Muchagunta Subbarayudu, vs The State Of A.P., Rep By Pp.,
2022 Latest Caselaw 9700 AP

        HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

               CRIMINAL APPEAL No.523 OF 2009

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the

appellant, who is the sole accused in Sessions Case No.334 of

2008, on the file of the Court of Principal Sessions Judge,

Prakasam Division, Ongole (for short, 'the Sessions Judge')

challenging the judgment therein, dated 07.04.2009, whereunder

the learned Sessions Judge found the accused guilty of the offence

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

'the ES Act'), convicted him under Section 235(2) Cr.P.C and, after

questioning him about the quantum of sentence, sentenced him to

suffer Rigorous Imprisonment for one year and to pay a fine of

Rs.100/- in default to suffer Simple Imprisonment for one month.

2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The Sessions Case No.334 of 2008 arises out of the

committal order, dated 04.08.2008, by the Additional Judicial

Magistrate of First Class, Giddalur (for short, 'the learned

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Magistrate') in PRC No.52 of 2008 under Section 209 Cr.P.C. on

the ground that there is a prima-facie case against the sole

accused for the offence under Section 5 of the ES Act.

4. The case of the prosecution, in brief, according to the charge

sheet averments, is as follows:

On 06.06.2006 at 04:50 PM, LW.3 - P. Akkeswara Rao,

along with LWs.1 and 2 - PC 1778 - K.V.Ratnam and PC 1190 - Y.

Srinivasulu of Giddaluru Police Station, having received credible

information about the illegal possession of explosive substance,

proceeded to Giddalur - Mundlapadu road and found the accused

in possession of plastic bag and accused confessed about the

offence and, on verification, they found 4 gelatin sticks, seized the

same and arrested the accused at 05:20 PM under the Police

proceedings. The Police obtained permission from the competent

Court to defuse four gelatin sticks. On 12.07.2006, ARHC 1008

R.N. Reddy, Bomb Disposal Team, Ongole defused four gelatin

sticks and preserved small quantity of the substance for sending

to FSL, Hyderabad. On 25.07.2006, the preserved substance liquid

was sent to FSL, Hyderabad, who analyzed the same and opined

that it contains Ammonium Nitrate and Nitroglycerine, main

ingredients of gelatin which contains a high explosive substance

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and it is dangerous to human life. After obtaining opinion from the

learned Assistant Public Prosecutor and after obtaining sanction

to prosecute the accused, charge sheet is filed. The learned

Magistrate, Giddalur took cognizance of the case under Section 5

of the ES Act and after completing the formalities under Section

207 Cr.P.C, committed the case to the Court of Session by virtue

of the aforesaid committal order.

5. On appearance of the accused before the Court below and

after following the procedure under Section 228 Cr.P.C, a charge

under Section 5 of the ES Act was framed, for which he pleaded

not guilty and claimed to be tried.

6. The prosecution, during the course of trial, got examined

PWs.1 and 2 and marked Exs.P-1 to P-5, Exs.C1, C1(1) and C1(2)

and MO.1.

7. The accused was subjected to 313 Cr.P.C examination after

closure of the prosecution evidence, for which he denied the

incriminating circumstances appearing against him and reported

no defence evidence.

8. The learned Sessions Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

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the accused guilty of the charge under Section 5 of the ES Act,

and after convicting him under Section 235(2) Cr.P.C. questioned

him about the quantum of sentence and after hearing the accused

about the quantum of sentence, sentenced him as stated above.

9. Being aggrieved of the same, the unsuccessful accused in

S.C. No.334 of 2008 filed the present Criminal Appeal.

10. Now, in deciding this Criminal Appeal, the point that arises

for consideration is, whether the prosecution proved before the

Court below, beyond reasonable doubt, that the accused was

found in possession of four gelatin sticks on 06.06.2006 at 05:05

PM in the manner as alleged and whether it proved the offence

under Section 5 of the ES Act?

11. Sri Challa Srinivasa Reddy, learned counsel for the

appellant, would contend that the case of the prosecution is based

upon interested testimony of PWs.1 and 2 and it is not safe to

convict the accused when their evidence is not supported by

independent mahazar witnesses. The Court below failed to look

into the evidence part properly and, basing on the interested

testimony, convicted the accused. The learned Sessions Judge

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failed to see that the gelatin sticks were not produced before the

Court below. Hence, the Criminal Appeal is liable to be allowed.

12. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the appellant-State,

would contend that the evidence of PWs.1 and 2 is consistent and

as mediators were not available, they could not be joined, and the

learned Sessions Judge, rightly convicted the accused as such the

Appeal is liable to be dismissed.

13. As seen from Ex.P-1 - police proceedings, the place of

seizure is located at gate of Optical Fiber Cable Station, situated at

a distance of 1 KM from Giddalur on southern side of the road

leading from Giddalur to Mundlapadu. Apart from this, the

contents of Ex.P-1 read that the Police party, having received prior

information about the possession of gelatin sticks at 04:50 PM,

proceeded to the place of seizure. Now, it is clear that the place of

seizure is not far away from the residential locality. Now, coming

to the evidence of PW.1, his evidence in substance is that, he is

the Police Constable. He along with the Sub-Inspector of Police, on

06.06.2006 at 04:30 PM, proceeded because S.I. received the

information beforehand. They reached Optical Fiber Cable Station.

