Madras High Court
Unknown vs Rajendran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 01.02.2019
DELIVERED ON : 29.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.(MD) No.148 of 2010
State represented by,
The Inspector of Police,
'Q' Branch CID,
Ramanathapuram,
(Crime No.1 of 2006) .. Appellant / Complainant
.. vs ..
Rajendran .. Respondent / Accused
PRAYER: Criminal Appeal filed under Section 378 of Cr.P.C., against
the judgment of acquittal dated 26.02.2010 made in S.C.No.66 of
2009 on the file of the learned Principal Sessions Judge, Principal
Sessions Court, Ramanathapuram District.
For Appellant : Mrs.M.Anantha Devi
Government Advocate (Crl.Side)
For Respondent : Mr.R.Senthilkumar
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http://www.judis.nic.in
2
JUDGMENT
This criminal appeal is preferred by the State against the order of acquittal dated 26.02.2010 passed by the learned Principal Sessions Judge, Ramanathapuram, in S.C.No.66 of 2009.
2. The appellant State has filed final report before the learned Judicial Magistrate No.1, Ramanathapuram alleging that on 08.11.2006 at about 8.00 a.m., near the Aariyas hotel at Ramanathapuram new bus stand, without the Government permission and license, the accused was found to be in possession of 85 Jellatine sticks, 100 Detonators and 21 fuse wires in a gunny bag which is an offence punishable under Section 5(a) of the Explosive Substances (Amendment) Act, 2001 [hereinafter referred to as the Act].
3. It appears from the records that originally, final report has been filed under Section 5(a) of the Act and the matter was taken on file by the learned Judicial Magistrate No.1, Ramanathapuram, for an offence under Section 9(B) (1) (b) of the Act and converted as P.R.C.No.12 of 2007. After going through the records, it appears that http://www.judis.nic.in 3 the learned Magistrate has obtained permission from the learned Chief Judicial Magistrate as required under the procedure and re-numbered as S.T.C.No.4447 of 2007. During the period of trial, the then Magistrate, who conducted trial, has found that there is material available on record to treat the case under Section 5(a) of the Act and accordingly, exercising the powers under Section 323 Cr.P.C., re- numbered the case as P.R.C.No.10 of 2009 and committed to the learned Principal Sessions Judge and the same was taken as S.C.No.66 of 2009.
4. The case of the prosecution is that a case has been registered on 08.11.2006 under Section 9(B) 1(b) of the Act by the appellant. The crux of the case is that on 08.11.2006 at about 8.00 a.m., when one Mr.Ravi, Sub-Inspector of police and Constables on their routine patrol duty, the respondent/accused standing in front of the hotel Aryaas with a gunny bag in suspicious manner. On enquiry, the respondent revealed his name and address. When the appellant made check up in the gunny bag, they found 85 numbers of Jellatine sticks, 100 numbers of Detonators and 21 feet of fuse wires, but the http://www.judis.nic.in 4 respondent/accused do not have any license for possessing the contrabands and therefore, secured the accused along with contrabands and later FIR was registered in Crime No.1 of 2006.
5. Before the Sessions Court, charges were framed under Section 5(a) of the Act and as the accused pleaded not guilty, he faced trial. During the trial, in order to substantiate the charges, the prosecution examined P.Ws.1 to 5, marked Exs.P.1 to P.8 and produced M.Os.1 and
2. The accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and he denied his complicity. On behalf of the defence, no witness was examined and no document was marked.
6. The specific defence of the accused during the trial as could be seen from the cross-examination is that for statistical purpose, a case has been put up against the accused and based upon the oral and documentary evidence adduced before the learned Principal Sessions Judge, Ramanathapuram, the learned Sessions Judge has held that the prosecution has not adduced any acceptable explanation for non http://www.judis.nic.in 5 examination of any private witnesses, except P.W.1 and in the absence of any explanation for the presence of P.W.1 at the tea shop viz., the scene of occurrence and also held that the presence of P.W.1 is doubtful. Accordingly, rejected the version of the prosecution case and ordered for acquittal of the accused. Hence, the appeal is preferred by the State.
