Madras High Court
Durai @ Durai Raj ... Revision vs The Inspector Of Police on 10 March, 2023
Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 10.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
Crl.R.C(MD)No.687 of 2016:-
Durai @ Durai Raj ... Revision Petitioner/
1st Appellant/1st Accused
Vs.
The Inspector of Police,
Bhoothapandy Police Station,
Kanyakumari District.
(Crime No.931 of 2000) ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records relating to
the Judgment passed by the learned Sessions Judge/Mahila Fast
Track Court, Nagercoil, dated 13.07.2016 in C.A.No.35 of 2013,
modifying the Judgment passed by the learned II Additional
Assistant Sessions Judge, Nagercoil in S.C.No.35 of 2009, dated
15.04.2013 and set aside the same and thus allow this Revision
Petition.
For Petitioner : Mr.N.Dilip Kumar
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
Crl.R.C(MD)No.806 of 2017:-
1.Ramasamy
2.Raj ... Revision Petitioners/
Vs.
The Inspector of Police,
Bhoothapandy Police Station,
Kanyakumari District.
(Crime No.931 of 2000) ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records relating to
the Judgment passed by the learned Sessions Judge/Mahila Fast
Track Court, Nagercoil, dated 13.07.2016 in C.A.No.35 of 2013,
modifying the Judgment passed by the learned II Additional
Assistant Sessions Judge, Nagercoil in S.C.No.35 of 2009, dated
15.04.2013 and set aside the same and thus allow this Revision
Petition.
For Petitioners : Mr.B.Charmurugan
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
COMMON ORDER
These revisions have been filed to set aside the
Judgment passed by the learned Sessions Judge/Mahila Fast Track
Court, Nagercoil, dated 13.07.2016 in C.A.No.35 of 2013, modifying
the Judgment passed by the learned II Additional Assistant Sessions
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
Judge, Nagercoil in S.C.No.35 of 2009, dated 15.04.2013, thereby
convicted Accused Nos.1 to 3 for the offence under Section 5 of the
Explosive Substances Act, 1908, r/w Section 34 of I.P.C and
sentenced them to undergo five years Simple Imprisonment and to
pay a sum of Rs.10,000/- each towards fine.
2.The case of the prosecution is that on 07.12.2000 at
about 17.00 p.m., at Kadukkai Thittai Sappathu, the accused
persons illegally possessed 1 kg of Karuvedi Marunthu (Gun powder)
and 1/2 Kg Sulphur in a plastic bag without any valid licence. After
completion of the investigation, the respondent filed a final report
and the same has been taken cognizance by the trial Court in
S.C.No.35 of 2009 for the offence under Section 5 of the Explosive
Substances Act, 1908, r/w Section 34 of I.P.C.
3.On the side of the prosecution, they had examined
P.W.1 to P.W.13 and marked Exs.P.1 to P.8 and on the side of the
accused, no one was examined and no materials were produced.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
4.On perusal of both the oral and documentary
evidence, the trial Court found the accused guilty for the offence
under Section 5 of the Explosive Substances Act, 1908, r/w Section
34 of I.P.C and sentenced them to undergo five years Simple
Imprisonment and to pay a sum of Rs.10,000/- each. Aggrieved by
the same, the petitioners preferred an appeal in Crl.A.No.35 of 2013
and the Appellate Court also partly allowed the appeal thereby
confirming the conviction under Section 5 of the Explosive
Substances Act, 1908, r/w Section 34 of I.P.C and reduced the
sentence from five years to two years Simple Imprisonment.
Aggrieved by the same, the present Revisions.
5.Mr.N.Dilip Kumar, learned counsel appearing for the
petitioner in Crl.R.C(MD)No.687 of 2016 would submit that the
prosecution failed to prove their case since there are serious
contradictions and lacuna in the case of the prosecution. Those
material contradictions in the prosecution witnesses are vital to the
case of the prosecution. That apart, there is absolutely no material
to connect the first accused to the occurrence. Originally, the first
complaint was lodged by P.W.4 and another complaint was lodged
by P.W.5 and the same had all been suppressed by the prosecution
and the complaint which was marked as Ex.P.1 and the F.I.R which
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
was marked as Ex.P.3, lodged by P.W.1, are fabricated and
concocted documents created by the respondent. He also pointed
out that the deposition of P.W.12 would prove that P.W.4 lodged a
complaint before the respondent and P.W.5 had also lodged a
complaint. P.W.13 also admits the availability of the complaint given
by P.W.4. Therefore, the respondent suppressed the earlier
complaints lodged by P.W.4 as well as P.W.5. He further submitted
that all the case documents including Ex.P.2-'H' memo, dated
07.12.2000, were prepared in the police station. Ex.P.3-F.I.R is
evident from the material contradictions in the statement of the
prosecution witnesses. P.W.1 stated that after securing A2 to A5
along with the recovered explosives, they brought the accused to
the forest office and thereafter, made an enquiry. Later, they were
handed over to the respondent at 07.00 p.m. However, P.W.2 stated
that the accused with recovered materials were directly taken to the
Police Station. Therefore, these material contradictions would affect
the entire case of the prosecution. He further submitted that in
order to prove the offence under Section 34 of I.P.C., no material
was produced by the prosecution and no one was examined. No
material was produced about the sharing of a common intention or
doing anything with such common intent is available anywhere.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
6.The learned counsel appearing for the petitioner
further submitted that, even according to the case of the
prosecution, the first accused, namely, the petitioner in
Crl.R.C(MD)No.687 of 2016, flood away after seeing the forest
officials. There is also a material contradiction in the statement of
prosecution witnesses. According to P.W.1, he stated that after
seeing the Forest Officials, A.1 flooded away from the scene of the
crime, whereas, P.W.4 stated that after the seizure of explosives
from all the accused persons, the first accused alone flooded away
from their hands. The prosecution also failed to prove the
ingredients as contemplated under Section 5 of the Explosive
Substances Act, 1908. The prosecution also failed to obtain any
sanction as contemplated under Section 7 of the Explosive
Substances Act, 1908. That apart, no independent witness deposed
in favour of the prosecution. Since P.W.2 and P.W.3 were examined
as Mahazar witnesses, they also turned hostile and failed to support
the case of the prosecution. In order to substantiate his contention,
the learned counsel appearing for the petitioner in Crl.R.C(MD)No.
