High Court
Legal Reasoning
CriAppeal-413-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 413 OF 2002Geetaram s/o Laxman NimseAge 52 years, Occu: Agril.,R/o. Khare Karjune,Taluka and District Ahmednagar.… Appellant[Orig. Accused]VersusThe State of Maharashtra… Respondent..…Mr. R. S. Shinde, Advocate for the Appellant.Mr. S. M. Ganachari, APP for the Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 07.03.2024Pronounced on: 18.03.2024JUDGMENT : 1.Judgment and order of conviction dated 18.07.2002 passed inSessions Case No. 23 of 2000 for offences punishable under Sections3, 4 and 5 of the Explosive Substances Act, 1908, sentencing theappellant herein to suffer suffer rigorous imprisonment of 7 years, 4years, 2 years and to pay fine, respectively, is questioned by filinginstant appeal. CriAppeal-413-2002-2- FACTS IN BRIEF LEADING TO TRIAL ARE AS UNDER2.Accused was a scrap dealer. On 27.10.1999, accused Geetaram,who had committed theft of ammunition, had engaged services ofdeceased Nana and Ramdas i.e. to extract metal. He visited theirplaces and took them to his own house. According to prosecution, hehanded over bomb to them for segregating metal. While handling thesame, there was an explosion of said ammunition resulting intoinstant death of Nana and Ramdas along with some live stock.Therefore, on report by son of deceased Nana i.e. PW1 Navnath,crime was registered, duly investigated and on being chargesheeted,charge Exhibit 4 was explained to the accused. On his denial ofcharge, he was made to fact trial.3.At trial, prosecution adduced evidence of in all 15 witnessesand relied on documentary evidence like FIR, panchanamas,postmortem reports, certificate Exhibit 53 etc. Learned First Ad-hoc Additional Sessions Judge, Ahmednagar,who conducted trial, reached to a finding that prosecution failed toestablish offences punishable under Sections 379, 304 Part II, 429 ofthe Indian Penal Code [IPC] and acquitted accused of the same.
Legal Reasoning
CriAppeal-413-2002-3- However, conviction for offences punishable under Sections 3, 4 and5 of the Explosive Substances Act, 1908 was recorded. Now saidjudgment is taken exception to.SUBMISSIONSOn behalf of the appellant :4.Learned counsel for the appellant would point out that here,prosecution has apparently failed to establish charges under Sections379, 304 and 429 of IPC, which were the main charges and hencethere is also acquittal for the same. However, according to him, on thesame set of evidence, guilt for offences under Sections 3, 4 and 5 ofthe Explosive Substances Act, 1908 was therefore unwarranted. Hespecifically pointed out that here, at first count, there is no evidence,either oral or documentary, to show that the incident or occurrencewas an explosion of only and only ammunition or explosive substanceand not otherwise. He pointed out that though prosecution came witha case that accused had committed theft of military ammunition,investigating machinery did not gather any evidence in that regard.Even there is no complaint of theft either by military or police.Therefore, he expresses deep concern about the story of prosecutionabout theft of ammunition/explosive substance. CriAppeal-413-2002-4- 5.He next pointed out that here, services of forensic experts werenot procured to show that the blast was of a bomb only and nothingelse. He also pointed out that here, prosecution’s own witness PW15has also admitted in cross that he had advised police department toapproach military but no such steps were taken and therefore, it is hissubmission that, by all means, evidence of prosecution was weak.6.He further submitted that here, very Investigating Officer hasnot been examined. Almost all witnesses have retracted and have notsupported prosecution including pancha to spot, house search etc. 7.According to him, the only circumstance which prosecution isrelying on is last seen together, but even said theory is not provedbeyond reasonable doubt and there is nothing to show that accusedhad engaged deceased for handling any explosives. Hence, accordingto him, there is not a single circumstance which is firmly and cogentlyproved by prosecution. 