Bangalore District Court
(By Shri. G.N. Arun vs No on 19 August, 2021
S.C. NO.1341/2016
1
IN THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE & SPECIAL JUDGE, SPECIAL COURT,
CENTRAL PRISON PREMISES, BENGALURU
Dated this the 19th day of August, 2021
Present :
Sri. G.Raghavendra, B.Sc., LL.B.,
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No.1341/2016
Between:
State of Karnataka
By Jagajeevanram Nagar Police Station,
Bengaluru. ..Complainant
(By Shri. G.N. Arun, Public Prosecutor)
And
Sheikh Amir Ali @ Amir Ali
S/o Moulana
Aged about 36 years
R/o Kodad,
Nalagonda District,
Andhra Pradesh State. .. Accused No.29
(By Sri. Chandrashekhar R.P., Advocate)
Date of commission of offence : 09/07/2000
Date of report of offence : 10/07/2000
S.C. NO.1341/2016
2
Date of Arrest : 09/08/2016
Date of release on bail : In Judicial Custody
since 09/08/2016
Date of commencement of
recording of evidence : 21/06/2018
Date of closing of
recording of evidence : 29/07/2021
Name of the Complainant : Fr. Thomiar, Parish Priest
Offence Complained of : Under Sections 124A,153A,
295, 436, 427 read with 120B
of Indian Penal Code, 1860.
Section 3 & 4 of the Explosive
Substances Act, 1908.
Section 5 read with 9B of the
Explosives Act, 1884.
Opinion of the Judge : Accused No.29 found not guilty
Special Judge, Special Court,
Central Prison Premises, Bengaluru
JUDGMENT
1. This split up charge sheet is submitted by Deputy Superintendent of Police, counterfeit arms and narcotics division, CID, Bengaluru against accused No.29 for an offence punishable under sections 124A, 153A, 295, 436, 427 read with Section 120B of Indian Penal Code, (For short, IPC) and S.C. NO.1341/2016 3 Sections 3 and 4 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884.
2. That on 10/7/2020 at 2.15 a.m., Charge Sheet Witness No.1 (CW) Fr. Thomiyar, Parish Priest, Saint Peter and Paul Church, Jagjivan Ram Nagar (JJ Nagar) has given a written complaint at Church to CW98 Hanumanthappa, Police Inspector, JJ Nagar Police Station, Bengaluru that he heard a loud noise at about 1015 PM of 9/7/2000 when he was at his residence, he came out and found that the rear side of the church wall and window panel (Glasses) were damaged extensively by bomb blast. That on the same day i.e. 10/07/2000 at 2.25 AM a case was registered against unknown under crime No.113/2000 for an offence punishable under section 3 of Explosive Substances Act, 1908 and under section 427 of IPC. CW98 conducted further investigation. CW365, V.S.D'Souza, Police Inspector, Commercial Street Traffic Zone, Shivajinagar, Bengaluru was authorised to investigate as per the order No.CRM/11/H & D City/2000, dated 13/07/2000 of D.G. & I.G.P., Karnataka S.C. NO.1341/2016 4 State, Bengaluru and he has conducted the further investigation and after the completion of Investigation he has filed this charge sheet.
3. That on 09/08/2016 accused No.29 was produced in the Home office of Learned I Additional Chief Metropolitan Magistrate, Bengaluru and accused No.29 was remanded to Judicial custody. That on 12/08/2016 accused No.29 was remanded to Police custody by I ACMM, Bengaluru. That on 21/08/2016, CW366 Noorulla Sheriff, Deputy Superintendent of Police, counterfeit arms and narcotics division, CID, Bengaluru has recorded the confessional statement of accused No.29, while accused No.29 was in police custody.
4. The brief facts of the case of the prosecution is as follows.
All the 29 accused are the followers of Deendar Anjuman Sect, founded in 1924, by late Hazrath Maulana Syed Siddique @ Siddique Deendar Channabasaveshwar. Accused No.1, Sahebzada Syed Zia ul Hasan is the son of late S.C. NO.1341/2016 5 Hazrath Maulana Syed Siddique @ Siddique Deendar Channabasaveswar. Accused Nos. 2 to 5 are the sons of accused No.1. Accused Nos. 1 to 5 are settled in Mardan, Pakistan, and they are Pakistani nationals.
After the death of late Hazrath Maulana Syed Siddique @ Siddique Deendar Channabasaveshwar, in 1952, his son accused No.1 Sahebzada Syed Zia ul Hasan, who, by then, migrated to Pakistan, took over the leadership of the said Sect. He frequently visited India on the pretext of attending "Urs" of his late father in the month of Rajab of every year at Asifnagar, Hyderabad. He made use of this opportunity to identify susceptible youth to carry out his subversive activities. Accused Nos.2 to 5 assisted accused No.1 in his nefarious activities. Accused Nos.2 to 5 have also been visiting India. Long back in the year 1948, the Government of India declared this Sect as an unlawful organization and banned its activities.
