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
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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-
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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.
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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
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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
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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
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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