8.Lastly he submitted that required ingredients for attractingprovisions under Sections 3, 4 and 5 of the Explosive Substances Act,1908 are patently missing and therefore learned trial court erred inholding appellant guilty for the same. CriAppeal-413-2002-5- On behalf of the State : 9.In answer to above, learned APP pointed out that accused was adealer in scrap material. Investigation revealed that he had committedtheft of military ammunition with sole intention to extract the metal.For separation of metal, he had visited houses of deceased and hadprocured their services and had handed over explosive substance tothem, who unfortunately, while handling, met with a very tragicdeath. He pointed out that the impact of explosion which apparentlytook place in the house of accused, has taken away lives of twohuman beings and cattle i.e. a calf and a ship. Spot panchanamasupports explosion to be in the house of accused. Therefore, he was inpossession of explosive substance. That, daughter-in-law of deceasedNana and wife of deceased are categorical about accused coming totheir house that day and taking them to his house and shortlythereafter, explosion having taken place. That, accused is solelyresponsible. He is not authorized or licence holder to possessexplosive substances. There is breach of provisions of the ExplosiveSubstances Act, 1908. According to him, evidence to that extent beingavailable, learned trial Judge has correctly convicted accused andtherefore he prays to dismiss the appeal for want of merits. CriAppeal-413-2002-6- EVIDENCE BEFORE THE TRIAL COURT10. On re-appreciation and re-examining the papers, prosecutionseems to have relied on testimonies of following witnesses :PW1Navnath, son of deceased Nana, stated that incident tookplace two years back. His father was an agriculturist. On thatday, accused had visited their house at around 7.00 a.m. Hedid not state the reason of his arrival but he had come to visithis father. At that time, this witness himself was present.Accused took his father with him. Around 10.30 a.m., hereceived message that his father had expired and so he wentto the house of accused and saw dead body of his father inmutilated condition. He stated that thereafter he approachedpolice and gave khabar.PW2Baba claims that he knew deceased. That, he was called bypolice to act as pancha but according to him, he merely signedon the panchanama and he does not know the contents.Therefore he was, with permission of court, cross-examined bylearned APP himself.PW3Shivaji, pancha to inquest panchanama, also did not supportand so was cross-examined.PW4Macchindra also did not support to the panchanama of inquestof live stock. CriAppeal-413-2002-7- PW5Namdeo, pancha to house search, denied going to the house ofaccused for any house search panchanama. Therefore he hasalso not supported.PW6Vilas denied knowing accused. He also denied any housesearch panchanama or seizure of articles found in the house ofaccused on 27.10.1999. Therefore, he also was declaredhostile.PW7Genubabu, pancha to scene of occurrence, also retracted anddenied having acted as pancha to scene of occurrencepanchanama Exhibit 26.PW8Dr. Laxman Pawar is the autopsy surgeon who conductedpostmortem of dead bodies of both, Nana and Rambhau, andhe identified both postmortem reports Exhibits 29 and 30.According to him, injuries on the dead bodies are possible byexplosion.PW9Balu Lande, pancha to scene of occurrence, also did notsupport.PW10Mangal Navnath Gaikwad, daughter-in-law of deceased Nana,stated that on that day, accused present in the court came totheir house at around 7.00 a.m. and asked her father-in-law toaccompany him for some work. According to her, accused toldher father-in-law that he had little work of opening bomb. Hetook her father-in-law and around 10.00 a.m. there was noiseof bomb explosion and so she went to the house of accused CriAppeal-413-2002-8- and saw dead body of her father-in-law in mutilatedcondition.PW11Mathurabai Darandale is the wife of deceased Ramdas.According to her, accused came to their house but he did notdisclose the work which was to be get done through herhusband and accused merely made him accompany for doingsome work. Shortly thereafter, they heard noise and when shewent to the house of accused, she found dead body of herhusband.PW12Macchindra Darandale, son of deceased Rambhau, also statedthat accused came to their house and took his father at about7.00 a.m. for doing daily wage work. He claims that he learntabout the incident when there was some explosion and he sawdead body of his father. According to him, some bombs werealso found in the house of accused.PW13Sahebrao was brother-in-law