Madras High Court
Sekar vs State Represented By on 2 September, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 13.03.2017 PRONOUNCED ON: 21.04.2017 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU THE HONOURABLE DR. JUSTICE ANITA SUMANTH CRIMINAL APPEAL NO.687 OF 2016 1.Sekar 2.Nagappan 3.Annamalai .. Appellants Versus State represented by the Inspector of Police, Mayilam Police Station, Villupuram District. .. Respondent Prayer : Criminal Appeal filed under Section 374 of Criminal Procedure Code to call for the records pertaining to judgment of conviction and sentence passed by the learned II Additional District and Sessions Judge, Villupuram at Tindivanam in S.C.No.117 of 2008, dated 02.09.2016 and set aside the same by allowing the Criminal Appeal. For Appellants : Mr.V.Gopinath Senior Counsel for Mr. Govindaraj For Respondent : Mr.P.Govindarajan Additional Public Prosecutor J U D G M E N T
(Dr.Anita Sumanth, J.) This Criminal appeal is filed by three appellants (A1, A2 and A3) challenging the conviction and sentence imposed by II Additional District and Sessions Judge, Villupuram at Tindivanam, in Sessions case No.117 of 2008.
2. The charges laid and conviction and sentence imposed on A1 are as follows:
Conviction Sentence U/s.304 (ii) IPC (16 counts) To undergo 10 years Rigorous Imprisonment U/2.324 IPC (16 counts) To undergo 3 years Rigorous Imprisonment U/s.326 IPC(5 counts) To undergo Life Imprisonment U/s.427 IPC (185 counts) To undergo 2 years Rigorous Imprisonment U/s.429 IPC To undergo 5 years Rigorous Imprisonment u/s286 IPC To undergo 6 months Rigorous Imprisonment U/s.4 of Prevention of damages and Loss Act 1992 (60 counts) To undergo 10 years Rigorous Imprisonment U/s.9(B) (1) (b) of Explosives of Substances Act. To undergo 2 years Rigorous Imprisonment U/s.9(3) (c) (ii) of Explosives of Substances Act. To undergo 3 months Rigorous Imprisonment U/s.3 (B) of Explosives of Substances Act of 1909 To undergo Life Imprisonment and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for 6 months (total fine amount is Rs.30,000/-)
3. The charges laid and the conviction and sentence imposed on A2 are as follows:
Conviction Sentence U/s.304 (ii) IPC (16 counts) To undergo 10 years Rigorous Imprisonment U/2.324 IPC (16 counts) To undergo 3 years Rigorous Imprisonment U/s.326 IPC(5 counts) To undergo Life Imprisonment U/s.427 IPC (185 counts) To undergo 2 years Rigorous Imprisonment U/s.429 IPC To undergo 5 years Rigorous Imprisonment u/s286 IPC To undergo 6 months Rigorous Imprisonment U/s.4 of Prevention of damages and Loss Act 1992 (60 counts) To undergo 10 years Rigorous Imprisonment * and to pay a fine of Rs.250/- for each count and in default to undergo one month simple imprisonment (total fine amount is Rs.20,000/-)
4.The charges laid and the conviction and sentence imposed on A3 are as follows:
Conviction Sentence U/s.304 (ii) IPC (16 counts) To undergo 10 years Rigorous Imprisonment U/2.324 IPC (16 counts) To undergo 3 years Rigorous Imprisonment U/s.326 IPC(5 counts) To undergo Life Imprisonment and to pay a fine of Rs.1,000/- on each count and in default to undergo 3 months simple imprisonment U/s.427 IPC (185 counts) To undergo 2 years Rigorous Imprisonment U/s.429 IPC To undergo 5 years Rigorous Imprisonment u/s286 IPC To undergo 6 months Rigorous Imprisonment U/s.4 of Prevention of damages and Loss Act 1992 (60 counts) To undergo 10 years Rigorous Imprisonment on each count * and to pay a fine of Rs.250/- on each count (total fine amount is Rs.20,000/-) All sentences have been ordered to run concurrently. As against the aforesaid judgment of conviction and sentence of the trial Court, these appellants are before us, challenging the judgment on various grounds.
5.The case of the prosecution is that the first accused Sekar (A1) owns and manages a company trading in explosives under the name and style of Sakthi Explosives Company (in short Sakthi), A2-Nagappan was employed as the manager in Shakthi explosives, holding a licence as a shot firer and A3 Annamalai was employed therein as a blaster. On 07.04.2007, the employees of A1, consequent upon receipt of a purchase order from one M/s.SPL Infrastructure Construction (in short SPL) on 6.4.2007 loaded and carried 200 kilograms of slurry, 150 electronic detonators, 350 metres of detonative fuses and 300 kilograms of Ammonia nitrate for delivery to the said SPL. The van left the premises of Sakthi at around 11 a.m on 7.4.2007 with a driver, Babu and two loaders, Kumar and Balaraman.
