Rajagopal Nair and Sureshkumar vs State of Kerala

R. Basant, J.—This, alas, is yet another case where the ugly and shameful spectacle of hostility of the prosecution witnesses with impunity clouds the truth discovery process by courts by procedure established by law. It also brings to light the need to boldly and innovatively look at the efficacy of the ruler of the complicated process of truth discovery in our criminal justice system.

Is there a semblance of legal evidence to support the allegations against the appellants? Are not the appellants entitled atleast to the benefit of doubt? Did the court below, shocked and dissatisfied with the parade of hostile witnesses before it, commit the indiscretion of not insisting on and ignoring the core mandate of human right jurisprudence that deprivation of life and liberty can be only on the basis of satisfactory proof of culpability?

These questions are raised by the learned Counsel for the appellants Sri. M.K. Damodaran in this case.

Appellants are two of the seven accused, who faced indictment for offences punishable u/s 3 of the Explosive Substances Act and Sections 120B, 143, 147, 148, 324, 326 and 302 read with 149 I.P.C. All the others, except the appellants (accused 1 and 3) were found not guilty and acquitted of all the charges levelled against them. The appellants herein - that is accused 1 and 3, have been found guilty, convicted and sentenced u/s 3 of the Explosive Substances Act and Sections 324, 326 and 302 I.P.C. For the offence u/s 302 I.P.C., a sentence of imprisonment for life and a fine of Rs. 25,000/- has been imposed on both appellants. For the offence u/s 3 of the Explosive Substances Act also, a sentence of imprisonment for life and a fine of Rs. 25,000/- have been imposed on both the appellants. For the offences punishable under Sections 324 and 326 I.P.C., sentences of R.I for a period of two years and four years have been imposed on both the appellants. A sentence of fine of Rs. 10,000/- also has been imposed on both the appellants u/s 326 I.P.C. No default sentence is seen imposed.

Appellants (accused 1 and 3) assail the verdict of guilty, conviction and sentence imposed on them in Crl.A. No. 2485/09. In Crl.R.P. No. 3971/09, the revision petitioner, that is the mother of the deceased, assails the acquittal of all the other five accused.

The crux of the allegations against the seven accused persons is that they, on account of political rivalry, had hatched a criminal conspiracy for committing murder of deceased Rajesh. The deceased belonged to the BJP and all the indictees allegedly owe allegiance to the C.P.M. An earlier incident which occurred on 13/3/2002 in which the 3rd accused had suffered serious injuries also allegedly acted as a motive for the incident in this case. On 09/06/2002 at about 8.10 p.m. on the public road near the shop of PWs 6/7, all the indictees, in pursuance of the criminal conspiracy hatched by them earlier, allegedly came to the scene of occurrence in a car KEK 2430. The miscreants allegedly reached the scene after coming to know that deceased Rajesh was available there. It was load shedding time and after reaching the spot of occurrence, the 2nd accused is alleged to have thrown a country bomb at deceased Rajesh, who, along with PWs 2 and 3, were sitting on the parapet of a culvert nearby. The deceased, PW 2 and PW 3, who were present there, allegedly suffered injuries as a result of the blast. The deceased succumbed to his injuries. PW2 suffered simple injuries whereas PW3 suffered grievous injuries. The deceased succumbed to the injuries at 12.30 a.m. on the same night. The prosecution alleged that the accused had, thereby committed the offences referred above.

Investigation commenced with Ext.P1 F.I. Statement lodged by PW1 before PW29 at 12.45 a.m. on 10/06/2002. That statement was allegedly recorded at the hospital. F.I.R Ext.P1(a) was registered at 3.15 a.m. on 10/06/2002. The F.I.R reached the court at 10.20 a.m. on 11/06/2002. In the F.I.R, accused 1 to 3 were named. Another person by name Jose was also named in the F.I. Statement; but subsequently he was deleted from the array of accused.

