Madras High Court
State : Rep. By vs Kathiresan @ Mageswaran on 9 June, 2008
Author: K.N.Basha
Bench: P.D.Dinakaran, K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.648 of 2005 State : Rep. by The Inspector of Police, Crime Branch C.I.D., Chennai. (Crime No.53/1984) .. Appellant/Complainant Vs. Kathiresan @ Mageswaran, .. Respondent/Accused * * * Prayer : Criminal Appeal filed under Section 378 of the Code of Criminal Procedure against the order of acquittal passed by the learned Principal District and Sessions Judge, Chengalpet, in S.C.No.200 of 2002 dated 22.09.2004. * * * For Appellant : Mr.N.R.Elango Additional Public Prosecutor For Respondent : Mr.R.Shanmugasundaram, Senior Counsel for MR.K.Venkatesan J U D G M E N T
(Judgment of the court was delivered by K.N.BASHA, J.) The State has preferred this appeal challenging the judgment of acquittal passed by the learned Principal Sessions Judge, Chengalpet, dated 22.09.2004 in S.C.No.200 of 2002 acquitting the accused for the offence under Sections 120 (b) r/w 302, 301, 436 (two counts), 114, 302 r/w 301 and 114 r/w 307 IPC and Sections 4 and 5, Section 5 r/w Section 6 and Section 6 r/w Section 4 of Explosive Substance Act and Section 12(b) of Indian Passport Act, 1967 (two counts).
2. Originally seven accused have been implicated in this case. The case was split up in view of the absconding of some of the accused and the accused, Saravanabhavan, Balasubramaniam, M.Chandrakumar, Loganathan and Vijayakumar were tried separately in S.C.No.18 of 1987 and they have been convicted by the learned Principal Sessions Judge, Chengalpet, by the judgment dated 31.07.1989 and against their conviction and sentence they have preferred two appeals, namely, Crl.A.Nos.685 and 704 of 1989 and this Court allowed those appeals by the judgment dated 28.04.2000 and acquitted the said appellants. It is brought to the notice of this Court by the learned Additional Public Prosecutor that the State has not preferred any appeal by filing a Special Leave Petition before the Honble Supreme Court against the judgment of acquittal dated 28.04.2000 in Crl.A.Nos.685 and 704 of 1989 and as such the Judgment of acquittal passed by this Court in the above said appeals reached finality.
3. The case of the present respondent was split up and he has been tried separately by the learned Sessions Judge in this matter.
4. This case is arising out of the most inhuman, barbaric and diabolic act of unleashing terrorism resulting in an explosion at the International Arrival Hall of the Meenambakkam International Airport snatching the lives of 30 innocent persons and causing damages to the tune of Rs.50 lakhs.
5. The sum and substance of the prosecution case as per the charge is that the accused/respondent along with the other co-accused, Saravanabhavan, M.Chandrakumar, Loganathan, Vijayakumar and Balasubramaniam, concerned in S.C.No.18 of 1987 (already acquitted by this Court) and the absconding accused, Thambiraja, Vigneswararaja and Sree @ Uma and approvers, Ramu (P.W.1) and Dhandapani between March 1984 and August 1984 at Injambakkam, Thiruvanmiyur in Chengalpattu District and at Palayamkottai in Tirunelveli District, at Madurai Town, and at Meenambakkam International Airport agreed to do or caused to be done illegal acts to wit, to obtain passports furnishing false information regarding name and address to procure explosive substances, viz., gelatin detonators Sodium metals (liquid) Red Phosphorous and apparatuses viz., electric wires, time pieces, glass bottles for the purpose of manufacturing time bombs, and to send the said time bombs in suit cases to Colombo Airport, Sri Lanka in Airlands Flight through Meenambakkam International Airport and to cause explosion at Colombo Airport with intent to endanger human life and property.
6. The accused/respondent is also charged for conspiracy along with the other accused Balasubramaniam (concerned in S.C.No.18 of 1987 and acquitted by this Court) and absconding accused, Thambiraja and Sree @ Uma and the approvers Ramu and Dhandapani and in pursuance of the conspiracy procured explosive substances at National Trading Company, Palayamkottai, in the middle of March, 1984, on 02.07.1984, 05.07.1984 and 23.07.1984 and the accused/respondent on 02.08.1984 at about 6.30 p.m. brought two suit cases containing time bombs, purchased a ticket in the name of the accused/respondent and passed on the suit cases to the customs departure hall and caused an explosion at International Arrival Hall of the Meenambakkam International Airport in which 30 persons were killed in the hall and damages were caused to the hall to the tune of Rs.50 lakhs.
7. The prosecution in order to bring home the charges levelled against the accused, examined P.Ws.1 to P.52, filed Exs.P.1 to P.107 besides marking M.Os.1 to 62. The defence has not chosen to examine any witness on their side, but marked Exs.D.1 and D.2, namely, the evidence of P.W.49, Jeyaraj, recorded in S.C.No.18 of 1987 and the judgment of the High Court dated 28.04.2000 in Crl.A.Nos.685 and 704 of 1989.
8. The brief facts of the case, as unfolded through the evidence adduced by the prosecution during the course of trial, are as follows :
(i) The accused/respondent in this case is a Sri Lankan national. The approver in this case, who was examined as P.W.1, was a resident of Kovilpatti. P.W.1 was looking after the business of his uncle, who was running a shop under the name and style as Lakshmi Khadi Vasthralayam along with one Subbarayan, his brother-in-law. P.W.1 was also running a business in textiles at Madurai under the name and style as Balaji Textiles. One Dhandapani, the other approver, in this case was the college-mate of P.W.1 at Madurai. The approver, Dhandapani, was also doing business at Madurai. P.W.1 used to visit the office of the approver, Dhandapani, at Madurai. During such time he met the accused Balasubramaniam (concerned in S.C.No.18 of 1987) on being introduced by Dhandapani. The said accused Balasubramaniam was running a shop under the name and style as Jeyavilas at Madurai and was also doing business in lorry. P.W.1 used to send his textile goods through the lorry of the approver, Dhandapani.
