BAIL SLIP The 1st Appellant/in Crl.A.374/01 Viz. Saleem @ Abudl Saleem @ Thangazhagu[A.3] was directed to be released on bail by the order of this Court dated 10.3.03 and made in Crl.MP.No.2244/03 in Crl.A.374/01. The Appellant in Crl.A.394/01 Viz.Abdul Khader @ Raja @ Haja @ Abika[A-1]was directed to be released on bail by the order of this Court dated 10.3.2003 and made in Crl.MP.No.253/03 in Crl.No.394/01. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.03.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal Nos.374, 394 & 810 of 2001 Crl.A.Nos.374 & 394 of 2001: Saleem @ Abdul Saleem @ Thangalagu S/o Abdul Wahab @ Chellandi Kudhoos @ Abdul Kudhoos Appellants S/o Mohamed Hussain .. in Crl.A.No.374/01 [A-3 and A-4]. Abdul Khadder @ Raja @ Haja @ Abuka Appellant/A1 in S/o Abdul Hameed .. Crl.A.No.394/01 [A-1] -vs- State by: Dy.Superintendent of Police Respondent in both CB/CID, Tiruchirappalli .. the Crl.Appeals [Complainant] Memorandum of Grounds of Criminal Appeals under Section 374(2) of the Criminal Procedure Code against the judgment dated 9.4.2001 made in S.C.No.4 of 1999 on the file of the learned Sessions Judge, Court of Sessions for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee. https://hcservices.ecourts.gov.in/hcservices/ For Appellants :: Mr.S.Doraisamy in Crl.A.Nos.374 & 394/01 For Respondent :: Mr.V.R.Balasubramanian Addl. Public Prosecutor Crl.A.No.810 of 2001: State by: Dy.Superintendent of Police Appellant in CBCID, Tiruchirappalli .. Crl.A.No.810/01 -vs- 1. Abdulkadhar @ Raja @ Hhaja @ Abukka 2. Abdul Hameed 3. Saleem @ Abdulsaleem @ Thangalagu 4. Kuthus @ Abdul Kuthus 5. Mohammed Ali Jinna @ Jinna 6. Kaleel Basha @ Kaleel 7. Akthar Basha Respondents/A1 to 8. S.A.Basha .. A8 Memorandum of Grounds of Criminal Appeal under Section 378 of the Criminal Procedure Code against the judgment dated 9.4.2001 made in S.C.No.4 of 1999 on the file of the learned Sessions Judge, Court of Sessions for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee. For Appellant :: Mr.V.R.Balasubramanian Addl. Public Prosecutor For Respondents/:: Mr.S.Doraisamy for A1 & A3 to A8 RR1,3,4,6 & 7 Mr.E.J.Ayyappan for R5 (Amicus Curiae) Mr.Swamidoss Manoharan for R8 ( Amicus Curiae) JUDGMENT D.MURUGESAN, J. Originally nine accused namely, A1 to A9 were chargesheeted for the offences under Sections 120(B) & 302 IPC and under Sections 3,4,5 & 6 of the Explosive Substances Act as well under Section 25 (1)(b) of the Arms Act. Pending trial, one Abdhagir @ Abudhagir (A6) died. Hence the learned trial Judge re-arrayed the remaining eight accused as A1 to A8 and tried them in S.C.No.4 of 1999 on the file of the Court of Sessions for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee. After a full-fledged trial, the https://hcservices.ecourts.gov.in/hcservices/ learned Judge convicted and sentenced A1, A3 & A4 for the offences as detailed below and acquitted A2 & A5 to A8 of all the charges. 2. The appellants in Crl.A.No.374 of 2001 were tried as A3 and A4 in S.C.No.4 of 1999 and by the judgment dated 9.4.2001, the learned trial Judge found them guilty of the offence under Section 4 of the Explosive Substances Act, 1908 read with Section 120(B) IPC and under Section 5 of the Explosive Substances Act, 1908 read with Section 120(B) IPC as well as under Section 6 of the Explosive Substances Act, 1908 read with Section 120(B) IPC and sentenced the first appellant/A3 to undergo five years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo three months simple imprisonment for the offence under Section 4 of the Explosive Substances Act read with Section 120(B) IPC and to undergo five years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo three months simple imprisonment for the offence under Section 5 of the Explosive Substances Act read with Section 120(B) IPC. Likewise the second appellant/A4 was sentenced to undergo five years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo three months simple imprisonment for the offence under Section 4 of the Explosive Substances Act read with Section 120(B) IPC and to undergo five years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo three months simple imprisonment for the offence under Section 5 of the Explosive Substances Act read with Section 120(B) IPC, which have been ordered to run concurrently. However, the learned Sessions Judge did not impose any separate sentence on A3 and A4 under Section 120(B) IPC and under Section 6 of the Explosive Substances Act, 1908. 