S.C. NO.1341/2016 6 Deendar Anjuman Sect has established many branches in India including Bangalore, Mysore, Tumkur, Hubli, Chickbalapur, Dharwad and Ganeshgudi in Karnataka, Mumbai, Sholapur, Nanded, Kolsa, Usmanabad in Maharashtra, Hyderabad, Nuzvid, Kushalnagar, Vijayawada and Guntur in Andhra Pradesh. Deendar Anjuman Sect has sympathisers in Punjab in India and in Bangladesh and Pakistan. Members of Deendar Anjuman Sect are employed in the Gulf and support this organization financially. The aim of this Sect is directed to spread Islam in India by illegal means like Nifaq (Creating hatred between two communities), Saria (Gaining money by committing robbery and dacoity) and Jihad (Holy War). Accused Nos.1 to 5 indoctrinated and enlisted the support of other accused and members of the Sect to wage Jihad (Holy War) against India, to destabilize Indian Union. In pursuance of their criminal conspiracy to destabilize the Indian Union, the accused conducted several meetings.
S.C. NO.1341/2016 7 Accused No.1 Sahebzada Zia ul Hasan, along with his sons accused Nos.3, 4 and 5 and his other family members came to India on19.8.1999 on the pretext of attending 'Urs' of his father during Rajab month. He and his sons and family members stayed in India upto 29.10.1999. During this period, accused No.1 and his son accused No.4, Shabibul Hassan, visited Bangalore and stayed in the house of accused No.15, Siddique and his father Mohasin Chitradurgi, at No.2, first floor, first cross, Church Street, J.C. Nagar, Bangalore. During this period, accused No.10, S.M. Ibrahim, accused No.11, Abdu Rahaman Sait, accused No.12, Amanath Hussain Mulla, accused No.13, Mohammed Siddique met accused No.1, Sahebzada Zia ul Hasan in the house of accused No.15 several times and held meetings. Accused No.1 also visited the house of accused Nos.10, 11 and 12. Later, during October, 1999, accused Nos. 10, 11, 12, 13, 25 and 26 visited Hyderabad and attended the 'Urs' which was held from 18.10.1999 to 20.10.1999 at Deendar Anjuman Ashram, Asifnagar, Hyderabad, and met accused No.1, S.C. NO.1341/2016 8 Sahebzada Zia ul Hasan and other accused persons.
On 20.10.1999 at about 7.30 a.m., accused No.1, Sahebzada Syed Zia ul Hasan called for a meeting of the important militant cadre of Deendar Anjuman in a room in the compound of one Sabu Mamu situated behind the old mosque of Deendar Anjuman Ashram, Asifnagar, Hyderabad. The meeting was attended by accused No.6, Khaliquzama, accused No.7, Hasanuzama, accused No.24, Mohammed Sharfudeen, accused No.25, Meerasab, accused No.13, Mohammed Siddique, accused No.26, Syed Muneeradeen Mulla, accused No.10, S.M. Ibraim, accused No.11, Abdul Rahaman Sait, accused No.8, Shamsuzma, accused No.9, S.A.K. Jilani, accused No.22, Gayasuddin and others. The meeting was presided over by accused No.1, Sahebzada Zia ul Hasan and his sons accused No.5, Khaleel Pasha and accused No.3, Khalid Pasha. Accused No.1, Sahebzada Zia ul Hasan, called upon the members to be ready for Jihad (Holy war) against India and addressed the members in Urdu, the English version of which is as follows:
S.C. NO.1341/2016 9 "All Muslims are coming together, War field is ready, this would be the last celebration, now the time is ripe and Holy War is about to begin, within two or three months work will start, receive that no idol (replica of god) is greater than Allah, who sent Prophet Mohammed. Act as per your convenience, die for the sake of religion, Holy warriors will fight, go all out to create hatred among religions in India, blast churches with bombs, see that Christians, Dalits and Hindus fight among themselves, weaken South India".
During the said meeting, accused No.1, Sahebzada Syed Zia ul Hasan appointed accused No.6, Khaliquzma as the Chief of the operations in South India and accused No.7, Hasanuzma as Captain to look after this operation and advise and assist accused No.6. Accused No.1 also instructed others to obey accused No.6, Khaliquzma implicitly. On the same day, i.e., on 20.10.1999 at 9.00 a.m., accused No.1 called another meeting of all the members, who attended the first meeting, in the flat of accused No.19, Hasham Ali situated at S.C. NO.1341/2016 10 No.202, Yousufain Apartments, Asifnagar, Hyderabad. Accused No.3, Khalid Pasha presided over the said meeting. Accused No.3 instructed each one of the members who attended the said meeting to select five trusted members to carry out Nifaq and Saria activities and survey important rail and road bridges, defence establishments, petrol depots, etc. On 22.11.1999, accused No.24, Sharfuddin booked two rooms (room Nos.2 and 3) at new Ashoka lodge, situated at old Feel Khana, Hyderabad. On 23.11.1999, accused No.24, Sharfuddin, accused No.11, A.R. Sait, accused No.26, Syed Muneer, accused No.25, Meera Saheb, accused No.10, S.M. Ibrahim and accused No.6, Khaliquzma conducted another meeting. Accused No.6, Khaliquzma, while addressing the members, remarked that they were all lucky to be entrusted with the responsibility for the Akhar Jihad (Final Holy War) by accused No.1, Sahebzada Syed Zia ul Hassan.
S.C. NO.1341/2016 11 In furtherance of their criminal conspiracy to wage Jihad (Holy War) against India, the accused held similar other meetings during the period between October 1999 and the year 2000 at Nuzvid (Andhra Pradesh) and at Bangalore and Hubli (Karnataka) and agreed to commit various illegal acts by illegal means, namely, by acquiring improvised explosive devices (IED) with timer and to use them in churches and other religious places of worship in order to create disharmony and or feeling of enmity and hatred and illwill between two major communities, namely, Hindus and Christians, so as to excite disaffection towards the Government (Both State and Central) established by law in India.