6. Enroute, at around 11.30 a.m, when the van was passing the Chendur highway at Mailam by-pass an explosion occurred in the jeep, killing sixteen (16) persons, including the driver of the jeep, Babu and the two loaders, Kumar and Balaraman, wounding seven (7) with grievous injuries and seventeen (17) with simple injuries. The van itself, as well as the vehicles in the vicinity and 244 houses in and around the accident site, the scene of crime (in short SOC) were damaged. The explosion caused a crater admeasuring around 3 mts in radius and 0.45 mts in depth causing radiating damage to a distance of 200 metres from the place of occurrence near the scene of occurence. The damage to property was valued at a figure of Rs.28,75,000/-. The case of the prosecution is that the carriage of slurry, electronic detonators, detonator fuses and ammonia nitrate all together, in one van, caused the explosion for which the appellants are wholly responsible as charged. The prosecution examined 217 witnesses including explosives experts and proved a volume of documents to establish the sequence of events that transpired as well as the factum, according to them, of combined carriage of the explosives with the detonators.
7. Upon occurrence of the blast, the then Village Administrative Officer of Chendur Village, PW1 Swaminathan, was informed of the same and he rushed to the SOC on 7.4.2007, at around 11.45 a.m. He found the SOC in chaos with dead and injured persons and the houses, vehicles and properties near the site destroyed or completely damaged. He was informed that the explosion had happened in a van that was approaching from the direction of Mailam towards Sendhur. Several officials from Police Stations in the neighbourhood assisted in the transfer of the wounded and dead to nearby hospitals for either treatment or post mortem. On the complaint of PW1, an FIR, Ex.P.123 was registered on the file of Mailam police station at 12.30 p.m. on 7.4.2007, and Investigation was carried out by Dakshinamurthy, the Inspector of Police, Marakkanam PW-217, who went to the SOC and examined the same in detail. Officials of the forensic department also visited the SOC for detailed examination as well as analysis of the materials found at the site. PW 211, Subhalakshmi, the Head of the Forensic Department, PW 214 Ranjit Cecil, Forensic Department and P.B.Yedla, Controller Explosives, visited the SOC and gave detailed technical reports of the site, the debris found there, the composition of the materials collected in and from the site and their findings thereupon. These depositions were, to a substantial extent, what triggered the conclusions that were adverse to the accused.
8. A2 and A3 were arrested on 8.4.2007 and their statements were recorded by PW217 Dakshinamoorthy, in the presence of the VAO, PW1 and two witnesses, PW200 Prabakaran and one, Siva. A1 surrendered on 11.04.2007 and was remanded to judicial custody . A statement was recorded by PW217 on 12.4.2007 from A1, witnessed by Alagesan, VAO and Janakiraman. The admissible portion of his statement has been filed as Ex.P.74. Pursuant thereto, recovery was effected of bill book, explosives RC book, Stock book and godown licence issued in Form No.25 and marked as Ex D1 to 4.
9. Upon conclusion of the investigation, a final report was filed by PW.217 against the accused. The prosecution examined witnesses P.W.1 to PW.217, filed Ex.P.1 to Ex.P.147 as exhibits and produced material objects M.O.1 to M.O.34 to prove the charges. The Accused would plead that they were not guilty. One witness was examined on their behalf as DW1 and 4 exhibits filed as Ex D1 to D4. Upon a detailed consideration of the case of either side, the trial court convicted all three accused as against which the present appeals have been filed.
10. We have heard the submissions of learned Senior counsel Mr.V.Gopinath for Mr.K.Govindaraj on behalf of the Accused/Appellants and learned Addl. Public Prosecutor Mr.P.Govindarajan appearing for the State.
11. PW1, Swaminathan, who was the Village Administrative Officer of Chendur Village, since retired, in his deposition recorded spoke about receiving a telephone call from Ramalingam, who is known to him, on 7.4.2007 at around 11.45 a.m, informing him that there had been an explosion in a jeep on the Chendur Highway. He rushed to the scene of occurrence at around 11.45 a.m. and gathered information that the jeep had been coming from the direction of Mailam. Initially, there had been smoke emanating from the jeep and the persons in the vicinity tried to ward it off using sand. All of a sudden, there was an explosion. He spoke about seeing several people lying injured as well as dead and assisted in their transport to the hospital. At around 12.30 p.m. in the afternoon he filed a complaint in the Mailam police station, Ex P1 on the basis of which, an FIR was registered in Crime No.174/2007 marked as Ex P213.