3. Pending disposal of Crl.A.No.374 of 2001, as it was represented by Mr.S.Doraisamy, learned counsel that the second appellant/A4 had already undergone the sentence of five years imposed on him, this Court dismissed the appeal as not pressed in respect of the second appellant/A4 by order dated 14.2.2008. 4. The appellant in Crl.A.No.394 of 2001 was tried as A1 in the same sessions case and was found guilty of the offence under Section 4 of the Explosive Substances Act, 1908 read with Section 120(B) IPC and under Section 5 of the Explosive Substances Act, 1908 read with Section 120(B) IPC and under Section 6 of the Explosive Substances Act, 1908 read with Section 120(B) IPC as well as under Section 25(1)(b) of the Arms Act read with Section 3 of the Arms Act and sentenced him to undergo ten years rigorous imprisonment and also to pay a fine of Rs.50,000/-, in default to undergo six months simple imprisonment for the offence under Section 4 of the Explosive Substances Act read with 120(B) IPC; to undergo ten years rigorous imprisonment and also to pay a fine of Rs.50,000/-, in default to undergo six months simple imprisonment for the offence under Section 5 of the Explosive Substances Act read with 120(B) IPC and to undergo three years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo one month simple imprisonment for the offence under Section 25(1)(b) of the Arms Act read with Section 3 of the Arms Act, which have been ordered to run concurrently. However, the learned trial https://hcservices.ecourts.gov.in/hcservices/ Judge did not impose any separate sentence on A1 under Section 120 (B) IPC and under Section 6 of the Explosive Substances Act, 1908. The appellants/A3 & A1 have questioned their conviction and sentence in the above appeals. 5. Crl.A.No.810 of 2001 has been preferred by the State questioning the acquittal of A2, A5, A6, A7 & A8 and as well questioning the lesser sentence imposed on the other accused. Pending disposal of Crl.A.No.810 of 2001, as it was represented by Mr.V.R.Balasubramanian, learned Additional Public Prosecutor that the second respondent/A2 by name Abdul Hameed expired, this Court dismissed the appeal as abated in respect of the second respondent/A2 by order dated 14.2.2008. 6. As the issues raised in all the appeals are one and the same, they are taken up together for disposal by this judgment. For convenience, the accused will be referred to as "A1 to A8" as arrayed by the learned trial Judge and the other accused-Abdhagir @ Abudhagir (A6) as the "deceased accused" in this judgment. 7. The prosecution case is that on 7.2.98 at about 11.40 p.m., bomb exploded in the Mohamadia Rice Mill, Saliyamangalam village belonging to A2-Abdul Hameed. The bomb exploded while A1 along with Rafayee @ Rafaydeen and Sheik Ismail were manufacturing the explosives and in the explosion, four persons namely, Rafayee @ Rafaydeen, Rafeeq @ Nazeerabas, Sheik Ismail as well as Srinivasan, the watchman of the mill, were killed. P.W.1, the Village Administrative Officer, on hearing the loud noise due to the explosion, went to the mill along with his Assistant-Subramanian and one Murugaiyan. He saw first three injured persons, of which one was lying dead and the remaining two were fighting for their life. Subsequently, the other two injured also died. He also saw one more dead person on the floor of the mill and he came to know that the said person was Srinivasan, the watchman of the mill. He also saw two more injured persons namely, A1, the son of A2, and Sethuraman-P.W.11, another watchman of the mill. He made arrangements to send both the injured to the hospital. 