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2018 DIGILAW 3384 (MAD)

Rajkumar v. State

2018-09-28

N.SATHISH KUMAR

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JUDGMENT N. SATHISH KUMAR, J. 1. This criminal appeal is preferred against the conviction and sentence passed by the learned Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin, in S.C.No.60 of 2005, dated 27.09.2006, in and by which, the Trial Court has convicted the accused as follows: (i) under Section 353 IPC sentenced to undergo rigorous imprisonment for two years; (ii) under Section 506(2) IPC sentenced to undergo rigorous imprisonment for two years (iii) under Section 3 of Explosive Substances Act sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, with the default sentence of one year rigorous imprisonment; and (iv) under Section 5 of Explosive Substances Act sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, with the default sentence of one year rigorous imprisonment. The sentences of imprisonment were ordered to run concurrently. 2. The brief facts of the case are as follows: 2.1. A special police party was proposed to be formed to nab the accused persons in Crime No.545 of 1997 under Section 394 IPC in Kulasekaram Police Station. Accordingly, a special team, comprising PWs 1 to 4, 14 & 15, herein, was formed. On 25.07.1997, on receipt of information about the suspected accused, who are available in a hotel (parota stall), near Bensam Hospital, PWs 1 to 4, 14 & 15, rushed to the spot. When the accused persons came out of the parota stall, on seeing the police party, the first accused in Crime No.545 of 1997 thrown country bombs on them, as a result, it bursted. On seeing the same, the police party managed to escape and at that time, the second accused tried to throw another country bomb. However, the police party caught the accused persons, before throwing the same and has seized the unused country bombs and sickles, under MOs 1 & 2 and arrested the accused persons. A two wheeler involved in the said incident was also seized by the police party under MO3. 2.2. PW1, thereafter, went to the Police Station and gave a special report, under Ex.P5 and consequently, First Information Report was registered under Sections 353, 506(2) IPC r/w Sections 3 & 5 of Explosive Substances Act. PW18 seized the material objects produced by the police team and took up the investigation and recorded the confession of the first accused. 2.2. PW1, thereafter, went to the Police Station and gave a special report, under Ex.P5 and consequently, First Information Report was registered under Sections 353, 506(2) IPC r/w Sections 3 & 5 of Explosive Substances Act. PW18 seized the material objects produced by the police team and took up the investigation and recorded the confession of the first accused. Thereafter, PW18 went to the place of occurrence at about 4.30 pm and prepared observation mahazar, Ex.P19 and rough sketch, Ex.P20. He has also seized the trashes of the country bomb, from the place of occurrence under Ex.P21. The accused persons were sent to remand on 26.07.1997 and thereafter, PW18 made a request to the Forensic Department. After examination, final charge sheet was laid before the trial Court. 2.3. Before the trial Court, 18 witnesses were examined; Exs.P1 to P21 were marked; and MOs 1 to 9 were marked. Based on the evidences, the trial Court has convicted the accused, as stated supra. 3. Learned Counsel appearing for the appellant/accused would submit that this case has been foisted, by the prosecution, against this appellant/accused, as a ground case to detain under Act 14. He would further submit that the evidence of PWs 1 to 4, 14 & 15, is filled with artificiality. In fact, no such incident has been occurred. Seizure of country bombs is a fabricated one. No independent witnesses has been examined and the delay in filing the First Information Report has also been not explained by the investigation officer. Independent witnesses are not supporting the case of the prosecution and hence, he prays for allowing the present appeal, by setting aside the impugned conviction and sentence. 4. Learned Additional Public Prosecutor would contend that the evidence of PWs 1 to 4, 14 & 15 would clearly prove the over-tact of the accused. The trial Court has rightly appreciated the evidence and found the accused guilty. Hence, he prays for dismissal of the present appeal. 5. Having heard the learned Counsel on either side, this Court is of the view that the point for consideration is as to whether the prosecution proves the guilt of the accused beyond reasonable doubt. 6. Admittedly, PWs 1 to 4, 14 & 15 are police witnesses. Merely because they are police parties, their evidence cannot be eschewed on the ground that they are more interested. 6. Admittedly, PWs 1 to 4, 14 & 15 are police witnesses. Merely because they are police parties, their evidence cannot be eschewed on the ground that they are more interested. At the same time, their witness requires careful scrutiny. 7. Pw1, in his evidence, has stated that when he was in Vadaseri Police Station, he received information about the suspected accused and therefore, he went along with the other witnesses. PWs 2, 14 & 15, in their evidence, have stated that while they were in Nesamoni Nagar Police Station, they have received information and all of them joined together and went to the place of occurrence. All of them, in one voice, has stated that the when the police party surrounded the accused, the first accused threw country bomb on them and they managed to escape. However, the country bomb exploded, out of which, the general public panicked. 