Kerala High Court

Manu G.Rajan, S/O. Gopi Rajan vs State Of Kerala on 16 September, 2021

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                       CRL.A NO. 1392 OF 2005
AGAINST THE JUDGMENT IN SC 436/2003 OF ADDITIONAL DISTRICT COURT AND
      SESSIONS COURT, FAST TRACK COURT -1, THIRUVANANTHAPURAM

APPELLANTS/ACCUSED NOS. 1 AND 2:

     1     MANU G.RAJAN, S/O. GOPI RAJAN,
           T.C.26/519, NEAR VANROSE JUNCTION,, SECRETARIAT WARD,
           THYCAUD, THIRUVANANTHAPURAM.

     2     PRAVEEN RAJ, S/O.PARAMESWARAN NAIR,
           SOUBHAGYA LANE, BURMA ROAD, KUMARAPURAM,, KANNAMMOOLA
           WARD, PATTOM VILLAGE,, THIRUVANANTHAPURAM.

           BY ADVS.
           SRI.S.RAJEEV
           SRI.NANDAGOPAL S.KURUP
           SRI.K.K.DHEERENDRAKRISHNAN
           SRI.V.VINAY
           SRI.D.FEROZE
           SRI.K.ANAND (A-1921)


RESPONDENT/S:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
           KERALA, ERNAKULAM.

           BY ADV PUBLIC PROSECUTOR



           SRI. RENJIT GEORGE , PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1392 OF 2005                    2



                                                                    C.R.
                                   JUDGMENT

This appeal has been filed by the appellants who are accused Nos.1 and

2 in S.C. No.436/2003 on the file of the Additional District and Sessions

Judge, Fast Track Court-I, Thiruvananthapuram, challenging their conviction

and sentence in a prosecution for the offences punishable under Sections 143,

147, 148, 324, 448 & 427 r/w Section 149 of the Indian Penal Code, 1860

(IPC) and Section 3 of the Explosive Substances Act, 1908. Both the

appellants / accused 1 & 2 were convicted and sentenced under Sections 143,

147, 148, 324 r/w. Section 149 of the Indian Penal Code while the 1st

appellant/1st accused alone was convicted and sentenced under Section 3 of

the Explosive Substances Act, 1908. Both the appellants/ accused 1 & 2 were

acquitted of the offences punishable under Section 448 and 427 IPC. Accused

Nos. 3, 4 & 5 were acquitted of all the charges.

2. The gist of the prosecution case is that, on 11.02.1999, the

appellants/accused Nos.1 and 2 together with three others formed themselves

into an unlawful assembly and attacked PWs 1 , 7 and 8, inside the compound

of the MG College, Thiruvananthapuram, with deadly weapons like swords

and iron bars and explosive substances like crackers. It is alleged that PWs 1,

7 and 8 were members and supporters of a student organization known as

Akhil Bharatiya Vidhyarthi Parishad (ABVP), while the accused persons were

members of a rival student organization namely, Kerala Students' Union

(KSU). It was alleged that, at the relevant point of time, the Kerala Students'

Union did not have a unit in the MG college and an attempt to establish a

unit, led to some disputes between the accused and PWs 1, 7 and 8, who were

opposing the establishment of a unit of the KSU in the college. A statement

given by PW8 while under treatment at the Medical College Hospital,

Thiruvananthapuram, led to the registration of Crime No.30/1999 of the

Peroorkada police station.

3. The investigation of the case was conducted by PW5, who was

the additional Sub-Inspector of Peroorkada police station. Following the

investigation and after getting sanction from the District Magistrate,

Thiruvananthapuram, for initiation of prosecution under the Explosive

Substances Act,1908, a final report was filed by PW6, the Sub-Inspector of

Police of Peroorkada police station before the Judicial First Class Magistrate

Court-II, Thiruvananthapuram where the matter was taken on file as C.P.

No.80/2001. On a finding that the case relates to offences exclusively triable

by a Court of Session, the learned Magistrate committed the case to the

Sessions Court, Thiruvananthpauram for trial and disposal. The Sessions

Court, Thiruvananthpauram took cognizance of the matter as S.C.

No.436/2003 and made over the case to the Assistant Sessions Court,

Thiruvananthapuram and subsequently transferred the case to the Additional

District and Sessions Court, Fast Track Court -I, Thiruvananthapuram. That

court framed charges under Sections 143, 147, 148, 324, 448 and 427 r/w.

