2016 (12) TMI 1893 - HC - Indian Laws

High Court alters some convictions, enhances sentences under Explosive Substances Act, acquits 22nd accused, sets aside UA(P) Act convictions.

The High Court partially allowed the appeals, altering some convictions and sentences while upholding others. The court enhanced the sentences under the ... Conspiracy - Unlawful Assembly - training in making and usage of weapons and explosives in order to retaliate against the alleged tortures faced by muslims in India from the other religions, especially from Hindus, the accused formed themselves into an unlawful assembly - HELD THAT:- It is provided under Section 25 (1B) (a) that, whoever acquires or has in possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine. In the case at hand, evidence adduced by the prosecution would clearly establish that the accused were having possession of th ammunition (Bombs) in contravention of Section 3. Therefore this court is of the opinion that accused 1 to 21 are guilty of offence under Section 25 (1B) (a) of the Arms Act, 1959. Hence we alter the conviction and sentence imposed by the court below under Section 5 (1) (a) read with Section 27 of the Arms Act to one under Section 25 (1B) (a) of the Arms Act. Whether the conviction and sentence imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908, is sustainable or not? - HELD THAT:- The prosecution was successful in proving that the accused 1 to 21 were having possession and control over the material objects which were recovered from the scene. Going by the definition of 'explosive substances' contained in Section 2 (a) of the Act, it includes materials for making any explosive substances and also any material used or intended to be used in causing or aiding in causing any explosion. As per Section 4 (b) of the Act, having possession and control of any explosive substances with the intent to endanger life or to enable any other person by means thereof to endanger life or to cause serious injury to property, is punishable, despite whether any explosion does or does not takes place. Therefore the prosecution has made out a case against accused 1 to 21 making them guilty of offence punishable under Section 4 (b) (i). The prosecution had also succeeded in proving that, accused 1 to 21 were knowingly in possession and control of the explosive substances so as to give rise to a reasonable suspension that such possession and control was not for any lawful object. The accused 1 to 21 had failed to show that they had in possession and control of the explosive substance for any lawful objects - we are inclined to uphold the convictions imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908. Whether the conviction imposed against accused 1 to 21 under Sections 120 B, 143 read with Section 149 of IPC and also the conviction imposed against 1st accused under Sections 153 A and 153 B (1) (c) of IPC are sustainable or not? - HELD THAT:- The prosecution has not established through any convincing evidence the aims and the objectives or the activities of the organizations or regarding the motives and objectives in convening the alleged camp and in imparting training in manufacture and usage of the arms and the explosive substances. Despite the specific allegation that the accused were seen engaged in imparting training in manufacture of Bombs and in usage of arms, no cogent or convincing evidence is forthcoming with respect to any training being conducted at the premises, apart from the possession and control over the incriminating substances. Further, the prosecution has not succeeded in proving through any credible evidence their specific case that, the assembly and the alleged training was with a declared intention to protect members of the particular community from the alleged torture of the other community, especially from hindus. Under such context, this court is of the view that the conviction imposed under Section 18A of UA(P) Act cannot be sustained in any manner. Whether there was any usage of the Bombs or the Sword for any purposes as contemplated under Section 15 of the UA(P) Act? - whether the demonstration of those materials can be considered as one to strike terror among the people or as one likely to strike terror among the people? - HELD THAT:- In the case at hand, statements given by the accused Nos.1 to 21 under Section 313 Cr.P.C. is to the effect that, at the relevant place and time they were waiting outside at the building at the place of occurrence for having a meeting of a Trust named 'Thanal', for the purpose of collecting funds for completing construction of the building which is owned by the said Trust. It is stated that, the said building was in fact remaining locked from outside at that time and the police authorities have entered the building by breaking open the lock. Even though some of the persons who were present there had left the scene on noticing the act of the police, accused Nos.1 to 18 remained there and the police have called them inside the room and taken them into custody. They have denied of having any connection with respect to the substances alleged to have recovered from the place of occurrence, and also denied the recovery of such material objects from the place. Whether an adverse inference with respect to guilt of the accused can be drawn, because they have failed in establishing the version put forth by them through the statement made