Investigation was completed and final report was filed by PW32 raising allegations against accused 1 to 7. The learned Magistrate committed the case to the court of Session in accordance with law. All the accused denied the charges framed against them and thereupon the prosecution examined Pws.1 to 36. Exts.P1 to P43 were marked before the trial court. M.Os 1 to 19(a) were also marked.

The accused took up a defence of total denial. According to them, they were not, in any way, involved in the incident in which the deceased, PWs.2 and 3 suffered injuries. Dws.1 to 7 were examined and Exts.D1 to D8 were marked on the side of the defence. We may mention that the 1st accused/1st appellant herein examined himself as DW7 whereas the 3rd accused/2nd appellant herein examined himself as DW6. We repeat that their case was one of total denial. It was suggested that political animosity has led to their false implication in this case.

An appellate judgment is and must be read as a continuation of the judgment of the trial court. The court below has adverted in detail to all the oral and documentary evidence and other matters placed before it. We have been taken through the oral and documentary evidence and all other matters relied on by the rival contestants in this appeal. We do not, in these circumstances, think it necessary to re-narrate the oral and documentary evidence relied on by the prosecution originally and the evidence, which it was ultimately able to place before court. Suffice it to say that, the learned Counsel for the appellant has taken us meticulously through the oral evidence of PWs.1 to 36 and DWs.1 to 7 as also Exts.P1 to P43 and Exts.D1 to D8. We have also been taken through the final report submitted by the police, charges framed by the court below and the answers given by the accused in the course of examination u/s 313 Cr.P.C. We shall advert to the oral and documentary evidence specifically wherever necessary in the course of the discussions in this judgment.

Before us, the learned senior Counsel for the appellants in Crl.A. No. 2485/09 Sri. M.K. Damodaran, the learned Public Prosecutor Sri. Noble Mathew and Sri. S. Rajeev, the learned Counsel for the revision petitioner in Crl.R.P. No. 3971/2009 have advanced detailed arguments.

We may, at the first instance, note that the learned Counsel for the revision petitioner Sri. S. Rajeev has not seriously advanced any arguments against the acquittal of accused 2 and 4 to 7. The learned Counsel evidently made use of the opportunity available to him to argue Crl.R.P No. 3971/2009 only to support the conviction of accused 1 and 3. We do not, in these circumstances, think it necessary to advert to the purported challenge against the acquittal of accused 2 and 4 to 7. After having gone through the records in detail, we find that the stand taken by the learned Counsel for the revision petitioner is an informed and sublime one and there is no argument worth the name against the acquittal of accused 2 and 4 to 7. We may, hence, at this stage itself turn down the challenge against the acquittal of accused 2 and 4 to 7.

The prosecution in this case wanted to rely on ocular testimony to prove the incident. But the prosecution could not enlist the support of the witnesses through whom they attempted to prove the incident proper. Pws.2 and 3 are witnesses who had suffered injuries in the incident along with the deceased. Pws.1 and 4 to 7 are witnesses who had allegedly witnessed the occurrence. PW1 had lodged Ext.P1 F.I. statement also. All of them, including the injured witnesses Pws.2 and 3 turned hostile to the prosecution with absolute impunity. PW1, though he admitted his signature in Ext.P1 F.I. statement, did not choose to subscribe to the contents of Ext.P1 F.I. statement. Thus, the prosecution was left with not a semblance of ocular testimony in support of the charges levelled against the accused.

Before the court below and before us, the Prosecutors contended that though the prosecution had not succeeded in making any ocular evidence to incriminate any of the indictees, the evidence that has been let in of circumstances is sufficient to persuade a court to come to a safe conclusion beyond doubt about the complicity of the appellants herein. Thus, though the prosecution originally wanted to prove its case by direct ocular testimony, after the hostility of witnesses, this case now rests solely on circumstantial evidence. We will only have to consider whether the verdict of guilty and conviction entered by the court below against the appellants is justified by the pieces of circumstantial evidence which the prosecution has succeeded in adducing.