(ii) During 1984, in the month of February, P.W.1 and another approver, Dhandapani, were chatting in the shop. At that time, the accused Balasubramaniam came along with the accused/ respondent, and two other accused by name Thambiraja and Sree @ Uma (absconding accused) and introduced them to the approvers, Dhandapani and P.W.1. The accused Balasubramaniam told the approvers, P.W.1 and Dhandapani, that the Sinhalese were treating the Tamils cruelly and torturing them and there is no safety for the life of the Tamils and as such they have come to Tamil Nadu. It is further stated by them to P.W.1 that they are going to fight with the Sinhalese Army for the cause of Tamils and they are also going to celebrate the Martyrs Day. The accused (respondent and the above said other accused) sought for help from P.W.1 and the another approver, Dhandapani for the purchase of explosive substances, weapons and conveyances. Initially, P.W.1 and another approver, Dhandapani, refused to oblige them, but with a view to protect the interest of Sri Lankan Tamil women as the Sinhalese outraged their modesty and torturing them, they agreed to help them to the extent possible. The absconding accused, Thambiraja, told the approver, P.W.1 and another approver, Dhandapani, that he has given Rs.3 lakhs to the accused Balasubramaniam (concerned in S.C.No.18 of 1987). The accused/respondent and the other absconding accused, Thambiraja, collected P.W.1's address from P.W.1.
(iii) During the first week of March, 1984, the accused/respondent along with absconding accused, Thambiraja and Sree @ Uma came to Kovilpatti and met P.W.1 at his shop and requested him to purchase a motorbike by giving Rs.20,000/- and asked him to keep the vehicle in the name of P.W.1. P.W.1 purchased a Royal Enfield motorbike from Tirunelveli Natesan and Company for Rs.18,000/- under the Registration No.TDT 7313. M.O.2 is the motorbike and M.O.1 is its R.C.Book. By using the motorbike, M.O.2, they went in search of explosive substances. The accused/respondent along with other accused purchased a Jeep from P.W.22. The registration number of the Jeep is TTU 8366 and the Jeep is marked as M.O.3. M.O.4 is its R.C. Book. The Jeep was purchased by the accused by giving the Jeyavilas Hotel's address. In that Jeep the accused/respondent along with P.W.1, absconding accused, (Thambiraja and Sree @ Uma) and the accused Balasubramaniam (concerned in S.C.No.18 of 1987) went to Palayamkottai and purchased 10 boxes of gelatin and 200 detonators from the shop of P.W.12, namely, National Trading Company. The amount was paid by the accused/respondent.
(iv) In the month of July 1984, the approver/Dhandapani, absconding accused, Thambiraja and Sree @ Uma, accused Balasubramaniam (concerned in S.C.No.18 of 1987) met P.W.1 in Kovilpatti and informed him that they have to go to Palayamkottai. Thereafter, they have hired a car bearing registration No.TN A 1726 and went to the shop of P.W.12, National Trading Company, and purchased 10 boxes of gelatin and 200 detonators. The amount was paid by the absconding accused, Thambiraja. The accused/respondent and the other accused, as stated above, informed P.W.1 that they have to send the explosive substances to Sri Lanka.
(v) Again, in the same week the above said accused and the accused/respondent purchased 8 gelatin boxes and 200 detonators and the amount was paid by the accused, Balasubramaniam (concerned in S.C.No.18 of 1987).
(vi) On 23.07.1984, P.W.1, the approver and another approver/Dhandapani, absconding accused/Thambiraja and Sree @ Uma, left for Palayamkottai in the Jeep bearing registration No.TTU 8366 and again purchased 100 detonators and 5 boxes of gelatin from P.W.12's shop. At that time, the absconding accused, Thambiraja, told P.W.1 that they are going to use the powerful explosive substances for celebrating Martyrs Day by destroying the Sri Lankan Airport. The absconding accused, Thambiraja, told P.W.1 that the accused/respondent is manufacturing explosives and they are going to send the accused/respondent with the explosive substances to Colombo by flight from Chennai Meenambakkam Airport.
(vii) The absconding accused and the other accused, as stated above, also purchased M.O.5, white colour standard Van and thereafter, left for Chennai.
(viii) P.W.5 was the Manager of Trans Lanka Travels situated at Hotel Chola Sheraton, Chennai. P.W.5 has spoken about the purchase of tickets in the name of the accused/respondent. He produced Ex.P.3, Revenue coupon for the purchase of ticket in the name of the accused/respondent which contains ticket number and the said ticket was issued on 31.07.1984. The NTS form, Ex.P.4, was also produced by P.W.5.
(ix) P.W.10, the Constable, who was on security duty at Meenambakkam International Airport on 31.07.1984, was alleged to have seen the absconding accused, Thambiraja, the other accused Vijayakumar (S.C.No.18 of 1987), Vigneswararaja, another absconding accused, and two identifiable persons with two brown colour suit cases. P.W.10 has identified the said accused for the first time only before the Court.
