STATE OF KERALA Vs. JOSEPH

JUDGEMENT

(1.) THIS appeal is by the State against the order passed by the First Class Magistrate, Cranganore acquitting the two respondents of charges arising out of an alleged theft of explosives from a Government store.

(2.) LARGE stocks of explosives for use in connection with the construction of the Sholayar Hydro-Electric Project were stored by the government in two magazines situated a little off the Chalakudi-Malikkippara road at mile stone 41/4. These magazines were under the direct control of pw. 2 a Junior Engineer attached to the project. The prosecution alleges that some time after 10-30 P. M. on 20 51960 and before the next morning accused 1 joseph, who is now no more, broke open the locks of these magazines and committed theft of 21 boxes of gelatine and 7400 detenaters. The stolen goods were removed from the place by accused 1, accused 2 and pws. 8 and 9 in a lorry belonging to accused 3 a contractor. The lorry was first driven to Thumpurmuzhi where four packets of gelatine were removed by accused 1 for his own use and the rest were then taken to Ezhattumugham where accused 3 was doing some construction work. A part of the explosives was used at the work-site and the rest taken to the house of accused. 3 from where they were later removed to a quarry at Panthakkal. The theft was detected on the morning of 2151960 when pw. 6 a lascar employed by pw. 2 visited the magazines for routine inspection. The matter was reported to pw. 2 who in turn informed his superiors. Ext. P-3 report was filed before the Chalakudy Police Station on 2151960 and investigation was started. On 29 51960 the first accused surrendered himself before pw. 39 the Deputy Superintendent of Police to whom he made a confession. On information given by him four packets of gelatine were recovered from the compound of his house. On 2 61960 accused 2 surrendered himself and acting on his information the police recovered the explosives kept hidden in the quarry at Panthakkal. Accused 3 surrendered himself on 8-7-1960 and the final charge was laid on 22-7-1960 charging the first accused under S. 454 and 380 I. P. C. and the other two accused under the same sections read with S. 109 I. P. C. All the accused were charged with offences punishable under S. 5 (3) (b) of the indian Explosives Act while accused 3 was also charged under S. 12 of the Act read with R. 31 and 81. '

(3.) I shall first deal with the recovery of the part of the stolen articles from the quarry at Panthakkal. According to the prosecution accused 2 surrendered himself to pw. 39, the Deputy Superintendent of Police at the Chalakudi T. B. on 2-6-1960. The accused then confessed his part in the offence and informed the police of the location of the hidden explosives. The accused accompanied the police to the quarry and himself unearthed the explosives from where they were buried. The recovery mahazar was attested by pws. 4 and 5 and one Varkey. The accused denies the whole incident. He maintains that he did not surrender himself to the police but was trapped by the father of accused 3 who in the guise of taking him to the District Forest office, Chalakudi, took him to the T. B. which is situated in the same building. The accused denies having confessed or having pointed out the hidden explosives. The learned Magistrate found that a part of the explosives stolen from the Government stores was recovered from the quarry at Panthakkal, but held that their hiding place was known to the police even before accused 2 was arrested. The learned Magistrate also disbelieved the prosecution story that accused 2 confessed to the police. The testimony of pws. 4 and 5 was also discarded.