It is too trite and is hence not necessary to refer to any precedents; but we may state that it is well settled that in a case resting on circumstantial evidence, the burden is heavy on the prosecution to prove all circumstances satisfactorily. Such circumstances proved must form links of a chain. The links must be strong in themselves and together they must make a strong chain which can point unerringly to the guilt of the accused. Such chain of circumstances must effectively rule out any hypothesis of innocence of the accused. We will now have to consider whether the circumstances have been proved and the circumstances, if held to be proved, is sufficient to come to a safe inference of guilt against the appellants.

We may hasten to observe that it is not the number of circumstances that matter; but the safe inferences which flow from proved circumstances that are of crucial relevance. Each circumstance may be capable of several interpretations; but what the court is to ultimately decide is whether the chain which is formed by the links would be sufficient to exclude any reasonable hypothesis of innocence of the accused.

We called upon the learned Public Prosecutor and the learned Counsel for the revision petitioner Sri. S. Rajeev to narrate before us the circumstances on which the prosecution wants to rely. In fact, we must mention that the learned Counsel for the appellants had pressed hard for a suspension of the sentence pending disposal of the appeal. We went on to hear the learned Counsel for the appellants and the learned Public Prosecutor for that purpose. We then realised that optimum use of judicial time can be achieved by disposing of the appeal itself rather than go through the entire gamut of evidence to decide the question of suspension of sentence. It is, in these circumstances, that this appeal, fairly recent going by chronology, is taken up for hearing and disposal at this juncture.

The learned Public Prosecutor and the learned Counsel for the revision petitioner submit that the following circumstances have been established satisfactorily by the prosecution and the cumulative effect of these circumstances must lead the court to a safe conclusion of the culpability of the appellants. The impugned verdict of guilty, conviction and sentence against the appellants hence deserve to be upheld, contend the learned Public Prosecutor and the learned Counsel for the revision petitioner.

The circumstances relied on by the prosecution are:

i) Political animosity between the appellants and the victim. Aggravation of that animosity on the basis of the incident which took place on 30/03/2002 in which the 3rd accused had suffered serious injuries.

ii) The deceased, PWs 2 and 3 suffered injuries in a bomb explosion that took place at the scene of the crime at about 8.10 p.m. on 09/06/2002.

iii) The death of the deceased took place on account of such injuries suffered in such bomb explosion.

iv) Ext.P1 F.I. statement was lodged by PW1 before PW29. On the basis of the said F.I. statement Ext.P1(a). F.I.R was registered showing the names of accused 1 to 3 as accused responsible for the commission of the crime.

v) A Car - white Ambassador KEK 2430, was given to accused 1 and 3 by PW27 prior to the incident and that car was found abandoned at a place about 8 Kms away on 13/06/2002 and the same was seized by the police under Ext.P20 on that day.

vi) Accused 1 and 2 were arrested on 23/6/2002. On the basis of Ext.P28(a) confession allegedly given by the 1st accused to PW35, MOs.12, 13 and 14 were recovered by PW35 under Ext.P28 search list.

vii) PW26 Scientific Assistant subsequently examined Ext.P28 house and recovered Mos.15 and 16 from the said house. From the scene the forensic expert had later obtained M.O.11 which was handed over to the Investigating Officer PW35.

viii) From the scene of the crime under Ext.P23 scene mahazer PW35 had taken into custody MOs.3 to 8.

ix) MOs.12 to 16 were recovered from the house described in Ext.P28 and MOs.3 to 8 were found to contain identical articles by the expert on chemical examination.

We shall now proceed to consider whether these circumstances have been proved and the circumstances, if any proved, can justify the verdict of guilty, conviction and sentence imposed on the appellants herein.