Section 149 of the Indian Penal Code and Section 3 of the Explosive

Substances Act, 1908 against the appellants/accused Nos.1 and 2 and other

accused namely accused Nos.3, 4 and 5. The appellants/accused Nos.1 and 2

as well as the other accused pleaded not guilty.

4. The prosecution, thereupon, examined PWs 1 to 8 and marked

Exts.P1 to P10 documents and identified MO1 and MO2 series. Following the

closure of the prosecution case, all the accused persons were questioned

under Section 313 of the Cr.PC. Though they denied the incriminating

materials against them, the court did not find any reason to acquit them

under Section 232 Cr.P.C., therefore, the accused were called upon to adduce

their defence evidence. The appellants/accused Nos.1 and 2 and the other

accused did not tender any defence evidence. However, contradictory

portions of the Case Diary statements were marked for the defence.

5. On an analysis of the evidence, the trial court convicted the

appellants/accused 1 & 2 in the manner indicated above. Accused Nos.1 and 2

were sentenced to undergo rigorous imprisonment for two months each

under Section 143 of the IPC, rigorous imprisonment for three months each

under Section 147 IPC, rigorous imprisonment for six months each under

Section 148 IPC and rigorous imprisonment for two years each and to pay a

fine of Rs.3000/- (Rupees three thousand only) each, in default to undergo

rigorous imprisonment for three months each under Section 324 r/w Section

149 IPC. Accused No.1 was sentenced to undergo rigorous imprisonment for

three years and to pay a fine of Rs.5000/- (Rupees five thousand only) and in

default of payment of fine, to undergo rigorous imprisonment for six months

for the offence under Section 3 of the Explosive Substances Act, 1908. The

substantive sentences were directed to run concurrently. Out of the fine

amount, Rs.4000/- (Rupees four thousand only) was directed to be paid to

PW8 as compensation for the injuries sustained to him. Set off, of the

remand period, was allowed.

6. I have heard Sri. Dheerendra Krishnan, learned counsel

appearing for the 1st appellant/1st accused and Sri. Nandagopal S. Kurup,

learned counsel appearing for the 2nd appellant/2 nd accused. The following

contentions are taken in support of the appeal:-

(i) There are material contradictions in the statements given by PWs 1,

2, 7 and 8 under Section 161 Cr.P.C with that of the evidence

tendered by them in court. It is submitted that the incident took

place on 11.02.1999 while the examination of the witnesses took place

in the year 2005. It is therefore submitted with reference to the

judgment of the Constitution Bench of the Hon'ble Supreme Court in

Tahsildar Singh and Another V. State of Uttar Pradesh ,

AIR 1959 SC 1012 that these contradictions are fatal to the

prosecution case;

(ii) The accused have not been properly identified in the dock. Reference

is made in this regard to the evidence of PWs 1, 2, 7 and 8. In

support of the contention that a failure to properly identify the

accused in the dock should result in an acquittal, reliance is placed

on the judgment of a Division Bench of this Court in Vayalali

Girishan and Others V. State of Kerala, 2016 KHC 204.

Additionally, it is submitted that, even at the time of questioning

under Section 313 Cr.P.C, the identification of the accused which was

accepted by the court, was not put to the accused, as a result of

which, the identification itself cannot be relied upon. On the question

of improper questioning under Section 313 Cr.P.C, reference is made

to the judgment of the Hon'ble Supreme Court in Sarad

Birdhichand Sarda V. State of Maharashtra, AIR 1984 SC

1622;

(iii) The conviction of the appellants under Section 143, 147 and 148

r/w.Section 149 of the IPC cannot be sustained as those offences

would be attracted only when an unlawful assembly is established.

Since accused Nos.3, 4 and 5 have been acquitted on the ground of

lack of evidence against them, the question of maintaining a

conviction under Sections 143, 147, 148 r/w. Section 149 IPC against

the appellants alone does not arise, in the light of the law laid down

in Ramanlal and Another V.. State of Haryana , (2015) 11

SCC 1;

(iv) The provisions of Section 3 of the Explosive Substances Act 1908, (as

it stood at the relevant time) would indicate that unless there is

evidence to show that the use of explosive substances would have

endangered life, the conviction under Section 3 of the said Act cannot

be sustained. Reference is made in this regard to the judgment of the

Division Bench of the Calcutta High Court in Nemai Adak and

Ors. V. The State, AIR 1965 Cal. 89;

(v) The sanction granted by the District Magistrate for prosecution under

the Explosive Substances Act (Ext.P10) was marked through the

investigating officer (PW6) and not through the officer who issued

Ext.P10 or any other person who was aware of the contents of that

document;