In furtherance of the criminal conspiracy, accused No.22, Gayasuddin and accused No.23, Riyasuddin and one Kasimal went to Nuzvid (A.P.) in December 1999 and met accused No.6, Khaliquzma and held discussions regarding procurement of explosives for preparing bombs. During January, 2000, a Tata Sumo vehicle bearing No.KA25/P6786 was purchased by one Badshah Latsab Navalgi for accused S.C. NO.1341/2016 12 No.6, Khaliquzma and the vehicle was delivered to accused No.6 by accused No.25, Meerasab and one Abdul Gaffor Panwala at Nuzvid. This vehicle was used for the commission of criminal activities in the criminal conspiracy. Accused No.6, Khaliquzma purchased a mango grove measuring 9.57 acres in Survey No.18/4, 18/3, 23/2 and 24/2 at Sunkallu village near Nuzvid. Accused persons held several secret meetings in the said mango grove.
Accused No.22, Gayasuddin and accused No.23, Riyasuddin, purchased explosive substances like gelatin sticks, detonators from accused No.29, Ameer Ali and supplied them to accused No.6, Khaliquzma and accused No.8, Samshuzama. Accused No.8 Samshuzama stored these explosive materials in the house of one Haneef @ Anwar at Tuklur village. To facilitate movement of personnel for Jehad activities, accused No.10, S.M. Ibrahim purchased a blue colour Maruti van bearing registration No.GA10/U2786 by raising a loan from City Bank, Bangalore, during March, 2000. This vehicle was used by the accused in the commission of S.C. NO.1341/2016 13 criminal activities.
In furtherance of their criminal conspiracy, accused No.6, Khaliquzma and accused No.7, Hasanuzma, visited Bangalore during 1st and 2nd week of April 2000 and met accused No.10, S.M. Ibrahim, accused No.12, A.M. Mulla, accused No.13, Mohammed Sidiq, accused No.17, Abdul Rehman and accused No.28, Mohammed Samiulla in the house of accused No.11, Abdul Rahaman Sait. During 2 nd and 3rd week of April 2000, accused No.6 and accused No.7 went to the house of accused No.11, Abdul Rahaman Sait and collected information regarding manufacture of Kiran AirCraft and Public Sector undertakings like, BEML and HAL and stored the said information in floppy. Later accused Nos.6, 7, 10, 11, 12, 17 and 28 sent the information collected by them to accused No.1 in Pakistan through the Internet. Accused No.2, Zahed Pasha arrived from Pakistan to Hyderabad on 23.5.2000 and stayed up to 27.6.2000 and supervised the operations. Live demonstration of fuse wire detonation was held in the mango grove of accused No.6 at Nuzvid. Accused S.C. NO.1341/2016 14 prepared pamphlets containing the message "LAST WARNING TO CHRISTIAN MISSIONARIES" in the name of "VISHWA HINDU PARISHAT" and to Hindus in the name of Christian Missionaries "STRICT WARNING TO HINDUS". Accused sent these pamphlets to various places. Accused No.22, Gayasuddin and accused No.23 Riyasuddin periodically purchased explosive materials from accused No.29, Ameer Ali and supplied to accused No.6, Khaliquzma and accused No.8, Shamsuzma at Nuzvid. Accused No.19, Hasham Ali, accused No.20, Farooq Ali, accused No.14, Zakir prepared IEDs with timer as per the circuit plan given by accused No.9, S.A.K. Jilani with gelatin sticks, detonators and timers, etc. in the flat of accused No.19, Hasham Ali, at Hyderabad. Three IEDs were brought to Bangalore by accused No.14, Zakir and other IEDs were sent to Wadi, Hubli and Vasco to be placed in churches. During June 2000, accused No.2, Syed Zahid ul Hassan visited Bangalore with accused Nos. 6, 7, 18, 19 and 20 and stayed in the house of accused No.10, S.M. Ibrahim at Varthur. These accused prepared pamphlets entitled S.C. NO.1341/2016 15 "WARNING TO CHRISTIAN MISSIONARIES - STOP CONVERSION OR QUIT INDIA" using the computer of accused No.10, as part of Nifaq activities. A letter containing the plan of action for Jihad was prepared by accused No.18, Fardin Valli at the instance of accused No.2, Zahed Pasha.
In furtherance of their criminal conspiracy, during June 2000, accused No.16, Syed Wahab, accused No.17, Abdul Rahaman and accused No.28, Mohammed Samiulla as per the instructions of accused Nos.10 and 11, surveyed the churches in Bangalore including St. Peter and Paul Church, Jagajeevanram Nagar, for placing explosive devices. They also attended the meetings in the house of accident No.11 at Bangalore and assisted other accused in Nifaq activities. In furtherance of their criminal conspiracy, the accused planted 2 IEDs in St. Anne's church at Wadi on 8.6.2000. As a result of the explosion of IEDs, there was damage to the church building and two persons sustained injuries. A case in Crime NO.77/2000 u/s 153(A) and Section 3 and 5 of Explosive Substances Act has been registered at Wadi Police Station.
