Point of Law : Conviction set aside - There is absolutely no evidence to suggest that the explosive substances allegedly used by the 1st accused/1st appellant were of such a nature that it would endanger the life of the injured persons.

JUDGMENT :

This appeal has been filed by the appellants who are accused Nos.1 and 2 in S.C. No.436/2003 on the file of the Additional District and Sessions Judge, Fast Track Court-I, Thiruvananthapuram, challenging their conviction and sentence in a prosecution for the offences punishable under Sections 143, 147, 148, 324, 448 & 427 r/w Section 149 of the Indian Penal Code, 1860 (IPC) and Section 3 of the Explosive Substances Act, 1908. Both the appellants/accused 1 & 2 were convicted and sentenced under Sections 143, 147, 148, 324 r/w. Section 149 of the Indian Penal Code while the 1st appellant/1st accused alone was convicted and sentenced under Section 3 of the Explosive Substances Act, 1908. Both the appellants/accused 1 & 2 were acquitted of the offences punishable under Section 448 and 427 IPC. Accused Nos. 3, 4 & 5 were acquitted of all the charges.

2. The gist of the prosecution case is that, on 11.02.1999, the appellants/accused Nos.1 and 2 together with three others formed themselves into an unlawful assembly and attacked PWs 1, 7 and 8, inside the compound of the MG College, Thiruvananthapuram, with deadly weapons like swords and iron bars and explosive substances like crackers. It is alleged that PWs 1, 7 and 8 were members and supporters of a student organization known as Akhil Bharatiya Vidhyarthi Parishad (ABVP), while the accused persons were members of a rival student organization namely, Kerala Students’ Union (KSU). It was alleged that, at the relevant point of time, the Kerala Students' Union did not have a unit in the MG college and an attempt to establish a unit, led to some disputes between the accused and PWs 1, 7 and 8, who were opposing the establishment of a unit of the KSU in the college. A statement given by PW8 while under treatment at the Medical College Hospital, Thiruvananthapuram, led to the registration of Crime No.30/1999 of the Peroorkada police station.

3. The investigation of the case was conducted by PW5, who was the additional Sub-Inspector of Peroorkada police station. Following the investigation and after getting sanction from the District Magistrate, Thiruvananthapuram, for initiation of prosecution under the Explosive Substances Act, 1908, a final report was filed by PW6, the Sub-Inspector of Police of Peroorkada police station before the Judicial First Class Magistrate Court-II, Thiruvananthapuram where the matter was taken on file as C.P. No.80/2001. On a finding that the case relates to offences exclusively triable by a Court of Session, the learned Magistrate committed the case to the Sessions Court, Thiruvananthpauram for trial and disposal. The Sessions Court, Thiruvananthpauram took cognizance of the matter as S.C. No.436/2003 and made over the case to the Assistant Sessions Court, Thiruvananthapuram and subsequently transferred the case to the Additional District and Sessions Court, Fast Track Court -I, Thiruvananthapuram. That court framed charges under Sections 143, 147, 148, 324, 448 and 427 r/w. Section 149 of the Indian Penal Code and Section 3 of the Explosive Substances Act, 1908 against the appellants/accused Nos.1 and 2 and other accused namely accused Nos.3, 4 and 5. The appellants/accused Nos.1 and 2 as well as the other accused pleaded not guilty.

4. The prosecution, thereupon, examined PWs 1 to 8 and marked Exts.P1 to P10 documents and identified MO1 and MO2 series. Following the closure of the prosecution case, all the accused persons were questioned under Section 313 of the Cr.PC. Though they denied the incriminating materials against them, the court did not find any reason to acquit them under Section 232 Cr.P.C., therefore, the accused were called upon to adduce their defence evidence. The appellants/accused Nos.1 and 2 and the other accused did not tender any defence evidence. However, contradictory portions of the Case Diary statements were marked for the defence.

5. On an analysis of the evidence, the trial court convicted the appellants/accused 1 & 2 in the m