8. Thereafter he proceeded to Ammapettai Police Station and lodged the complaint, Ex.P-1 to P.W.50, the Head Constable at 1.30 a.m., on 8.2.98, which was registered in Cr.No.74 of 1998 for the offence under Section 5 of the Explosive Substances Act read with Section 304(A) IPC. The First Information Report is Ex.P-43. He forwarded the express reports to the Court as well as to the higher police officials. 9. P.W.62, the Deputy Superintendent of Police, took up investigation and proceeded to the scene of occurrence and prepared an Observation Mahazar, Ex.P-3 and also drew a rough sketch, Ex.P- 67 in the presence of P.W.2 and Murugaiyan. Thereafter, he conducted inquest on the bodies of the deceased between 6.00 a.m., and 9.00 a.m., on 8.2.98 in the presence of panchayatdars and prepared the inquest reports, Exs.P-68 to P-71. He also seized a sum of Rs.7200/-, M.O.3 and also the two bit papers showing addresses from the pocket of Rafaydeen under the mahazar, Ex.P-4. https://hcservices.ecourts.gov.in/hcservices/ He also took photographs of the scene place and the photographs and negatives were marked as M.Os.85 to 97 series. He sent all the four bodies through the Grade I Constables along with the requisitions, Exs.P-55, P-57, P-59 & P-61 to the doctor for conducting post- mortem. 10. In the meanwhile, A1 and P.W.11 were admitted in the Thanjavur Medical College & Hospital on 8.2.98 at 12.15 a.m., and 12.30 a.m., respectively. They were first seen by the doctor, P.W.31 at 1.00 a.m., and he noted the following injuries on A1:- "1. Injuries right forearm 2x1cm 3 punctured wounds. 2. Right knee 3 punctured wounds 2 x 1 cm. 3. Multiple abrasions 1x2 cm right forehead/right cheek. 4. 2 punctured wound on left forearm 2 x 1 cm. 5. (nc) right eye." Likewise, he noted the following injuries on P.W.11: "1. Lacerated wound 0.5 x 0.5 x 0.25 cm right arm. 2. Lacerated injuries right forearm 2 x 1 cm bone deep. 3. Multiple fractures ribs right. 4. Abrasion over costal margin. 5. Contusion 5 x 5 forearm right." He issued the wound certificates, Exs.P-19 & P-20 with his opinion that the injuries sustained by them were grievous. 11. P.W.58, Police Surgeon & Reader and Head, Dept. of Forensic Medicine, Thanjavur Medical College, conducted post-mortem between 11.10 a.m., and 1.40 p.m., on 10.2.98 and he noted the following:- First body: "1. Multiple small areas dermo epidermal burns seen all over the body. 2. Multiple areas of punctured laceration with abrasions of variable sizes from pinhead to 12x6 cms muscle deep seen over the whole of body surface, over face, chest, both upper limbs both loins and gluteal regions, right thigh and both legs including heels. Soles are free from injury. 3. Multiple abrasions of variable sizes with black discolouration scattered over the above said areas. Foreign materials like wooden material, porcelin like pieces and paddy seen in the punctured areas. Minimal injuries of abrasions and contusions seen on the back of chest and abdomen when compared to anterior aspect. 4. Singering of scalp hair seen in the frontal margin and anterior half of bend." https://hcservices.ecourts.gov.in/hcservices/ Second body: "1. Multiple areas of dermo epidermal burns seen all over the body. 2. Multiple contusion of variable sizes with abrasions, lacerations, punctured laceration from skin deep to bone deep present over the whole of face, chest upper limbs and both lower limbs. 3. Irregular lacerations of shattering type seen over the lumbo sacral region on the back measuring 25x15 cms x bone deep 12 x 7 cms bone deep on the right infra scapular area along with multiple irregular laceration over the whole of back and both gluteal regions. 4. Laceration of left great toe planter aspect 4x2 cms bone deep noticed. 5. Laceration 7x5 cms x bone deep over the back of left elbow with fracture dissection of left homerus lower end. 6. Lower jaw found broken with dissection of lower central incisors." Third body: "1. Multiple areas of dermo epidermal burns seen all over the body. 2. Singeling of whole of scalp hair, eyebrows eyelashes and mustache seen. 3. Areas of charred skin tages with blackish discolouration. 