S.C. NO.1341/2016 16 In furtherance of their criminal conspiracy, the accused placed a bomb in St. Andrew Church at Vasco, Goa, on 8.6.2000, which exploded causing heavy damages to the church building. A case in Crime No.209/2000 u/s 436 IPC and sections 3 and 4 of Explosive Substances Act has been registered at Vasco Police Station.
In furtherance of their criminal conspiracy, the accused placed a bomb in St. Johan Lutheran Church at Hubli on 8.7.2000, which exploded causing heavy damages to the church building. A case in Crime N.87/2000 u/s 3 and 4 of Explosive Substances Act has been registered at Keshwapur Hubli Police Station.
In furtherance of their criminal conspiracy, on 9.7.2000 at about 7.30 p.m., accused No.10, S.M. Ibrahim, accused No.14, Zakir and accused No.15, Mohammed Fida Ur Rehman Siddique went to the house of accused No.11, Abdul Rahman Sait at Vijayanagar, Bangalore, in a Maruti Van No.GA01/U 2786 purchased by accused No.10. Later at about 9.00 p.m., accused No.10, Ibrahim, accused No.14, Zakir, accused No.15, S.C. NO.1341/2016 17 Siddique went in a Maruti Van No.GA01/U2786 to St. Peter and Paul church at Jagjeevanram Nagar main road. Accused No.10, S.M. Ibrahim and accused No.14, Zakir went inside the church premises and placed an IED with a timer on a rear window of the building of St. Peter and Paul church. The said bomb exploded at 10.15 p.m., as per the time set by the accused, causing heavy damages to the church building.
After placing the IED with a timer at the St. Peter and Paul church, accused No.10, Ibrahim, accused No.14, Zakir and accused No.15, Siddiq were proceeding in the same Maruti van on the Mysore deviation road carrying bombs to place them in other churches in Bangalore At about 9.30 p.m., the explosive devices (IEDs) which were in the possession of the accused persons exploded in the said Maruti Van near Minerva Mills gate and as a result, accused No.14, Zakir and accused No.15, Siddique died in the explosion. Accused No.10, S.M. Ibrahim sustained serious injuries and was admitted to St. John's Hospital, Bangalore, for treatment. A Maxi cab of one Ramanna, which was coming in the S.C. NO.1341/2016 18 opposite direction was also damaged. A case in Crime No.290 of 2000 under Section 304A IPC and Section 3 and 5 of Explosive Substances Act has been registered in Magadi Road Police Station and a separate charge sheet has been filed.
Explosion of a bomb at St. Peter and Paul church, Jagjeevanaram Nagar, Bangalore, caused widespread disaffection in the minds of Christian community, who resorted to arson and large scale damage and destruction of public properties. A case in Crime No.114/2000 under sections 436, 427, 143, 144, 145, 147 r/w 149 IPC has been registered in this connection in Jagajeevanram Nagar police station.
5. That on 30/08/2016, Learned I ACMM, Bengaluru has committed the case to Hon'ble Principal City Civil and Sessions Judge, Bengaluru as per Section 209 of Code of Criminal Procedure, 1973(Cr.P.C.). The Government of Karnataka, by its order No.LAW 275 LCE 2000 dated 17.7.2003, designated this Court as the Special Court for trial of church bomb blast case. The case was made over to this S.C. NO.1341/2016 19 court by Hon'ble Principal City Civil and Sessions Judge, Bengaluru.
6. My predecessor has furnished the copy of spilt up charge sheet to accused No. 29 and heard regarding the charge. My predecessor has framed charge against accused No.29 under Section 5 of Explosive Substances Act, 1908, Section 6 read with 5 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884. Accused No.29 did not plead guilty and claimed for trial.
7. In order to prove the case, the prosecution has examined totally 41 witnesses as PW1 to PW41, marked 42 documents as Ex.P1 to Ex.P42 and identified 13 Material objects(MO) as M.O.1 to 13.
8. After the witnesses for the prosecution have been examined, accused No.29 was questioned generally on the case about circumstances appearing in the evidence against him as per section 313(1)(b) of Cr.P.C. Accused No.29, totally denied the case of the prosecution. As per section 233 of Cr.P.C., accused No.29 was called upon to enter on his S.C. NO.1341/2016 20 defence. Accused No.29 has filed his written statement along with some documents.
9. Heard the argument of Learned Public prosecutor and Counsel for accused No.29.
10. The following points arise for my consideration:
1) Whether the prosecution proves beyond reasonable doubt that from February 2000 to May 2000 accused No.29, Sheikh Amir Ali periodically sold explosive substances like Gelatin sticks and detonators to accused No.22, Gayasuddin and accused No.23, Riyasuddin and thereby accused No.29 has committed an offence under Sections 3 and 4 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884?
2) What order?
11. My finding to above points is as under:
1) Point No.1. In the Negative
2) Point No.1. As per final order for the following S.C. NO.1341/2016 21 REASONS
12. Point No.1. This charge sheet against all the 29 accused is submitted alleging that all the 29 accused have committed an offence punishable under Sections 124A, 153A, 295, 436, 427 read with Section 120B of Indian Penal Code, (for short, IPC) and Sections 3 and 4 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884.
In Column No.7 of Charge Sheet, CW.365/PW41, V.S.D'Souza, Police Inspector, Commercial Street Traffic Zone, Shivajinagar has alleged against accused No.29 that from February 2000 to May 2000 in furtherance of the criminal conspiracy A22, Gayasuddin, A23, Riyasuddin purchased explosive substances like Gelatin sticks, detonators from accused A 29, Amir Ali periodically and A9, Syed Abdul Khader Jilani was arrested along with A22, Mohammed Gayasuddin and A23, Mohammed Riazuddin by the A.P. Police on 24.7.2020 at Khammam railway station.