(x) P.W.4 was working as Station Assistant at Sri Lankan Airlines during the relevant period of occurrence and he was working under P.W.3. According to P.W.4, on 31.07.1984 the flight UL 122 was about to leave for Colombo at 8.10 p.m. On that day during that time, one person came with Air Lanka ticket in the name of Kathiresan (accused/respondent). It is further stated by P.W.4 that the said Kathiresan's name was not found in the list on that day and as such the said person was asked to wait. At last, one seat was lying vacant and P.W.4 instructed that person (Kathiresan) to pay the Airport tax and to go for checking. When the two suit cases were weighed, it was found 55 Kgs. exceeding the allowed limit of 35 Kgs and as such he was asked to pay the amount for that excess weight. The person in the name of Kathiresan has not paid that amount and because of that non-payment, he has not travelled in that flight and he took the ticket.
(xi) P.W.36, who was working as Constable, was on duty on 02.08.1984 at Meenambakkam International Airport at Departure Hall and he was alleged to have seen a Jeep bearing registration No.TNT 9572 and stated that four persons came in that Jeep and one person was having two suit cases. He identified that person as accused/respondent before the Court for the first time and he was not able to mention the name of the accused.
(xii) According to P.W.4, on 02.08.1984, the Air Lanka flight was about to leave. On that day, he found that out of 97 passengers, 96 passengers boarded in the flight and one person by name Kathiresan not boarded in the flight. During the relevant period, P.Ws.6, 7 and 17 were all on duty at Chennai Airport. The accused Kathiresan has not come for migration.
(xiii) P.W.16, who was working as a Loader in Indian Airlines, stated that 02.08.1984 at 6.30 p.m. he was on duty. He weighed the two suit cases and at that time, the accused, Vijayakumar and the accused Logonathan (S.C.No.18 of 1987) were present and the weight was found to be 55 Kgs exceeding the allowed limit of 35 Kgs and as such he has handed over the said two suit cases to Customs Officer One Damodharan (one of the deceased).
(xiv) P.W.17, who was working as Traffic Superintendent, was on duty on the date of occurrence and supervising the clearance of the passengers. P.W.11 was also the Traffic Superintendent at that time. P.W.17, during that time, was said to have seen the accused, Loganthan and Vijayakumar (accused in S.C.No.18 of 1987) at the counter. P.W.11 informed him that one Kathiresan, passenger has not arrived. At Customs Duty Hall two suit cases were seen and no one claimed the two suit cases. He has seen the deceased, Damodharan, Customs Officer taking the two suit cases.
(xv) P.W.9 was working as Telephone Operator and she was on duty on 02.08.1984. At 10.10 p.m., P.W.9, was said to have received an anonymous call requesting her to connect the police security extension number. Again, she received another call from that person and she has connected the Airport Manager immediately. Thereafter, P.W.8, who was working as an Airport Manager, also received an anonymous telephone call of Bomb threat as the caller told him that two boxes kept in the departure hall contained explosive substances. P.W.8 informed P.W.34, Deputy Collector of Customs and the fire service force and attempts were made to evacuate the persons, namely, the public and the other staff members and officials present in the hall, where the suit cases were kept. P.W.6, Deputy Commercial Manager, Meenambakkam Airport had given directions to remove the two suit cases. As already stated, as per the instructions of the Officer one Damodharan, Customs Officer (one of the deceased) while attempting to remove the two boxes, the unfortunate incident of explosion took place.
(xvi) P.W.51, the Chief Controller of Explosives, received the message about the bomb blast at Meenambakkam Airport on 02.08.1984 at 11.30 pm and he reached the scene at 11.50 pm. He also summoned the Deputy Chief Controller at 12.00, who took the scene under his custody and made arrangements for security for preventing the entry of the public into the scene till 9.00 a.m. on the next day. He prepared a report, Ex.P.97 on receipt of Ex.P.96, chemical examination report, in respect of M.O.52, burned small piece of cloth plywood wire, M.O.53 series/sample earth from the scene.
(xvii) P.W.52, who was the Inspector, Special Investigation, took up investigation. He went to the scene on the date of occurrence at 12.00 mid night, recorded the statement of P.W.2, Fire Service Worker, under Ex.P.3. He registered the case on 03.08.1984 at 4.00 a.m. in Crime No.53 of 1984 under Section 302 and under Section 9(b)(i) of the Explosive Substances Act and under Section 326 IPC. He prepared Ex.P.98, First Information Report, and sent the same to the Magistrate Court and to the higher police officials.
(xviii) P.W.52 was assisted by other police officials, P.Ws.19, 24, 25, 27, 38, 39, 40, 41, 42, 43, 46 and those police officials have conducted inquest on the dead bodies of the unidentifiable persons as well as the identifiable person, Damodharan, who was said to have removed the two suit cases.
(xix) P.W.52, prepared the Observation Mahazar, Ex.P.94, in the presence of P.W.50 and another. He recovered certain articles from the scene, namely, two iron pieces, two plastic brown colour bag, one stone packed in a white cloth, metal pieces, one burned cloth, one burned diary, one plastic sheet under Ex.P.95. He made arrangements for taking photographs. On 05.08.1984, he examined P.Ws.8 and others and recovered the log book, M.O.54. He examined P.W.5 and another on 06.08.1984 and recovered Exs.P.3 and P.4, revenue coupon and NTS Form. On 07.08.1984,08.08.1984, 09.08.1984, 10.08.1984 he examined several other witnesses. He also recovered the log book, M.O.55.
(xx) On 10.08.1984 at 6.00 p.m., he arrested the accused, Chandrakumar and Loganathan (S.C.No.18 of 1987). He examined P.W.51 on the same day. The above said arrested accused have been remanded to judicial custody. On 11.08.1984 at 12.00 noon, the absconding accused, Thambiraja, was arrested. On the same day at 4.00 p.m., P.W.52 arrested another absconding accused, Vigneswararaja. He examined P.W.15 and another and M.O.5, TMT 9572, van, was recovered by P.W.46. The house of the accused was searched and M.Os.33 to 51 were recovered under Ex.P.93 and thereafter, the above said accused have been remanded to judicial custody. On 13.08.1984, 14.08.1984 and 15.08.1984, he examined some more witnesses. Exs.P.29 and 30 were recovered from P.W.28.
