Pinnika Srinivasa Rao Sreenivas, vs The State Of Ap Rep By Its Pp Hyd.,
2021 Latest Caselaw 804 AP

             HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                  CRIMINAL APPEAL No.332 OF 2010

JUDGMENT:

1. This Appeal is directed against the judgment and order dated

01.02.2010 passed in Sessions Case No.189 of 2009 by the learned

Sessions Judge, Ongole (for short, 'the learned Sessions Judge')

convicting the appellant/accused for commission of offence punishable

under Section 5(A) of the Explosive Substances Act, 1908 (for short, 'the

Act of 1908') and sentencing him to suffer Rigorous Imprisonment for two

and half (2 ½) years and to pay a fine of Rs.100/-, in default to suffer

Simple Imprisonment for fifteen (15) days.

2. The charge levelled against the appellant is to the effect that, on

18th December, 2005 at about 10:00 hours, he was found in possession

and control of 20 grenades in one bag and 20 gelatine sticks in another

bag, which are explosive substance, without a lawful object, and thereby

committed an offence punishable under Section 5(A) of the Act of 1908.

3. Facts of the case giving rise to the aforesaid charge are as follows:

On 18.12.2005 at 11:00 hours PW.3 T.X.Ajay Kumar, Sub

Inspector of Police, Tangutur Police Station along with PW.1 Head

Constable - G.Venkateswarlu, had gone to M.Nidamanuru village of

Tanguturu Mandal in a jeep to enquire about un-identified cases. When

they reached ramp of the river Musi, on the southern side of the village,

they found a person walking from the opposite direction from

M.Nidamanuru village. The person came to their jeep and they identified

him as the appellant i.e., Convenor of Prakasam District Revolutionary

Writers Association. On seeing the Police Officers, he ran away towards

the eastern side fields; they chased and caught him in the house JB,J

belonging to his in-laws in the village. On interrogation, he admitted his

identity and claimed that he was residing with his father-in-law. On further

queries, he stated he had kept explosives i.e., gelatine sticks and

detonators in a pit in the outskirts of the village near Musi river covered

with stones and mud. He had gone to the Musi riverbank to verify whether

the explosives were safe and on seeing the Police, he ran away. He also

stated to the Police he would show the place where he kept the

explosives. Thereupon, the Police personnel took him to the bank of the

Musi river. He removed the stones and two plastic covers revealing one

bag containing 20 gelatine sticks and another containing a detonator. The

articles were seized, and First Information Report in Crime No.128 of

2005, dated 18.12.2005, on the file of Tanguturu Police Station, Prakasam

district, under Section 5(A) of the Act of 1908 and also under Section 8 of

the Andhra Pradesh Public Security Act, 1992 was registered for

investigation.

4. PW.3 conducted investigation in the instant case. In the course of

investigation, gelatine sticks were defused by PW.2, who issued Ex.P-2

certificate. After analysis, the expert issued the certificate opining that Item

No.1 contained Ammonium Nitrate and Nitro-Glycerine main ingredients of

gelatine and Item No.2 contained Penta Erythritol Tetra Nitrate (PETN)

along with Lead Azide. Thereafter, sanction of prosecution was accorded

and charge sheet was filed against the appellant.

5. Charges were framed against him, to which he pleaded not guilty

and claimed to be tried. Prosecution examined 3 witnesses and exhibited

number of documents. Defence of the appellant was one of innocence and

false implication.

JB,J

6. In conclusion of trial, the learned Sessions Judge, while acquitting

the appellant of the charge under Section 8 of the APPS Act, convicted

and sentenced him for the offence punishable under Section 5(A) of the

Act of 1908, as stated hereinabove.

7. Sri Y.Koteswara Rao, learned counsel appearing for the appellant,

argues that the prosecution case bristles with absurdities and

improbabilities. Particulars of the jeep used by the Police personnel to

arrive at the spot have not been disclosed. Driver of the jeep was not

examined. There is no explanation why the Police personnel ran to catch

the appellant although the Police vehicle was available. It was further

argued that there is no independent witness to the said seizure, which had

taken place from a public place accessible to all.

8. On the other hand, learned Additional Public Prosecutor argues

that the evidence of the Police witnesses is credible and inspires

confidence. The appellant ran through the fields and hence the Police

officers had to chase him by feet. It is further contended that the local

people did not join the search and hence there was no independent

witness to the search. The prosecution case is otherwise credible and as

such the Appeal is liable to be dismissed.