under Section 313 Cr.P.C.? - HELD THAT:- In the case at hand, the prosecution has not conducted any investigation with respect to the source or procurance of the incriminating materials. There is no evidence adduced as to who had purchased those materials or from where it was purchased. The prosecution had also failed in bringing any evidence to prove that the possession and control of the explosive substances or the arms, was intended for the purpose of striking terror or likely to strike terror based on any communal rivalry or violence. Nor they have established that the accused persons were indulging any preparatory activity to commit any terrorist act. Therefore, the trial court has not put any specific question to the accused persons in this respect - In the case at hand, provisions of the law contained in the respective statutes have adequately taken care to meet the situation and to convict the accused under the common law. We are not persuaded to accept that any offence under UA(P) Act has been established by the prosecution to sustain the conviction, in addition to those provisions of law under which conviction is imposed against the accused persons, which were already upheld by this court. The conviction rendered by the court below with respect to the appellants in Crl.A.147/2016 (Accused Nos. 1 to 21) under Section 120B, 143 read with Sec. 149 of IPC and Sections 4 and 5 of the Explosive Substances Act, 1908, hereby confirmed - Conviction imposed by the court below under section 5 (1)(a) read with Section 27 of the Arms Act will stand altered to Section 25 (1)(B)(a) of the Arms Act, 1959. The conviction and sentence imposed against the accused under Sections 153 A, 153 B(i)(c) of IPC stand set aside. The conviction and sentence under Sections 18 and 18A of the Unlawful Activities (Prevention) Act will also stand set aside. Application allowed in part. Issues Involved:1. Conviction and sentence of accused Nos.1 to 21.2. Enhancement of sentence imposed against the accused.3. Acquittal of the 22nd accused.4. Conviction under various sections of IPC, Arms Act, Explosive Substances Act, and UA(P) Act.Detailed Analysis:1. Conviction and Sentence of Accused Nos.1 to 21:The court addressed the prosecution's charge that the accused were active members of PFI and SDPI, forming an unlawful assembly to acquire training in weapons and explosives to retaliate against alleged tortures faced by Muslims in India. The court found that the prosecution successfully established that the accused were present in the building with possession of bombs, materials for making bombs, a sword, and other weapons. However, the court noted that the sole testimony of PW1 regarding a speech promoting enmity between religions was not corroborated by other evidence, leading to doubts about the credibility of this specific charge.2. Enhancement of Sentence Imposed Against the Accused:The court examined the sentences imposed by the lower court under various sections. While the lower court had convicted the accused under Section 5(1)(a) read with Section 27 of the Arms Act, the High Court found this conviction unsustainable due to lack of evidence regarding the usage of arms and ammunition. Instead, the court altered the conviction to Section 25(1B)(a) of the Arms Act, which pertains to possession of arms or ammunition. The court upheld the convictions under Sections 4 and 5 of the Explosive Substances Act, finding that the accused had possession and control of explosive substances with intent to endanger life or property. The court enhanced the sentence under these sections to rigorous imprisonment for six years and a fine of Rs. 1,000 each, with default imprisonment for one month.3. Acquittal of the 22nd Accused:The court upheld the acquittal of the 22nd accused, noting that his name was not mentioned in the FIR and there was no clear evidence linking him to the scene or the materials recovered. The court found that the prosecution failed to prove beyond reasonable doubt that the 22nd accused was involved in the alleged activities.4. Conviction Under Various Sections of IPC, Arms Act, Explosive Substances Act, and UA(P) Act:The court analyzed the convictions under different sections:- Sections 120B, 143 read with Section 149 IPC: The court upheld the conviction, finding that the accused had conspired to acquire training in weapons and explosives.- Sections 153A and 153B(1)(c) IPC: The court set aside the conviction, citing lack of credible evidence to prove the accused promoted enmity between communities.- Sections 4 and 5 of the Explosive Substances Act: The court upheld the conviction, finding the accused guilty of possessing explosive substances with intent to endanger life or property.- Sections 18 and 18A of the UA(P) Act: The court set aside the conviction, concluding that the prosecution failed to prove the accused committed or prepared to commit a terrorist act.Conclusion:The High Court partially allowed the appeals, altering some convictions and sentences while upholding others. The court enhanced the sentences under the Explosive Substances Act and altered the conviction under the Arms Act. The acquittal of the 22nd accused was upheld, and the convictions under the UA(P) Act were set aside due to insufficient evidence. The substantive term of imprisonment for the convicted accused was ordered to run concurrently, with entitlement to set off under Section 428 Cr.P.C.