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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Robin Phukan, J.
Raju Ali, S/o Late Mamtaz Ali – Petitioner
Versus
The State of Assam Rep. By The P.P. – Respondent
Crl.A./76 of 2023
Decided On : 12-06-2024
Explosive Substances Act - Conviction under Section 3(a) set aside - Conviction under Section 5(a) affirmed - [Explosive Substances Act] - [Possession of explosives under suspicious circumstances] - [Section 3, Section 5] - The court discussed the legal provisions of Section 3(a) and Section 5(a) of the Explosive Substances Act, 1908. The court highlighted the ingredients of the offenses and emphasized the need for the prosecution to prove unlawful and malicious causing of explosion likely to endanger life or property under Section 3(a) and possession of explosive substances under suspicious circumstances under Section 5(a]. The court also referred to the burden of proof on the prosecution and the requirement for the accused to show lawful possession if such a plea is taken. The court's decision was influenced by the lack of direct evidence and the failure to establish the involvement of explosive substances in the explosion, leading to the setting aside of the conviction under Section 3(a] and the affirmation of the conviction under Section 5(a].
Fact of the Case:
The case involved a blast at the residence of the accused, resulting in grievous injuries to the accused. The prosecution alleged possession of explosive substances under suspicious circumstances and causing an explosion likely to endanger life or property. The accused denied the charges and claimed that the blast occurred when a person left a bag in their house, which subsequently exploded when handled by the accused.
Finding of the Court:
The court found that the prosecution failed to establish the unlawful and malicious causing of the explosion under Section 3(a) due to the lack of direct evidence and the absence of expert opinion on the involvement of explosive substances. However, the court affirmed the conviction under Section 5(a) based on the possession of explosive substances under suspicious circumstances, supported by forensic evidence and the accused's failure to provide a plausible explanation.
Issues: The key issues revolved around the establishment of unlawful and malicious causing of the explosion under Section 3(a) and the possession of explosive substances under suspicious circumstances under Section 5(a]. The court analyzed the evidence and legal provisions to address these issues.
Ratio Decidendi: The court's decision was based on the lack of direct evidence and expert opinion regarding the explosion, leading to the setting aside of the conviction under Section 3(a]. However, the court affirmed the conviction under Section 5(a] due to the presence of forensic evidence and the accused's failure to provide a plausible explanation for the possession of explosive substances under suspicious circumstances.
Final Decision: The court partly allowed the appeal, setting aside the conviction under Section 3(a] and affirming the conviction under Section 5(a] of the Explosive Substances Act, 1908. The accused's sentence under Section 5(a] was upheld, while the conviction and sentence under Section 3(a] were quashed.
Key Points: - The court discusses that Section 3(a) requires proving unlawful and malicious causing of an explosion likely to endanger life or property, and that the prosecution must establish this; lack of direct evidence and expert opinion undermines such proof, leading to setting aside Section 3(a) conviction. (!) (!) (!) - The court affirms conviction under Section 5(a) based on possession of explosive substances under suspicious circumstances, supported by forensic evidence (Ex-A, Ex-E) and the accused’s failure to provide a plausible explanation, establishing the elements of Section 5(a). (!) (!) (!) - The burden of proof for Section 5(a) is on the prosecution to prove explosive substance, possession or control, and circumstances giving rise to reasonable suspicion of illegality; once discharged, the burden shifts to the accused to show lawful object. (!) (!) (!)
JUDGMENT :
Heard Mr. M.K. Borah, learned counsel for the appellant and Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State respondent.
2. In this appeal, under Section 374 of the Cr.P.C. the appellant, namely, Raju Ali has challenged the correctness or otherwise of the judgment and order dated 17.01.2023, passed by the learned Sessions Judge, Sivasagar, in Sessions Case No. 41(S-S)/2017, arising out of Sivasagar P.S. Case No. 120/2014, under Sections 3/4/5 of the Explosive Substances Act, 1908. It is to be noted here that vide impugned judgment and order dated 17.01.2023, the learned Sessions Judge, Sivasagar had convicted the accused/appellant under Section 3(a) of the Explosive Substances Act, 1908 and sentenced him to suffer rigorous imprisonment for 10 years and further sentenced him to pay a fine of Rs. 1000/-, in default of payment of fine, to suffer simple imprisonment for 1 month. Also he was convicted under section 5(a) of the Explosive Substances Act, 1908 and also sentenced him to suffer rigorous imprisonment for 5 years and also to pay a fine of Rs. 500/-, in default of payment of fine, to suffer simple imprisonment for 15 days.
3. The background facts, leading to filing of the present appeal, are adumbrated herein below:-
Thereafter, S.I. Jitendra Nath Das had lodged one written complaint (Ext.7), with the O.C. of Sivasagar P.S. and endorsed S.I. Bokul Borah to investigate the same. The Investigating Officer (I.O.) then visited the place of occurrence, examined the witnesses and drew sketch map (Ext.8) of the place of occurrence and seized pieces of human flesh, one pair of shoes with blood stain, one piece of burning cartoon, one plastic pipe and one plastic cover with blood stain and one black tape from the place of occurrence and seized the same preparing seizure list (Ext.2). Thereafter, he sent the seized articles to the Forensic Science Laboratory (FSL) for examination through the Superintendent of Police, Sivasagar and collected the report. He also interrogated Raju Ali at Assam Medical College Hospital (AMCH), Dibrugarh where he was undergoing treatment and on being released from the hospital, he arrested accused Raju Ali and forwarded him to the court. Thereafter, he obtained prosecution sanction (Ext.-10) from the District M
The main legal point established in the judgment is the requirement for the prosecution to prove the unlawful and malicious causing of an explosion likely to endanger life or property under Section 3....
Possession of explosives without a license constitutes unlawful possession under S.4 while lack of evidence for unlawful purpose negates conviction under S.5.
The central legal point established in the judgment is the requirement of conscious possession, reasonable suspicion, and the mandatory sanction from the Central Government for trial of offences unde....
Conscious possession of explosives is essential for a conviction under the Explosives Act, and mere ownership is insufficient.
The trial Court erred in convicting the accused under the Explosive Substances Act without necessary sanction, and the prosecution failed to prove guilt beyond reasonable doubt due to inconsistencies....
Conviction under Section 307 IPC requires clear proof of intent to kill; mere injuries or hostile testimony without corroborating evidence are insufficient for conviction.
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