CRL.A Nos. 1457 of 2005 and 1525 of 2005: Venugopalan S/O KOTTIYATTIL GANGADHARAN v. State of Kerala; Joby v. State of Kerala

CRL.A.Nos.1457&1525 of 2005 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** **CRL.A.No.1457 OF 2005** **AGAINST THE JUDGMENT IN SC 150/2005 OF ADDITIONAL SESSIONS JUDGE(ADHOC), FAST TRACK COURT NO.I, THRISSUR** ## **APPELLANT/ACUSED NOS.4:** **VENUGOPALAN S/O KOTTIYATTIL GANGADHARAN, NEDUPUZHA.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI SUMODU P N -PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-092020, ALONG WITH CRL.A.1525/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.Nos.1457&1525 of 2005 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **CRL.A.No.1525 OF 2005** **AGAINST THE JUDGMENT IN SC 150/2005 DATED 11-08-2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO I, THRISSUR** ## **APPELLANT/3RD ACCUSED:** **JOBY, AGED 28 YEARS, S/O.KIDANGAN GEORGE, RESIDING AT PANAMUCK,, KANIMANGALAM, THRISSUR DISTRICT.** **BY ADVS. SRI.TONY CHACKO SRI.K.I.SAGEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, ANTHIKKAD POLICE STATION (CRIME NO.164/2003), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.MAYA M.N** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-092020, ALONG WITH CRL.A.1457/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## **[ CRL.A.1457/2005, CRL.A.1525/2005 ] Dated this the 24th day of September 2020** The above two appeals are filed by the 3[rd] and 4[th] accused in S.C.No.150/2005 on the file of the III Additional Sessions Judge (Adhoc), Fast Track Court No.1, Thrissur. The above case is chargesheeted by the Sub Inspector of Police, Anthikkad against the appellants and two others alleging offences punishable under Section 5 of the Explosive Substances Act and Section 27 of the Arms Act. The trial court convicted all the four accused under Section 5 of the Explosive Substance Act. The 3[rd] and 4[th] accused alone filed appeal before this Court. Registry informed that no other appeal is pending in this Court except these two appeals against the judgment dated 11.8.2005 in S.C.No.150/2005. Since both appeals are filed by the accused in the same case, I am disposing these appeals by a common judgment. 2. The prosecution case is that the accused persons were found in possession of a country made bomb which was an explosive substance and some other items, namely a shaving knife and a dagger on 29.6.2003 at 4 pm. These items were found in an CRL.A.Nos.1457&1525 of 2005 4 autorickshaw in which the appellants and the other accused were travelling. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P8 are the documents marked from the side of the prosecution. MO1 is the material object. 4. After going through the evidence and the documents, the trial court found that the accused are not guilty under Section 27 of the Arms Act and accordingly, the accused were acquitted under that section. The accused were found guilty under Section 5 of the Explosive Substances Act. They were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- under Section 5 of the Explosives Substance Act. In default of payment of fine, the accused were directed to undergo simple imprisonment for a period of one month each. Aggrieved by the conviction and sentence, the 3[rd] and 4[th] accused have filed these appeals. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The counsel for the appellants submitted that there is no evidence against the 3[rd] and 4[th] accused in this case to convict them under Section 5 of the Explosives Substance Act. The counsel submitted that the prosecution mainly relying the CRL.A.Nos.1457&1525 of 2005 5 evidence of PW4 and PW7. The counsel submitted that these witnesses were not able to identify the 3[rd] and 4[th] accused from the box while giving evidence before the court. The counsel also submitted that according to the prosecution, the contraband materials were seized as per Ext.P1 seizure mahazar. Witnesses to Ext.P1 seizure mahazar are PW1 and PW2. They have no case that accused Nos.3 and 4 were present in the autorickshaw from where these materials were seized. The counsel also submitted that Ext.P3 is the seizure mahazar prepared for seizing the parts of the defused bomb. The witnesses who were alleged to be present at the time of preparation of seizure mahazar and who were allegedly signed in the seizure mahazar were not examined. The counsel submitted that there is no evidence to show that the seized articles which is sealed as per Ext.P3 seizure mahazar reached in the hands of the chemical analyst. The counsel submitted that the prosecution failed to prove the links starting from the seizure till it reaches in the hands of the chemical analyst. Therefore, the counsel submitted that Ext.P6 certificate of chemical analysis is also cannot be relied. The counsel submitted that the court framed charge under Section 5 of the Explosives Substance Act without the aid of Section 34 IPC. CRL.A.Nos.1457&1525 of 2005 6 Therefore, the counsel submitted that even if there is any evidence against the 1[st] and 2[nd] accused, the court cannot convict the 3[rd] and 4[th] accused with the aid of Section 34 of IPC. 7. The Public Prosecutor submitted that the prosecution is able to prove the offence under Section 5 of the Explosives Substance Act and there is oral and documentary evidence to prove the case of the prosecution. The Public Prosecutor submitted that this Court may not acquit the accused on technical grounds. The accused has not challenged the identity before the trial court and hence while arguing an appeal against conviction they can't take such a stand. The Public Prosecutor submitted that this Court may kindly dismiss the appeal confirming the conviction and sentence imposed by the trial court. 