(xxi) P.W.52, examined the Doctors, P.Ws.20, 21, 29 and 32 and others, who have conducted post-mortem on the dead body of the unidentifiable persons and identifiable person, namely, Damodharan and received the Post-mortem Certificates, Exs.P.11, 13, 15, 17, 19, 21, 24, 25, 27, 28, 32, 34, 36, 38, 44, 46 to 64, 66, 68 to 81, 88, 89 and 90.
(xxii) On 28.08.1984 at 3.00 p.m. he arrested the accused Balasubramaniam (accused in S.C.No.18 of 1987) and P.W.1, the approver and another approver, Dhandapani at Madurai bus stand. On 29.08.1984, he arrested the accused Saravanabhavan at 10.00 a.m. at Tambaram Bus stand and he took police custody of the accused.
(xxiii) On 03.09.1984, he examined P.W.12 from whom the explosive substances purchased by the accused and recovered M.Os.6 to 8. He seized the trip sheet, M.O.56, for Ambassador Car, TNI 1726. P.W.1 and approver, Dhandapani, accused Saravanabhavan were taken to Madurai for enquiry and he also examined P.W.23 and recovered M.O.2 TDT 7313, motorbike and M.O.3, TTU 8366, Jeep in the presence of P.W.48 and another. The above said accused have been remanded to judicial custody on 10.09.1984 and he gave a requisition for recording their statement under Section 164 Cr.P.C.
(xxiv) On 16.09.1984, he arrested the accused/respondent at 4.00 p.m. at Nagamalai-Pudukottai Road and recovered M.Os.20 to 32 in the presence of P.W.47 and another under Ex.P.92. On 17.09.1984, the accused/respondent was remanded to judicial custody. P.W.52, took police custody of the accused and once again the accused was remanded to judicial custody on 24.09.1984.
(xxv) P.W.52 also recovered M.O.57, general diary of the Airport security police station. He also recovered M.Os.58 to 61, diary notes. He examined some more witnesses on 10.10.1984 and 07.11.1984 and gave a requisition for conducting pardon proceedings in respect of P.W.1, approver, and another approver, Dhandapani, Exs.P.101 and 102. The Chief Judicial Magistrate, Chenglepet, examined P.W.1, approver and another approver, Dhandapani, on 20.12.1984 and their statements were recorded under Exs.P.103 and 104.
(xxvi) P.W.52 also recovered Ex.P.105, list of 25 persons died at the time of blast. He also received the Government Order, Ex.P.107, to file charge sheet against the absconding accused, Thambiraja, in this case for the offence under the Passport Act. After completion of investigation, P.W.52 filed the charge sheet against the accused/respondent and 8 other accused on 08.05.1985 under Sections 120(b), 302 r/w 301 and 436 IPC and Sections 4 to 6 of Explosive Substances Act and under Section 12(b) of the Passport Act.
9. When the accused/respondent was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him, he has denied each and every circumstance as contrary to the facts and stated that he has been falsely implicated in this case. The accused has not chosen to examine any witness on his side but marked Exs.D.1 and D.2, evidence of P.W.49 given in S.C.No.18 of 1987 and the Judgment of this Court in Crl.A.Nos.685 and 704 of 1989 dated 28.04.2000 allowing the appeals and setting aside the conviction and sentence imposed on the other co-accused.
10. The learned trial Judge on consideration of the entire evidence put forward by the prosecution has come to the conclusion that the prosecution has not proved its case beyond reasonable doubt against the accused/respondent and acquitted him from all the charges levelled against him.
11. The entire prosecution case rests on the circumstantial evidence. The circumstances put forward by the prosecution are as follows :
(i)motive to the effect that the grievance of the accused is that the Sinhalese were causing torture to the Sri Lankan Tamils and with a view to protest against them the accused have to celebrate the Martyrs Day by planting the explosives at Colombo Airport, as spoken by P.W.1, the approver.
(ii)conspiracy of the accused to achieve their object by purchasing a Jeep, M.O.3, from P.W.22 and motorbike, M.O.2, for the purpose of using such conveyances to purchase the explosives from the shop of P.W.12 and P.W.13.
(iii)Last seen theory as spoken by P.W.10, Constable, Meenambakkam Police Station and P.W.36, another Constable, identifying the accused/respondent for the first time before the Court to the effect that they have seen the accused on 31.07.1984 at 7.00 p.m. and 02.08.1984 at 7.00 p.m. respectively.
(iv)The accused has not travelled in the Colombo flight on 02.08.1984 as per the evidence of P.Ws.11 and 17 and the two suit cases remained unclaimed, according to them.
(v)The anonymous call of bomb threat at Meenambakkam Airport as spoken to by P.W.8, Airport Manager, and P.W.9, Telephone Operator, on the date of occurrence, i.e., on 02.08.1984 at 9.00 p.m. and 10.10 p.m. informing about bomb threat to the effect that two suit cases were kept at the Customs arrival hall with explosive substances.
12. The learned trial Judge acquitted the accused by assigning the following reasons :
12.1. The prosecution case of conspiracy and in pursuance of the conspiracy purchasing the explosive substances, namely gelatin and detonators by the accused along with the other co-accused, was mainly spoken to by P.W.1, the approver and P.W.14, his brother-in-law. But P.W.14 has not identified the accused and as such the evidence of P.Ws.1 and 14 is unbelievable.
