Criminal appeal against conviction under Section 5 Explosive Substances Act finding material discrepancies in prosecution witness evidence regarding seized explosives and threatening sword; court grants acquittal and discharges bail.
Appellant acquitted of offence under Section 5 Explosive Substances Act; released from prosecution; bail bond discharged.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941
CRL.A.No.294 of 2015
CP 217/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, THIRUVANANTHAPURAM
SC 32/2008 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, THIRUVANANTHAPURAM
CRIME NO.170/2001 OF Peroorkada Police Station, Thiruvananthapuram
APPELLANT/ACCUSED NO.1 :
SURESH, AGED 39 YEARS, S/O.JAYAN, AJITHA BHAVAN, PUTHUVAL MANACAUD, CHITHIRAVILASOM COLONY ATTIPRA VILLAGE, THIRUVANANTHAPURAM.
BY ADV. SRI.R.V.SREEJITH
RESPONDENT/COMPLAINANT :
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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JUDGMENT
The appellant herein is the first accused in Crime No.170 of 2001 of the Peroorkada Police Station registered under Sections 143, 147, 148 and 506(ii) read with Section 149 of the Indian Penal Code, and also under Section 9B(1)(b) of the Explosives Act. The accused Nos.2 to 6 earlier faced trial before the Court of Session, and obtained a judgment of acquittal. When the appellant herein went absconding, the case against him was split up and re-filed. He later faced trial before the learned Seventh Additional Sessions Judge, Thiruvananthapuram in S.C.No.32 of 2008. The prosecution case is that during night patrol, the police party led by the Sub Inspector of Police, Peroorkada saw a gang of six persons in suspicious circumstances at a house compound, they threatened the police party showing a sword, and when the police party proceeded to catch them, five among the six persons ran off and escaped but, one of them could be caught by the police party. He is the appellant herein. The prosecution would allege that a plastic bag containing some crackers was found in the hands of the first accused, and on body search, a sword was seen concealed by the first accused. He was arrested on the spot, and a crime was
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registered. After investigation, the police submitted final report against six persons under Sections 143, 147, 148 and 506(ii) IPC read with Section 149 IPC, under Section 5 of the Explosive Substances Act, and also under Section 27 of the Arms Act.
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spot, and some contraband articles were seized from his possession. As regards the IPC offences and also the offence under the Arms Act on the allegation of possession of sword, the appellant stands acquitted. Now what remains for examination is whether the appellant was found in possession of any explosive substance, as the prosecution would allege. PW3 is the Sub Inspector who detected the offence, and PW1 is the Police Constable who assisted him. On an examination of the evidence given by these two witnesses, I find some very material discrepancies. The prosecution case alleged in the FIR and in the final report is that the police party led by PW3 was threatened by the accused by showing a sword. PW1 has no such case in evidence. If the accused had threatened the police party by showing a sword, the other version or allegation is quite unacceptable and unbelievable that the sword was seized on search of the body of the accused. Here lies the first discrepancy. The evidence of PW1 is that just one cracker was seen in the plastic cover carried by the appellant, but the evidence of PW3 is that three such crackers were seen in the plastic bag. This is also another material discrepancy on factual aspects. What is punishable under Section 5 of the Explosive Substances Act is possession of any explosive substance for any unlawful object, or in such a circumstance that the person could not explain that it was
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meant for some lawful object. Such essentials are not seen stated in evidence by PW3 or PW1. I find that the prosecution case is really doubtful. The benefit of this must go to the appellant by way of acquittal.
In the result, this appeal is allowed. The appellant is not found guilty of the offence under Section 5 of the Explosive Substances Act. Accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The appellant will stand released from prosecution, and bail bond executed by him will stand discharged.
Sd/-
P.UBAID JUDGE
rkj
2 issues framed by the court
Whether the prosecution established possession of explosive substance for an unlawful object under Section 5 of the Explosive Substances Act.
Whether material discrepancies in witness testimony regarding the sword offering and number of crackers warrant acquittal.
2 provisions across 2 enactments
SURESH
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR
P.UBAID
As recorded by the court registry
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