CW.365/PW1 has not stated whether confession S.C. NO.1341/2016 22 statement of accused Nos.22 and 23 were recorded by Andhra Pradesh Police after their arrest in Sessions Case No.95/2001 on the file of Additional Metropolitan Sessions Judge, for trial of Jubilee Hills Car Bomb blast case cum Additional Family Court, Hyderabad.
CW.366, Noorulla Sheriff, Deputy Superintendent of Police, counterfeit arms and narcotics division, CID, Bengaluru has recorded the confession statement of accused No.29 on 21.8.2016, while accused No.29 was in police custody. In the confession statement, it is stated that accused No.29, has given his confession statement as under:
"ನನನ ದದದಡಡಮಮರವರ ಮಗನನದ ಹಜರತತ ಅಲ ನಮಮ ತತದದಯವರದದತದಗದ ಸದಸರಕದದತಡಡ ರಸದಸಯ ಮಟಲತಗತಸಬತಕನತಟನಟಕತಕ ಕದಲಸವನಡನ 1986 ರತದ 1990 ರವರದಗದ ಮನಡಕದದತಡದಡದ, 1991 ರಲಲ ಸದದಸಸಟಕ ವಸಡಸಗಳನಡನ ದನಸನಸನಡ ಮನಡಡವವದಕದಕ ಲದಲಸನತನ ಪಡದದಡ ಕದದಸದನಡ ಲಕಕಕಸಪವರತ ಬತಡದಯ ಬಳ ಗದದಸಡನನತಮನಡಕದದತಡಡ ಬತಡದ ಹದದಡದಯಡವವರಗದ ಮನರನಟ ಮನಡಡವವದಕನಕಗ ಸದದಸಸಟಕ ವಸಡಸಗಳನದ ಜಲದಟನತ ಸಕಕತ, ಎಲದಕಕಕಕತ ಫಫಫಜತ ಮತಡಸ ಡದಟದದಸನದಟತಗತ ಕನಡತರ ಗಳನಡನ ಮನರನಟ ಮನಡಡತಸದದರಡ. 1998 ರಲಲ ಬದಲಕತನಲಲ ಕದದಸದನಡ ಹದಲದನಟಬನದತ ರಸದಸಯ, ಬರಕನಡತ ಗಡಡಡದ ಬಳ ಹದದಸಗಡತಸರಡವನಗ S.C. NO.1341/2016 23 ಲನರಯ ಅಪಘನತದಲಲ ಮಮತಪಟಕರಡತನಸರದ. ನನನ ಅಣಣ ಮಮತಪಟಕ ಮಸಲದ, ನನನ ಅಣಣನ ಮಕಕಳನದ ಮಸನಸನತ ಅಲ, (23 ವರರ 1998 ರಲಲ), ಭರತತ ಮಡಕಲತನ ಹದಸರನಲಲ ಮಡಕಲತ ಶನಪತ ನಡದಸಡತಸದದ . ಎರಡನದಸ ಮಗ ಅಬಡದಲತರವಫಫತ(20 ವರರ 1998 ರಲಲ) ಪಟತಟತಗತ ಪದಟಸತನಲಲ ಕದಲಸ ಮನಡಡತಸದದ. ಅವರಬಬರಡ ಕದಲಸ ಮನಡಡತಸದದರತದ, ಸದದಸಸಟಕ ವಸಡಸಗಳ ಗದದಸಡನನತನನಡನ ನನನದಸ ನದದಸಡಕದದಳಡಳತಸದದದ. ಮನಲನಡನ ಮನರನಟ ಮನಡಡವ ಸಮಯದಲಲ ನನನ ಬಳ ಕದಲಸ ಮನಡಡತಸದದ ಗಡತತ ಅಶದದಸಕತಮಡಖನತತ ಗದದಸಡನನತದ ನನನ ಪವಸ ಶನಪತಗದ ತರಸ, ಅವವಗಳನಡನ ಮನರನಟ ಮನಡಡತಸತದದದ. ಹಸಗರಡವನಗ ಫದಬಟವರ 2000 ರಲಲ ಉಜಡರತ ನಗರದ ಖನಸತ ಎತಬ ಸವಲತಕತಟನಟಕತಕ ರವರಡ ನನನ ಬಳ ಬತದಡ 100 ಆಡರನರ ಡದಟನದಟರತ ಮತಡಸ 100 ಜಲದಟನತಕಡಡಗಳನಡನ 1000 ರದಗಳನನ ಕದದಟಡಕ ಖರಸದಸದಡದ, ಅವವಗಳನಡನ ನನನಡ ನನನ ಅತಗಡಯಲಲ ಕದಲಸ ಮನಡಡತಸದದ ಗಡತತ ಅಶದದಸಕತ ಮಡಖನತತರ ಲಕಕಕಸಪವರ ಗದದಸಡನನತದ ತರಸ ನನನ ಪವಸ ಅತಗಡಯಲಲ ಗದದಸಣಚಸಲದಲಲ ಪನಫಕತಮನಡ ಕದದಟದಕ, ಅದದಸ ರಸತ ಏಪಟಲತ 2000 ರಲಲ ಖನಸತ ಮತಡಸ ಆತನ ಸತಬತಧಕನದತದಡ ತಳಸದ ಶಫಸ ಎತಬಡವರಡ ಬತದಡ ನನನ ಬಳಯತದ 150 ಜಲದಟನತ ಸಕಕತ ಮತಡಸ 150 ಡದಟದದಸನದಟರತ ಮತಡಸ 4 ಬತಡಲತಫಫಫಜತವದಲರನಡನ 2000 ರದಗಳನಡನ ಕದದಟಡಕ ಖರಸದಸದದನಡ. ಅವವಗಳನಡನ ನನನಡ ನನನ ಅತಗಡಯಲಲ ಕದಲಸ ಮನಡಡತಸದದ ಗಡತತ ಅಶದದಸಕತ ಮಡಖನತತರ ಲಕಕಕಸಪವರ ಗದದಸಡನನತದ ತರಸ ನನನ ಪವಸ ಅತಗಡಯಲಲ ಗದದಸಣಚಸಲದಲಲ ಪನಫಕತಮನಡ ಕದದಟದಟ ಮತದದಸಮಮ ಮಸ 2000 ರಲಲ ಮದರನದಸ ಬನರಗದ ಖನಸತ ಇತರದ ಮದವರಡ ಗಯನಸಡದದಸನತ, ರಯನಜಡದದಸನತ ಮತಡಸ ಕನನರತ ಶಟಸನಡ ರವರಡ ಬತದಡ 200 ಎಲದಕಕಕಕತ ಡದಟದದಸನದಟರತ, 200 ಜಲದಟನತ S.C. NO.1341/2016 24 ಸಕಕತಗಳನಡನ 4000 ರದ ಕದದಟಡಕ ಖರಸದಸದಡದ, ಅವವಗಳನಡನ ನನನಡ ನನನ ಅತಗಡಯಲಲ ಕದಲಸ ಮನಡಡತಸದದ ಗಡತತ ಅಶದದಸಕತ ಜದದತದ ಲಕಕಕಸಪವರತನಲಲದದ ಸದದಸಸಟಕ ವಸಡಸಗಳನಡನ ಇಟಕದದ ಗದದಸಡನತಗದ ಕಳಡಹಸಕದದಟಕದಡದ, ಗಡತತ ಅಶದದಸಕತ ಅವವಗಳನಡನ ಅವರಗದ ಕದದಟಕರಡತನಸನದ."
Section 3(a) of the Explosive Substances Act, 1908 reads as under:
"3. Punishment for causing explosion likely to endanger life or property. Any person who unlawfully and malicious causes by
(a) any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine;
(b)....................................................................
Section 4(b) of the Explosive Substances Act, 1908 reads as under:
S.C. NO.1341/2016 25 "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).................................................................
