IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2011 Coram : THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI Crl.A.No.1289 of 2004 State rep. by the Inspector of Police, "Q" Branch CID, Dharmapuri. Crime No.1/99 .. Appellant Vs. 1.Elango @ Sundararajan 2.Seeni @ Sreenivasan 3.Anandhi @ Amalopavam .. Respondents Prayer: Criminal Appeal is filed under Section 378 of Criminal Procedure Code, against the judgment dated 20.07.2004 made in S.C.No.55 of 2000 on the file of Assistant Sessions Judge, Dharmapuri. For Appellant : Mr.C.Balasubramanian Addl. Public Prosecutor. For Respondent : Mr.R.Sankarasubbu No appearance. J U D G M E N T The appeal is filed against the order of acquittal of the accused for the offences under Section 307 r/w.34 of IPC Act, Section 3 r/w.25(1A) of Indian Arms Act and Section 4(b) of the Explosives Substances Act, 1908. 2. The case of the prosecution is that PW1/Sub Inspector of Police, "Q" Branch, Dharmapuri police station by name Kabilan was on patrol duty at 10.30pm on 18.06.1999 in front of Veerapathiraswamy Temple, Kadirnayakkanahalli within the jurisdiction of Madhikonpalayam Police Station, Dharmapuri District and at that time he found A1-Elango @ Sundararajan, A2-Seeni @ Srinivasan along with absconding accused Kalidass in possession of country gun with cartridges and two pipe bombs both in his person and in the house of A2 without any licence and Kalidass along with other accused threw bomb against PW1 Kabilan with an intention to kill him and thereby https://hcservices.ecourts.gov.in/hcservices/ committed the act constituting the offences referred to above. 3. The case of the prosecution is sought to be established through PW1/Kabilan/Sub Inspector of Police/so called victim and Head constable who was present along with him in the scene of occurrence, VAO, one Murugan who is the witness for the arrest and seizure of the accused, Head clerk attached to the court concerned and other independent and official witnesses and IO examined as PW1 to PW10 and complaint, FIR, Rough sketch, observation mahazar, book series, requisition for chemical analysis and chemical analysis report produced as Ex.P1 to Ex.P20 and explosive substances and dress owned by the accused produced as M.O.1 to M.O.9. material objects. 4. The trial court on the basis of the available records found that the prosecution failed to establish the factum and manner of the occurrence and the collection of the materials in the course of investigation through independent witnesses and the case of the prosecution sought to be presented through the official witnesses suffer from various infirmity contradictions and inconsistency and the prosecution failed to produce all the relevant material objects and hence disbelieved the case of the prosecution and extended the benefit of doubt to the accused and acquitted the accused from the offences referred to above. Hence, this appeal by the state before this Court. 5. The learned Additional Public Prosecutor has seriously questioned the correctness of findings of acquittal mainly by relying on the evidence of the prosecution side witnesses. 6. As already referred to the prosecution case is sought to be established through PW1 to PW3 official witnesses. The case of the prosecution is that the accused 1 and 2 along with absconding accused were at 10.30pm on 18.06.1999 in front of Veerapathiraswamy Temple, found by PW1 to PW3 to be in the custody of country bomb and explosive substances unauthorisedly and they on seeing the police threw the same to PW1-Kabilan with an intention to kill him. The evidence of PW1 to PW3 would undisputedly go to show that the police party reached the scene of occurrence at 10.00pm and there was total darkness and the source of light is, according to the prosecution, torch light in the custody of PW1. However, the official witnesses would not have seen and identified the accused in the torch light. Further the same is not seized and produced as one of the material objects herein and the failure to do so would go to the root of the prosecution case. 7. The next aspect to be seen is the factum and the manner of the occurrence as narrated in Ex.P12 complaint. It cannot be disputed that Ex.P12 complaint is the basis on which the criminal law is set in motion against the accused. The same is given on https://hcservices.ecourts.gov.in/hcservices/ 19.06.1999 to Inspector of Police, "Q" Branch, Dharmapuri and the endorsement made on the portion of the complaint proceed to say that the same is received at 6.00am on 19.06.1999 along with two accused and Ex.P17 is the FIR registered on the basis of Ex.P12 complaint. Both the signature of the complainant and the officials were not found in FIR. The FIR does not contain the signature of the Inspector of Police who received the complaint and registered the case and the copy of the complaint is also not handed over by the Sub Inspector of Police and his signature also is not affixed in the relevant column in the first page of the FIR. Though it is pointed out by the learned Additional Public Prosecutor that the signature of the inspector of police is found at the end of the complaint failure to put signature at first page of the FIR cannot be easily brushed aside. 8. It is also note worthy to mention at this stage that the complaint received at 6.00am on 19.06.1999 reached the court at 18.30pm on the same day and the same warrants explanation. 9. The next aspect to be seen is the failure of the prosecution to produce any independent witnesses to prove the factum and manner of the occurrence as alleged by PW1 to PW3. Though the alleged scene of occurrence is admittedly a residential area having number of residences in and around the area none of them are cited and summoned as eye witnesses of the occurrence. Considering the time at which the occurrence taken place i.e, at 10.30pm on 18.06.1999 non- examination of any independent witnessess assumes greater importance. Further, the evidence of PW1 to PW3 on one hand and PW4-VAO on the other hand regarding the arrest and seizure of MO1 do not corroborate with each other. While according to PW1 to PW3, the articles mentioned in. Ex.P5 and Ex.P6 are seized from A1 Elango and A2 Srinivasan, PW5 would not support such version. According to PW4 one of the Black color rexine bag is seized only from Elango, not from Srinivasan under Ex.P6 seizure mahazar. 10. Further, as per Ex.P7-chemical analysis report, the explosive substances found in the articles seized are used only for washing the articles. The trial court also rightly disbelieved the version of the prosecution that the accused who is found to be in possession of country gun with bombs did not attempt to throw it against PW1 as they were rounded off by the police official. It is also the specific case of the prosecution that the bomb was thrown against PW1 only by Kalidass since absconding and not others. The trial court also treated the failure on the part of the prosecution to produce any independent witnesses as one of the material factors, and to produce all the material objects seized from the accused including the explosive substances which was allegedly carried by the accused as fatal to the prosecution case. The trial court on due appreciation of the entire facts and the failure of the prosecution https://hcservices.ecourts.gov.in/hcservices/ to adduce any sufficient material to prove the manner of the occurrence and seizure of the articles, rightly disbelieved the prosecution case and extended the benefit of doubt to the accused. This Court finds no infirmity or perversity in the judgment of acquittal recorded by the trial court and the prosecution has not made out any valid and compelling reason to interfere with the well considered judgment of the trial court. 11. In the result, the criminal appeal is dismissed. -s/d- Assistant Registrar True Copy Sub-Assistnt Registrar tsh To 1.The Assistant Sessions Judge, Dharmapuri. 2.-do-Thro'The District Sessions Judge, Dharmapuri 3.THE INSPECTOR OF POLICE 'Q'BRANCH CID, DHARMAPURI 4.THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS Crl.A.No.1289 of 2004 AA11/3/2014 https://hcservices.ecourts.gov.in/hcservices/