IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1002 OF 2003 Between: Avanigadda Jayasankar … Appellant V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad … Respondent Counsel for the appellant : Sri V. Subramanyam Counsel for the Respondent : Addl.Public Prosecutor The court made the following : (judgment follows 2nd page) THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1002 OF 2004 O R D E R : Aggrieved by the conviction and sentence recorded by the VI Additional District and Sessions Judge (FTC), Krishna at Vijayawada, in SC.No. 16 of 2003, dated 19-4-2004, whereby and whereunder the appellant (A-1) was found guilty for the offence under section 3 of Explosive Substances Act, 19087 and he was convicted under section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for six months, A-1 filed the present criminal appeal. 2. The facts of the case are that the Inspector of Police, North Circle filed charge sheet against the accused with the following allegations: On 21-12-1999 A-1 secured seven country made bombs from his friend at Tadepalli village with an intent to eliminate PW-1 and his family members to wreck vengeance against them. On 23-12-199 at about 23: 20 hours, A-1 with the assitance of A-2 and A-3 attacked the house of PW-1 at Ramalingeswaranagar katta centre by the side of Bandar canal at foot bridge, Vijayawada and hurled two country made bombs on the house of PW-1 with an intent to eliminate the complainant PW-1 and other inmates. Out of two, one bomb exploded and caused damage to the house of PW-1. On hearing blasting sound, when PWs 1, 2, 4 to 6, 18 and 19 came out from the house with hue and cry and on that A-1 to A-3 went infront of the house of PW-1, threatened PW-1 his family members with dire consequences that he would kill the brother of PW-1 and due explosion of the bomb, PW-1 went shock due to sound and smoke of bomb explosion. A-1 to A-3 went to flood bank road Ramalingeswaranagar katta attacked the house of G.Venkatarao expecting his presence in the house but he was not residing and the house was under the occupation of PWs 12 and 13 tenants. Due to bomb blast, the house of Venkatrao was slightly damaged. Again the accused went to petamatalanka secured scooter bearing No.AP 160-5221 forcibly and on that scooter, A-1 to A-3 again came to Ramalingeswaranagar katta and they hurled two country made bombs in the centre on PW3 who is related to PW-1 and due to bomb blast, PW-3 sustained simple injury. Later accused escaped on the same scooter. PW17 registered the statement of PW- 1, issued FIR in Cr.No. 449 of 1999 under section 307 IPC and section 3 and 4 of Explosive Substances Act and PW-20 took up investigation. During the course of investigation, PW-20 arrested A1 and A3 on 28-12-1999 at Punadipadu village near Boppana oil mills and seized the said scooter, partly consumed old monk rum bottle, later A2 surrendered before the Court. Therefore, the accused are liable for punishment under section 307 r/w 34 IPC and section 3 and 4 of Explosive Substances Act. 3. The learned III-Metropolitan Magistrate, Vijayawada on receipt of charge sheet assigned PRC.No. 39 of 2002 on his file and complied the formalities as contemplated under section 207 Cr.P.C. and committed the same to the Court of Session, Metropolitan Division, Krishna at Vijayawada under section 209 (a) Cr.P.C. and under section 209 (c) Cr.P.C. submitted the record of the case and thereafter under section 209 (d) Cr.P.C. notified the Public Prosecutor of the commitment of PRC.No. 39 of 2002 to the Court of Session. 4. On receipt of records the said records, the learned Metropolitan Sessions Judge, Krishna at Vijayawada made over the same to the Court of VII Additional Metropolitan Sessions Judge, Krishna at Vijayawada and assigned SC.No. 16 of 2003 for disposal according to law. 5. On appearance of the accused, the learned trial Judge examined them under section 228 Cr.P.C. alleging the substance of accusation. All the accused denied the same. Charge under section 307 r/w section 34 IPC and section 3 and 4 of Explosive Substances Act were framed, read over and explained to them. All the accused pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined in all 20 witnesses; PWs 1 to 20 and marked Exs.P1 to P26 besides MOs 1 to 8. On behalf of the accused no oral and documentary evidence was adduced. 7. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. for the incriminating evidence appearing against them. All the accused denied the same. 8. On appreciation of the oral and documentary evidence placed on record, the learned trial Judge found A-1 guilty for the offence under section 3 of Explosive Substances Act, A-2 and A-3 were found not guilty for the offence under section 307 IPC and section 4 of Explosive Substances Act and further A-2 and A-3 were found not guilty for the offence under section 3 of Explosive Substances Act and they were acquitted. The trial Judge sentenced A-1 to undergo Rigorous Imprisonment for two years. 9. Aggrieved thereby, A-1 filed the present criminal appeal. 10. Heard the learned counsel for the appellant-A1 as well as the learned Additional Public Prosecutor representing the State. 11. At the hearing, the learned counsel for the appellant argued that the conviction and sentence imposed by the trial Judge is erroneous in law and relied on the following points: i) Being at the time of 9:30 p.m., it is not possible for the witnesses to identify the accused person concerned and there is no possibility of light at the time of occurrence. ii) Further there is evidence that the said time was dark as accepted by the witnesses concerned and further when once the witnesses heard the noise of bomb explosion it is highly doubtful that the witnesses can come out of the house. 12. On perusal of the evidence, it is seen that PW-10 categorically deposed before the court after hearing noise they were under the impression that there is burst of electric transformer so they came out of the house and they saw the accused hurling bomb. Regarding the darkness at the time of occurrence, it is admitted by the witnesses that there was dark and it is the evidence of PW-1 that nobody can identify person, if the person in the other side of the canal. But the same witness PW-1 deposed before the court that he witnessed the accused, who was standing six or seven yards away from the place where PW-1 was witnessing the occurrence. In view of the same, this Court is not inclined to accept the arguments advanced by the counsel for the appellant-A1. In any event the conviction imposed by the trial court is confirmed. However, taking into consideration the lapse of time and also the facts and circumstances and there is no minimum punishment in section 3 of the Explosive Substances Act. The said occurrence took place prior to the amendment of the Act. This Court is of the view that some lenient view can be taken against the appellant-A1. 13. Having regard to the facts and circumstances, while confirming the conviction inflicted by the trial Court, this Court is of the view that the sentence of two years Rigorous Imprisonment inflicted by the trial Court can be modified and reduced to the period already undergone by the appellant-A1. 14. With the above modification in the sentence, the Criminal Appeal is disposed of. __________________________ JUSTICE RAJA ELANGO. 08-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No1002 OF 2004 Circulation No.16 Date: 08-12-2010 Court Master : I s L Computer No. 43