(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)....................................................................
S.C. NO.1341/2016 26 There is no allegation against accused No.29 in the charge sheet submitted by CW.365/PW1 and in confession statement recorded by CW.366, which attracts the ingredients of Sections 3 and 4 of Explosive Substances Act, 1908.
Section 5(1) of the Explosives Act, 1884 reads as under:
"5. Power to make rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives. (1) The Central Government may, for any part of (India) makes rules consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, use, sale, of explosives, or any specified class of explosives. (2)......................................................................"
Section 9B of the Explosives Act, 1884 reads as under:
"9B. Punishment for certain offences. (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted S.C. NO.1341/2016 27 under the said rules
a).....................................................................;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and'' The allegation against accused No.29 is that in contravention of rules made under Section 5 of the Explosives Act, accused No.29 possessed and sold explosive substances like gelatin sticks and detonators.
Perused the evidence adduced by the prosecution to prove the guilt of accused No.29. Prosecution relied on the evidence of CW110, Sri. Shivaprasad Battacharya, Chief Controller of explosives to prove expiry of licence of brother of accused No.29, CW286, Sri. Cherukumally Govinda Rao and CW287, Sri. Musini Venkateshwarlu to prove panchanama regarding arrest of accused No.29 and recovery panchanama at the instance of accused No.29, CW362 to CW364, investigation officers of Cr.No.35/2000 of C.I.D. Hyderabad S.C. NO.1341/2016 28 and CW365 and CW366, investigation officers of this case to prove the guilt of accused No.29. The prosecution has given up CW287 and CW362 to CW364 and CW286 and CW366 are reported as dead. The evidence of PW1 to PW41 no way helps the prosecution as the evidence of these witnesses are not related to possession of explosives by accused No.29 and sale of explosives by accused No.29 to accused No.22 and accused No.23.
PW41 in his examinationinchief evidence has deposed that the elder brother of accused No.29 was having license to sell explosive substances, after the death of elder brother of accused No.29, accused Nos.22 and 23 often purchased illegally gelatin and detonators from accused No.29 and he has collected the records of Crime No.35/2000 of C.I.D. P.S. Hyderabad. PW.41 has not collected any evidence against accused No.29 in his investigation in this case.
S.C. NO.1341/2016 29 Both the learned Public Prosecutor and Counsel for accused No.29 in their arguments have submitted that this court can take judicial notice of the judgment passed in Crime No.35/2000 of C.I.D. P.S. Hyderabad and the earlier judgments passed in this case against the other accused.