of deceased Nana. According tohim, on that day at 8.00 a.m., he was going towards hisbrother-in-law. That time, his deceased brother-in-law Nana,deceased Rambhau and accused Geetaram had arrived atbajartal. He claims that he asked his deceased brother-in-lawto accompany him for fixing date of marriage of his son, butaccused told that he will sent deceased immediately after thework is over. That, around 9.00 to 9.30 a.m., there wasexplosion and all villagers rushed near the house of accusedand saw pieces of dead bodies of Nana and Rambhau lyingthere. CriAppeal-413-2002-9- PW14Sindhubai Gaikwad, wife of deceased Nana, deposed thataccused came and took her husband and from people shelearnt that a bomb had fallen from the airplane. PW15P.S.I. Dhondiram Chavan was attached to Bomb Detectionand Disposal Squad at Aurangabad. He claims that he receivedmessage from the Superintendent of Police, Ahmednagar andaccordingly, he visited the spot. He found three militarycannons but they were useless. He issued certificate Exhibit53.11.Here conviction is for commission of offences under Sections 3,4 and 5 of the Explosive Substances Act, 1908. For propercomprehension, the provisions are reproduced as under:3. Punishment for causing explosion likely to endanger lifeor property.-Any person who unlawfully and maliciously causes by -(a)any explosive substance an explosion of a naturelikely to endanger life or to cause serious injury toproperty shall, whether any injury to person orproperty has been actually caused or not, bepunished with imprisonment for life, or withrigorous imprisonment of either description whichshall not be sell than ten years, and shall also beliable to fine; CriAppeal-413-2002-10- (b)any special category explosive substance anexplosion of a nature likely to endanger life or tocause serious injury to property shall, whether anyinjury to person or property has been actuallycaused or not, be punished with death, or rigorousimprisonment for life, and shall also be liable tofine.4. Punishment for attempt to cause explosion, or for makingor keeping explosive with intent to endanger life orproperty.-Any person who unlawfully and maliciously -(a)does any act with intent to cause by an explosivesubstance, or special category explosive substance,or conspires to cause by an explosive substance orspecial category explosive substance, an explosion ofa nature likely to endanger life or to cause seriousinjury to property; or (b)makes or has in his possession or under his controlany explosive substance with intent by meansthereof to endanger life, or cause serious injury toproperty or to enable any other person by meansthereof to endanger life or cause serious injury toproperty in India.Shall, whether any explosion does or does not take placeand whether any injury to person or property has beenactually caused or not, be punished - CriAppeal-413-2002-11- (i)in the case of any explosive substance, withimprisonment for life, or with imprisonment ofeither description for a term which may extend toten years, and shall also be liable to fine;(ii)in the case of any special category explosivesubstance, with rigorous imprisonment for life, orwith rigorous imprisonment for a term which mayextend to ten years, and shall also be liable to fine. 5.Punishment for making or possessing explosives undersuspicious circumstances. -Any person who makes or knowingly has in his possession orunder his control any explosive substance, under suchcircumstances as to give rise to a reasonable suspicion that heis not making it or does not have it in his possession or underhis control for a lawful object shall, unless he can show that hemade it or had it in his possession or under his control for alawful object, be shall, unless he can show that he made it orhad it in his possession or under his control for a lawful object,be punished, -(a)in the case of any explosive substance, withimprisonment for a term which may extend to ten years,and shall also be liable to fine;(b)in the case of any special category explosive substance,with rigorous imprisonment for life, or with rigorousimprisonment for a term which may extend to ten years,and shall also be liable to fine. CriAppeal-413-2002-12- ANALYSIS12.On carefully sifting the available evidence, here, it is noticedthat very informant PW1 Navnath, i.e. son of deceased Nana, merelydeposed about accused visiting his house and taking his father. Hisevidence does not show as to for what purpose his father was taken orwhat accused was involved into. Though prosecution claims thataccused was a scrap merchant, there is no iota of evidence for name’ssake to show that accused was a dealer in scrap. 