(vi) Finally, it is submitted that there was a case and a counter case that

ought to have been tried one after the other. In the facts of the

present case, it is submitted that the prosecution launched at the

instance of the fourth accused against PWs 7 and 8 (injured persons)

ended in their acquittal even before the trial of the present case

commenced (See the order in S.T. No.335 of 2000 on the file of the

Judicial First Class Magistrate-II, Thiruvananthapuram dated

23.07.2004)

7. Learned Public Prosecutor, on the other hand, would submit that

in all material particulars, there is no contradiction in the statements given

under Section 161 Cr.P.C and in the evidence tendered in the box by PWs 1, 2,

7 and 8. He would submit that the principle laid down by the Constitution

Bench in Tahsildar Singh (supra) will not apply as the so-called

contradictions are not at all material.

8. Regarding the identification of the accused, the learned Public

Prosecutor would refer to the depositions of PWs 1, 2, 7 and 8 to contend that

the learned Judge while recording the evidence, has clearly stated that the

accused persons have been identified by the witnesses. He would also submit

that this is a case where the accused persons, especially, accused Nos.1 and 2

were well known to PWs 1, 2, 7 and 8 and when they were pointed out as the

persons involved in the offence, the question of lack of identification in the

dock, does not arise for consideration. He also submits, with reference to the

judgment in Vayalali Girishan (supra) that, the facts of that case are

completely different from the fact situation arising in this case and that was a

matter where a fairly large number of accused persons, about 25 in number,

were in the dock and it was in those circumstances that this court made the

observations as contained in paragraph No.43 of the judgment in that case.

9. Regarding the contention that there cannot be a conviction of

two persons for the offences under Section 143, 147, 148 r/w. Section 149 of

the IPC, the learned Public Prosecutor would submit that merely because

accused Nos.3 4 and 5 were acquitted, the fact that appellants/accused Nos.1

and 2 formed themselves into an unlawful assembly, cannot be ignored.

10. The learned Public Prosecutor also submitted that there is no defect

whatsoever in the questioning under Section 313 Cr.PC. It is also submitted that

the facts of the case clearly show that an offence under Section 3 of the

Explosive Substances Act was made out as against the 1st accused/1st appellant.

11. I have considered the rival contentions. The first question to be

considered is whether there are material contradictions in the statements

given u/s 161 Cr.P.C with the evidence tendered in Court. The statement given

by PW1 to the police under Section 161 Cr.P.C states that he had witnessed

the incident while standing in the car porch of the college, which is directly

beneath the office of the principal. However, in his evidence before the court,

he deposed that he had witnessed the incident when he was returning to the

college after having tea from the canteen. PW2, the then principal of the MG

college, had stated under Section 161 Cr.P.C that he had seen the accused

persons attacking PW7 and PW8 from his office which is situated on top of the

car porch. However, in the evidence tendered before the court, he has stated

that he witnessed it from the corridor outside his office. This specific

contradiction assumes significance in the light of the evidence tendered by PW1

that it is not possible to see the car porch from the office of the Principal. In so

far as the evidence given by PW7 is concerned, he contradicted his statement

given under Section 161 Cr.P.C that he had witnessed the incident while standing

in the car porch. He confirmed the evidence of PW1 that they had witnessed the

incident while coming back after having tea from the college canteen. He also

denied having stated to the police to the effect that the accused persons have

come running on seeing him along with PW1 and PW8. He also contradicted his

alleged statement before the police that he along PWs 1 and 8 had attempted to

run away from the scene on seeing the accused persons coming to attack them.

PW7 also contradicted his statement before the police that it was the 3 rd accused

who inflicted injuries on him and stated that it was actually the 2 nd accused who

had inflicted those injuries. In so far as PW8 is concerned, he contradicted his

statement and stated in the box that he had stated to the police that he was

attacked when he along with PW1 and PW7 were coming back after having tea

from the college canteen. However, no such statement was recorded by the

police. He also contradicted his statement to the police that he knew clearly as

to who had sustained injuries and who among the accused have inflicted those

injuries. He also deposed before the court that PW7 had been attacked using an

iron rod while no such statement had been given to the police. He also gave

evidence that he had stated to the police that he was attacked with a sword on

his head while the statement itself does not reveal that he had done so. He also

agreed in the box that he was stating for the first time before the court that PW7

had been attacked with an iron rod. Regarding the hurling of crackers by the 1 st

accused is concerned, he stated that he was referring to the number of crackers

actually used by the 1st accused for the first time in court. He also confirmed that

he had not given any statement to the police as to when PWs 1 and 7 had

reached the portico. Regarding the identity of others, who are alleged to be the

members of the unlawful assembly and who attacked PWs 1, 7 and 8, Pw8

stated in the box that he had not given a statement to the police regarding the

name and identity of those persons and also that he had not stated to the police

that the crackers were being carried in a plastic bag. In this regard, I believe that

useful reference can be made to paragraphs 17, 19 & 26 of Tahsildar Singh

(supra). They read as follows:-

17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness. Nor can it be used for contradicting a defence or a court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.