8. The point for consideration in this case is whether the the appellants committed the offence under Section 5 of the Explosives Substance Act. 9. The prosecution is mainly relying the evidence of PW4 and PW7 to prove the case. I perused the oral evidence adduced by PW4 and PW7. Even though these witnesses deposed that the accused were arrested and the contraband articles were seized, it is not specifically stated before the court CRL.A.Nos.1457&1525 of 2005 7 that the accused who are in the dock of the court is the accused involved in this case. This Court in **Sadasivan @ Para** **v. State of Kerala and another (2020 KHC 478)** considered this point relying the judgment of the Division Bench in **Vayalali Girishan and others v. State of Kerala (2016 KHC** **204)** . The relevant portion of the judgment in **Sadasivan** 's case is extracted hereunder. “15. In addition to this, the learned counsel for the appellant submitted that PW2 and PW3 has not identified the accused from the dock. The counsel relied the judgment of this Court in **Mohammed v. State of Kerala (2002 KHC 969)** and **Vayalali Girishan and others v. State of Kerala (2016 KHC 204)** . The relevant portion of the judgment in **Mohammed** 's case is extracted hereunder: The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts. CRL.A.Nos.1457&1525 of 2005 8 16. The relevant portion in **Vayalali Girishan** 's case (supra) is extracted hereunder: “We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude.” 17. Admittedly, in this case, PW2 and PW3 have not identified the accused from the dock. No such endorsement to that effect by the trial judge also. The learned Public Prosecutor vehemently argued that the identity of the accused is not disputed in the trial. But in the above judgments, this court observed that it is the duty of the prosecution to see that the witness identifies the accused from the dock at the time of trial. In the light of the above judgments, I think, the accused is entitled to the benefit of doubt on this ground also.“ 10. In the light of the above judgments, I think, the appellants in these appeals are entitled to the benefit of doubt. A reading of the evidence of PW4 and PW7, it is clear that those witnesses have not identified the 3[rd] and 4[th] accused, who are the appellants in these appeals from the court. 11. Moreover, a perusal of the entire evidence in this case will only show that the appellants were also travelling in the CRL.A.Nos.1457&1525 of 2005 9 autorickshaw. The prosecution is not able to prove that the contraband articles in this case were in conscious possession of the appellants. The admitted prosecution case is that the appellants were travelling along with the 1[st] and 2[nd] accused. As far as the 1[st] accused is concerned, there is an allegation that he ran away from the place. As far as the 3[rd] and 4[th] accused are concerned, there is no such case to PW4 and PW7. The contraband articles were seized from the autorickshaw. But PW4 and PW7 has no case that that accused Nos.3 and 4 were also in conscious possession of the articles. 12. Moreover, the prosecution relies Ext.P6 chemical analysis report to prove that it is explosive substance. To rely Ext.P6 the prosecution has to prove all the links starting from seizure of the contraband articles till it reaches at the hands of the analysts. As stated by the learned counsel for the appellants, the prosecution has not examined the witnesses, who signed Ext.P3 seizure mahazar. Moreover, the forwarding note is also not marked in this case. PW4 deposed in his evidence that forwarding note was prepared. If that forwarding note is marked in the case, the court will be in a better position to compare the seal affixed in it. That is not marked. It is true that PW4 deposed that the forwarding note is produced. But unfortunately it is not seen CRL.A.Nos.1457&1525 of 2005 10 marked. On that ground also I think, the appellants are entitled benefit of doubt. Therefore, these Criminal Appeals are allowed. The conviction and sentence imposed on the appellants as per the judgment dated 11.8.2005 in S.C.No.150/2005 on the file of the III Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur is set aside. The appellants are set at liberty. The bail bond, if any, executed by the appellants is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **ab**