13.PW3 Shivaji and PW4 Macchindra i.e. panchas to inquestpanchanama, PW5 Namdeo and PW6 Vilas i.e. panchas to housesearch and PW7 Genubhau and PW9 Balu i.e. panchas to scene ofoccurrence panchanama have apparently not supported prosecution. 14.Apart from PW1 informant, prosecution has examined PW10i.e. daughter-in-law of deceased Nana, namely, Mangal. Shecontradicts her husband, as she at Exhibit 33 deposed that accusedpresent in the court had come to their house around 7.00 a.m. andshe directly speaks of her father-in-law being taken for little work ofopening the bomb, which is not stated by her husband informant. Shefurther deposed about hearing some noise at 10.00 a.m. and her CriAppeal-413-2002-13- father-in-law found dead in pieces near the house of accused. In cross,she has admitted that her father-in-law was not competent to handleor to do work of breaking bomb. 15.Likewise, PW11 Mathurabai, wife of deceased Ramdas, did notstate the timing of arrival of accused to their house. She merelyspeaks that accused came and merely told that her husband shouldaccompany him for work. After some time, she also heard noise andthen found dead body of her husband near the house of accused.16.Another son of deceased Ramdas i.e. PW12 Macchindra alsostated that accused came to their house at around 7.00 a.m. to call hisfather for daily wage work. He claims that he received informationfrom villagers about explosion. 17.PW13 Sahebrao is the brother-in-law of deceased Nana. Hestates that on that day he had requested deceased at around 8.00 a.m.to accompany him for settling date of marriage of his son but accusedallegedly told him that he would sent him after the work is over andthereafter, around 9.00 to 9.30 a.m., there was explosion. CriAppeal-413-2002-14- 18.PW14 Sindhubai, wife of deceased Nana, stated that on the dayof incident, accused had come to her house at 7.00 a.m. and hadtaken her deceased husband with him. Therefore, on carefully going through the testimonies of familymembers of deceased, it has merely come on record about accusedvisiting their house and taking both deceased on the pretext of dailywage work. As stated above, no one uttered about accused to bedealing in scrap and deceased were taken for said work. Therefore,what is emerging is that deceased were taken by accused towards hishouse and there, some explosion has taken place. 19.Specific charge of prosecution was that there was bombexplosion. But there is no reliable evidence about accused to be inpossession of bomb. As stated above, neither information is gatheredfrom military department nor police department. Accusation is oftheft and stealing of bomb but apparently there is no complaint byeither of the authorities. It needs to be noted that at the threshold,prosecution was expected to establish that the explosion that tookplace was of military bomb. Here apparently, investigating machineryhas not bothered to procure services of bomb expert or even forensicexperts who were competent to opine what exactly the explosion was CriAppeal-413-2002-15- of, or could have been. Expert bomb handler or an expert who wasacquainted with such material, was expected to be consulted but thathas not happened. Therefore here, at the outset, it is doubtfulwhether so called explosion which took two lives, was a result ofexplosion of military bomb. 20.As pointed out by learned counsel for accused appellant, veryInvestigating Officer who conducted investigation has not steppedinto the witness box. PW15, who claims to be employed in BombDetection Squad at Aurangabad, has testified that he was summonedto Ahmednagar and he had visited the spot and had issued Exhibit 53.He is mere policeman who claims to be in service of Bomb DetectionSquad ,but he does not seem to be an expert to opine or comment.His cross itself shows that he had suggested police department toapproach military department for clarification and opinion, but nosuch steps are apparently taken. Therefore, in view of such casualinvestigation and in absence of expert’s evidence, it cannot be for suresaid that the blast or explosion which took place was of a bomb as isclaimed by prosecution. 