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Vikash Kumar @ Vikash Kumar Singh vs The State Of Bihar on 12 July, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2756 of 2017
Arising Out of PS. Case No.-333 Year-2016 Thana- SASARAM NAGAR District- Rohtas

Vikash Kumar @ Vikash Kumar Singh, Son of Sudama Singh, resident of
Mohania, P.S.- Karagahar, District- Rohtas at Sasaram.

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Vikram Deo Singh-Advocate
For the Respondent/s : Mr. Binod Bihari Singh-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

12-07-2019 Appellant Vikash Kumar @ Vikash Kumar Singh

has been found guilty for an offence punishable under Section

4(b)(II) of the Explosive Substances Act and sentenced to

undergo R.I. for ten years as well as to pay fine appertaining to

Rs.10,000/- and in default thereof, to undergo R.I. for one

month, additionally, by the learned Sessions Judge, Rohtas at

Sasaram in connection with Sessions Trial No.247 of 2016 vide

judgment of conviction dated 28.07.2017 and order of sentence

dated 08.08.2017.

2. It is the case of the prosecution, which

originated on the basis of the self-statement of Pawan Kumar

(PW-4), Officer-in-Charge of Sasaram Town P. S. recorded on

08.03.2016 at about 11.15 P.M. disclosing therein that while he

along with A.S.I. Satyendra Kumar Singh armed police
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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personnel comprising Hawaldar Motilal Hembram, Constable-

242 Narendra Tiwari, Constable-229 Guddu Kumar, Constable-

317 Santosh Kumar Sah were engaged in vehicle checking near

S. P. Jain College Mor at about 10.00 P.M., they have seen one

motorcycle coming from Dharmshala Chowk, which was

signaled to stop. Occupant of the motorcycle tried to escape, but

were apprehended and in presence of police Constable Narendra

Tiwari and Motilal Hembram as no other independent person

were present at that very moment, both the persons were

searched out and during course thereof, from the possession of

pillion rider, who disclosed his identity as Vikash Kumar, 50

detonators were recovered connected with small wire and for

that, they failed to furnish documents. In likewise manner, they

also failed to furnish license etc. relating to the motorcycle.

Accordingly, seizure list was prepared, both the accused were

taken into custody.

3. After registration of Sasaram (Town) P. S. Case

No.333 of 2016, investigation commenced and after concluding

the same, chargesheet has been submitted under Section ¾ of

the SectionExplosive Substances Act whereunder trial also proceeded

and concluded in a manner, the subject matter of instant appeal.

4. Defence case, as is evident from mode of cross-
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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examination as well as statement recorded under Section 313 of

the Cr.P.C. is that of complete denial. However, neither ocular

nor documentary evidence has been produced in defence.

5. In order to substantiate its case, prosecution has

examined altogether five PWs, who are PW-1, Satyendra Kumar

Singh (member of the raiding team), PW-2, Narendra Kumar

Tiwari (member of the raiding team as well as seizure list

witness), PW-3, Motilal Hembrum (seizure list witness as well

as member of the raiding party), PW-4, Pawan Kumar

(informant) and PW-5, Ramanuj Singh (I.O.) as well as has also

exhibited as Exhibit-1, signature of PW-2 over seizure list,

Exhibit-1/A, signature of PW-3 over seizure list, Exhibit-1/B,

seizure list, Exhibit-1/C, signature of accused Som Narayan

over seizure list and Exhibit-1/D, signature of accused Vikash

Kumar over seizure list, Exhibit-2, self-statement, Exhibit-2/1,

endorsement, Exhibit-3, formal F.I.R., Exhibit-4, inculpatory

extra-judicial confessional statement, Exhibit-5, F.S.L. Report

and Exhibit-6, sanction report. As stated above, neither oral nor

documentary evidence has been adduced on behalf of defence.