8. The entire evidence of the police party, the so called eye witnesses, indicates that when they surrounded the accused, country bomb was thrown and it exploded. But, it is curious to note that none of the witnesses have suffered any injury. If the accused had thrown the bomb in a close proximity, when the witnesses, who are the police party, surrounded them, definitely there should be some injuries, at least, minor injury. But, no such injury, whatsoever, reported in any one of the witnesses. 9. It is to be noted that the evidence of PW2 clearly indicate that he never knew the identity of the accused. He did not knew whom they are going to arrest. He has not seen the accused, prior to the occurrence. That being the position, giving the details of each accused and their names in the evidence, creates doubt about the version of the prosecution. 10. It is further to be noted that though it is the version of the prosecution that the occurrence took place in a busy area, viz., Highway and people have started running, the investigation officer, having filed First Information Report in the Police Station at about 11.15 am, went to the spot only at 4.30 pm and thereafter, seized the broken pieces and trashes from the place of occurrence. Admittedly, the place of occurrence is a Highway. Admittedly, the place of occurrence is a Highway. When the occurrence place is a busy area and Highway, collection of investigation materials, nearly after five hours, that too after vehicular moments, create serious doubt about the alleged seizure. Another aspect required to be seen in this case is that when a bomb explosion is reported, the immediate reaction of the investigation officer is to go to the spot immediately. But, the conduct of the investigation officer in reaching the spot at 4.30 pm and thereafter, collecting the evidences, after the vehicle moments, clearly indicate that the entire occurrence as projected by the prosecution is improbable. In fact, it supports the case of the defence that the entire case has been foisted only to invoke the Act 14 as against the accused. 11. It is also to be noted that PW1, in his evidence, has stated that immediately after the arrest of the accused, they have seized the unexploded bombs, but, they have not made any attempt to defuse the same, ie., his evidence does not indicate that they have taken attempts to defuse the unexploded bombs. Whereas, PW2 would state that they have put the unexploded bombs into some vessel filled with sand. This aspect has not been spoken by PW1. Moreover, forensic expert ? PW11, who is said to have defused the so called unexploded country bombs, was called for to do such exercise only after four days. This aspect also show artificiality in the entire case of prosecution. If really live bomb was seized, no one will take risk in keeping the live bomb in the police station and call the expert after four days to defuse the same. This creates serious doubt as to the entire case of prosecution. 12. It is further to be noted that the expert, who has given the report stating that the materials seized are explosive materials, has not been examined before the Court below for the reasons best known to the prosecution. Further, no independent witness, though the place of occurrence is a highly crowded and busy area, has supported the prosecution. 13. It is seen that PW1, in his evidence, has stated that the accused came out of the hotel after taking food. PW5, the owner of the hotel, has not supported the prosecution, in any manner. Further, no independent witness, though the place of occurrence is a highly crowded and busy area, has supported the prosecution. 13. It is seen that PW1, in his evidence, has stated that the accused came out of the hotel after taking food. PW5, the owner of the hotel, has not supported the prosecution, in any manner. PW6, the servant in the hotel, in the cross examination, has clearly stated that their hotel (parota stall) will be opened only at evening hours and during the day time, the hotel will be closed. This evidence go against the evidence of the eye-witnesses to the effect that at 10 am, the accused had food and came out of the hotel. All these facts creates serious doubt as to the case of the prosecution. 14. It is further to be noted that the First Information Report has reached the Court almost twelve hours later, for which, there is no explanation forthcoming from the prosecution. PW1 himself has almost completed 90% of investigation and this Court is of the view that, PW18 has conducted a, namesake, enquiry and has laid a final report. In view of the foregoing discussions, this Court is of the view that possibility of fabricating the case to book the accused under Act 14, as rightly contended by the learned Counsel for the appellant, cannot be ruled out. Hence, considering the entire aspects and also the doubtful evidence of PWs 1 to 4, 14 & 15, I am of the view that it is unsafe to convict the accused for a grave crime. 15. In view of the same, the conviction and sentence imposed by the learned Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin, in S.C.No.60 of 2005, dated 27.09.2006, is set aside and the appeal is accordingly, allowed. The appellant / accused is acquitted of all charges in respect of the present case. Fine amount, if paid, shall be refunded to the appellant/accused. Bail bond shall stand terminated.