7. Mrs.M.Anantha Devi, learned Government Advocate (Crl.Side) would contend that the trial Court is erred by holding that the appellant has not proved their case beyond all reasonable doubts and given benefit to the respondent/accused. The trial Court simply thrown out the evidence of P.Ws.2 to P.W.5 since they are happens to be official witnesses. Ex.P.1 which is "Athatchi" made from the spot of occurrence at the time of securing the respondent/accused and seizing the contrabands and the same was witnessed by two independent witnesses. It is further contended that the trial Court has miserably failed to look into that mere possession of prohibited Explosive substances itself is an offence as per Section 5(a) of the Act and prayed for setting aside the order of acquittal. http://www.judis.nic.in 6
8. Mr.R.Senthilkumar, learned counsel for the respondent/accused would submit that the presence of P.W.1 at the alleged scene of occurrence is doubtful and non-examination of any independent witness at the time of arrest or at the time of seizure or at the time of the observation mahazar indicates that the case is put up for statistical purpose and hence, made his submissions in support of the judgment of acquittal passed by the learned Principal Sessions Judge.
9. Point for determination:
Whether the prosecution has proved the charge under Section 5(a) of the Explosive Substances [Amendment] Act, 2001 and if so what is the sentence?
10. After hearing both the parties and also after going through the evidence of the prosecution and the documentary evidence relied upon by the prosecution before the Tribunal, it is seen that P.W.2-Sub Inspector of Police, on a surprise inspection along with P.W.5 said to have seen the accused in possession of Jellatine sticks, detonators and http://www.judis.nic.in 7 fuse wires in a gunny bag and taken into custody and effect Ex.P.2- observation mahazar in the presence of P.W.1. It is the further evidence of police witnesses P.W.2 and P.W.5 is that after registration of Ex.P.6-FIR, they went back to the scene of occurrence and prepared Ex.P.2-observation mahazar and Ex.P.7-Rough Sketch.
11. It is seen from the records that when the learned Judicial Magistrate has decided to commit the accused, the learned Judicial Magistrate initially taken the case on file only under Section 9(B) (1)
(b) of the Act. Thereafter, the Investigating Officer has addressed a letter to the District Collector under Ex.P.3 and sanction was accorded by P.W.3 for prosecuting the accused. It appears that as per the request made by the Investigating Officer, the seizure substances have been sent to Expert Opinion and Ex.P.5 is the report of the Expert opinion.
12. As per the prosecution case, the accused was found to be in possession of the contraband viz., Explosive Substances and the explosive substances were seized from the possession of the accused. http://www.judis.nic.in 8 To prove the seizure, the prosecution relied upon Ex.P.1-Athatchi attested by P.W.1. It remains to be stated that P.W.1-Senthilkumar could depose that he was working in the Tinger workshop and he went to the tea shop where the police alleged to have found the accused along with banned substance. The owner of the Tinker workshop is one Mr.Muthuramalingam under whom P.W.1 is said to have been working and signed in the observation mahazar-Ex.P.2. However, the said Muthuramalingam was not examined to substantiate the preparation of the observation mahazar at 10.40 a.m. on that day.
13. It remains to be stated that the trial Court, on analyzing the chief and cross-examination of P.W,1 coupled with the cross- examination of P.W.5-Investigating Officer found that the presence of P.W.1 at the time of the arrest and preparation of seizure mahazar viz., 8.00 a.m. and the very same person said to have been remained there upto 10.30 a.m. who is also attestor of the Ex.P.2-observation mahazar, the trial Court has come to the conclusion that though nearly 85 Jellatin sticks, 100 detonators and a fuse wire having length of 21 feet were packed in a gunny bag were at alleged possession of the http://www.judis.nic.in 9 respondent at the time of his arrest on 08.11.2006 at 8.00 a.m., the prosecution has prepared mahazar only on 10.40 a.m., which was totally unreliable. Though the place where the respondent had been arrested was in public place whereby Tea shop and Ariyas hotels had been situated but the prosecution failed to produce any witness present in the above said places.