By perusal of Ex.P34, Judgment pronounced in S.C.95/2001(Crime No.35/2000) of C.I.D. P.S. Hyderabad, it can be seen that said sessions case was tried against totally 43 accused and accused No.29 of this case is accused No.40 in that case and accused Nos.22 and 23 of this case are accused Nos.28 and 23 in the said case. In Sessions Case No.95/2021, the Hon'ble Sessions Court has found accused No.s 8 to 20, 24 to 41 and 43 to 50 guilty under Section 120B of IPC only and acquitted all the accused for offences alleged against them except Section 120B of IPC.
This Court by its judgment pronounced in SC No.425/2021 on 10.9.2004, which was tried against accused Nos.17 and 28 has acquitted both the accused for the offence alleged against them including offence under Explosives S.C. NO.1341/2016 30 Substances Act and Explosives Act.
This Court by its judgment pronounced in SC No.696/2005 which was tried against accused Nos.22 and 23 has found guilty and convicted accused No.22 for the offence punishable under Sections 120B read with Section 121A of IPC and under Section 124A and 153A of IPC and acquitted accused No.22 for the offence alleged under Explosives Substances Act and Explosives Act and acquitted accused No.23 for the offence alleged against him including offence under Explosives Substances Act and Explosives Act.
This Court by its judgment pronounced in SC No.701/2010 on 06.02.2020, which was tried against accused No.16 has acquitted the said accused for offence alleged against him including offence under Explosives Substances Act and Explosives Act.
The Counsel for accused No.29 has relied on the following decisions.
i) (1997) 6 Supreme court cases 171 (Vijender vs. State of Delhi ) S.C. NO.1341/2016 31
In the above decision, Their Lordships at para No.25 has held as under:
"25............................................................ ...The reliance of the trial Judge on the result of investigation to base his findings is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical conclusion it would mean that a finding of guilt can be recorded against an accused without trial relying solely upon the police report submitted under Section 173 CrPC, which is the outcome of an investigation. The result of investigation under Chapter XII of the Criminal Procedure Code, is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(1) (b) CrPC and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial court is then required to base its conclusion solely on the evidence adduced during the trial, and it cannot rely on the investigation or the result thereof."
S.C. NO.1341/2016 32
ii) (2003) 2 Supreme Court Cases 708 (Akhil Ali Jehangir Ali Sayyed vs. State of Maharashtra) In the above decision, Their Lordships at para Nos.6 and 8 have held as under:
"6.
...................................................................As the second accused Jabbar was placed in the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution would not permit us to deny the same benefit to the second accused, notwithstanding the fact that the SLP and the review application filed by him have been dismissed by this Court. We are supported on this aspect by a course adopted by a threeJudge Bench headed by the Chief Justice Chandrachud in Harbans Singh v. State of U.P. In that case also the coaccused were sentenced and the sentence had been confirmed by this Court earlier. But when a benefit was granted in another appeal to one of the other coaccused, the threeJudge Bench held that the same benefit shall be extended to the earlier co accused also, albeit the dismissal of their appeals on an antecedent date.
S.C. NO.1341/2016 33
8. After bestowing our anxious consideration on the fact situation in this case and also the spirit of Article 21 of the Constitution, we hereby order that the conviction passed on the second accused Jabbar shall also stand altered to Section 304 Part I, and a sentence of rigorous imprisonment for ten years be awarded to him. This is done on a parity of reasoning and justice, otherwise glaring injustice would result for him in a case where his role was by no means more serious than that of the present appellant who was A1 in the case."
In view of the discussion i made above i come to an opinion that prosecution failed to prove beyond reasonable doubt that from February 2000 to May 2000 accused No.29, Amir Ali periodically sold explosive substances like Gelatin sticks and detonators to accused No.22, Gayasuddin and accused No.23, Riyasuddin and thereby accused No.29 has committed an offence under Sections 3 and 4 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884. Hence, i answer Point No.1 in Negative.
S.C. NO.1341/2016 34
13. Point No.2: In view of the finding, I arrived on Point No.1, I proceed to pass the following:
ORDER Acting under Section 235(1) Cr.P.C. found accused No.29 not guilty for an offence under Sections 3 and 4 of Explosive Substances Act, 1908 and Section 5 read with Section 9B of Explosives Act, 1884.
Accused No.29 shall be set at liberty, if he is not required in any other case.
M.O.1 t0 12 shall be retained till the disposal of split up case against accused No.1 to 5.
(Dictated to the Judgment Writer and partly on computer directly, transcribed and typed by him, corrected, signed and pronounced in the open court on this the 19th day of August, 2021).
(G. RAGHAVENDRA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.
S.C. NO.1341/2016 35 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW1 : Sri. B. Jesudas.
PW2 : Fr. Sagayanathan.
PW3 : Sri. Amalraj.
PW4 : Sri. D. George.
PW5 : Sri. C.R. Raviprasad. PW6 : Sri. John Rajkumar PW7 : Sri. Xavier.
PW8 : Sri. Prabhu PW9 : Sri. Fedric Kumar.
PW10: Smt. Saleha Fathima Begum. PW11: Smt. Zahirabegum.
PW12: Sri. Vincent Anthony Raj. PW13: Sri. Md. Shakeel Sait. PW14: Sri. Mohammed Ali Sait. PW15: Smt. Eshwari Bhat.
PW16: Sri. Md. Khasim Sait. PW17: Sri. Ahmed Hussain Mulla @ Chote Mulla. PW18: Sri. C. Ramesh.