6. Heard learned counsel for the appellant as well

as learned Additional Public Prosecutor and also gone through

the record along with the judgment impugned.
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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7. From the judgment impugned, it is evident that

there happens to be no reason assigned by the learned lower

Court why and on what material, Section 3 of the Explosive

Substances Act is not made out while Section 4 of the Explosive

Substances Act has been made out. Furthermore, it is evident

that learned lower Court while convicting the appellant under

Section 4 of the Explosive Substances Act passed sentence

relating to Section 4(b)(II) of the Explosive Substances Act,

without having such identification during course of convicting.

8. Be that as it may, for better appreciation,

Section 4 of the Explosive Substances Act is quoted below:-

Section 4 in SectionThe Explosive Substances Act, 1908

1[4. Punishment for attempt to cause explosion, or

for making or keeping explosive with intent to

endanger life or property.–Any person who

unlawfully and maliciously–1[4. Punishment for

attempt to cause explosion, or for making or

keeping explosive with intent to endanger life or

property.–Any person who unlawfully and

maliciously–“

(a) does any act with intent to cause by an explosive

substance or special category explosive substance,

or conspires to cause by an explosive substance or

special category explosive substance, an explosion
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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of a nature likely to endanger life or to cause

serious injury to property; or

(b) makes or has in his possession or under his

control any explosive substance or special category

explosive substance with intent by means thereof to

endanger life, or cause serious injury to property, or

to enable any other person by means thereof to

endanger life or cause serious injury to property in

India, shall, whether any explosion does or does not

take place and whether any injury to person or

property has been actually caused or not, be

punished,–

(i) in the case of any explosive substance, with

imprisonment for life, or with imprisonment of

either description for a term which may extend to

ten years, and shall also be liable to fine;

(ii) in the case of any special category explosive

substance, with rigorous imprisonment for life, or

with rigorous imprisonment for a term which may

extend to ten years, and shall also be liable to fine.]

9. After going through the Section 4 of the

Explosive Substances Act, it is evident that it comprises two

parts, the first part speaks the possession with an intention to

cause an explosion in order to endanger life or to cause serious

injury to property while Sub-section-2 deals with possession
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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with intent by means thereof to endanger life or cause serious

injury to property or enable any other person by means thereof,

to endanger life or to cause serious injury to property in India.

When the evidences have been gone through, the PW-1 the

police personnel, PW-2 the arms constable-cum-seizure list

witness, PW-3 the Hawaldar-cum-seizure list witness, PW-4 the

informant and PW-5 the I.O., they have not substantiated the

ingredients of Section 4 by way of stating that such illegal

possession was with an intention to explode in order to cause

injury to the life or property. On the other hand, the evidence is

with regard to possession without license. After all, it is the

burden upon the prosecution to substantiate its case. As stated

above, save and except possession of explosive substance

without license nothing more, at least by way of exploring much

more, that the possession was with an ulterior motive to cause

explosion in order to harm life and property, should have been.

Lacking on that score, did not justify the finding. On the other

hand, from the evidence, it is crystal clear that there happens to

be no cross-examination at the end of the appellant in order to

discredit the factum of recovery of 50 detonators without license

and in likewise manner, challenging their status over seizure list.

That being so, the recovery is not genuinely controverted.
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Because of the fact that prosecution has not been able to

substantiate the ingredients of Section 4 of the Act, on account

thereof, the conviction and sentence recorded by the learned

lower Court with regard thereto is hereby set aside.

10. The sole question now remains that once

possession of 50 detonators without license is found duly

substantiated, then under what provision of law the appellant is

to be proceeded with and the answer is, the detonator is an

explosive as defined under Section 4(d) of the Explosive

Substances Act and as per Section 5, license was required to

possess which the appellant was deficient one and in the

aforesaid background, the appellant is to be convicted in

accordance with Section 9(B)(b) of the Explosive Act.

11. Now, the question remains whether such

conviction could be recorded as no charge has been framed and

for that, Section 221(2) read with Section 215 of the Cr.P.C. is

there to rescue.

