AHMED BIN SALAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellant and two others were tried by the Additional Metropolitan Sessions Judge, Hyderabad for the offences under Sections 307 and 302, IPC and Sections 3 and 5 of the Indian Explosive Substances Act. Accused Mohammed Sardar died during the pendency of the trial, and therefore, the criminal proceeding stood abated as against him. The appellant was convicted by the learned Sessions Judge under Section 302, IPC and was sentenced to imprisonment for life and also to pay a fine of Rs. 5,000/-, in default to suffer R.I. for two years. He was also sentenced to undergo imprisonment for a period of 10 years and also to pay a fine of Rs. 5,000/-, in default to suffer R.I. for two years for the offence under Section 307, IPC and under Section 3 of the Explosive Substances Act, he was sentenced to undergo R.I. for ten years and also to pay a fine of Rs. 5,000/-, in default to suffer R.I. for three years and under Section 5 of the Explosive Substances Act, was sentenced to R.I. for five years and to pay a fine of Rs. 5,000/-, in default to suffer R.I. for two years. The sentences were ordered to run concurrently. The other accused Mohd. Burhanuddin was convicted under Section 302/34, IPC and was sentenced to imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for one year and for the offence under Section 307/34, he was sentenced to undergo imprisonment for a period of five years and also to pay a fine of Rs. 2,000/-, in default to suffer R.I. for one year and for the offence under Section 3 of the Explosive Substances Act read with Section 34, IPC, he was sentenced to imprisonment for a period of 10 years and also to pay a fine of Rs. 2,000/-, in default to suffer R.I. for two years and for the offence under Section 5 of the Explosive Substances Act read with Sec. 34, IPC, he was sentenced to undergo imprisonment for a period of five years and also to pay a fine of Rs. 1,000/-, in default to suffer R.I. for one year. Sentences were ordered to run concurrently. On appeal, the High Court of Andhra Pradesh came to hold that the prosecution has failed to establish the charges under Sections 3 and 5 of the Explosive Substances Act and accordingly set aside the conviction and sentences thereunder, but affirmed the conviction of the appellant under Section 302, IPC and Section 307, IPC as well as the sentences passed thereunder and also the conviction and sentences against the accused Md. Burhanuddin under Section 302/34 and Section 307/34 (IPC). The appellant preferred the appeal in this Court which was registered as Crl. Appeal No. 587/94 and the co-accused preferred the appeal which was registered as Crl. Appeal No. 375/93. Crl. Appeal No. 375/93 stood abated as the appellant therein died during the pendency of this appeal and hence we are concerned with the present appellant alone.

(2.) Prosecution case in nutshell is that on 6-7-90 at about 10.15 a.m., the three accused persons came on a scooter which was being driven by accused Burhanuddin and the present appellant hurled five bombs, causing injury to PW 1 as well as deceased-Gopal Sharma and deceased-Kishan Rao Kandekar and on account of such injuries received by them, Gopal Sharma died in the hospital on 10-7-90 at 9 a.m. while Kishan Rao Kandekar died on the same day at 6.50 a.m. in Osmania General Hospital. The prosecution alleged that there exist civil disputes between brother of the present appellant and PW 1 and others in respect of a land in Piagah colony and on account of the said dispute one Sabir Bin Salam had been murdered on 2-3-90 and the police had registered Crime No. 48/90 on that score against PWs 1, 2, 6 and 8. After PW 1 was released on bail in the aforesaid case on 4-5-90 and was running his wine shop at Muslimgunj Bridge on partnership with one Ranjit Singh and was also doing real estate business at a place opposite to the wine shop, on the relevant date the accused persons came on a scooter and after getting down from the scooter accused No. 1 (the present appellant) who was the pillion rider, took out from a box some bombs and hurled at the office of PW 1 which exploded and there was lot of smoke and it is in that explosion, not only PW 1 himself was injured but the two persons as already stated died and accused persons went away with the scooter. The two deceased persons were brought to the Osmania General Hospital in an unconscious condition and PW 1 himself was admitted to the hospital. The S.I. of Police PW 25 came to know of the incident from some passer-by and then he came to the hospital where he recorded the statement of PW 1 Exhibit-P2. PW 26, another Sub-Inspector of Police also had received a prior intimation Exhibit P2 and had registered the crime case and treated the same to be F.I.R. and took up investigation. On completion of investigation, the police submitted the charge-sheet and on being committed, the accused persons stood their trial. The prosecution examined as many as 28 witnesses and exhibited a large number of documents. The defence plea was one of denial. The learned Sessions Judge and the High Court relied upon the evidence of the three eye-witnesses PWs 1, 6 and 7 and convicted the appellant of the charge under Sections 302 and 307 as already stated on the basis of the aforesaid evidence. It may be noted that the appellant was not in the picture and his name also did not find place in the F.I.R. and it is only after the statement of PW 6 was recorded on 30-7-90, the appellant was brought into the arena of accused persons.

(3.) Mr. U. R. Lalit, the learned Senior Counsel, appearing for the appellant submitted that the prosecution version as unfolded in the F.I.R. was to the effect that one Sayeed, who was the pillion rider, got down from the scooter, took out a bomb and threw it towards PW 1 and then four other bombs were thrown by him. This earliest version is now being changed in course of evidence during trial and Sayeed is being replaced by appellant and it is being stated that the appellant threw the bomb. According to Mr. Lalit, this story as unfolded through prosecution witnesses in Court cannot be sustained in view of the positive statement of Raghunandan PW 1 that it was one Sayeed, who got down from the scooter, took the bomb and threw it. According to Mr. Lalit, the eye-witnesses admittedly being inimical towards the accused persons, their evidence need a stricter scrutiny before being accepted by the Court and on such a scrutiny being made, no Court can rely upon their testimony in view of several material omissions from their earliest version recorded under Section 161, Cr. P.C. and several contradictions have brought out by way of confrontation and, therefore, the Sessions Judge and the High Court committed error in relying upon the evidence of the aforesaid witnesses. It is to be noticed that though in Exhibit P2, Raghunandan had categorically stated that Sayeed was sitting as a pillion rider and then threw bombs but no charge-sheet was filed against Sayeed and instead charge-sheet was filed against the present appellant and two others who in the meantime have died.