12.2. The prosecution case of purchase of explosive substances from the shop of P.Ws.12 and 13 was also spoken to by the approver, P.W.1 and P.W.12, Proprietor of National Trading Company and P.W.13, another vendor of explosive substances. But P.Ws.12 and 13 have not implicated the accused for the purchase of gelatin and detonators. Therefore, the evidence of P.W.1 alone cannot be relied upon and the evidence of P.W.13 is contrary to the evidence of P.W.1. Apart from that P.W.13 has also not identified the accused. Therefore, the purchase of explosive substances by the accused is not proved by the prosecution.
12.3. The purchase of the Jeep, M.O.3, from P.W.22 by the accused is also not proved as the prosecution has not produced any document to substantiate its case and further the prosecution has withheld the production of the account book said to have been shown by P.W.22 to the police before the Court.
12.4.1. The last seen theory as spoken to by P.W.4, implicating the accused to the effect that the accused came to the Meenambakkam Airport on 31.07.1984 with two suit cases and as the suit cases were exceeding the allowed weight, the accused has not travelled on that day, but P.W.4 stated that he does not remember the accused and he has also not identified the accused. The last seen theory has spoken to by P.W.10 implicating the accused to the effect that on 31.07.1984 at 7.00 p.m., the accused along with the other accused, Thambiraja, Vigneswararaja, absconding accused, Vijayakumar, (accused in S.C.No.18 of 1987) came to the Airport. Both P.Ws.4 and 10 have not seen the accused before 31.07.1984. Though P.W.10 claimed to have identified the accused to the police by seeing the photograph, the photograph was not produced by the police before the Court. Therefore, the prosecution failed to prove the last seen theory spoken by P.Ws.4 and 10.
12.4.2. The evidence of P.W.36, who has spoken to about the last seen theory implicating the accused is also unreliable. P.W.36, though stated that on 02.08.1984 while he was on duty at the Departure Hall, was alleged to have seen M.O.5, Van bearing registration No.TNT 9577 at 6.30 p.m. and a person took two suit cases and that person is the accused/respondent by identifying him before the court. But he has not stated so before the C.B.C.I.D. police during investigation. The accused was not known to P.W.36 and he identified the accused for the first time before the Court and the prosecution has not conducted any identification parade and as such his evidence cannot be relied upon.
12.5. The recovery said to have made from the accused is also not proved by the prosecution beyond reasonable doubt.
13. Before scrutinizing the reasons assigned by the learned trial Judge for acquitting the accused, let us refer the well settled principle of law laid down by the Hon'ble Apex Court in respect of the powers of this Court in interfering with the Judgment of appeal against acquittal.
14. It is relevant to refer a decision rendered by the Hon'ble Apex Court in Satbir Singh V. State of Punjab reported in AIR 1977 SC 1294 wherein the Hon'ble Apex Court has held as follows :
".... As a practical proposition, in an appeal against acquittal, it is always necessary that the reasons given by the trial Court for recording an acquittal should be examined by the High Court. If the conclusions of the trial Court are not based upon any evidence or they are such as no reasonable body of men, properly instructed in law, can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court will be justified in taking a contrary view by giving its own reasons. It is not enough that it is just possible for the High Court to take a contrary view. While interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial Court having regard to all the relevant evidence in record."
15. In yet another decision in State of Karnataka V. K.Gopalakrishna reported in 2005 (9) SCC 291 the Hon'ble Apex Court has held as follows :
"17. .... If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the court below, that is sufficient for upholding the order of acquittal. However, if the appellate court comes to the conclusion that the findings of the court below are wholly unreasonable or perverse and not based on the evidence on record, or suffer from serious illegality including ignorance or misreading of evidence on record, the appellate court will be justified in setting aside such an order of acquittal."
16. The Hon'ble Apex Court in a latest decision in Mahesh s/o Janardhan Gonnade V. State of Maharashtra reported in 2008 (2) Supreme 898, by referring to a catena of earlier decisions of the Hon'ble Apex Court, reiterated the principles regarding the powers of the Appellate Court while dealing with the appeal against an order of acquittal as hereunder :
"21. In Chandrappa V. State of Karnataka (2007) 4 SCC 415, on consideration of a catena of earlier decisions of this Court and Privy Council, the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge :
(1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of low.
(3)Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
17. If the reasons assigned by the learned trial Judge for acquitting the accused are considered on the basis of the materials available on record coupled with the touchstone of the principles of law laid down by the Hon'ble Apex Court in dealing with an order of appeal against acquittal in the decisions cited supra, we are of the considered view that the learned trial Judge has assigned valid and categorical reasons based on the materials available on record. From the perusal of the impugned Judgment of acquittal, we cannot come to the conclusion that the reasons assigned by the learned trial Judge are perverse or the learned trial Judge overlooked or misread the evidence available on record warranting interference of this Court in the impugned judgment of acquittal.
18. The learned trial Judge rightly disbelieved the case of the prosecution regarding the charge of conspiracy. It is pertinent to be noted that the prosecution case mainly rests on the sole and solitary testimony of P.W.1, the approver, to implicate the accused/respondent and the other accused in respect of conspiracy. It is also to be borne in our mind that though P.W.1 stated about the presence of another approver, Dhandapani, the prosecution has withheld the examination of such material witness who claimed to have been present along with P.W.1 at the time of accused meeting P.W.1 regarding the conspiracy to destroy the Colombo Airport by planting time bombs and for that object manufacturing the bomb by purchasing the explosive substances and attempting to send the explosive substances in two suit cases through Meenambakkam airport, Chennai. It is also relevant to be noted that as per the evidence available, it is only the said approver, Dhandapani, introduced the accused/respondent and other co-accused to P.W.1, the approver. Therefore, we have no hesitation to draw adverse inference against the prosecution for withholding the material witness, namely, the approver Dhandapani.