The first circumstance relied on is the circumstance that the accused persons belong to the C.P.M and the deceased belonged to the B.J.P. They further rely on the aggravation of this motive by the incident which took place earlier on 13/3/2002 (Sivarathri day) in which the 3rd accused suffered injuries. The deceased, PW1 and another were accused in that crime allegedly committed against the 3rd accused. We deem it unnecessary to delve deeper into the evidence on this question. There is no serious dispute that there is strain between the parties on account of political animosity. The precise stand of the defence is that it is political animosity that prompts the witnesses to make false allegations against the accused. Of course, the 3rd accused, in his evidence, has denied that he subscribes to the political ideology of C.P.I (M); but the fact remains that there is ample material to indicate that there was strain in the relationship between the appellants herein and the deceased on account of political rivalry. We reckon this circumstance as proved satisfactorily by the prosecution.

The second circumstance relied on by the prosecution is that the deceased, PW 2 and PW 3 had suffered injuries in a bomb explosion that took place at the scene of the crime at about 8.10 p.m. Here also, we find ample evidence coming forth from the mouth of PW.s 2 and 3 that such an incident had taken place and that all the three had suffered injuries as a result of bomb explosion which took place at the scene. We have also satisfactory evidence from the doctors Pws.23, 24, 25 and PW33, who had examined all the three injured, treated PWs.2 and 3 and conducted the postmortem examination on the body of the deceased. There are telltale indications to show that all the three had suffered injuries in such an incident which allegedly took place at about the time and place as alleged by the prosecution. The accused do not also dispute this fact. The 2nd circumstance is also thus held to be proved satisfactorily.

On the 3rd circumstance also, we find no serious dispute. The deceased had suffered telltale injuries which suggest that the injuries having been caused in a bomb explosion. We have the evidence of PW33 doctor and Ext.P19 postmortem certificate issued by him which, beyond the pale of controversy, establish the fact that the deceased had succumbed to the injuries which he suffered along with PWs 2 and 3 at the scene of the crime in a bomb explosion. The 3rd circumstance is also established satisfactorily.

The 4th circumstance relied on by the prosecution is the fact that Ext.P1(a) F.I.R was registered on the basis of Ext.P1 F.I. Statement lodged by PW1 before PW29 at 3.15 a.m. on 10/06/2002. The F.I Statement was lodged at 12.45 a.m. on 10/06/2002. The F.I.R had reached the court only at 10.20 a.m. on 11/6/2002. The calender was verified and it is seen that 10/06/2002 was a working day for the courts.

PW1 turned hostile to the prosecution completely. He did admit his signature in Ext.P1. But, significantly, he did not subscribe to even one incriminating circumstance referred to in Ext.P1. He did not implicate accused 1 to 3 or any other. There is no substantive evidence of the contents of Ext.P1. PW1 having not supported the contents of Ext.P1, the contents of Ext.P1 cannot be made use of for any purpose except to discredit PW1. Of course, we agree with the learned Public Prosecutor that Ext.P1 can be relied upon for the limited purpose of concluding that Ext.P1(a) F.I.R was registered by PW29 on the basis of Ext.P1. To that extent alone, Ext.P1 can have relevance in this case. The court below also appears to have taken note of the contents of Ext.P1. It is too late in the day for the prosecution to attempt to place reliance on any portion of the contents of Ext.P1, on which substantive evidence has not been tendered by PW1. In this view of the matter, we are of the opinion that though lodging of Ext.P1 by PW1 before PW29 and registration of Ext.P1(a) on the basis of Ext.P1 can be held to be proved, the contents of Ext.P1 cannot be made use of for any purpose in the adjudication of the guilt against the appellants, there being no substantive evidence on that aspect.