4. Traumatic amputation 2nd, 3rd toes of left leg along with laceration of variable sizes over the ankle outer aspect and outer aspect of left leg seen. 5. Shattered laceration 28x23 cms bone deep on the middle of back of left thigh exposing the nerves, torn muscles, tendons seen. A metal was recovered from the floor of the wound." Fourth body: "1. Contused abrasion over the right size of nose, lower orbital margin, right cheek prominance, right supra orbital region along with laceration of right medial canthus vertically placed bone deep nasal bones found fractured. 2. Maxilla found broken at its middle. 3. Contused laceration with diffuse swelling on the midfrontal region. 4. Contusion of left cheek, left temporal region and left supra orbital region with subconjunctival haemorrhage on the left side. 5. Laceration 3x1 cms bone deep over the left posterior parietal eminence area. 6. Laceration 12x2cms bone deep over the right parietal temporal region at the posterior aspect along with a laceration 12x2cms bone deep over the occipital area 3 cms below the left posterior parietal eminence. https://hcservices.ecourts.gov.in/hcservices/ 7. Contused abrasion 6x4cms on the middle of back of left hand fingers. 8. Multiple abrasions over the front of lower 3rd of left leg. 9. Multiple small abrasions on the front of right knee. 10.Abrasion over the posterior aspect of right loin and across the middle of thoraco lumbar region 9x1 cms." He issued the post-mortem certificates, Exs.P-56, P-58, P-60 & P-62 with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries caused by bomb blast and of multiple injuries and traumatic asphyxia respectively. 12. P.W.62, continuing with his investigation, seized the M.Os.7 to 14 & 109 namely, two country made guns, cartridges, explosive materials, glycerol, nitric acid, plastic boxes, hacksaw blade, acid bottle, ajantha quartz clock under the mahazar, Ex.P-6 on 8.2.98 in the presence of P.W.2 and Murugaiyan. Between 10.30 a.m., and 11.30 a.m., on the same day, he seized the M.Os.1, 2, 16 series, 110, 33, 24, 21, 22, 19, 17, 20, 18, 40, 23, 27, 29 series, 26, 39, 32 series, 34, 28, 37, 35, 25, 36, 38, 30, 41 namely, broken suitcase, aluminium handle, chappals, gum, bloodstained tukker, screw driver, hacksaw blade, bucket, eversilver mug, battery, Rs.30,060/- etc., under the mahazar, Ex.P-8 in the presence of the same witnesses. Between 11.30 a.m., and 1.30 p.m., he searched the house of A1 situate at Gandhi Road, Saliyamangalam village and seized the various journals and books under M.O.111 series, date calendar, M.O.43, invitation, M.O.112, notices, M.O.45 series, diary, M.O.113, notebook, M.O.115, audio cassette, M.O.116, postal cover, M.O.117, letter, M.O.118 under the mahazar, Ex.P-9 in the presence of P.Ws.2,3,4,5,6,7,8,9 & 12 and recorded their statements. Between 5.30 p.m., and 6.30 p.m., he searched the other house of A1 situate at VOC Nagar, Thanjavur and seized cardboards, M.Os.119 & 83, journals, M.O.69 series, audio cassettes, M.Os.120 & 42 series, rice mill agreement, M.O.79 and state bank accounts, M.O.82 under the mahazar, Ex.P-11 in the presence of P.Ws.12 & 14. He altered the offence to one under Sections 3 & 6 of the Explosive Substances Act and sent the altered report to the Court. 13. On 9.2.98, P.W.62 arrested A2, the owner of the rice mill. He arrested A1 at the Thanjavur Medical College & Hospital on 10.2.98 at 3.00 p.m., while he was taking treatment. He altered the offence to one under Sections 5, 6 of the Explosive Substances Act and under Section 302 IPC as well under Section 25(1) of the Arms Act and sent the altered report to the Court. He handed over the bodies of the deceased to the relatives. As the case was transferred to CBCID, Tiruchirapalli, he handed over the further investigation to P.W.63. 