NAND KISHORE SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants have been convicted u/ss.304 Part I, 307/34 I.P.C. and of the Explosive Substance Act and sentenced to R.I. for 7 years, 7 years and 10 years respectively by the 5th Additional Sessions Judge, Siwan in Sessions Trial No.151 of 1993 by a judgment dated 30.4.1994. The prosecution case, in short, is that when on the night of 13.7.1991 the informant suddenly heard a bomb explosion on his roof, he came out and found the appellants standing in front of the informant's house and they started to abuse the informant. When a neighbour of the informant i.e. Nasiruddin came to the place of occurrence, the accused persons threw bomb on him, on account of which he died. The motive for the occurrence is that the appellants were put behind the bars in a murder case and when they came out, they were pressurizing the informant to file an affidavit in their favour.

(2.) The prosecution to prove its case has examined in all nine witnesses. Out of whom, P.W.1 is the son of the informant, whereas the P.W.2 is the nephew of the informant and P.W.3 and P.W.4 are the full brothers of the informant whereas P.W.5 is the informant himself. P.W.6 and P.W.7 are seizure and inquest witnesses and P.W.8 is the doctor, who held the postmortem examination and P.W.9 is the Investigating Officer of the case. One court witness was also examined subsequently for proving the sanction order under the Explosive Substance Act. On going through the evidence on record. I find that P.W.1 and P.W.5 are only the material witnesses since rest of the witnesses are only on the point of occurrence having taken place whereas these two witnesses have stated about the involvement of the appellants. It has been contended on behalf of the appellants that the prosecution case is falsified for the fact that even though the informant has alleged that the appellants had active animosity with the informant, surprisingly he was not hurt by the appellants. The further submission is that the factum of occurrence is not denied and, therefore, the fact of objective evidence having been found by the Investigating Officer is not challenged. The further submission is that it does not stand to reason as to why the family members of the deceased, who had admittedly come to the place of occurrence right after the incident, were not examined during investigation nor in trial. It also appears from the evidence of the two material witnesses that all the accused persons had concealed their identity and it was only the two appellants, who took no efforts to do so which is very suspicious since admittedly the appellants reside only 400 to 500 yards away from the informant's house and there was imminent danger of them being identified. Even though the Prosecution has taken great pains to prove the factum of occurrence but it is irrelevant in the facts of the case since this Court has to only conclusively come to a decision as to whether the appellants were involved in this occurrence.

(3.) On going through the evidence of the material witnesses who had conceded that only the appellants had come without concealing their identify, which, in my view, is a very suspicious circumstance belying the entire prosecution case on the point of involvement of the appellant giving rise to an inference that it is only because the prosecution was bent upon proving the involvement of the appellants that such a statement was made. In view of the discussions made above, both the appeals are allowed and the order of conviction and sentence passed against the appellants on 30.4.1994 by the 5th Additional Sessions Judge, Siwan in Sessions Trial No.151 of 1993 is set aside. The appellants are discharged from the liabilities of their respective bail bonds.