12. PW2, Shanmugam was a shot firer in Sakthi Explosives. He would state that he knew the accused, A1 being the owner of the company, A2, Nagappan, being the Manager of the company and A3, Annamalai being a shot firer. He would state that the explosives would be sent regularly from the stock yard of Sakthi for use in various places. On the day of occurrence, 7.4.2007, he had left the premises by about 7.30 a.m. to supply explosives to another entity by name GD explosives. Upon his return around 2.30 p.m., he was informed about the incident.
13. PW3 Rajendran, PW4 Murugadoss, PW5 Amalam, PW13 Veerappan, PW17 Murugesan, PW129 Punniyamurthy, PW198 Elumalai, PW199 Murugan, PW200 Prabakaran, PW204 Ramamurthy, PW205 Nagarajan, PW209 Vasudevan, PW17 Murugesan, PW13 Veerappan and PW19 Shanmugam turned hostile to the case of the prosecution.
14. PW6 Valli, a resident of the area, spoke about hearing an explosion and immediately fleeing from the scene. PW7-Jayanthi and PW8, Saroja spoke about the extensive damage caused to their houses as well domestic animals, including a goat that was tied in the front yard of the house PW8. PW9, Saranraj, a minor, said that at the time of said incident, he was five years old, but the memory was vivid. He heard not only heard the loud explosion but sustained personal injuries for which he was taken to hospital. PW10, Elumalai, the grandfather of minor Saranraj, (PW 9) who corroborated his evidence also spoke about the injuries suffered by him in the explosion including on the ears.
15. The family members of the deceased who were in the jeep also spoke about the incident. PW26 Murugan, a mason spoke about his brother Babu, the loader, who had accompanied the explosives in the jeep. He spoke about going to the Tindivanam General Hospital on receiving information about the explosion and identifying Babu by means of the ring he wore on his finger. PW27, Nagammal, wife of the deceased Babu, spoke about the incident and identified her husband by the ring that was worn by him. PW192, Kumar, Inspector, Crime Branch conducted enquiry about the deceased Balaraman, who was in the jeep and died on account of the explosion and submitted a report in this regard.
16. The injured were taken to hospitals in the vicinity, including JIPMER and Tindivanam Government Hospital for treatment. Many houses and properties had been damaged in the explosion and several witnesses spoke about the damages caused and the monetary loss sustained in this regard. Compensation was awarded to several of them ranging from Rs.2000/- to Rs.15,000/- and the witnesses spoke about the same. The witnesses in this regard are PW14 Pavanthi, PW18 Dhanalakshmi, PW25 Mohanraj, PW37 Ramalingam, PW39 Jagannathan, PW40 Ramalingam, PW41 Arumugam, PW42 Panjali, PW43 Ramakrishnan, PW44 Damodharan, PW45 Senthamaraikannan, PW46 Padavattan, PW47 Unnamalai, PW48 Janakiraman, PW49 Irusammal, PW50 Veeradevan, PW51 Venkatesan, PW52 Jagannathan, PW53 Chandra, PW54 Rajendran, PW55 Sivamurugan, PW56 Sivakumar, PW57 Veerappan, PW59 Selvarasu, PW59 Dashinamoorthy, PW60 Elumalai, PW61 Moorthy, PW62 Ettiyammal, PW63 Govindarasu, PW64 Jayakannan, PW65 Mallika, PW66 Pavadai, PW67 Thangamani, PW68 Krishnaveni, PW69 Rangasami, PW70 Loganathan, PW71 Kalyani, PW72 Jagadambal, PW73 Ramachandran, PW74 Ramamurthy, PW75 Ganapathy, PW76 Kannan, PW77 Alagesan, PW78 Kumar, PW79 Loganathan, PW80 Veeramuthu, PW81 Selvarasu, PW82 Jaya, PW83 Subramani, PW84 Natarajan, PW85 Kalrayaan, PW86 Devarayan, PW87 Elumalai, PW88 Ramayi, PW89 Muthu, PW90 Iyyanar, PW91 Madurai Appan, PW92 Veeramuthu, PW93 Ponniappan, PW94 Mannagatti, PW95 Elumalai, PW96 Shanmugam, PW97 Narayanan, PW98 Nandakumar, PW99 Murugan, PW100 Alaguneer, PW101 Balamurugan, PW102 Elumalai, PW103 Sathya, PW104 Selvarasu, PW105 Rathinam, PW106 Aswathaman, PW107 Rajkumar, PW108 Dasarathan, PW109 Lakshmi, PW110 Subramani, PW111 Ranganathan, PW112 Elumalai, PW113 Venkatesan, PW114 Murugavel, PW115 Velayudham, PW116 Mangalakshmi, PW117 Venkatesan, PW118 Gunasekaran, PW119 Subramani, PW120 Mahatmagandhi, PW121 Manjula, PW122 Kamatchi, PW123 Rajaraman, PW124 Nandagopal, PW125 Muruganandam, PW126 Jayashankar, PW127 Kasinathan, PW128 Sarangapani, PW130 Jayaraman, PW131 Vasudevan, PW132 Subramani, PW133 Kasinathan, PW134 Veerappan, PW135 Veerasamy, PW136 Mannangatti, PW137 Kuppan, PW138 Subramani, PW139 Ramadass, PW140 Ramalingam, PW141 Ponniammal, PW143 Veluchami, PW144 Govindasamy, PW145 Palani, PW146 Sengeniammal, PW147 Murugan, PW148 Mannangatti, PW149 Rani, PW150 Murugan, PW151 Govindan, PW152 Baby, PW153 Balasundaram, PW155 Navappan, PW156 Arumugam, PW157 Babu Chettiar, PW158 Sankar, PW159 Arunraj, PW160 Balakrishnan, PW163 Nagappan, PW167 Govindaraj, PW168 Ravikumar, PW169 Muniyan, PW170 Arumugam, PW171 Jayalakshmi, PW177 Sarasu, PW178 Murugan, PW184 Manibal, PW185 Ramu, PW187 Marimuthu, PW188 Arul.
