the appeal.
8. After considering the submissions made by the learned counsel for the parties, looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted ?. And whether sentence passed against the appellant can be reduced ?.
9. Ramswarup (PW1), Pradeep Kumar (PW4) and Ramgulam (PW5) have stated that an explosion took place in the hotel of Ramswarup and in that incident the deceased Dilip sustained injuries and ultimately he expired. Dr. Rakesh Saxena (PW7) in his post mortem report Ex.P/11 found that the deceased Dilip @ Tillu died due to the injuries caused in the incident. It is apparent that incident took place in the hotel of Ramswarup.
10. Pradeep Kumar (PW4) has tried to prove that at about 5.00 p.m, a blue bag was given by the appellant, to deliver it to the father of the witness Pradeep Kumar and therefore, he kept that bag on an almirah. Dilip who came from outside had no knowledge about those bombs and therefore, an explosion took place. At the same time Ramswarup (PW1) has stated that the appellant had accepted his guilt before him that he committed the mistake that he provided such bombs to the children. Testimony of Pradeep Kumar (PW4) and Ramswarup (PW1) appears to be unnatural. 5 Criminal Appeal No.2053 o”
11. Bombs were required by Ramswarup to protect his crops from the wild boars and therefore, he wanted that wild boards be killed so that his crops may be protected. Ramswarup has stated that he knew that the witness Balram (PW3) (Balram was also examined as a defence witness no.1 thereafter) had a gun and therefore, with help of his gun he wanted to kill the wild boars. Thereafter, Balram informed him that the appellant could arrange for suarmar bomb to protect his crops but the witness Balram did not support the evidence given by the complainant Ramswarup. He refused the fact that such talk took place with Ramswarup. Ramswarup has further stated that he had a talk with the appellant and the appellant directed him to visit his field so that he will take the bombs and affix them in his field. If the testimony of Ramswarup is accepted as such then it would be apparent that the appellant was aware that Ramswarup could not affix the bombs in his field on his own but, it was for the appellant Makhanlal to affix them, but thereafter, witness Ramswarup did not visit the field with the appellant. Under such circumstances, there was no possibility that the appellant had provided four bombs on his own to Pradeep son of Ramswarup.
12. Also the need shown by Ramswarup appears to be hypothetical. Ramswarup has stated that talk with the appellant took place one day prior to the incident whereas, he has accepted in his statements that at the time of incident he and his brother 6 Criminal Appeal No.2053 of 1996 Ramgulam went to his field to get the crop thrashed by a thresher. Under such circumstances, it is apparent that the crop of the witness Ramswarup was already reaped and it was thrashed by a thresher and therefore, he was not required to get any suarmar bomb from the appellant to save his crop because the crop was already reaped. The appellant knew that such type of bombs could not be kept by anyone without any license and therefore, he was reluctant to provide such a bomb to the witness Ramswarup and he told that he would affix such bombs in the field of Ramswarup. Under such circumstances, he could not provide such bombs to Pradeep son of Ramswarup in such a manner. If the appellant was dealing with such bombs then certainly Police could seize more bombs from the possession of the appellant but, no bomb was seized from the appellant.
13. Pradeep has stated that bombs were provided by the appellant in a blue bag but, according to the statements given by Ramgulam (PW5), he went to the spot soon after the incident and thereafter, he went to the Police Station along with Kishori Kotwar and Nathu Vishwakarma to inform about the incident. The witnesses relating to Merg intimation were not examined. Amol Singh (PW2) has turned hostile. He could not say anything about the incident. No merg intimation is proved before this Court. Merg intimation is a document of prosecution itself and therefore, it could be read in favour of the appellant though it is not proved. 7 Criminal Appeal No.2053 of 1996 Merg intimation is available in part B of the file of the trial Court in which Kishorilal son of Nandlal Chadhar had informed the Police that about about 8.00 p.m in the night an explosion took place in the hotel of Dilip @ Dippu and due to that explosion Dilip died. In that merg intimation presence of Pradeep is not shown. The Kotwar was sent by the witness Ramgulam, uncle of deceased Dilip. If bombs were handed over by the appellant to the witness Pradeep then the natural reaction of Pradeep would be that he would have informed his uncle that explosion took place due to those articles given by the appellant and the Kotwar must have mentioned about receipt of those bombs in his merg intimation. The Kotwar Kishorilal did not mention anything about the source of bomb in his merg intimation to the Police and therefore, it is apparent that at the time of lodging an FIR about the incident, nobody had any knowledge that from where those bombs were obtained. Under such circumstances, the testimony of the witness Pradeep Kumar cannot be believed. It appears that he wanted to shift the guilt of his father upon the appellant.
14. Ramswarup has accepted in his cross examination that when he was informed about the incident he went to the spot but the villagers directed him not to go to the spot. Villagers kept the witness Ramswarup in his house. He was not given an opportunity to see the dead body of the deceased Dilip. Next day when the Police came to the spot then he was called by the Police at the 8 Criminal Appeal No.2053 of 1996 spot. The statement given by the witness Ramswarup clearly indicates that the villagers knew that an explosion took place in the hotel of the witness Ramswarup and therefore, he was liable for that explosion otherwise why he was prohibited to go to the spot soon after the incident?. Conduct of the witness Ramswarup that he did not visit to the spot soon after the incident, indicates that it was his guilty conscious and therefore, he was frightened with the fact that he would be arrested and therefore, he did not visit to the spot in the night. He got sufficient time to cook a story for keeping explosives in his hotel.
15. Looking to the overt act of the witness Ramswarup, it appears that initially he felt that he was guilty and thereafter he shifted his guilt to the appellant. As discussed above the testimony of the witness Pradeep Kumar is not at all believable that bombs were supplied by the appellant. On the contrary it appears that he was not at the hotel at the time of incident and he did not receive any bomb from the appellant.
16. On the basis of the above discussion, where the source of bomb was not informed in the Merg intimation though according to the witness Pradeep Kumar it was in his knowledge but he did not inform anyone in that night that bombs were given to him by the appellant and therefore, his testimony cannot be relied upon.
17. So far as the extra judicial confession is concerned 9 Criminal Appeal No.2053 of 1996 dealing with a bomb was a prohibited activity and therefore, it was not possible for the appellant to supply such type of bombs in a bag to the son of the witness Ramswarup. Secondly if explosion took place then he must have the knowledge of the explosion and reason for that explosion. Under such circumstances, if he would have told something then certainly such explanation given by the appellant would have caused him implicated in the crime and therefore, the natural conduct of the appellant would be that he should have kept silence on the point. It was not possible for the appellant to give any extra judicial confession to the witness Ramswarup, father of the deceased Dilip. The witness Ramswarup has stated that he went to the spot being called by the police, the appellant was also present and he confessed before the witness Ramswarup at that time. It is no where told by the witness Ramswarup that at that time Ramgulam was present but, Ramgulam (PW5) has also claimed that the appellant accepted that he committed the mistake. However, no such statement was given by the witness Ramgulam in his case diary statement. Under such circumstances, it appears that Ramswarup and his brother were bent upon to establish that the appellant confessed his guilt before them whereas, under such a situation where Police has no suspicion on the appellant there was no need for the appellant to accept his guilt before the witness Ramswarup. The testimony of the witness Ramswarup relating to the extra judicial 10 Criminal Appeal No.2053 of 1996 confession of the appellant cannot be relied upon.
18. On the basis of the aforesaid discussion it is apparent that it is not proved beyond doubt that the appellant confessed his guilt before anyone. The testimony of the witness Pradeep Kumar is not at all believable and therefore, it is not proved beyond doubt that the appellant was the person who provided four bombs to the witness Pradeep Kumar. On the other hand there was no need to the witness Ramswarup to get any bomb from anyone because his crop was already reaped and therefore, there was no possibility for search of any bomb by witness Ramswarup at that time. In such circumstances, the statement given by the witness Balram appears to be acceptable that no such talk took place between the witness Balram and Ramswarup. Hence the prosecution could not connect the appellant with the explosives due to which an explosion took place in the hotel of Ramswarup. If any doubt is created than benefit of doubt is given to the accused. The appellant neither can be convicted for the offence punishable under Section 304-A of I.P.C not for offence punishable under Section 5 read with Section 9B(1)(a) of the Explosives Act.
19. On the basis of the aforesaid discussion it is not proved beyond doubt that the appellant provided explosives to the witness Pradeep Kumar and therefore, he cannot be convicted for offence punishable under Section 304-A of I.P.C or Section 5 read with Section 9B(1)(a) of the Explosives Act. Hence the appeal filed by 11 Criminal Appeal No.2053 of 1996 the appellant appears to be acceptable. Consequently, it is accepted. The conviction as well as the sentence passed against the appellant for offence punishable under section 304-A of I.P.C and Section 5 read with Section 9B(1)(a) of the Explosives Act is hereby set aside. The appellant is acquitted from all the charges appended against him. He would be at liberty to get the fine amount back if he has deposited before the trial Court.
20. The appellant is on bail and his presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
21. Copy of the judgment be sent to the trial Court along with its record for information and compliance. (N.K.GUPTA) JUDGE 28 9.2012 bina