687 of 2016 relied on the following Judgments:-
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
“(i) Mohammad Usman Mohammad Hussain
Maniyar and others Vs. State of Maharashtra reported
in (1981) 2 SCC 443.
(ii) Virendra Singh Vs. State of Madhya Pradesh
reported in (2010) 8 SCC 407.”
7.Per contra, the learned Government Advocate
(Criminal Side) would submit that the eyewitnesses, namely P.W.1,
P.W.4 and P.W.5, categorically deposed that all the accused persons
were in possession of explosives and as such, the prosecution
proved their case beyond doubt. He drew the attention of this Court
to the findings recorded by the Appellate Court that on verification
of records, the sanction obtained by the prosecution is very much
available with the records. However, the accused failed to cross-
examine the Investigating Officer so as to obtain sanction and
non-marking of the sanction before the trial Court. Therefore,
non-marking of sanction would not cause any prejudice to the
accused. Hence, the Courts below rightly convicted the petitioners
and sentenced them to undergo two years Simple Imprisonment
and he prayed for dismissal of the Revisions.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
8.Heard the learned counsel appearing on either side
and perused the materials available on record.
9.There are totally five accused, in which, the petitioner
in Crl.R.C(MD)No.687 of 2016 is arrayed as Accused No.1 and the
petitioners in Crl.R.C(MD)No.806 of 2017 are arrayed as Accused
Nos.2 and 3. The other two accused persons did not appear before
the trial Court and as such, the trial Court split up the case as
against Accused Nos.4 and 5. On 07.12.2000 at about 17.00 p.m.,
at Kadukkai Thittai Sappathu, the accused persons illegally
possessed 1 kg of Karuvedi Marunthu (Gun powder) and 1/2 Kg
Sulphur in a plastic bag without any valid licence. Therefore, on the
statement given by the Forest Officials, the respondent registered
the F.I.R in Crime No.931 of 2000 for the offence under Section 5 of
the Explosive Substances Act, 1908, r/w Section 34 of I.P.C. After
completion of the investigation, the respondent filed a final report
and the same has been taken cognizance for the said offences by
the trial Court.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
10.The learned counsel appearing for the petitioner in
Crl.R.C(MD)No.687 of 2016 vehemently contended that the
prosecution failed to prove the offence under Section 34 of I.P.C.,
since they failed to examine any witness so as to prove that all the
accused persons with common intention had possessed the alleged
explosives. They also failed to produce any material evidence to
show that they intended to use the explosives illegally. In this
regard, he relied upon the Judgment in Virendra Singh Vs. State
of Madhya Pradesh reported in (2010) 8 SCC 407, in which the
Honourable Supreme Court of India held as follows:-
“Section 34 is not a substantive offence. It is
imperative that before a man can be held liable for
acts done by another, under the provisions of this
section, it must be established that there was
common intention in the sense of a pre-arranged
plan between the two and the person sought to be
so held liable had participated in some manner in
the act constituting the offence. Unless common
intention and participation are both present, this
section cannot apply.”
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
11.The vicarious or constructive liability under Section
34 of I.P.C can arise only when two contradictions stand fulfilled,
i.e., the mental element or the intention to commit the criminal act
conjointly with another or others; and the other is the actual
participation in one form or the other in the commission of the
crime.