In the view which we have taken about Ext.P1, we feel it is unnecessary to delve deeper into the other controversies relating to Exts.P1 and P1(a). PW1 does not now stand by the assertions in Ext.P1 and Ext.P1(a) that the F.I. statement was lodged at the time shown in Ext.P1 and P1(a). The learned Counsel for the appellants have strained to take us through the oral evidence of PW29 to contend that even the evidence of PW29 cannot help the court to attach any importance or relevance to the time mentioned in Exts.P1 and P1(a). The learned Counsel for the appellants also points out, relying upon Section 157 Cr.P.C that there has been unexplained delay in the F.I.R reaching the court. It reached the court only at 10.20 a.m. on 11/6/2002. No explanation whatsoever was offered for the F.I.R not reaching the court on 10/6/2002. The Counsel submits that no crucial significance can be attached to the fact that the appellants are named in Ext.P1 as another one so named in the F.I statement was found on investigation to be not culpably responsible for any act. Considering the relevance and significance of Ext.P1 and P1(a), we are of the opinion that it is unnecessary to delve deeper into those controversies.

The 5th circumstance relied on by the prosecution is that car No. KEK 2430, which PW27 had handed over to accused 1 and 3 sometime prior to the occurrence, was found abandoned at a place about 8 kms. away from the scene of the crime. It is the case of the prosecution that miscreants had come to the scene of the crime in this vehicle. The prosecution attempted to connect accused 1 and 3 with the crime with the help of this evidence tendered by PW27 and the later recovery of the car from the place where it was abandoned on 13/6/2002 under Ext.P20. We have no hesitation to agree with the learned Public Prosecutor that this would have been a formidable circumstance against accused 1 and 3, if it were proved satisfactorily that the said vehicle was used by the miscreants to reach the scene of the crime. But, is there any evidence on this aspect? Significantly, there is absolutely no evidence to connect the vehicle KEK 2430 with the incident which took place at the scene of the crime. The car was seen abandoned on 13/6/2002. Significantly there is absolutely nothing recovered from the car to show that accused 1 and 3 had travelled in that car. More importantly, there is nothing available to indicate that the said car was used to transport persons to the scene of the crime. The learned Counsel for the appellants rightly points out that no incriminating substance/explosive has been recovered from the car to suggest that the car might have been used to convey the miscreants with explosives to the scene of the crime. All the eye witnesses have turned hostile and there is nothing to indicate that this particular car was used by the miscreants, whoever they be, to come to the scene of occurrence and to commit the crime. In these circumstances, even though we find nothing erroneous in the conclusion of the court below that the evidence of PW27 that the car has been handed over by him to accused 1 and 3 prior to the occurrence, in the absence of any material to link the vehicle with the crime, the mere fact that it was seen abandoned days after the incident at a far off place, cannot be reckoned as a formidable circumstance against the appellants. It is, of course, true that the accused have not explained how the car taken on rent by accused 1 and 3 from PW27 was found abandoned at the place from which it was recovered under Ext.P20. That inadequacy cannot convert this circumstance into a crucial incriminating circumstance against the accused/appellants. We do not think it necessary, in these circumstances, to advert to various other circumstances relied on by the learned Counsel for the appellants to contend that this theory of the said car KEK 2430 having come to the possession of accused 1 and 3 from PW27 cannot be accepted. The learned Counsel for the appellant points out that there is no evidence even about the precise date on which the car was handed over by PW27 to accused 1 and 3. The owner of the car has not been traced or questioned, it is pointed out. No document worth the name has been produced to show that PW27 was the owner of the car at the relevant time, argues the learned Counsel for the appellants. The registration certificate does not, admittedly, show that PW27 was the owner of the car. The registered owner or the agreement owner of the car have not been examined to support the case of the prosecution that PW27 had handed over the car to accused 1 and 3, argues learned Counsel for the appellants. Inasmuch as we have come to the conclusion that this circumstance cannot be reckoned as a crucial circumstance, in the total absence of any evidence to suggest that this car was present at the scene of the crime or that the miscreants were conveyed to the scene of the crime in this car, we are not adverting to the other infirmities relied on by the learned Counsel for the appellants in relation to the recovery of this car and the attempt to allege that accused 1 and 3 must have come to the scene of the crime in this car.