19. As already stated, the prosecution heavily placed reliance on the evidence of the approver, P.W.1, alone. The Hon'ble Apex Court in Balwant Kaur v. Union Territory of Chandigarh reported in AIR 1988 SC 139 has held as follows :
"11. An accomplice, by long legal tradition, is a notoriously infamous witness, one who being particeps criminis, purchases his immunity by accepting to accuse others. Section 114 Illus : (b) of the Evidence Act envisages the presumptive uncreditworthiness of an accomplice. But then, S.133 provides that a conviction is not illegal merely because it rests upon an accomplice's uncorroborated testimony.
In indictments, particularly of serious crimes, the counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars. Judicial experience was, thus, elevated to a rule of law. "It is a practice" it is said "which deserves all the reverence of law."
The nature and extent of the corroboration must necessarily vary with the nature and circumstances of each case. Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical. The aspect as to the extent and content of independent corroboration is again an interesting area of study. One view was that independent evidence tending to verify any part of the testimony of the accomplice should suffice. The other view required that the corroborative evidence should not only show that part of the accomplice testimony is true ; but should go further and also implicate the other accused."
20. It is also equally well settled by the Hon'ble Apex Court in Ravinder Singh V. State of Haryana (AIR 1975 SC 856) that, "An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, of the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.
... Every approver comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the Court by time-worn judicial practice.
... An approver is a person of low morals for the reason that he being a co-participation in the crime has let down his companion. As pointed out above it is for this reason that a rule of caution has grown whereby the court has to see if his evidence is corroborated in material particulars connecting the accused with the crime."
21. If we test the credibility of the version of P.W.1 on the basis of the materials available on record with the other evidence in the light of the principle of law laid down by the Hon'ble Apex Court, as stated above, we are constrained to state that the evidence of P.W.1 does not inspire our confidence as his evidence suffers from serious infirmities and inherent improbabilities.
22. Therefore, excluding the evidence of the approver, P.W.1, who has been relied upon by the prosecution to prove the charge of conspiracy, the remaining version of prosecution solely rests on the circumstantial evidence.
23. It is well settled by a catena of decisions of the Hon'ble Apex Court that in a case rests on the circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime.
24. It is also equally well settled by the Hon'ble Apex Court in Gade Lakshmi Mangraju alias Ramesh V. State of Andhra Pradesh reported in AIR 2001 SC 2677 that, "In a case based on circumstantial evidence one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances, which could matter. Hence, it is not proper for the Court to cull out one circumstance from the rest for the purpose of giving a different meaning to it."
25. Let us now analyse and scrutinize the circumstances put forward by the prosecution, as stated above.
26. The first circumstance, namely, motive is to the effect that the grievance of the accused is that the Sinhalese were causing torture to the Sri Lankan Tamils and with a view to protest against them, the accused have to celebrate the Martyrs Day by planting the explosives at Colombo Airport, as spoken to by P.W.1, the approver. This circumstance of motive is to be considered along with the charge of conspiracy. The undisputed fact remains, as per the case of the prosecution, that two persons competent to speak about the charge of conspiracy are P.W.1, the approver, and another approver, Dhandapani. It is well settled that one tainted witness cannot corroborate another tainted witness. But the fact remains that the prosecution has withheld the examination of another approver, Dhandapani, and as such we have already drawn an adverse inference against the prosecution case. Therefore, the prosecution is left with the sole and solitary testimony of P.W.1 to speak about the conspiracy. P.W.1 has stated that the accused/respondent and the other accused were introduced by the co-accused Balasubramaniam (S.C.No.18 of 1987) and another approver, Dhandapani, and the other accused told him that the Sinhalese were torturing the Tamils and as such there is no safety for their life and they have to celebrate Martyrs Day and sought the help of P.W.1 and another approver, Dhandapani for the purchase of explosive substances and conveyances in order to prevent the torture of Tamil women as the Sinhalese have outraged their modesty and tortured them. It is the version of P.W.1 that thereafter accepting the request the accused/respondent and other co-accused, he helped the accused to purchase vehicles and explosive substances for manufacturing bombs to be planted at Colombo Airport. Though the prosecution has made a vain attempt by examining P.W.14, who is none else than the brother-in-law of P.W.1 to speak about the meeting of the accused with P.W.1 at the instance of another approver, Dhandapani and thereafter requesting P.W.1 to help them for the purchase of explosive substances, the fact remains that P.W.14 has categorically stated that he cannot identify the accused even before the Court. As far as the evidence of P.W.1, the approver, is concerned, we have already held that his evidence suffers from several infirmities and improbabilities and his evidence does not inspire our confidence. Therefore, we have no hesitation to hold that the prosecution has miserably failed to prove motive coupled with the charge of conspiracy against the accused/respondent.
27. The second circumstance is regarding the purchase of explosive substances and the purchase of vehicles, namely, M.O.2, motorbike, M.O.3, jeep by the accused in pursuance of the conspiracy of purchasing explosive substances for manufacturing the bombs and planting the same at Colombo Airport. In respect of this circumstance, we are having the evidence of P.W.1, approver, P.W.14, brother-in-law of P.W.1, P.W.12 and P.W.13, vendors of the explosive substances. It is to be reiterated that for each and every circumstance, the prosecution heavily placed reliance on the evidence of the approver, P.W.1.