14. P.W.63, the Deputy Superintendent of Police, CBCID, Tiruchirappalli took up further investigation on 13.2.98 and proceeded to the scene of occurrence at 7.00 a.m., and he seized https://hcservices.ecourts.gov.in/hcservices/ the iron rail, M.O.48, gloves, M.O.52, welding rod, M.O.49, iron plates, M.O.50 series, acid bottle, M.O.56, plastic bottle, M.O.57, plastic box, M.O.57, plastic box, M.O.63, brush, M.O.121, eversilver mug, M.O.53, plate, M.O.123, U shaped plates, M.Os.124 to 126 series, quartz clock box, M.O.127, electric appliance, M.O.128, plastic box, M.O.51, iron sheets, M.Os.54 & 129 series, pant, M.O.60, full slack shirt, M.O.62, banian, M.O.131, T shirt, M.O.132, lungi, M.O.65, calendars, M.O.58 series, Christian calendars, M.O.59 series, motorcycle box, M.O.46, eversilver tumblers, M.O.47 series, eversilver box, M.O.55 under the mahazar, Ex.P-10. On 14.2.98, he defused the unexploded bomb with the help of bomb disposal expert, P.W.55. He examined P.Ws.6,7,11 & 55 and recorded their statements. On 15.2.98, he examined P.Ws.1, 16, 14, 7, 6, 10 & 3 and recorded their statements. On 17.2.98, he examined P.W.17 and recorded his statement. On 20.2.98 around 3.00 p.m., he recorded the confessional statement of A1 in the hospital in the presence of P.W.20 and the doctor, P.W.30 and Ex.P-18 is the certificate given by the doctor. In pursuance of the admissible portion of his confession, he went to Villapatty (Sattur), Madurai District and arrested A3. He conducted search in the house of A3 and seized the 14 feet wire, 22 feet fuse wire, detonators, gelatine sticks etc., under the mahazar, Ex.P-13 in the presence of P.W.21. On 21.2.98, he arrested A4 at Peraiyur and searched his house. He seized 200 gms of sulphur & took 1 kg sample of ammonium nitrate, M.O.14 under the mahazar, Ex.P-14. He remanded them to judicial custody. On 25.2.98, he arrested A5 at Peraiyur and no substance was seized from the house of A5. He remanded A5 to judicial custody. As the deceased accused surrendered at the office of CBCID, Tiruchirapalli, he arrested and remanded him to judicial custody on 27.2.98. He examined P.Ws.1 & 24 and recorded their statements. He seized the welding machine,M.O.1 and the mug, M.O.2 under the mahazar, Ex.P-2. On 28.2.98, he examined P.Ws.25 & 26, taxi drivers and seized the bill book, M.O.15 from P.W.25. On 3.3.98, he examined the post-mortem doctor, P.W.58 and recorded his statement. On 5.3.98 he filed a report before the Court for the offence under Section 120(B) IPC. Between 8.3.98 and 27.4.98, he examined P.Ws.60, 23, 38, 31, 28, 27, 59 & 29 and recorded their statements. On 27.4.98 he filed a petition before the Court for obtaining P.T.warrant against A6 and A7 and accordingly took police custody of A6 and A7 on 29.4.98. After getting consent order under Ex.P-44 from the District Collector on 7.5.98, he filed the final report against A1 to A8 and the deceased accused for the offence under Sections 120(B), 302 IPC and Sections 3,4 & 5 of the Explosive Substances Act as well under Section 25(1)(b) of the Arms Act. He filed a further petition under Section 173(8) Cr.P.C., for further investigation and examined the witnesses. He came to Chennai, examined the other witnesses and recorded their statements. On 16.6.98 he filed a petition before the Court for obtaining P.T.warrant against A-8. In the meantime, he was transferred. 15. P.W.64, Deputy Superintendent of Police took up further investigation on 10.7.2000 and he filed a petition under Section 174(8) Cr.P.C., before the Court for further investigation. Between 19.7.2000 and 23.7.2000, he went to Coimbatore and examined the https://hcservices.ecourts.gov.in/hcservices/ persons who contacted A8 through his cellphone. Thereafter, as no clue was obtained, he returned to Chennai on 26.7.2000. He examined P.W.35 and recorded his statement on 27.7.2000. He examined P.Ws.37 & 39, Police Constables on 28.7.2000 and recorded their statements. On 2.8.2000, he examined the District Supply Officer, P.W.42 and recorded his statement. He also obtained the licence of the mill, Ex.P-26 