The next circumstance, that is the 6th circumstance, is the evidence of recovery of MOs.12 to 16 from the house described in Ext.P28. According to the prosecution, accused 1 and 2 were arrested on 23/6/2002 by PW35. They were interrogated. Confession statements were made. The 1st accused allegedly furnished Ext.P28(a) information to PW35. On the basis of this information, PW35 reached Ext.P28 residential building along with the 1st accused. Thereafter, PW35 conducted the search of the said house. In the course of such search, MOs.12, 13 and 14 were recovered under Ext.P28 search list. It appears that, it is the case of the prosecution that this house was taken on lease by the 6th accused from PW15 under Ext.P4 rent deed. It is the further case of the prosecution that the miscreants had made the country bomb at this house described in Ext.P28. MOs.12, 13 and 14, according to the prosecution, are materials left behind after bomb was made, which bomb was exploded by the miscreants at the scene of the crime. The prosecution thus relies on the evidence of PW35 about the recovery of Mos.12 to 14 on the basis of Ext.P28(a) under Ext.P28 in the presence of PW13, who is an attester to the search list Ext.P28. PW13 had turned hostile. We do not attach any significance to such hostility of PW13. An Indian criminal court every day practically comes across the sad spectacle of allegedly independent witnesses turning hostile to the prosecution with impunity. It would be puerile for any experienced Judge of facts to attach undue significance and relevance to such hostility of an independent attester to a document prepared by the police. To the extent that the oral evidence of PW35 gets support from Ext.P28, we are willing to place reliance on the oral evidence of PW35 notwithstanding the hostility of PW13. The hostility of PW13 does not, hence, mpress us in any manner.

We will now look at Ext.P28(a) information which is sought to be admitted as enabled by Section 27 of the Evidence Act. We make it clear that we do not intend to approach the testimony of PW35 with any amount of doubt, suspicion or distrust. PW35 is a public official, a police officer. It is his duty as a police officer to detect offences, investigate into crimes and bring the offenders to book. The mere fact that PW35 is a police official, will not, therefore, persuade us to approach his testimony with any amount of doubt or reservation.

But, we must remind ourselves of Sections 25, 26 and 27 of the Evidence Act. Only such information which leads to discovery of a fact is admissible u/s 27 of the Evidence Act provided the information relates distinctly to the fact thereby discovered. The relevant information extracted in Ext.P28 marked as Ext.P28(a) reads as follows:

If I am taken, I shall show the house.

The relevant information admitted u/s 27 of the Evidence Act only shows that the 1st accused had pointed out a house. It is significant that the recovery is not made specifically as pointed out by the accused; but it is recovered on the basis of a search which followed after the 1st accused led PW35 to the house in question. In the course of the search, MOs.12 to 14 were recovered. Subsequently, PW26 allegedly traced MOs.15 and 16 from the house described in Ext.P28.

Relying on the decision in George v. State 1988 KHC 136, it is argued that authorship of concealment of anything is not revealed from the portion admitted in evidence u/s 27 of the Evidence Act. Was any fact discovered? We have extracted the relevant information. We must say that no fact was discovered on the basis of the statement attributed to the accused. The 1st accused pointed out a house. By the search of that house, MOs.12 to 14 were recovered. It would be incorrect, nay harsh to fasten and saddle the 1st accused with the responsibility for the presence of MOs.12 to 14 found in the premises of the house described in Ext.P28 on the basis of the information which is admitted u/s 27 of the Evidence Act. Yes, he did show a house to PW35. That house, even according to the prosecution, is a house taken on rent by the 6th accused from PW15. The house may have been pointed out by the 1st appellant as the house of the 6th accused. We have no better material whatsoever to show that in what context the house was pointed out by the 1st appellant/1st accused. In these circumstances, we feel that it would not be proper to reckon this as a formidable incriminating circumstance against the 1st accused/appellant. Responsibility for possession of MOs.12 to 14 or concealment of MOs.12 to 14 cannot be attributed to the 1st accused/appellant on the basis of Ext.P28(a) information admitted u/s 27 of the Evidence Act.