17. PW162, Kalvinathan, a driver in SPL spoke about the order placed for purchase of explosives on 6.4.2007. He stated that he was unaware of the details of the order and that he had travelled elsewhere to supervise road laying work. He gave no other details that would specifically support the case of the prosecution.
18. Various officials of the police force, PW176 Head Constable Balasubramani, PW182 Sivasankar, Special Sub Inspector of Police, PW193 Chakrapani, PW194 Ragu, PW195 Senthilkumar, PW197 Jawaharlal PW201 Prakash, Inspector, Law and Order, PW203 Jaginder, PW206 Raja Thamaraipandian, Inspectors, conducted inquest over the bodies that were in the mortuary. PW207 Krishnamurthy spoke about conducting inquest and filing report in regard to several persons killed in the explosion. PW196 Ganesan, conducted inquest on bodies that had been charred beyond recognition and filed an inquest report in this regard.
19. PW172 to 174 were Doctors, viz., Dr.Valvan, Dr.S.Ekambaram, Dr.Ambrose, who spoke about receipt of requisition letters for conducting post mortem on some of the deceased. PW179, Devendiran, a Valuation Officer with the PWD, deposed that on 07.04.2007, he had assembled a team of assistants including Assistant Valuer K.Kandharoopan and prepared a report after assessing/valuing the damages caused to various houses and properties, affected by the explosion. He did not remember the names of the team members. PW202 Nedumaran, Traffic Constable, spoke about two vehicles, a Tata Sumo and Indica that had been parked at the scene of crime and about the considerable damage caused to the vehicles by reason of the explosion.
20. PW208 Alagesan, Village Administrative Officer, since retired, spoke about being called by the Deputy Superintendent to the station on 8.4.2007. He went along with his assistant one Janakiraman, and in his presence A2 and A3, gave voluntary confessions admitting to the crimes as charged. The statements were witnessed by Prabhakaran PW 200 and Siva, lorry drivers who happened to be there in the vicinity at the time when the statements were being recorded. Notably, Prabhakaran, in his cross examination stated that he was unaware of the contents of the statement and turned hostile to the case of the Prosecution.
21. A1 Sekar surrendered on 11.4.2007 and a statement was recorded from him regarding the order received from the purchaser and the forwarding of the explosives to them. He would deny that the explosives and the detonators had been transported together. The invoices, explosives register, stock book and purchase order were produced and marked as Ex.D.1, 2, 3 and 4. The admissible part of the confession of A1 is filed as Ex.P.74.
22. DW1 Sekar, the sole witness produced by the defence deposed to the effect that he was a shot firer, he used to regularly receive orders from various entities for the supply of explosives. He would say that he was always careful to ensure that the explosives and detonators were sent in separate vehicles to avoid any untoward incident. PW210 Mohammed Ibrahmshah, who was working in a private quarry would speak about the running business between his firm and Sakthi, run by A1. He would narrate the manner in which the business was done stating that Thangamurthy, the blaster in his quarry normally gave the order for the explosives required for the day every morning and it would be supplied in the course of the day. In his cross examination, in response to a query as to whether the explosives and detonators were supplied together, he mentioned that there was some talk about the additional expense involved in making two trips for supply of explosives and detonator separately. However, to a pointed question as to how the present transaction had occurred, he denied any knowledge and said that he did not know whether the explosives and the detonators in this particular case had been transported together or in separate vans.
