TMI Blog1997 (8) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... old city of Hyderabad and exhorted them to undergo training in armed militancy and offered them arms and ammunitions. He himself was in possession of lethal weapons like country-made revolver and live cartridges. He was propagating among the Muslims that in Kashmir Muslims were being were being subjected to attrocities by the Indian Army personnel. During the period when series of bomb-blasting occurred in the city of Hyderabad the police kept a close watch on the activities of the appellant who was then staying in a room adjacent to Masjid-e-Niyameth Kha-e-ali at Mir-ka-Daira at Haribowli in Hyderabad. He was arrested on 19-1-1994 and after recording his confessional statement the police seized a revolver and two cartridges which were produced by him. After investigation was completed he was challaned before the Designated Court at Hyderabad for offences under Sections 124-A, 153-A and 505(2) IPC, and under Sections 3(3), 4(3) and 5 of the TADA, and also under Section 25 of the Indian Arms Act. As mentioned above the Designated Court acquitted him of the offences under TADA but convicted him of the offences under the Indian Penal Code and also under Section 25 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ything with reference to the Government it is not possible to sustain the conviction of the appellant under Section 124A IPC. Evidence of the prosecution relating to offences under Section 153A and 505(2) IPC consists of oral testimony of certain witnesses who claimed that appellant was telling others that the Army personnel have been committing atrocities on Muslims in Kashmir. Among those witnesses PW- 7, PW-7 and PW-13 were not cross-examined at all. Accepting their evidence, it can be held without any difficulty that prosecution has established beyond doubt that appellant was spreading the news that members of the Indian Army were indulging in commission of attrocities against Kashmiri Muslims. So it is not necessary to advert to the other evidence which only repeats what those witnesses said. Hence the question to be decided now is whether those acts of the appellant would attract the penal consequences envisaged in Section 153A or 505(2) of IPC. Section 153A was amended by the Criminal and Election Laws (Amendment) Act 1969 - Act No.XXXV of 1996. It consists of three clauses of which clauses (a) and (b) alone are material now. By the same amending Act sub-section (2) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally necessary postulate for the offence under Section 505(2) also as could be discerned from the words with intent to create or promote or which is likely to create or promote as used in that sub-section. The main distinction between the two offences is that publication of the word or representation is not necessary under the former, such publication is sine qua non under Section 505. The words whoever makes, publishes or circulates used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any one who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153A also and then that Section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction. Yet another support to the above interpretation can be gathered from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in Room No. 2 of the building during the relevant time. Trial court found that evidence acceptable and we have no reason to dissent from it. Learned counsel for the appellant, however, assailed the prosecution case relating to the said revolver and cartridges, on the ground that those articles were not sealed after seizure and were left at the Police Station for a number of days before they were sent to the Forensic Science Laboratory. We are not impressed by the said contention and we may point out that appellant made no allegation at any stage of the case that the revolver and the cartridges were tampered with by the police. Not even a suggestion was made to any witness in that direction. According to the counsel, since those articles were not sealed there was the possibility of their being tampered with. Such and academic possibility need not be consonance by us in this case because even the accused has no case that they were tampered with. That apart, the particulars of the weapon were given in the seizure memo and the same tallied with the weapon on examination by the ballistic expert. There is no challenge to the seizure memo admittedly prepared at the time of recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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