18......

19. "Contradict" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross- examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer -- in the sense we have indicated -- and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other.

20........25......

26. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false."

Here, I must hold that there are material contradictions in the statements

given by PWs 1, 2, 7 and 8 before the police and the evidence tendered in

court. This is where the following finding in Tahsildar Singh (supra)

becomes relevant " If the statement before the police officer in the sense we

have indicated-and the statement in the evidence before the court are so

inconsistent or irreconcilable with each other that both of them cannot co-

exist, it can be stated that one contradicts the other.'' [Also see Sampath

Kumar V. Inspector of Police, Krishnagiri, AIR 2012 SC 1249]. The

contradictions are those in the manner indicated by the Supreme Court in

Tahsildar Singh, making the evidence tendered by PWs 1, 2, 7 and 8

before the court wholly unreliable.

12. The next question to be considered is whether there was proper

identification of the accused in the dock. In Vayalali Girishan (supra), this

court has indicated the importance of proper identification in the dock. The

depositions of PWs 1, 2, 7 and 8 in this case though seem to identify the

accused persons including appellants/accused Nos.1 and 2, is contrary to the

view taken by Vayalali Girishan (supra) that the witnesses are not

expected to know the rank of the accused in the proceedings before the court

and it is not sufficient that the accused are identified with reference to their

rank in the proceedings before the court. Though, as rightly pointed out by

the learned Public prosecutor, this is a case where all the accused persons

were directly known by the witnesses namely, PWs 1, 2, 7 and 8, that by itself

does not take away the requirement of proper identification in the dock and

in the light of the law laid down in Vayalali Girishan (supra), I must hold

that there was a failure to properly identify the accused in the dock. In the

light of my finding that the dock identification was improper and irregular, it

is not necessary to examine the issue raised based on the judgment in

Sarad Birdhichand Sarda (supra).

13. The next question to be considered is whether the conviction of

the appellants/accused Nos.1 and 2 under Sections 143, 147 and 148 r/w.

Section 149 IPC can be sustained in the light of the principles laid down in

Ramanlal (supra). Paragraph Nos.10 to 12 of Ramanlal (supra) is

relevant in this regard and extracted hereunder:-

"10. The question is whether acquittal of some of the accused persons reducing the number of those convicted to less than five has the effect of taking the case out of the purview of Section 149. A Constitution Bench of this Court has in Mohan Singh v. State of Punjab [Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963) 1 Cri LJ 100] examined that question and authoritatively answered the same. The prosecution story in that case also was that on the date of the incident five accused persons composed an unlawful assembly and that in prosecution of the common object of the said assembly, they committed rioting while armed with deadly weapons. The prosecution alleged that in pursuance of the common object of the assembly Gurdip Singh was murdered and injuries caused to Harnam Singh. The prosecution alleged that although the fatal injury was inflicted by only one of the accused persons on Gurdip Singh's head since the same was in prosecution of the common object of unlawful assembly, all those who were members of the assembly were guilty under Section 302 read with Section 149 IPC. On behalf of the defence it was argued that the

constructive criminal liability under Section 149 did not arise once two of the accused who were alleged to be members of that assembly were acquitted thereby reducing the number comprising the assembly to three persons only.

11. This Court while dealing with that contention conceived of three possible situations and the legal position applicable to each one of such situations. This Court observed: (Mohan Singh case [Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963) 1 Cri LJ 100] , SCC pp. 178-79, paras 8-9)

"8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the

course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

9. In dealing with the question as to the applicability of Section 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the criminal courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Sections 302/149 if the charge is that the persons before the court, along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted. Similarly, less than five persons may be charged under Section 149 if the prosecution case is that the persons before the court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the court along with unidentified and unnamed assailants or members composed an unlawful

assembly, those before the court, can be convicted under Section 149 though the unnamed and unidentified persons are not traced and charged. Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried then Section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under Section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under Section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly unnamed and unidentified may conceivably raise the point as to whether prejudice would be caused to the persons before the court by reason of the fact that the charge did not indicate that unnamed persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the court of facts from holding that though

the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under Section 149 is framed."