23. The deposition of PW211 P.Subbalakshmi, Assistant Director, Forensic Department is important as it throws considerable light on the technical aspects and composition of the explosives in question and the procedures and protocols in place for safe transportation of explosives. She would depose that she was called to the scene of occurrence which she visited along with her colleagues viz.,Ranjit Cecil, Forensic Science Officer and Mohan. They found the scene devastated by the explosion with several bits of wires, detonator bits and other metal bits lying around. Sample bits were collected for analysis. The following items were found in the course of the examination:
1. Engine found in damaged position MO.1
2.Broken metallic pieces MO2
3.Soil MO3
4.Specimen Soil MO4
5.Parts of broken metallic pieces of wheel(3 numbers) MO5
6.Broken chassis pieces and broken metallic pieces MO.6
7. Broken parts of metallic steering MO.7
8.Broken parts of Metallic axel MO.8
9.Metallic shaft parts at broken stage MO9
10. Broken number plate MO.10
11.Broken Stearing rod MO.11
12.Broken heavy metallic plate MO.12
13.Broken heavy steering part MO.13
14. Heavy Motor part at broken stage MO.14
15.Broken metallic piece MO.15
16.Rusted metallic pieces at broken stage MO.16
17.damaged tyre MO.17
18. small wooden pieces MO.18
19.rusted metallic pieces MO.19
20.light metallic pieces MO.20
21. Soil of thick and thin MO.21
22.Broken metallic pieces and burnt ashes two packets MO.22
23.cotton wiped from the vehicle MO.23.
24.metallic pieces, plastic pieces and Nokia cell parts MO.24
25.specimen of burnt soil MO.25
26.torn pieces of clothes MO.26
27. metallic pieces found in vehicle at broken stage
28. Wiped cotton MO.28
29. Rusted metallic pieces MO.29.
The findings of the team were as follows:
The above said materials were found stained with black colour. When the material objects to 3, 5 to 9, 21 to 29 , in total 27 materials objects were kept under analysis, it was found in each and every objects, the particles of explosive substances of aluminium, ammonium, sodium and Nitrate known as slurry and also the heavy explosive substance pentaery thritoltertrainitrate (PETN) .
24. She would further state that on 20.4.2007, two materials objects were received for analysis along with the requisition of Judicial Magistrate II, Thindivanam. They were 25 numbers of detonator bits of 140 c.m. (MO.30) and metallic plate particles (MO.31). Under examination they revealed particles of Pentaerythritoal tetrainitrate (PETN), aluminium, sodium and nitrate, known as slurry, a heavy exploding substance. She issued analysis report Ex.P.119 opining that when the above materials explode, it would cause serious and considerable damages to human life and properties.
25. PW211 would also emphasise upon the protective measures that are detailed in terms of the Explosives Substances Act and connected Rules and Regulations to ensure safe transportation of explosives. She would state that the Rules are stringent and are to be followed strictly as a negligent approach may well result in loss of life. She would state that an incident, such as the present one, could be caused by improper handling or loading, the presence of heat or impact like a heavy object falling on the goods. She pointed out that if the travel was very bumpy causing the goods to touch or hit upon each other, this could be a factor leading to explosion.
26. P.B.Yedla, Controller of Explosives had undertaken detailed examination of the SOC and filed a report marked as Ex.P.125 and 146. In the course of the report he would state that in pursuance of the instructions received from the Judicial Magistrate, he had visited two godowns of Sakthi on 14.4.2007 along with the District Revenue Officer, Villupuram and the DSP, Villupuram Sub Dvisiion. He had taken samples of one cartridge each of Kelvex and Powertell, super power and sun 90 . Samples were also taken of a detonating fuse, electric detonator and ordinary detonator. After due examination a report was forwarded on 14.5.2007 containing detailed findings relating to the composition of the materials taken. Since the composition per se is not in dispute or relevant to question that we are to determine in this appeal, we do not make detailed reference to the same. In view of the incomplete nature of the report of Shri .P.B.Yedla, this Court was of the view that he would be the appropriate person to assist the Court in determination of the issue in dispute. He was thus recalled for examination as PW218. His testimony would confirm the position that it was not conclusively possible to establish that the metal bits and pieces found relate only to the detonators and not any other article.