We hence take the view that Ext.P28(a) given by the 1st accused to PW35, even if accepted in toto, cannot be reckoned as a crucial incriminating circumstance against the 1st accused.

The learned Counsel for the appellants raises several other issues in respect of this circumstance. First of all, it is pointed out with the help of the remand reports Exts.P30 and P31 that the initial case of the prosecution was not that it was an exclusive confession statement of the 1st accused; but a joint confession statement made by both accused 1 and 2. The learned Counsel for the appellants further points out that Ext.P4 rent deed, though seized has not been proved. None of the attesters to the said document Ext.P4 have been examined. 6th accused has denied that the said house is taken on rent by him. All the witnesses examined by the prosecution have turned hostile to the prosecution with impunity on this aspect. The evidence of PWs.14, 15 and 17 to 19 is, in this context, of vital relevance. Not only that, there is nothing to connect the house referred to in Ext.P4 rent deed with the house described in Ext.P28. The building numbers are different. Ext.P7 ownership certificate proved by PW22 the Panchayat Secretary does not at all help the court to link the house referred to in Ext.P4 with the house described in Ext.P28. According to the prosecution, PW15 is the owner of the building; but Ext.P7 does not support this case of the prosecution. We are not adverting to the several other circumstances relied on by the learned Counsel for the appellants to assail the recovery and the significance of the recovery inasmuch as we have already come to the conclusion that Ext.P28(a) does not help the Court to link the 1st accused with the articles MOs.12 to 14.

The 7th circumstance relied on by the prosecution is the recovery of MOs.15 and 16 by PW26 from the house described in Ext.P28. We have gone through the circumstance. PW26 does not appear to have prepared a note like Ext.P13 when she seized MOs.15 and 16. But Ext.P32 mahazer shows that PW35 had seized MOs.15 and 16 when they are produced by PW26. Considering the want of motive or interest whatsoever for PW26, we find it safe to accept the testimony of PWs.26 and 35 that MOs.15 and 16 were recovered by PW26 from the house described in Ext.P28 and handed over to PW35 who seized them under Ext.P32. Here again, the learned Counsel for the appellants strenuously contends that the evidence of PW26 does not at all show or establish that the recovery of MOs.15 and 16 were made from the house described in Ext.P28. The learned Counsel for the appellants relies on the incongruity in the evidence of PW26 about the house from which she recovered MOs.15 and 16 with the building number of the house described in Ext.P28. Even assuming that it is proved that MOs.15 and 16 were recovered from the house described in Ext.P28 as in the case of MOs.12 to 14, the nexus between the 1st accused and MOs.15 and 16 have not been satisfactorily established. The 7th circumstance cannot also, in these circumstances, be reckoned as a crucial or vital circumstance.

Reliance is placed on circumstance No. 8 and that circumstance is that MOs.3 to 8 were recovered from the scene of the crime by PW35 under the seizure mahazer Ext.P23. Later PW26 had recovered M.O.11 under Ext.P13 from the scene of the crime. We find it easy to accept the case of the prosecution that MOs.3 to 8 and 11 were recovered from the scene of the crime by PWs.35 and 26 under Exts.P23 and P13. This circumstance is thus established satisfactorily by the prosecution.

The final circumstance relied on by the prosecution is the report of the expert. To put it in a nut shell, the circumstance is that the articles recovered from the scene of the crime and the articles recovered from the house described in Ext.P28 are all identical in nature. This is relied on by the prosecution.