12.Admittedly, the prosecution failed to produce any
material to connect the petitioners to each other in order to prove
the offence under Section 34 of I.P.C. No one had spoken that A.1
to A.3 are connected to each other, and they were under
constructive possession of explosives. Even according to the
prosecution, the first accused, after seeing the Forest Officials, had
flooded away from the scene of the crime. They recovered the
explosives from A.2 to A.5. In this regard also, there is a
contradiction between P.W.1 and P.W.4, who are the Rangers of the
Forest Department. According to P.W.1, he stated that after seeing
the Forest Officials, A.1 flooded away from the scene of the crime,
whereas, P.W.4 stated that after the seizure of explosives from all
the accused persons, the first accused alone flooded away from
their hands. He did not even depose that they had taken steps to
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
trace the first accused. Therefore, the prosecution first of all failed
to prove the offence under Section 34 of I.P.C.
13.In order to prosecute the accused for the offence
under Section 5 of the Explosive Substances Act, 1908, the
prosecution has to obtain consent from the District Magistrate. It is
relevant to extract the provision under Section 7 of the Explosive
Substances Act, 1908, which reads as follows:-
“7. Restriction on trial of offences.—
No Court shall proceed to the trial of any person
for an offence against this Act except with the
consent of the 1[District Magistrate].”
Thus, it is clear that no Court shall proceed with the trial of any
person without getting consent from the District Magistrate, namely,
the District Collector.
14.In this case, the respondent failed to obtain any
consent from the District Collector in order to prosecute the accused
persons. Though the Appellate Court recorded that consent obtained
from the District Collector is very much available in the case
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
records, it was not marked by the prosecution. Further, Section 5 of
the Explosive Substances Act, 1908 reads as follows:-
[5. Punishment for making or possessing
explosives under suspicious circumstances.—Any
person who makes or knowingly has in his
possession or under his control any explosive
substance or special category explosive substance,
under such circumstances as to give rise to a
reasonable suspicion that he is not making it or does
not have it in his possession or under his control for
a lawful object, shall, unless he can show that he
made it or had it in his possession or under his
control for a lawful object, be punished,—1[5.
Punishment for making or possessing explosives
under suspicious circumstances.—Any person who
makes or knowingly has in his possession or under
his control any explosive substance or special
category explosive substance, under such
circumstances as to give rise to a reasonable
suspicion that he is not making it or does not have it
in his possession or under his control for a lawful
object, shall, unless he can show that he made it or
had it in his possession or under his control for a
lawful object, be punished,—"
‘(a) in the case of any explosive
substance, with imprisonment for a term which may
extend to ten years, and shall also be liable to fine;
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(b) in the case of any special category
explosive substance, with rigorous imprisonment for
life, or with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to
fine.]”
15.In order to bring home the offence under Section 5
of the Explosive Substances Act, 1908, the prosecution has to prove
(i) that the substance in question is explosive substance (ii) that the
accused makes or knowingly has in his possession or under his
control any explosive substance and (iii) that he does so under such
circumstances as to give rise to a reasonable suspicion that he is
not doing so for a lawful object. Therefore, the prosecution must
prove that the accused persons were under possession of explosives
on suspicion that they are possessing explosives to do the unlawful
object.
16.In the case on hand, there is absolutely no iota of
evidence to show that the accused persons were in possession of
explosives in order to do the same unlawful object. Therefore, the
prosecution failed to prove the basic ingredients in order to bring
home the charge under Section 5 of the Explosive Substances Act,
1908, to home.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
17.That apart, as rightly pointed out by the learned
counsel appearing for the petitioner in Crl.R.C(MD)No.687 of 2016,
there were full of contradictions between P.W.1 and P.W.4. In fact,
both the Investigating Officer viz., P.W.12 and P.W.13 had
categorically admitted that there were two complaints from P.W.1
and P.W.4 and both are Rangers of Forest Department. Further,
there were contradictions in respect of lodging the complaint and
recording of statements from the accused persons. Further, in order
to bring the charge to home, the prosecution had examined P.W.2
and P.W.3, but both were turned hostile and there were
contradictions between other witnesses also. Both the Investigating
Officers deposed that they did not prepare any of the documents.
Therefore, it is vital to the case of the prosecution, and this Court is
of the considered opinion that the prosecution failed to prove the
case beyond any reasonable doubt. Therefore, the benefit of the
doubt goes in favour of the accused persons, and they are liable to
be acquitted for the offence under Section 5 of the Explosive
Substances Act, 1908, r/w Section 34 of I.P.C.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
18.Accordingly, both the Criminal Revision Cases are
allowed and Judgment passed by the learned Sessions Judge/Mahila
Fast Track Court, Nagercoil, dated 13.07.2016 in C.A.No.35 of 2013,
modifying the Judgment passed by the learned II Additional
Assistant Sessions Judge, Nagercoil in S.C.No.35 of 2009, dated
15.04.2013, are set aside. The petitioners/accused are acquitted.
Bail bond if any executed by the petitioners/accused shall stand
cancelled and fine amount if paid is ordered to be refunded to the
appellant/accused forthwith.
10.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The Sessions Judge/Mahila Fast Track Court,
Nagercoil.
2.The II Additional Assistant Sessions Judge,
Nagercoil.
3.The Inspector of Police,
Bhoothapandy Police Station,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)Nos.687 of 2016 & 806 of 2017
10.03.2023
https://www.mhc.tn.gov.in/judis
