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Judgment
Instance Criminal Revision Case has been preferred against judgment dated 08.06.2009 passed in Criminal Appeal No. 131 of 2007 by learned Judge, Family Court-cum-Additional District and Sessions Court, Anantapur. The learned appellate Court by passing the impugned order has confirmed the order of conviction dated 02.10.2007 recorded by the learned trial Court in Sessions Case No.48 of 2006 against petitioner, for the offence punishable under Section 5 of Explosive Substances Act.
The brief fact of the prosecution case is that On 19.09.2004 at about 06.00 p.m. at Sir Thomas Manro statue circle at Anantapur-Kadiri road, on the basis of information, when PW.5 accompanied by PW.4 with mediators being PWs.1 and 2 was conducting vehicular check-up, they found one Ambassador car bearing registration No.TMK 4967 being driven by A, on checking they found 7 cartoons containing gelatin sticks, 20 cartoons containing 1,000 detonators and 100 ordinary empty detonators from the possession of accused. In presence of PWs.1 and 2 and under a cover of mahazarnama, PW.5 seized said articles, arrested the petitioners by registering a case being Crime No. 243 of 2004 of I Town Police Station against petitioners under Section 5 of the Explosive Substances Act read with Section 181 of the Motor Vehicles Act. During trial, prosecution has adduced five witnesses and some documents were marked as Ex.P1 to P13. On the basis of the evidence of prosecution, petitioners are found guilty for the offence punishable under Section 5 of the Explosive Substances Act and they were directed to undergo rigorous imprisonment for 3 years and also to pay a fine of Rs.1,000/-. Against such order of conviction, an appeal is preferred. Learned appellate Court has dismissed the appeal by confirming the judgment of conviction and sentence dated 02.11.2007. Hence, the instant criminal revision case.
The sole contention of the learned counsel to the petitioner is that the order of conviction and sentence passed by the learned trial Court is illegal and improper. He submits the conviction is recorded only on the basis of solitary police witnesses, though prosecution has placed mediators as PWs.1 and 2, but they did not support the prosecution case. Thus conviction cannot be recorded on the basis of evidence of police personnel. He submits no independent witnesses were not examined in this case, though, seizure was effected in a public place.
Learned Assistant Public Prosecutor submits that the evidence of police witnesses cannot be brushed aside completely if they are cogent and convincing. He further submits that the presence of police witnesses has been sufficiently proved and there had no enmity exists between petitioners and police authority to foist false case against petitioners. Hence there is no merit in the instant criminal revision case
Heard learned counsel for the parties. Perused the case record as well as the material papers.
Among the prosecution witnesses, PWs.1 and 2 are cited as mediators, PW.3 is a police constable, who happened to be present at the time of seizure, PW.4 is S.I of Police, who also accompanied with the team of PW.5 at the time of seizure and PW.5 is the investigating officer. Admittedly, PWs.1 and 2 are declared hostile. Thus, prosecution could not prove the seizure and mahazarnama i.e., Ex.P3. PW.3, who is a police constable, claimed to be present at the time of seizure but he could not identify the accused persons on dock before the Court. Thereby, evidence of PW.3 is also no help in prosecution case. PW.4 is S.I of police of Kurnool Police Station, who supports the prosecution case. PW.5 is the Investigating Officer.
Let me consider whether the evidence of PW.4 as a police witness is sufficient to prove the seizure in this particular case.
It is admitted that PW.4/S.I of Police, was attached to Kurnool Police Station at the time of incident. The seizure was effected within the jurisdiction of I Town Police Station, Anantapur. It is the evidence of PW4 that he, on the request of PW.5, accompanied for conduction of seizure. The prosecution has failed to produce any document regarding intimation to PW.4 to accompany PW.5 for the conduct of seizure. Moreover, it is the abundant duty of the prosecution that when a seizure has been effected in broad daylight in a public place, they must secure the presence of mahajar witnesses of the locality, who was present at the time of seizure. In this particular case, the prosecution has to establish that seizure was effected in presence of independent witnesses. Among two police witnesses (PW.3 and PW.4), only PW.4 supported the prosecution case while PW.3 though said to be present at the time of seizure could not identify the accused persons. To connect the crime with accused persons, the prosecution has to prove that explosive substances are seized from the possession of petitioners.
On perusal of the impugned order, it appears that the learned appellate Court is of the view that the evidence of PW.4 is cogent and justifiable to be accepted. A police officer of different police station, when entrusted official duty of other police station, there should have exist an order or intimation to that effect, PW.4 being the police officer of other police station, can be accompanied with PW.5 on official duty, without any intimation to his police station. In this particular case, on scrutiny of the evidence of PW.4, it appears that there is no such intimation regarding duty of PW.4 to accompany PW.5. During evidence, PW.5 has stated that PW.4 was attached to I Town P.S., Anantapur at about 15 days prior to the incident and he was in the said place about 2 months even after the incident. If evidence of PW.5 is believed, then PW.4 was deputed to I Town Police Station for a considerable long period. A police officer can only deputed to other police station by virtue of a specific order of superior. No such order was placed in support of the contention of PW.5. Reasons thereby, the version of police witnesses cannot be believed at all.
In view of the above circumstances, it appears that conviction of the petitioners were solely based on the evidence of police witnesses, which are not at all corroborative and clinchingly, there are iota of doubt why no other independent witnesses were examined or why police did not try to secure evidence of other independent witnesses at place of occurrence. Thus, in this case, there is benefit of doubt in favour of the petitioners. Moreover, if conviction was recorded on the basis of solitary police witness, it would be clear abuse of fair trial motion whereby police authority may be allowed enjoy unfettered power through which any individual may be falsely implicated on behalf of police witnesses. Reasons thereby, impugned order passed by the learned appellate Court suffers illegality, thus, it is required to be set aside.
Accordingly, the instant Criminal Revision Case is allowed. Order of conviction and sentence passed by the learned trial Court and confirmed by the learned appellate Court is hereby set aside.
The petitioners are hereby acquitted from this case.
The sureties standing in their favour also released.
Miscellaneous petitions, if any, pending in this criminal revision case shall stand closed.