HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2210 of 2004 Date:25.01.2011 Between: The Public Prosecutor, High Court of A.P., Hyderabad. ….Appellant And: S. Amul Raj and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2210 of 2004 JUDGMENT: This is an appeal arising out of the acquittal of the respondent herein by the Assistant Sessions Judge, Srikalahasti in S.C. No.210 of 2003 by judgment dated 11.11.2003. The respondents 1 and 2 herein are A-1 and A-2 and they are tried for the offence under Section 5 of the Explosives Substances Act, 1908 and under Section 9(B)(1)(B) of the Explosives Act, 1884 alleging that on 3.12.2000 at 7.00 a.m on definite information, P.Ws.3 to 5 along with mediators went to Chindepalle Cross road situated at Yerpedu- Venkatagiri road and notices the accused sitting in a Tractor by keeping a Card-board box with them. On seeing the police, the accused got down from the Tractor and tried to run away. But, P.W.5 Inspector of Police with the assistance of his staff arrested and enquired. In interrogation, A-1 confessed that he had taken on contract basis the work of removing the rock for laying cable wire near Chindepalle Cross road. He has purchased 115 Gelatine sticks, 58 detonators and fuse wire all worth Rs.1,500/- from a person working in S.D.B.L company, who is well known to him and he has reached the work spot with the said material along with his assistant. P.W.5 Inspector of Police seized the card board box and the Tractor under cover of Mahazarnama in the presence of mediators and registered a case against the respondents herein. The learned Assistant Sessions Judge, Srikalahasti framed a charge under Section 5 of the Explosives Substances Act, 1908 and under Section 9(B)(1)(B) of the Explosives Act, 1884 against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charges examined P.Ws.1 to 7 and got marked Exs.P.1 to P-12 and M.O.1. The learned Assistant Sessions Judge, Srikalahasti after taking into consideration of both the oral and documentary evidence held that the prosecution failed to prove the charges beyond reasonable doubt and thereby acquitted both the accused. Aggrieved by the said acquittal, the State has preferred the present appeal. The point for consideration is whether the prosecution could able to establish the charges under Section 5 of the Explosives Act, and under Section 9(B)(1)(B) of Explosives Act against the accused beyond reasonable doubt? The main contention of the Public Prosecutor is that the lower court has not properly considered the evidence of P.Ws.3,4 and 5, even though they have established the recovery of Explosives Substances from the possession of the accused and some latches on the part of the police officials cannot be a ground for acquittal of the accused. According to the prosecution they have seized Card-board box containing 115 Gelatine sticks, 58 detonators and fuse wires from the possession of the accused on 3.12.2000 at 7.00 a.m when they were sitting on Tractor near Chindepalle Cross roads of Yerpedu-Venkatagiri road. According to the prosecution, they have proceeded to spot on the definite information and seized the said material from the possession of the accused in the presence of the P.Ws.1 and 2 the mediators. But, both the mediators P.Ws.1 and 2 are not supported the case of the prosecution and they have specifically stated that they were standing at the bus stand in Yerpedu where one police constable by name Muthyala Reddy approached and requested and brought them to the police station. Both P.Ws.1 and 2 were requested by the Sub Inspector of Police and the Head Constable of Yerpedu police station to have sign on some papers. Therefore, both independent mediators for the seizure of the material from the possession of the accused turned hostile. The other evidence available is that of P.Ws.3 to 5 to prove the seizure of the Explosive Substances from the possession of the accused. P.W.3 is the Head Constable. P.W.4 is the Sub Inspector of Police. P.W.5 is the Inspector of police. According to P.W.3, the Head Constable while he was in police station on 3.11.2000 at 6.30 a.m, P.Ws.4 and 5 came to the police station and informed that two persons were in possession of the Explosive substances without any licence and they were moving on Tractor at Chendepalli cross road. Immediately P.Ws.3 to 5 and other staff members proceeded in a police jeep to Chindepalli cross road and found a tractor bearing Regn. No.TEC 6040 along with two persons who tried to escape from the scene. On the instructions of P.W.5, the P.W.3 along with two other constables caught hold of the two persons and interrogated. The P.W.5 recorded the confessional statement of both A-1 and A-2 and seized 115 gelatine sticks and 58 detonators and fuse wire and tractor without having any licence. The confession statement was prepared at the scene in which P.W.3 signed which is Ex.P.3. The case was registered on the basis of Mahazarnama as Cr.No.74 of 2000 by P.W.5 under Section 5 of Explosive Substances Act and Sec.9(B)(1)(b) of Explosives Act. In the cross-examination, he has admitted that Mahazarnama was drafted by himself prior to the arrest of the accused at the dictation of P.W.1 the P.W.1 the Inspector of Police. P.W.4 is the Sub Inspector of Police also signed on the Mahazarnama and according to him he is not aware about P.W.5 receiving information regarding the offence committed by the accused. P.W.4 even though present at the scene of offence he has not made any attempt to arrest the accused who have been stated to run away from the scene of offence. P.W.5 is the Investigation Officer of the seizure and arrest of the accused and he is also the complainant. The lower court after taking into consideration of the said evidence and circumstances of the case has held that P.W.5 did all these things which was fatal to the prosecution. Even though the prosecution has stated that there are independent witnesses for the seizure of the explosive substances from the possession of the accused and they turned hostile and as the evidence of P.W.3 is not reliable in view of the contradictions in his cross-examination with regard to preparing the seizure Mahazarnama for recovering the explosive substances from the possession of the accused cannot be considered to establish the seizure of the explosive substances from the possession of A-1 and A-2. Therefore, the prosecution has failed to establish the recovery of the explosive substances from the possession of the accused. Even though they could be able to establish that the explosive substances were defused by P.W.6 with the permission of the Additional District Munsiff Magistrate, Srikalahasti under Exs.P-8 and P-9. When there is failure on the part of the prosecution to establish that the explosive substances were recovered from the possession of the accused, the lower court rightly found the accused not guilty for the offences framed against the accused. There are no grounds to come to a different conclusion in this appeal. Hence, the lower court has rightly held that the prosecution has failed to prove the charges framed against the accused beyond all reasonable doubt. Hence, I do not find any valid reasons to interfere with the judgment of acquittal passed by the lower court. In the result, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:25.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2210 of 2004 Date:25.01.2011 Gk.