The learned Counsel for the appellants assails this circumstance also. The learned Counsel for the appellants points out that what is recovered from the scene were not part of the articles recovered from the house described in Ext.P28. Articles recovered from the scene contained potassium chlorate, sulphur and aluminium powder whereas articles recovered from the house in Ext.P28 contained only potassium chlorate and sulphuric acid. The mere presence of these articles which are inherently different though potassium chlorate is the common factor in both, cannot lead a court to the safe conclusion that the bomb which was exploded at the scene of the occurrence was made or manufactured in the house described in Ext.P28. The total absence of aluminium powder and sulphur at the house described in Ext. P28 is relied on by the learned Counsel for the appellants. The learned Counsel for the appellants points out that fragments of paper were available on both sites and significantly no comparison of the two was undertaken to ascertain whether they came from a common source. The significance of the recoveries from the scene of the crime and the house described in Ext.P28 is considerably weakened thereby, argues the learned Counsel for the appellants. We agree with the learned Counsel for the appellants. We are unable to infer crucial linkage between articles found at the scene of the crime and the articles found from Ext.P28 seizure mahazer on the basis of the chemical examiner''s report.

We have already discussed the nine circumstances that have been relied on by the prosecution. We have explained to what extent these circumstance can be believed and held to be proved. The first three circumstances have been established satisfactorily. The 4th circumstance that the F.I.R was registered has also been established satisfactorily. Circumstances Nos. 5 to 9 cannot, in any way, offer the court the assurance which it is looking for for the alleged complicity of accused 1 and 3, the appellants herein. The fact that the Car KEK 2430 was given to accused 1 and 3 by PW27 at sometime prior to the occurrence, the fact that it was found abandoned four days after the crime at a different place, the fact that Ext.P28(a) information was furnished by accused 1 to PW35, the fact that the materials found at the scene of the crime and the house described in Ext.P28 contained one article that is potassium chlorate in common, cannot, at any rate, lead the court to the safe conclusion/inference of guilt against either accused.

The learned Prosecutor argues that Ext.P28(a) and the recovery of M.Os 12 to 16 from the house pointed out by the 1st accused is sufficient to justify the conviction of the accused u/s 3 of the Explosive Substances Act. Accepting the case of the prosecution in toto the best conclusion in favour of the prosecution can only be that the 1st accused had shown the house of the 6th accused to PW35 and from that house on search by PW35 and later by PW26 M.Os 11 to 16 were recovered. The recovered articles included Potassium Chlorate and Sulphuric Acid. From the mere fact that the appellant (1st accused) pointed out the house of the 6th accused, culpable responsibility for possession of all articles in the house cannot obviously be attributed to the 1st appellant.

As far as the 3rd accused is concerned, we are at a loss to understand what circumstance is available to implicate him. That he had suffered injuries in the incident which took place on 13.03.02 cannot certainly be reckoned as a circumstance to saddle him with culpable responsibility for the crime. A1''s statement Ext.P28(a) cannot obviously implicate him. In the absence of any evidence of involvement of the car in the occurrence, the evidence of PW27 cannot also in any way be reckoned as an incriminating circumstance against the 3rd accused also. It is trite that suspicion generated about the involvement of accused in a crime cannot, in a case resting on circumstantial evidence, lead to any conclusion about the guilt of the accused. In any view of the matter, we are satisfied that the appellants are entitled undoubtedly to the benefit of doubt. We unhesitatingly concede to the appellants the benefit of doubt.

In the result:

a) Crl.R.P. No. 3971 of 2009 is dismissed.

b) Crl.A. No. 2485 of 2009 is allowed. Both the appellants (Accused 1 and 3) are found, at any rate, entitled to the benefit of doubt. They are consequently found not guilty and acquitted of all the charges levelled against them.

c) The impugned verdict of guilty, conviction and sentence imposed on them on all counts is set aside.

d) If the further detention of the appellants is not necessary in connection with any other case, they shall forthwith be released from custody.

The registry shall forthwith communicate the direction to the prison authorities and the court below for immediate action.