27. PW212 Kumarabalan, Inspector would speak about registering an FIR in Cr.No.174 of 2007 and forwarding the same to Gunasekaran Sub-Inspector to conduct detailed enquiry. The FIR is filed as Ex.P.213. PW214 Ranjit Cesil, Head of the Forensic Department spoke about being called upon to give expert testimony. He assimilated a team of five members that he headed and went to the scene of crime on 7.4.2007. He would state that slurry alone cannot be a cause of explosion and it could only be caused in combination and by impact with a detonator. The technical qualities of ammonium nitrate were explained stating that when heated between 140 to 160 degrees, ammonium nitrate emitted, white fumes/smoke and it would vaporize at 220 degrees. The examination continued on 24.4.2007. He undertook chemical analysis of the materials found, such as Ammonium nitrate, PETN, Sodium Nitrate and Aluminium. The team had found metallic bits and pieces in the SOC. The metallic pieces contained traces of PETN and this, according to him, led to the conclusion that the chemical could have originated only from the pieces itself. The presence of the detonators and wires were thus sought to established on this basis. According to the team therefore, this would lead one to the conclusion that the chemicals had been carried together with the detonators and wires. In order to understand better the nature of the substances found, he and his crew went to Tamilnadu Explosive Material industry, Vellore, Katpadi in person and had detailed discussions with the authorities there. On the basis of examination, it was found that one cause of explosion could be the effect of heat but this would happen only when the slurry and the detonators were kept together. In cross he would depose to the effect that his expertise lay in the field of forensics and he was not an expert when it came to explosives.
28. His opinion and conclusion in the report is as follows:
Opinion/Conclusion:
1.The vehicles involved in this incident is the Jeep, TCQ.3033(para VII.A)
2.The explosives carried in the alleged vehicles involved in the incident were slurry explosives, electrical detonators and detonating fuse, in addition, the presence of raw Ammonium Nitrate, in the above vehicle cannot be ruled out.
3.Detection of Pentaerythritol tetranitrate (PETN) only in thin metailc pieces (item 20 of EXP.68/07 and item 2 of EXP.73/07 and in the detonator wires (item 1 of EXP.73/07) out of 31 items received for examination suggests that it originated from the electrical detonators/detonating fuse only.
4.The presence of electrical detonator along with other explosives (Para V(G) (ii) and Para VII (E)) and production of heat in the vehicle could have been the cause of this incident.
5.The cause of dense white fumes could be due to Ammonium Nitrate, when exposed to 140c (Para V(c), VII (B).
29. PW215 Appachi was a whole sale dealer in explosives managing a unit by the name and style of Kumaran Explosives. He would state that on 6.4.2007, he had supplied explosives and detonators in separate vehicles to Sakthi owned and managed by A1. PW217 Thangamurthy was a blaster in SPL that had placed the order for supplies of the explosives on Shakthi. He would state that he had placed an order for the supply of 150 detonators, 150 metres of detonator wire, 300 kgs of ammonium salt and 200 boosters affirming that normally the explosives and the detonators were brought for supply in separate vans. When specifically asked, he did not re-affirm this fact but merely stated that upon receipt of the goods, his staff would check the goods against the order placed and take delivery of the same.
30. PW217 Dakshinamurthy, is the Assistant Superintendent of Police who conducted the investigation. He would narrate in detail the efforts taken by him upon receipt of the FIR to conduct enquiry at the SOC and take detailed evidence from witnesses. Reports were obtained from the Forensic teams and a thorough investigation conducted. He would state that on 7.4.2007 at around 12 noon when he was on bandobust duty regarding an agitation by students in the Thindivanam Medical College, he received information over wireless about the explosion that occurred on Chendur High Way Kooteripattu Tiruchi Madurai Main Road, near Kooteripattu Village. He would state that he found the place in utter chaos with wounded and dead. He did the best possible to send the wounded to nearby hospitals for treatment and assisted those that were injured and had lost property in the explosion to manage the situation on hand. The complaint filed by the Village Administrative Officer had been converted into FIR No.174 of 2007 and the same was handed over to him for enquiry vide direction in Ex.P.128 by the Superintendent of Police, Villupuram. The Superintendent of Police had also deputed 11 officials to work under the Investigating Officer to investigate the matter vide Ex.P.129.
31. Upon receipt of all files, the enquiry was commenced in earnest. An observation mahazar was prepared in the presence of witnesses Sarangapani and Ramamoorthy filed as Ex.P.130. A rough sketch of the SOC was prepared filed as Ex.P.131. The investigating officer took the depositions of several witnesses and also deputed police officers to the nearby hospitals for the purpose of conduct of post mortem on the deceased. He also inspected the remains of the jeep bearing No.TCQ 3033 that had been carrying the explosives. Sample parts of the broken metal from the mangled remains of the jeep were taken for analysis under mahazar Ex.P.132. Samples of regular soil and blood stained soil were also taken under mahazar Ex.P.133. Under Ex.P.134 parts of the jeep were removed and taken for analysis.