and the renewal application, Ex.P-27 submitted by A2 for investigation. On 3.8.2000, he examined the Village Administrative Officer, P.W.41 and obtained the Athatchi, Ex.P-25 from him. He also obtained the electricity cards, Exs.P-23 & P-24 from P.W.40 in respect of the rice mill. He examined P.Ws.36 & 38 and recorded their statements. After completing investigation on 9.8.2000, he laid the final report against A1 to A8 and the deceased accused for the offence under Sections 3,4,5 & 6 of the Explosive Substances Act and Sections 120(B) and 302 IPC as well under Section 25(1)(b) of the Arms Act before the Court. 16. In order to bring home the charges against A1 to A8 and the deceased accused, the prosecution examined 64 witnesses, marked 72 exhibits and produced 132 material objects. 17. When A1 to A8 and the deceased accused were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against each of them, they denied each and every incriminating material as false and pleaded not guilty. On the side of the defence, A2 examined himself as D.W.1 and marked one document-Ex.D-1 namely, the lease deed. As the learned trial Judge convicted and sentenced A1, A3 and A4 and acquitted the other accused, the present appeals have been filed by A1, A3 & A4 and the State. 18. Heard Mr.S.Doraisamy, learned counsel appearing for the appellants/A1 & A3 in Crl.A.Nos.374 & 394 of 2001 and for the respondents 1,3,4,6 & 7 in Crl.A.No.810 of 2001, Mr.E.J.Ayyappan, Amicus Curiae appearing for the respondent no.5 and Mr.Swamidoss Manoharan, Amicus Curiae appearing for the respondent no.8 in Crl.A.No.810 of 2001 and Mr.V.R.Balasubramanian, learned Additional Public Prosecutor appearing for the State. 19. Mr.S.Doraisamy, learned counsel for the appellants/accused has submitted that the prosecution case rests only on the circumstantial evidence as to the conspiracy and the manufacturing of explosives. He would submit that though the prosecution had examined 64 witnesses, none of the witnesses have spoken about the conspiracy. The only evidence available to connect A1 with A3 & A4 is the evidence of the taxi driver, P.W.25. Even P.W.25, except speaking about A1, A3 & A4 having travelled in his taxi on 10.12.97 to Anaikaraipatti, Usilampatti, Vithalapatti and thereafter came back to Saliyamangalam village, he has not spoken anything about the conspiracy between the above accused in procuring the materials, transporting the same to the mill for the purpose of manufacturing explosives. The conviction for the offence of conspiracy on the basis of the sole testimony of P.W.25 is totally erroneous. He would further submit that none of the witnesses have spoken about the manufacturing of explosives by any https://hcservices.ecourts.gov.in/hcservices/ of the accused. He would also submit that no test identification parade had been conducted and the accused were identified only in the Court. He would extensively take us through the entire evidence in support of the contention and submit that no witness has spoken about the conspiracy among the accused for the commission of the offence. He would also submit that the District Magistrate/District Collector is not the authority to give consent for prosecution under Section 7 of the Explosive Substances Act. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in State of M.P. v. Bhupendra Singh (2000 (1) Supreme 104). He would also refer to the consent order, Ex.P-44 passed by the District Magistrate/District Collector, P.W.56 and submit that even assuming that the District Magistrate had the authority to give consent, he has not adduced any reason and in the absence of valid reason for the consent, the consent order cannot be held to be valid. In support of the said submission, he would rely upon the judgment of the Apex Court in Jaswant Singh v. State of Punjab (AIR 1958 SC 124) and the judgment of the Patna High Court in Baidyanath Mahto v. State of Bihar (2005 (2) Acquittal 398). He would also submit that though the prosecution has come forward with a case that