12. SectionIn K. Prema S. Rao and another vs. Yadla

Srinivasa Rao and others reported in A.I.R. 2003 (SC) 11, it

has been held:-

“22. Mere omission or defect in framing charge

does not disable the Criminal Court from convicting

the accused for the offence which is found to have
Patna High Court CR. APP (SJ) No.2756 of 2017 dt.12-07-2019
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been proved on the evidence on record. The Code of

Criminal procedure has ample provisions to meet a

situation like the one before us. From the Statement

of Charge framed under Section 304B and in the

alternative Section 498A, SectionIPC (as quoted above) it

is clear that all facts and ingredients for framing

charge for offence under Section 306, SectionIPC existed in

the case. The mere omission on the part of the trial

Judge to mention of Section 306, SectionIPC with 498A,

SectionIPC does not preclude the Court from convicting the

accused for the said offence when found proved. In

the alternate charge framed under Section 498A of

IPC, it has been clearly mentioned that the accused

subjected the deceased to such cruelty and

harassment as to drive her to commit suicide. The

provisions of Section 221 of Cr.P.C. take care of

such a situation and safeguard the powers of the

criminal court to convict an accused for an offence

with which he is not charged although on facts

found in evidence, he could have been charged for

such offence. Section 221 of Cr. P.C. needs

reproduction:-

“221. Where it is doubtful what offence has been

committed-(l) If a single act or series of acts is of

such a nature that it is doubtful which of several

offences the facts which can be proved will
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constitute, the accused may be charged with having

committed all or any of such offences, and any

number of such charges may be tried at once; or he

may be charged. In the alternative with having

committed some one of the said offences.

(2) If in such a case the accused is charged with one

offence, and it appears in evidence that he

committed a different offence for which he might

have been charged under the provisions of sub-

section (1), he may be convicted of the offence

which he is shown to have committed, although he

was not charged with it.

23. The provision of sub-section (2) of Section 221

read with sub-section (1) of the said Section can be

taken aid of in convicting and sentencing the

accused No. 1 of offence of abetment of suicide

under Section 306 of IPC along with or instead of

Section 498A of IPC.

24. Section 215 allows criminal court to ignore any

error in stating either the offence or the particulars

required to be stated in the charge, if the accused

was not, in fact, misled by such error or omission in

framing the charge and it has not occasioned a

failure of justice. See Section 215 of Cr. P.C. which

reads:-

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“215. Effect of errors – No error in stating, either the

offence or the particulars required to be stated in

the charge, and no commission to state the offence

or those particulars, shall be regarded any stage of

the case as material, unless the accused was in fact

misled by such error or omission, and it has

occasioned a failure of justice.

25. As provided in Section 215 of Cr.P.C.

commission to frame charge under Section 306 IPC

has not resulted in any failure of justice. We find no

necessity to remit the matter to the trial court for

framing charge under Section 306 IPC and direct a

retrial for that charge. The accused cannot

legitimately complain of any want of opportunity to

defend the charge under Section 306, SectionIPC and a

consequent failure of justice. The same facts found

in evidence, which justify conviction of the appellant

under Section 498A for cruel treatment of his wife,

make out a case against him under Section 306 IPC

of having abetted commission of suicide by the wife.

The appellant was charged for an offence of higher

degree causing “dowry death” under Section 304B

which is punishable with minimum sentence of seven

years rigorous imprisonment and maximum for life.

Presumption under Section 113A of the Evidence Act

could also be raised against him on same facts
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constituting offence of cruelty under Section 498A,

SectionIPC. No further opportunity of defence is required to

be granted to the appellant when he had ample

opportunity to meet the charge under Section 498A,

SectionIPC.”

13. Accordingly, appellant is found and held guilty

for an offence punishable under Section 9(B)(b) of the

Explosive Substances Act. The Section prescribes maximum

sentence of two years with fine which may extent to Rs.3,000/-

or with both. From the record, it is evident that the appellant

happens to be under custody since 09.03.2016. That being so,

even if sentenced to maximum period that will be within period

of custody and so, no sentence of fine is inflicted against him,

however, sentenced as period already undergone.

14. This appeal is disposed of in terms thereof.

The appellant is under custody, whereupon is directed to be

released forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 15.07.2019
Transmission Date 15.07.2019

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