28. As far as P.W.14 is concerned, it was stated that he was assisting P.W.1 in his shop and during the month of July 1984, the accused/respondent along with other co-accused, Thambiraja, Vigneshwararaja and Sree @ Uma (absconding accused), Balasubramaniam (accused in S.C.No.18 of 1987) came to the shop of P.W.1. It is further stated by P.W.1 that the accused informed P.W.1 that they have to purchase explosive substances and took P.W.1 to Palayamkottai and further P.W.1 purchased the bullet, two wheeler. The fact remains that P.W.14 has not identified the accused and he has categorically stated even in the chief examination that he cannot identify the accused. P.W.14 is also not able to give the registration number of the motorbike and he is not able to give any further particulars. Therefore, P.W.14 has not implicated the accused specifically and he has not corroborated the version of P.W.1.
29. As far as P.W.1, the approver, is concerned, we have already pointed out that his evidence is unreliable. It is seen that only the other approver, Dhandapani, is said to have introduced the other accused in this case to P.W.1, but the prosecution has not chosen to examine the said approver, Dhandapani, to corroborate the version of P.W.1. P.W.1 categorically stated even in his chief examination that M.O.2, Royal enfield bullet bearing registration No.TDT 7313 was purchased by him in his name. Therefore, the accused/respondent cannot be implicated for the purchase of M.O.2, motorbike, for the purpose of using the same for purchasing the explosive substances and other works. P.W.1 further stated in the chief that he was informed that the Jeep, M.O.3, bearing registration No.TTU 8366 was purchased in the name of the accused, Balasubramaniam (S.C.No.18 of 1987) from P.W.22. The learned trial Judge has rightly rejected the evidence of P.Ws.1 and 14 in respect of the accused approaching P.W.1 for the purchase of explosive substances.
30. Yet another piece of evidence available on record to speak about this circumstance, namely, purchase of explosive substances by the accused are P.Ws.12 and 13, the vendors. P.W.12 is the Proprietor of the National Trading Company. P.W.13 was also having a retail shop for the sale of explosive substances.
31. As far as P.W.12 is concerned, it is seen that P.W.12 has not implicated any one of the accused including the accused/respondent to the effect of purchasing explosive substances from his shop. He has produced the stock books, M.Os.6 and 8 in respect of the sale of gelatin and detonators. But it is not the case of the prosecution that the name of any of the accused were found in those books in spite of P.W.12 stating that the stock book would contain the names of the purchasers as well as the particulars regarding the purchase of explosive substances. Therefore, the evidence of P.W.12 is not helpful to advance the case of the prosecution.
32. As far as P.W.13, another retail vendor of explosive substances is concerned, he has stated in his chief examination that the accused/respondent and the other absconding accused, namely, Thambiraja and Sree & Uma came in a Jeep to his shop during the month of March 1984, but he is not able to identify them in the Court. It is the further version of P.W.13 that in the month of July 1984, P.W.1/approver, Thambiraja and Sree @ Uma/other absconding accused and other accused Balasubramaniam (S.C.No.18 of 1987) came to his shop and they purchased 10 boxes of gelatin and 200 detonators, but P.W.13 specifically stated that the accused/respondent has not come to his shop on that day and the amount for the purchase of explosive substances was paid by the accused, Balasubramaniam (S.C.No.18 of 1987). Again, after 10 days, the absconding accused/Thambiraja and Sree @ Uma, and the approver/Dhandapani, came to his shop and purchased 8 boxes of gelatin and 200 detonators and the amount for that purchase was paid by the absconding accused, Thambiraja and as such P.W.13 has not at all implicated the accused/respondent for the purchase of explosive substances from his shop. Therefore, the learned trial Judge has rightly rejected the evidence of this witness also. In view of the above said factors, we are constrained to concur with the view taken by the learned trial Judge to the effect that the prosecution has miserably failed to prove the purchase of explosive substances by the accused and the other accused.
33. The third circumstance put forward by the prosecution is the last seen theory said to have been spoken to by P.W.4, P.W.10 and P.W.36. P.W.4 was working as Station Assistant of Sri Lankan Airlines at Meenambakkam Airport. He has stated that P.W.3 was his officer. It is stated by P.W.4 that on 31.07.1984, a person came with a ticket, mentioning his name as Kathiresan, for boarding the Air Lanka flight UL 122 bound for Colombo and the name of such person was not in the list. It is further stated by P.W.4 that two suit cases brought by that person were weighing 55 Kgs, which were in excess to the allowed weight of 35 Kgs and the amount for excess package was not paid by that person and as such the person has not travelled in the flight on that day. The next flight for the same time is scheduled to leave only on 02.08.1984. According to P.W.4, on that day, out of 97 passengers, 96 passengers were boarded in the flight and one passenger, namely, Kathiresan was not boarded. The two suit cases brought by the said person was not identified by anyone and no one claimed the ownership of the suit cases and as such P.W.4 entrusted the suit cases to the Customs officials as the person by name Kathiresan was not turned. It was declared that he has not come for migration. Therefore, P.W.4 handed over the said two suit cases to the customs officer, Damodharan, who died at the time of blast. The fact remains that P.W.4 has not identified the accused in the Court and he has specifically stated in the chief examination itself that he does not remember the accused.
34. The next witness to speak about this circumstance is P.W.10. According to P.W.10, who was working as Constable at Meenambakkam Police Station, on 31.07.1984, while he was on duty at the Airport at 7.00 p.m., he has seen the accused, Chandrakumar (S.C.No.18 of 1987) Thambiraja and Vigneswararaja (absconding accused) and Vijayakumar (S.C.No.18 of 1987) and two identifiable persons and the two persons were having two suit cases. It is further stated by P.W.10 that police has shown a photograph and from the photograph he identified the accused. No identification parade was conducted for identifying the accused by P.W.10 by the prosecution. It is pertinent to be noted that the prosecution has also not produced the photographs said to have shown to P.W.10 before the Court and as such the evidence of P.W.10 is also not inspiring our confidence and it is highly unsafe and hazardous to place reliance on his evidence and the learned trial Judge has rightly disbelieved the evidence of P.W.10.