9. I have analysed the evidence on record. PWs.1 to 3 are the

members of the raiding party. They have deposed in unison on

18.12.2005 at 10:00 A.M. they proceeded to the village in a private jeep;

they reached the southern side of the village at 11:00 A.M; by the side of

Musi river, they noticed the appellant coming from the village towards the

chapta (culvert) and on seeing them, he ran towards the eastward fields;

they chased and apprehended him in his house at the village. On

interrogation, the appellant divulged that he had concealed gelatine sticks JB,J

and detonators at the river bund; he was taken to the bund and on his

showing the explosives were recovered. Subsequently, FIR was

registered and a criminal case was tagged.

10. The prosecution version has been assailed on the ground that

Police witnesses are not trustworthy and there is no independent witness

to corroborate their version.

11. With regard to non-examination of independent witnesses, it is

contended on behalf of the prosecution none of the local villagers agreed

to join the search; even the village Sarpanch and Secretary were not

available at the time of raid. Let me examine the truthfulness of such

explanation, in the light of the evidence on record. Both the Police officers

in cross-examination admitted that the villagers were cultivating their fields

when they chased the appellant to his house. PW.3 - investigating officer

also admits that he did not examine any of the villagers or the said

persons working in the fields. In the face of such admission of non-

examination of either the villagers or of the persons working in the fields,

one is constrained to hold the explanation of the locals not joining the

search with a pinch of salt. That apart, the evidence of the Police officers

that they went to the southern bank of the Musi river in a Police jeep is

also not on sure footings. The Police witnesses were even unable to give

out the particulars of the Police jeep, in which they had gone to the spot.

Driver of the vehicle had also not been examined, although it is claimed

that they chased the appellant through village fields for about 2 K.Ms. It is

strange that the Police officers, who were chasing the appellant through

the village fields from 2 K.Ms, did not seek the assistance of people who

were at the spot cultivating the fields. Even apprehension of the appellant

in his house is doubtful. While PW.1 claims that he has apprehended the JB,J

appellant inside the house, PW.3 states that the house was under lock

and the appellant was apprehended in front of the house. Hence, the

genesis of the prosecution case with regard to the manner in which the

Police officers arrived at the riverbed where they noticed the appellant,

chased him through the village fields and finally his apprehension in the

village is shrouded in mystery. In this backdrop, lack of corroboration from

independent sources, particularly in the light of the admission on the part

of the investigating officer - PW.3 that he did not interrogate either the

villagers or the people working in the fields, assumes significance and

renders the prosecution case vulnerable.

12. I am conscious that credible version of Police witnesses even

unsupported by independent witnesses may be the basis of conviction.

However, when the Court is called upon to rely on the version of the

Police witnesses alone, to prove possession of incriminating articles from

the appellant, it is incumbent on the Court to weigh such evidence

carefully and assess it against the broad probabilities of the case so as to

rule out any possibility of false implication. Having tested the evidence of

the Police witnesses on such strict yardstick, I note the aforesaid glaring

improbabilities and inconsistencies in their version, which casts a serious

doubt with regard to the credibility of the prosecution case. Even the

purported disclosure statement recorded in Police proceeding i.e., Ex.P-1

appears to be a manufactured document. It is recorded in the proceeding

that the appellant, on interrogation, had inter-alia claimed that he had

criminal cases pending at Dornala and Chimakurthy Police Stations and

apprehending that he would be caught by the Police, he ran towards his

house. No evidence is forthcoming with regard to pendency of the

aforesaid cases against the appellant. It is patently absurd that the

appellant would self-incriminate himself in fictitious cases before Police JB,J

personnel to justify his conduct of running away. On the other hand,

reference to fictitious cases in the disclosure statement exposes the

hostility of the Police and reinforces the possibility of false implication.

Furthermore, the alleged seizure of the explosives was from a place which

is accessible to all and not corroborated by any independent witness.

13. Under such circumstances, I am of the opinion that the

appellant/accused may be extended the benefit of doubt and the

conviction and sentence recorded against him is liable to be set-aside.

14. Accordingly, the Criminal Appeal is allowed. Appellant shall be

discharged from his bail bond after expiry of six (6) months in terms of

Section 437A of Cr.P.C.

15. As a sequel, miscellaneous applications pending, if any, in this

Appeal shall stand closed.

________________________ JOYMALYA BAGCHI, J Date: 12-02-2021.

Dsh