32. In the course of the investigation, reference had been made to officials of the Forensic Department for expert analysis. The officials had visited the SOC and collected various evidences that were handed over to the Investigating Officer the same day under Ex.P.135. All the evidences found numbering 1 to 14 and 1 to 11 had been marked as material objects under mahazar. The members of the investigating team were entrusted with the responsibility of referring the bodies of the 16 deceased for post mortem and then handing them over to their families. They would also report about the extensive damage caused to 59 houses with thatched roofs, 29 tiled, 88 pucca houses, 59 housing board dwelling units and 1 government school building. He spoke about the report received from Devendran PW179 an official of PWD who had valued the damage to property on account of the explosion and the recording of statement from him. The next day, on 8.4.2007 he apprehended A2 and A3 on a side road leading from Veedur and arrested them in the presence of witnesses Siva and Prabakaran. He then proceeded to record independent confessions from A2 and A3 and took them into custody. Upon receiving information about the surrender of A1 on 11.4.2007, he took appropriate steps to take him into custody. A statement was recorded from Sekar A1, the admissible part of which is filed as Ex.P.74 pursuant to which, recovery of four items, Bill Book, Stock Book, Explosives RC book and purchase invoice were recovered from Sakthi under mahazar Ex.P.136. All accused were thereafter presented before the Court. The investigating team went to the godown of Sakthi on 1.5.2007 and obtained a sample of 500 gms of explosive substance for analysis under Ex.P.137. A requisition was given to the Road Transport Authority for production of chassis number and the engine number of the jeep carrying the explosives. A request was also made for examination of the Indica and Sumo vehicles that had been damaged on account of the explosion. Pursuant to receipt of permission from the appropriate Court, the samples of the materials found at the SOC were forwarded to Forensic Science Department for further and detailed analysis. Depositions were recorded from P.B.Yedla, Controller of Explosives, Chennai and Subalakshmi and Ranjit Cecil, Officials of the Forensic Department that had been marked as Exs.P.125 and 146.
33. Depositions were recorded from various witnesses who spoke about the explosion, the injuries that they as well as others around them sustained and the damages cost to the property. Upon conclusion of investigation, the investigation officer PW217 formed an opinion to the effect that the three accused were responsible for the commission of the offences as detailed earlier and charged them with appropriate punishment.
34. Upon completion of the enquiry, a report was filed and charges laid against the three accused. On the side of the prosecution, 217 witnesses, 147 exhibits and 34 material objects have been filed whereas the defence pexamined one witness and filed four exhibits. When all the materials were put to the accused, they would deny the charges. On the side of the defence, one witness and 4 exhibits were presented.
35. The matter was thereafter taken up for adjudication by the trial judge. The court had before it detailed depositions from persons impacted by the explosion, expert testimonies from the Forensic Department as well as a detailed enquiry report on the explosive incident at Chendur Village, Thindivanam Taluk, Villupuram District conducted by Mr.M.F.Farooqui, IAS, the Special Commissioner and Commissioner of Revenue Administration.
36. At the outset, we must observe that the facts in issue are by and large admitted by both parties. The undisputed facts are to the effect that, on 7.4.2007, a jeep containing explosives and, according to the prosecution, detonators as well, left the premises of Sakthi Explosives, a unit run by A1, to SPL Infrastructure Construction. As it was passing through Chendur village, it exploded killing 16 persons and injuring several more. Substantial damage was caused to houses and properties. The driver Babu, who was also a shot firer in Shakthi and the load men Kumar and Balaraman were killed in the explosion. Extensive enquiries have been undertaken by the police officials and depositions were recorded from more than 200 persons, comprising residents of the area, persons from elsewhere but carrying on trade/other pursuits in and around the scene of explosion, people working in the vicinity, visitors to the houses of the residents and others. The witnesses spoke in detail about the personal injuries caused to them detailing the bodily harm caused by flying objects and collapsed houses, damage to hearing on account of loud explosion, burns and others. 16 persons who died in the explosion were spoken about by surviving relatives, spouses, children and others. After following the procedure laid down by law, charges were laid against the three accused that were confirmed by the trial judge.
37. The short point to be decided by this Court is whether the materials, being the explosive substances as well as the electric detonators and detonator wires, were loaded and carried together in one vehicle or separately, in different vehicles. The prosecution would place strong reliance on the testimonies and reports of Subhalakshmi, PW 211 and Ranjit Cecil PW 214 of the Forensics department and the report filed by P.B.Yadla, Controller of Explosives to urge us to arrive at the conclusion that the explosives and the detonators were in the jeep together. The defence, on the other hand, would state that the combined carriage of the materials was a mere theory put forth by the prosecution without the backing of any facts or clinching evidence whatsoever. The case of the prosecution is thus wholly circumstantial and the charges are sought to be established only by reliance upon expert testimony and the reports of investigating agencies.