They found the accused in front of the gate of Optical Fiber Cable

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Station. On seeing the Police, when he tried to skulk away, they

detained him and found polythene cover which contains 4 gelatin

sticks. Accused revealed his identity on questioning by SI. Accused

disclosed that the polythene cover contains 4 gelatin sticks. So,

they arrested the accused under the cover of Police proceedings.

Then, they returned to the Police Station and the SI registered the

case and took up investigation.

14. PW.2, the Sub-Inspector of Police, deposed that 06.06.2006

at 04:50 PM, on receiving credible information, he along with PW.1

and another constable left the Police Station in Government jeep

and reached the office of Optical Fiber Cable Station on the way to

Mundlapadu village and found one person holding polythene

cover. It was at main gate of Optical Fiber Cable Station. Accused

perturbed and tried to abscond. They detained him. On

questioning, he disclosed his identity and that cover contains four

gelatin sticks. As there were no residential houses, he prepared

Ex.P-1 by arresting the accused and by seizing four gelatin sticks.

He scribed Ex.P-1. After returning to the station, he registered the

FIR, took up investigation and examined the witnesses. He

forwarded the accused for remand. On 07.06.2006, he filed a

Memo under Ex.C-1 before learned Judicial First Class Magistrate,

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Giddalur and obtained permission for defusal of gelatin sticks.

Ex.C1(1) is the endorsement on the reverse of Ex.C-1. R.N.Reddi,

HCBD Team, Ongole on 12.07.2006 defused four gelatin sticks by

preserving the sample in a small plastic tin, which is MO.1. It was

sent to FSL, through letter of advice and the Ex.P-4 is the letter of

request, letter of advice and chemical analysis report. Ex.P-5 is the

sanction order under Ex.P-3, letter of disposal certificate.

15. As seen from Ex.P-1 - Police proceedings, admittedly, the

place of seizure is not far away from Giddalur town. As seen from

Ex.P-1, there is a whisper that nobody was coming forward to act

as mediators. Now, coming to the cross-examination part of PW.1,

he deposed that Government Polytechnic College, Government

Hospital and S.V. Junior College are on the way to place of offence

from the Police Station. The Sub-Inspector of Police informed him

that they are proceeding to conduct raid. The S.I. did not ask him

to secure mediators. Now coming to the cross-examination part of

PW.2, from the information received at Police Station, they

proceeded to the spot. He did not secure any mediators either

before proceeding from their Police Station or in the way including

at Mundlapadu or from any office or from Hospital including the

S.V. Government Junior College, Giddalur.

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16. It is to be noticed that according to the evidence of PW.2, in

chief-examination, as there were no residential houses, he

prepared Ex.P-1. During cross-examination, he did not speak as to

why they could not secure mediators but according to the contents

in Ex.P-1 - Police proceedings, as nobody was willing to come

forward, the Police proceedings were drafted. When it comes to the

cross-examination of PW.2, he deposed that he did not secure any

mediators either before proceeding from Police Station or in the

way including at Mundlapadu etc. So, the evidence of PWs.1 and 2

in their chief and cross-examination is inconsistent. Further,

Ex.P-1 literally reads that nobody were willing to come as

mediators. It means that the place of seizure is not far away from

the human dwelling and the Police party made some efforts to

secure mediators but neither PW.1 nor PW.2 did speak anything

about the efforts made by them to secure mediators. In my

considered view, the prosecution is bound to prove the genuinity

of the version mentioned in the Police proceedings to secure the

mediators. PW.1 did not speak anything as regards the contents in

Ex.P-1 relating to non-securing of mediators. PW.2 in chief-

examination has spoken a different version and took a contra

version in cross-examination. When this fact is agitated before the

learned Sessions Judge, he gave a finding that as the Police party

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were proceeding from combing operations, the question of securing

mediators does not arise. This finding of fact recorded by the

learned Sessions Judge is without any basis from the record. Ex.P-

1 never disclosed that the Police party proceeded to the scene of

offence on combing operations. On the other hand, Police party

claimed to have proceeded to the place of seizure on receiving prior

and specific information about possession of gelatin sticks by the

accused. So, in my considered view, the facts and circumstances

are such that though there was a chance for the Police party to

secure independent witnesses, they did not secure the mediators

and did not stick on to the version mentioned in Ex.P-1. So, it is

not a case where the place of seizure was located in a far away

place from the human dwelling. So, it creates a doubt in the mind

of the Court as to the genuineness of the version mentioned in the

Police proceedings that nobody was willing to act as mediators

though Police made some efforts. In my considered view, the

evidence of PWs.1 and 2 is not inspiring confidence in the mind of

the Court. The learned Sessions Judge ought to have extended the

benefit of doubt to the accused in the light of the inconsistent

versions in Ex.P-1 and in the evidence of PWs.1 and 2 as regards

non securing of mediators. Hence, this Court is of the considered

view that the evidence adduced by the prosecution before the

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Court below is not found satisfactory and it is a fit case to extend

the benefit of doubt to the accused. Hence, I see reason to allow

this Criminal Appeal as such the Appeal is liable to be allowed.

17. In the result, the Criminal Appeal is allowed setting-aside

the judgment, dated 07.04.2009, passed in Sessions Case No.334

of 2008, by the learned Sessions Judge, Prakasam Division,

Ongole by acquitting the accused under Section 235(1) Cr.P.C.

MO.1 is ordered to be destroyed after appeal time is over.

Appellant is entitled to the refund of fine amount, if any paid.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 16.12.2022 DSH