(emphasis supplied)

12. To the same effect is the decision of this Court in Nagamalleswara Rao (K.) v. State of A.P. [Nagamalleswara Rao (K.) v. State of A.P.(1991) 2 SCC 532 : 1991 SCC (Cri) 564] wherein this Court observed: (SCC p. 537, para 8)

"8. However, the learned Judges overlooked that since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, Section 149 cannot be invoked for convicting the four appellants herein. The learned Judges were not correct in stating that A-1, A-2, A-5 and A-11 'can be held to be the members of the unlawful assembly along with some other unidentified persons' on the facts and circumstances of this case. The charge was not that Accused 1, 2, 5 and 11 'and others' or 'and other unidentified persons' formed into an unlawful assembly but it is that 'you Accused 1 to 15' who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object."

13. Applying the above principles to the case at hand, we are of

the view that the provisions of Section 149 IPC are no longer available to the prosecution for convicting the appellants whose number is reduced to four consequent upon the acquittal of the remaining accused persons. The facts of the case at hand are not covered by situations one and two referred to in Mohan Singh case [Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963) 1 Cri LJ 100] . It is a case which, in our opinion, falls more appropriately in situation three where the prosecution had named all those constituting the unlawful assembly, but, only four of those named were eventually convicted, thereby reducing the number to less than five. There is no evidence to suggest that anyone, apart from the persons named in the charge-sheet were members of the unlawful assembly, but, were either not available or remained unidentified. Such being the position, the conviction of the appellants with the help of Section 149 IPC does not appear to be legally sustainable.

Here also the facts are not covered by situations one and two contemplated

in Mohan Singh v. State of Punjab, AIR 1963 SC 174. I am therefore

constrained to hold that conviction of accused Nos.1 and 2 under Sections

143, 147, 148 r/w. Section 149 IPC cannot be sustained.

14. Coming to the conviction of the 1 st appellant/1st accused under

Section 3 of the Explosive Substances Act, 1908, I am in respectful agreement

with the view taken by a Division Bench of Calcutta High Court in Nemai

Adak (supra) where in paragraph No.22 it was held as under:-

''22. So far as the charge under Section 3 of the Explosives Substances Act is concerned it has to be established that the accused concerned had caused ''an explosion of a nature likely to endanger life or to cause serious injury to property .....''. In the present case although the evidence clearly indicates that there

were explosions resulting from the throwing of bombs there was no sufficient evidence that the explosions were of a nature likely to endanger life or to cause serious injury to property. All that the evidence shows is that some minor injuries were caused to some of the constables of the police party by splinters thrown out by the exploded bombs. The evidence being that the bombs were thrown at the party and in their midst, the fact that only minor injuries were caused by the explosions would indicate that the bombs were not of such a nature as to cause explosions likely to endanger life.

There is also no evidence that any injury not to speak of serious injury was caused by the explosions to property. The explosions that were caused might very well have been caused by bombs and not by crackers, but that fact alone would not satisfy the requirements of Section 3 of the Act. The position appearing from the evidence is want of proof that the explosions actually caused by them were of a nature likely to endanger life or to cause serious injury to property and such being the case the conviction of the concerned appellants under Section 3 of the Act although based on the Expert's evidence that a bomb of the type examined by him would be capable of endangering life on explosion is not justified, particularly, in view of his positive evidence in cross-examination which shows that although a chemical examination of the remnants of a country-made bomb indicated existence of potash chlorate and arsenic sulphide therein, it is on the quantity and proportion of the said ingredients about which, there is no evidence, that the mischief-making power of a bomb depends. We find that in face of the positive evidence as to the nature of the explosions caused by the bombs in this case, the conviction of the concerned appellants under Section 3 of the Explosive Substances Act and the sentence passed thereunder cannot be sustained and must be set aside.''

In the facts of the present case, there is absolutely no evidence to suggest that

the explosive substances allegedly used by the 1 st accused/1st appellant were

of such a nature that it would endanger the life of the injured persons. The

evidence is consistent in that what was used was crackers. Such firecrackers

are generally used in connection with celebrations etc., and were not of a type

or nature that would have endangered the life of the injured persons in any

manner. I am, therefore, of the view that 1 st appellant/1st accused was

wrongly convicted of an offence under Section 3 of the Explosive Substances

Act, 1908. The question as to whether the grant of sanction for prosecution

under the Explosive Substances Act was properly marked in court need not be

gone into, on account of my finding that Section 3 of the Explosive

Substances Act is not attracted.