38. The testimonies of P.Subbalakshmi, Ranjit Cecil and P.B.Yadla are conclusive on one aspect of the matter; that is, that metal bits and pieces were found at the SOC. A perusal of the depositions would however reveal that it has not been proved that the metal bits and pieces formed part of the detonators only. The court was of the view that this is the critical, and in fact, the sole point to be addressed and determined. In order to obtain clarity on this issue specifically, this Court let in additional evidence re-calling PW218 Mr.P.B.Yedla, retired Chief Controller of Explosives on 25.1.2017. He would depose to the effect that in course of his examination of the SOC from 8.4.2007 onwards, he found burnt electric wires, metallic parts and bits of various explosive material. He was categoric in stating that the explosion could have happened only by the combined presence of the slurry with the electric detonators. This was, he would say, contrary to Rule 33 of the Explosive Rules 1983 and violative of the licence issued under the Rules. To a specific question put by the Court as to whether it could be deduced conclusively that the metallic parts found within the crater were only from the detonators, he would say that he could not definitely state so. His findings in his report dated 2.5.2007 thus appear to be based on the assumption that electrical detonators had been carried along with the explosives in the jeep.
39. In fact, all three experts appear to have addressed this issue in a similar manner, proceeding on the assumption that the metal bits form shredded parts of the detonators. As a consequence, they conclude that the explosion could only have been caused on account of the combined presence of the detonators and the explosives. However, we have noticed no finding, either factual or technical to support a conclusion that the metal bits and pieces are only from the detonators and detonator wires.
40. It must be kept in mind that the SOC is one that has suffered severe and substantial damage. The materials were in a jeep and there were vehicles in the vicinity that has also been damaged in the blast. There is thus a strong possibility that the metal bits and pieces could have been part of the vehicles or any other article lying in the SOC. There has been no specific examination of the metal bits to establish that they were of a type or composition specific to detonators only. The bits and pieces are generic and there is absolutely nothing on record to even suggest, let alone establish conclusively, that they formed part of the detonators only. The prosecution is bound to establish the connection between the metal pieces and the detonators beyond doubt and has failed, in our opinion, in this regard.
41. Then again, there is nothing brought on record to establish that A1, the owner of Shakthi was even in the premises at the time when the materials were loaded. The concept of vicarious liability is unknown to criminal law and as such, in the absence of the prosecution establishing even the presence of A1 at the time of loading of the jeep on 7.4.2007, the charges against A1 have no legs to stand. Likewise, no materials have been produced to implicate A2 and A3, Kumar and Balaraman or establish the charges laid and confirmed against them.
42. The expert testimonies relied upon by the Trial Judge in convicting the three Accused only suggest a possibility that the slurry and the detonators could have been transported together. At best, this is only one possibility for the occurrence. A conviction however, cannot be confirmed on the basis of surmises. It is a settled proposition that the basis of conviction should be conclusive, not admitting of any other theory or possibility that would lead to the same conclusion. In the present case, the depositions of the experts reveal that there are other possible reasons for the explosion to have occurred. Heat, impact of the materials against each other, spark from an external source are only some of the possibilities that the prosecution has not ruled out. The circumstances that present themselves before the Court have to been viewed in a holistic manner such that they form a coherent and seamless thread of events that flow to a logical and unassailable conclusion. A missing link, or an alternate explanation for the event, would cast a shadow on the case of the prosecution. This is yet another factor that is fatal to the case of the prosecution.
43. The alleged confessional statements of A2 and A3 are sought to be relied upon in support of the case of the prosecution. We do not agree. The confessions are extra-judicial and recorded before the investigating officer. In terms of section 24 of the Evidence Act, a presumption operates against such a statement unless it inspires the confidence in the court. In the present case, we are not convinced that the confessions are voluntary or that the contents therein, admitting to the charges laid, are correct or stated out of free will of the accused. In the light of this settled position we reject the confessions of A1 and A2 as unreliable and of no assistance to the prosecution.
44. In all, the facts established by the prosecution do not lead one to the unassailable conclusion that the three accused have committed homicide. The right to life enshrined in terms of Article 21 of the Constitution of India has to be effectively applied such that citizens are not deprived of their life and liberty on the basis of presumptions and assumptions.
45. In this light of the matter and the detailed discussion aforesaid, the conviction and sentence imposed by the learned trial judge is not sustainable. The judgment of the II Additional District and Sessions Judge, Villupuram at Tindivanam in S.C.No.117 of 2008, dated 02.09.2016 and the conviction and sentences imposed thereunder are set aside. The appeals are allowed and the appellants, A1, A2 and A3 are acquitted of all charges and set at liberty forthwith.
(S.N.,J) (A.S.M.,J) 21.04.2017 To The II Additional District and Sessions Judge, Villupuram at Tindivanam S.NAGAMUTHU, J.
& DR.ANITA SUMANTH, J.
msr CRIMINAL APPEAL NO.687 OF 2016 21.04.2017