21.The Hon’ble Apex Court in Mohammad Usman MohammadHussain Maniyar and another v. State of Maharashtra [Criminal CriAppeal-413-2002-16- Appeal Nos. 150/76 and 285 of 1976 decided on 03.03.1981], hasheld that in order to bring home the offence under Section 5 of theExplosive Substances Act, the prosecution has to prove : (i) that thesubstance in question is explosive substance; (ii) that the accusedmakes or knowingly has in his possession or under his control anyexplosive substance; and (iii) that he does so under suchcircumstances as to give rise to a reasonable suspicion that he is notdoing so for a lawful object.22.Therefore, provisions under Sections 3, 4 and 5 of the ExplosiveSubstances Act, 1908, for which guilt is recorded, contemplatepossession of explosive substance. As stated above, in the instant case,there is no concrete evidence that accused was in possession of suchexplosive material. As stated above, there is no material aboutaccused to be dealer in scrap and that he to be in consciouspossession of such explosive substance. Learned trial court hasalready acquitted appellant from the charge under Section 379 IPC.Therefore, question arises is how he is held to be in possession ofexplosive substance and accordingly held guilty and furtherpunished. CriAppeal-413-2002-17- 23.Mere accused and deceased to be in company of each other anddeceased allegedly taken to the house of accused, would itself cannotbe held to be sufficient to charge accused for commission of offenceunder Sections 3, 4 and 5. 24.On carefully going through the impugned judgment, learnedtrial court in para 10 itself has observed that though PW15 has issuedExhibit 53, he has answered in cross about asking police ofAhmednagar to take advice from Military Bomb Disposal Squad,Khadki because he could not stated exactly that the three ammunitionfound on the spot were of military make. But still learned trial courthas further observed that in view of his evidence, it has been provedby prosecution that three used cannons of military were found in theplace of occurrence. Therefore, learned trial court has contradicteditself by arriving to above observations. Apparently, investigatingmachinery has also not collected distinct oral or documentaryevidence to show that the spot of possession was in exclusiveownership and possession of accused. In spite of discussing to thatextent, learned trial court has refused to entertain the submissionsadvanced by defence in trial court to that extent, holding that it isnot necessary to gather documentary evidence about ownership ofspot house. Merely findings of autopsy doctor seem to have prevailed CriAppeal-413-2002-18- over the opinion of learned trial court to hold that there was bombexplosion. In para 11, apparently learned trial court seems to haveentertained suspicion that accused was in possession of unexplodedbomb with unlawful object and he maliciously caused the explosion.There is no foundation or reasoning for reaching to such conclusion.25.To sum up, here, at the first count, prosecution could notestablish that accused was a scrap dealer. Secondly, there is noevidence that he was in possession of a military bomb. Thirdly, thereis no evidence that he had engaged services of deceased to separateand extract metal of a live bomb. Fourthly, it has not been cogentlyestablished that the explosion was due to handling at the hands ofdeceased. Fifthly, entrusting of explosive substance to deceased hasalso not been established by adducing direct or circumstantialevidence. Sixthly, it has not been firmly and cogently established thataccused was in conscious possession of explosive substance. 26.Therefore, as necessary ingredients for attracting provisions ofthe Explosive Substances Act, 1908 not being available, judgmentunder challenge cannot be allowed to be sustained. Resultantly,interference is necessary. Accordingly, I proceed to pass the followingorder: CriAppeal-413-2002-19- ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Geetaram s/o LaxmanNimse by learned First Ad-hoc Additional Sessions Judge,Ahmednagar in Sessions Case No. 23 of 2000 for offences punishableunder Sections 3, 4 and 5 of the Explosive Substances Act, 1908 on18.07.2002 stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 3, 4 and 5 of the Explosive Substances Act, 1908.IV.The bail bonds of appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre