Mokro Gagrai Vs. State of Jharkhand - Court Judgment

R.R. Prasad, J.

1. The sole appellant, Mokro Gagrai was put on trial to face charge under Section 5 of the Explosive Substances Act on an accusation that he knowingly keep explosive substance (bomb) under this control not for a lawful object. Learned Sessions Judge having found the appellant guilty convicted him under Section 5 of the Explosive Substances Act and consequently sentenced him to undergo RI for a period of two and half years.

2. The case of they prosecution is that on 3.8.1990 the informant, Oman Kangari, PW 3 while was on patrolling duty along with other police personnel, namely, Anil Kumar Mawar (PW 2), Radhey Shyam Singh (PW 4), S.D. Upadhya, B.B. Singh, Havildar Mahabir Minj and Havildar Ganeshi Harijan, apprehended one Naresh Kashea @ Chengna @ Bihari on the road near Deogaon school and on his disclosure, a raid was laid in the house of this appellant at village Banmalipur in presence of two independent witnesses, namely, Bishwa Kachchap and Raju Saw and recovered a country made live bomb kept concealed under heap of straw and seized it under seizure-list (Ext. 2). On being questioned, the appellant informed to the raiding party that the said bomb had been given to him by Naresh Kashera, so that it may be used in course of the commission of some offence.

3. The informant, Oman Kangari himself got his statement recorded and on the basis of which the case was registered against this appellant and other accused and the matter was taken up for investigation.

4. During investigation the bomb recovered from the possession of the appellant, was sent for its examination before Forensic Science Laboratory, Ranchi. After examination, the report was submitted by the Director, Regional Forensic Science Laboratory, Ranchi, giving an opinion that the sample sent for examination, contains the ingredients of home made bomb. The Investigating Officer also procured sanction order (Ext. 1) from the competent authority for prosecution the appellant and other under Sections 3 and 5 of the Explosive Substance Act.

5. After completion of the investigation, the police submitted chargesheet against the appellant and the other accused. Accordingly the cognizance of the offences was taken and in due course when the case was committed to the Court of sessions the charges were framed, to which the appellant pleaded not guilty and claimed to be tried.

6. In transpires from the record that the other accused, Naresh Kashera when absconded his case was separated.

7. In course of the trial, the prosecution examined as many as 5 witnesses. Of them PW 3, Oman Kangari is the informant, PW 2, Ani Kumar Mowar, PW 4, Radhey Shyam Singh are the members of the raiding party, whereas PW 5, Ram Naresh Singh is the 10 and PW 1, Kashi Nath, is the formal witness.

8. After the prosecution case was closed the appellant was questioned under Section 313, CrPC about the incriminating circumstances' appearing against him, to which he denied.

9. The learned Sessions Judge on the basis.of the materials, did find the appellant guilty of the charge levelled against him and passed the order of conviction and sentence against the appellant as aforesaid.

10. Being aggrieved with that the appellant has preferred this appeal.

11. Learned Counsel appearing for the appellant submits that the instant case, the conviction has been based on the evidence of the witnesses, who were members of the raiding party and therefore all were interested and in that situation in absence of any independent witnesses, including seizure list witnesses, the trial Court should not have convicted the appellant. Learned Counsel further submits that according to PW 5, Ram Narain Singh, 10 he has only made investigation of the case in part and did not record the statement of the witnesses and therefore in absence of the evidence of Investigating Officer, who recorded the statement of the witnesses and inspected the PO, the trial Court should not have held the appellant guilty.

12. Heard learned Counsel for the State.

13. Having heard counsel for the parties and on perusal of the record, I do find that the informant (PW 3), Oman Kangari, in his evidence, has stated that in course of the patrolling duty accompanied by Anil Kumar Mowar (PW 2), Radhey Shyam Singh (PW 4) and other persons, they apprehended one Naresh Kashera on the road near Deogaon school and on his disclosure, house of this appellant situated at village Banmalipur, was raided and recovered a country made live bomb, which was kept concealed under the heap of straw. The testimony of PW 3 get corroboration from the other witnesses, namely, Anil Kumar Mowar (PW 2) and Radhey Shyam Singh (PW 4). Nothing has been elicited from the witnesses as aforesaid, to discredit the testimonies of the witnesses. It is true that seizure-list witnesses, namely, Bishwa Kachchap and Raju Saw were not examined by the prosecution, but non-examination of the seizure list witnesses, does not affect the case of the prosecution especially when nothing is here to discard the testimony of the witnesses on the point of recovery of the bomb. The appellant does not seem to have put anything in course of the trial to suggest that the bomb found in his house was kept for lawful object, rather the manner in which the bomb was found to be kept, does suggest that the same was kept for other than lawful purpose. It would be relevant to mention here that the report submitted by the Director, Regional Forensic Science Laboratory, Ranchi, clearly indicates that the sample sent contains the ingredient of home made bomb. This report, which is on the record, does not seem to have been marked as exhibit at the instance of the prosecution, but that report in view of the provision of Section 293, CrPC can easily be read in evidence and in fact the trial Court has also placed his reliance while coming to the conclusion. So far submission regarding non examination is concerned, nothing was shown as to in which manner case of the appellant got prejudiced on account of non examination of the IO. Hence prosecution case does not suffer on account of non examination of the IO.

14. Thus the prosecution seems to have succeeded in proving the following ingredients necessarily required to be proved for constituting an offence under Section 5 of the Explosive Substances Act (i) that the substance in question found is explosive substance (ii) that the accused makes or knowingly has in possession or under his control any explosive substance and (iii) that he does so under such circumstances as to give rise to reasonable suspicion that he is not doing so for lawful object.

15. Under the aforesaid circumstances, I do find that the trial Court has rightly convicted the appellant. I do not find any merit, hence the instant appeal stands dismissed. Appeal dismissed.