35. The prosecution has also relied the evidence of P.W.36 to prove last seen theory to the effect that of seeing the accused on the date of occurrence, i.e., on 02.08.1984 at the Meenambakkam Airport. P.W.36, was also working as Grade I Police Constable at Meenambakkam Police Station and he was on duty on the date of occurrence, i.e., on 02.08.1984. It is stated by P.W.36 that on that day at 6.30 p.m., a white colour van bearing registration No.TNT 9572 came to the airport and four persons got down from the van and one person was having two suit cases and he is the accused/respondent. P.W.36 also stated that he is not aware about the name of the accused/respondent. It is further stated by P.W.36 that again a person came out of the departure hall with two suit cases, but he has not implicated anyone specifically. It is categorically admitted by P.W.36 in his cross-examination that he has not stated before the C.B.C.I.D. police during his examination that he has seen the accused two days prior to the date of occurrence at the Airport. It is also pertinent to be noted that P.W.36 categorically admitted in his cross-examination that he has seen the accused only for the first time two days prior to the occurrence and on the date of occurrence and thereafter, he is seeing the accused only before the Court. The fact remains that the prosecution has not conducted any identification parade.
36. The Hon'ble Apex Court in Kanan V. State of Kerala (AIR 1979 SC 1127) has held as follows :
"It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations."
37. The Hon'ble Apex Court in a latest decision in Mahabir V. The State of Delhi reported in 2008 (3) Supreme 111 has held as follows :
"The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. .... It is accordingly considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court as to the identity of accused who are strangers to them, in the form of earlier identification proceedings."
38. The above well settled principle of law laid down by the Hon'ble Apex Court is squarely applicable to the facts of the instant case as in this case also admittedly the accused is unknown to P.W.36 and the prosecution has also not conducted any identification parade and P.W.36 has identified the accused only for the first time before the Court. Therefore, it is most unsafe and hazardous to place any reliance on the evidence of P.W.36.
39.1. The fourth circumstance relied on by the prosecution is the accused/respondent has not travelled in the Colombo flight on 02.08.1984 as per the evidence of P.Ws.11 and 17 and the two suit cases remained unclaimed, according to them. As far as this circumstance is concerned, this Court is constrained to state that P.W.11 merely stated that a person by name Kathiresan handed over a ticket and Ex.P.3 is the counterfoil of that ticket and on verification the name of the said Kathiresan was not found in the list of passengers. It is the further version of P.W.11 that the said person handed over two suit cases and they were weighing 55 Kgs which were in excess of permitted limit of 35 Kgs and for that P.W.11 asked that person to pay amount for the excess weight. It is seen that this witness has not at all identified the accused.
39.2. Yet another witness, P.W.17, speaks about a person by name Kathiresan has not travelled on 02.08.1984 in the Colombo flight. P.W.17 claimed that he was informed by P.W.11 that a passenger by name Kathiresan has not come for boarding. Even P.W.17 has not at all implicated the accused/respondent as admittedly P.W.17 has not seen the accused/respondent or any passenger by name Kathiresan. Therefore, the prosecution cannot place reliance on this circumstance also.
40. The last but not the least circumstance is the anonymous calls said to have been received by P.W.9, telephone operator, and P.W.8, Airport Manager. But it is to be seen that both the witnesses have not stated anything about implicating the accused for making such anonymous calls and there is not an iota of evidence available on record to implicate the accused for such anonymous calls.
41. The learned trial Judge has also rightly rejected the case of the prosecution regarding the recovery of M.Os.34 to 51 by assigning valid reasons on the ground that the witness to speak about the recovery, namely P.W.47 has not identified the accused/respondent to show that the material objects were recovered only at the instance of the accused/respondent. Therefore, the entire prosecution case suffers from serious infirmities and inherent improbabilities. The prosecution is not able to put forward clear, cogent and incriminating circumstances of a definite tendency unerringly pointing towards the guilt of the accused/respondent.
42. It is also to be borne in our mind that this Court has already allowed the appeals filed by the other co-accused, who have been convicted by the learned trial Judge, in C.A.Nos.685 and 704 of 1989 by the judgment dated 28.04.2000 and acquitted the other co-accused and it is also brought to the notice of this Court by the learned Additional Public Prosecutor that the State has not preferred any appeal against the judgment of acquittal and such findings of this Court in those appeals have reached finality. The defence has also marked the said Judgment dated 28.04.2000 as Ex.D.2 in this case.
43. Again we are constrained to reiterate that the impugned Judgment of acquittal does not suffer from any infirmity, illegality or the learned trial Judge has overlooked or misread any evidence or the findings of the learned trial Judge are perverse warranting interference of this Court in the judgment of acquittal. Therefore, we are constrained to dismiss the appeal preferred by the State and accordingly, this appeal is dismissed.
(P.D.D., J.) (K.N.B., J.) 09.06.2008
Index : Yes/No
Internet : Yes/No
gg
To
1. The Principal District and Sessions Judge, Chengalpet.
2. The District Collector, Kancheepuram.
3. The Director General of Police, Chennai 5.
4. The Inspector of Police, Crime Branch, C.I.D., Chennai.
5. The Public Prosecutor, High Court, Madras.
P.D.DINAKARAN, J.
and
K.N.BASHA, J.
gg
Judgment in
Crl.A.No.648 of 2005
09.06.2008