14. Furthermore, the presence of P.W.1 at the alleged scene of crime as projected by the prosecution is found to be doubtful on multiple grounds. Except P.W.1, all other witnesses are revenue and police witnesses and expert witnesses. No independent witness was examined. Though the prosecution projected that they visited the tea shop more than two times and on both the times, it is projected as if P.W.1 was remained there to sign the attestation especially, in the seizure mahazar and hence, the trial Court has come to the conclusion that the presence of P.W.1, as projected by the prosecution, is unbelievable and found to be artificial. Since he is attestor of the seizure mahazar and the other attestor was not examined before the Court and when the presence of P.W.1 is found to be doubtful, the http://www.judis.nic.in 10 trial Court has come to the conclusion that the prosecution has not proved the seizure of the contraband substance in the manner known to law and accordingly, recorded an order of acquittal.
15. After going through the evidence of P.W.1 coupled with the cross-examination of P.W.5, this Court also finds that though one Muthuramalingam, who was the Tinker Workshop owner under whom P.W.1 was working and he had also signed in the Observation Mahazar- Ex.P.2 but he was not examined as a prosecution witness in order to prove the preparation of Mahazar. This would seriously create doubt about the prosecution case that in fact the said Mahazar had been prepared after the arrest of the respondent and hence, it is totally unreliable.
16. On the contrary, the prosecution produced P.W.1 namely, one Senthilkumar, who was an employee at the Tinker workshop and was arrayed as one of the witness to substantiate the prosecution case and further P.W.1 could not give any satisfactory explanation for his presence at the tea shop, which is situated far away from the place of employment i.e., tinker workshop. In view of absence of any possible http://www.judis.nic.in 11 explanation for his presence at the alleged scene of crime at the time of alleged seizure by the police, the essential feature of P.W.1 being chance witness is found to be unbelievable and artificial.
17. Thus, this Court finds that the crucial aspect of the prosecution viz., the seizure mahazar evidencing the seizure of banned substance have not proved in the manner known to law and in the absence of any positive evidence to project P.W.1 being a chance witness having not satisfactorily explained by the prosecution, the trial Court is quite right in disbelieving the prosecution theory. Adding to that, as stated supra, the other person viz., Muthuramalingam, who is none other than the owner of P.W.1 and who is also said to have been in the scene of occurrence, for the reasons best known to the prosecution was not examined him before the Sessions Court also appears to be fatal to the prosecution and hence, taking into entirety of the circumstances and absence of evidence to show and to demonstrate the presence of P.W.1 at the time and place of seizure in the manner known that it is held that the presence of P.W.1, the attestor of seizure at the time of place is highly doubtful and taking http://www.judis.nic.in 12 into consideration the scope of the appeal in the matters of appeal against the order of acquittal, this Court is of the considered view that the view taken by the trial Court is just and proper which does not warrant any interference at this appellate stage. In this view of the matter, this Court hold that the prosecution has failed to prove the charges in the manner known to law and by operation of law. Benefit of doubt goes to the accused. The reasons given by the Trial Court for acquitting the accused are found to be acceptable. This Court does not find any infirmity or irregularity in the judgment passed by the Trial Court. Therefore, this Criminal Appeal is dismissed.
29.04.2019 Index : Yes / No Internet: Yes / No Jrl To The Principal Sessions Judge, Principal Sessions Court, Ramanathapuram District.
http://www.judis.nic.in 13 RMT. TEEKAA RAMAN, J.
JRL JUDGMENT MADE IN CRL.A(MD). No.148 of 2010 29.04.2019 http://www.judis.nic.in