PW19: Sri. Rathanakar Hegde. PW20: Sri. Nagaraja.
PW21: Sri. B. Babu.
PW22: Sri. K. Gopalakrishna. PW23: Sri. L.Lakshminarayana @ Lachi. PW24: Sri. Fairoz Pasha.
S.C. NO.1341/2016 36 PW25: Sri. K.C. Venkatesh. PW26: Sri. Sadique.
PW27: Sri. Ramappa, PC 2086, JJ Nagar PS, Bengaluru PW28: Sri. K.P. Gopal, P.S.I., L & O, JJ Nagar PS, Bengaluru PW29: Sri. Venkatesh, PC 7559, JJ Nagar PS, Bengaluru PW30: Sri. Safeer Ahmmed Khan. PW31: Sri. Shivakumar, PC 3614, JJ Nagar PS, Bengaluru PW32: Sri. K. Kumaraswamy, PC 2050, JJ Nagar PS, Bengaluru PW33: Sri. Ayyappan.
PW34: Sri. Ramadas, Asst. Executive Engineer, W3 Sub division, KPTCL, Bengaluru PW35: Sri. Hanumanthappa, Police Inspector, JJ Nagar PS, Bengaluru PW36: Sri. R. Gopala.
PW37: Sri. T. Madiyal, I.P.S., Commissioner of Police, Bengaluru City. PW38: P.R. Jayaram, Chemical Examiner, FSL, Bengaluru PW39: Sri. Abdul Gafoor.
PW40: Sri. V.J.A. Ashirvadam, Under Secretary to the Government of Karnataka, Home and Transport Department(Crimes). PW41: Sri. V.S. D'souza, Police Inspector, Commercial Street Traffic Zone, Shivajinagar, Bengaluru S.C. NO.1341/2016 37 LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION:
Ex.P1: True Copy of Spot & Seizure Mahazar dated 10.7.2000. Ex.P1(a): Signature of PW1 Ex.P2: True copy of Photo identification Ex.P2(a): Signature of PW5 Ex.P3: True copy of Photo identification Ex.P3(a): Signature of PW5 Ex.P4: Statement of PW5 Ex.P5: True copy of Statement of PW10.
Ex.P6: True copy of Statement of PW11.
Ex.P7: True copy of Statement of PW13.
Ex.P8: True copy of Statement of PW14.
Ex.P9: True copy of Statement of PW15.
Ex.P10: True copy of Statement of PW16.
Ex.P11: True copy of Statement of PW17.
Ex.P12: True copy of Statement of PW18.
Ex.P13: True copy of Photo identification Mahazar dated
16.8.2000
Ex.P14: True copy of Photo identification Mahazar dated
20.8.2000.
Ex.P15: True copy of Statement of PW20
Ex.P16: True copy of Statement of PW21.
Ex.P17: True copy of Photo identification Mahazar 5/09/2000
Ex.P18: True copy of Statement of PW22
Ex.P19: True copy of Statement of PW23
Ex.P20: True copy of Statement of PW24.
S.C. NO.1341/2016
38
Ex.P21: True copy of Photo identification Mahazar dated 24.9.2000 Ex.P22: Photographs identification by P25 Ex.P23: True copy of FIR in Crime No.114/2000.
Ex.P24: True copy of Mahazar dated 10/07/2000 Ex.P25: Letter of CW365/PW41, I.O.
Ex.P26: True copy of F.I.R. in Crime No.113/2000. Ex.P27: True copy of rough Sketch of scene of the offence Ex.P28: True copy of Prohibitory Order under section 144(2) of Cr.P.C.
Ex.P29: True copy of Sanction Order to prosecute. Ex.P30: True copy of Report of Forensic Lab. Ex.P31: True copy of Sanction Order by Karnataka State Government Ex.P32: True copy of Mahazar dated 14.7.2000. Ex.P33: True copy of Photo identification dated 24.9.2000 Ex.P34: True copy of Judgment in S.C.95/2001 Ex.P35: True copy of FIR 35/2000 of CID, Hydarabad along with report Ex.P36: True copy of Confession statement of Accused No.6 Ex.P37: True copy of Confession statement of Accused No.20 Ex.P38: True copy of seizure Panchanama dated 17.8.2000 Ex.P39: True copy of F.S.L. Report dated 28.9.2000. Ex.P40: True copy of arrest Panchanama dated 28.07.2000 about arrest of Accused No.29 Ex.P41: True copy of recovery/seizure Panchanama of explosives on the information of Accused No.29 Ex.P42: True Copy of Confession Statement of Accused No.7 S.C. NO.1341/2016 39 LIST OF MATERIAL OBJECTS IDENTIFIED MARKED ON BEHALF OF PROSECUTION:
MO.1: Broken Brick piece. MO.2: Plastic containing mud along with broken wall. MO.3: 2 broken window frames MO.4: Broken glass pieces. MO.5: Hawai Slipper. MO.6: Swab collected from the Window grill. MO.7: Swab collected from Bench. MO.8: Swab collected from the Wall. MO.9: Half burnt plastic pieces. MO.10: Debris collected from the crates. MO.11: Glass pieces collected from the window MO.12: Debris collected from underneath the window
LIST OF WITNESS EXAMINED ON BEHALF OF DEFENCE:
NIL LIST OF EXHIBITS MARKED ON BEHALF OF DEFENCE:
NIL XXXIV Addl. City Civil & Sessions Judge Bengaluru.