BBB ^ HIGH COURT OF CHHATTISGARH, BILASPUR (Sinale Bench: Hon'bleShriSunilKumarSinha, J) CrimJnalADDealNo. 311 of 1989 Deepak Kumar Vs. The State dfM.P. (Now Statg of Chhattisgarh) JUDGMENT .11 f' Post for J[idameot—2-J_/08i21 Sd/- Sunii KamarSinlia Judge '^2-^/DS7ZUTr ~ YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.21 12:09:25 +0530 HIGH COURT OF CHHATTISGARH, BILASPUR (Single Bench: Hun'ble Shri Sunil Kumar Sinha, J) ::i^^i?g[i: APPELLANT RESPONDENT Criminal Appeal No. 311 of 198^9 Deepak Kumar, aged 28 years, son of Satish Chandra, Service, r/o village Domanhil Colliery, P.S. Chirmiri, Tahsil Manendragarh, District Surguja, M.P. (Now State of Chhattisgarh) Versus IheStateofM.P. (Now State of Chhattisgarh) (Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. Bhupendra Singh, Advocate for the appellant. Mr. Sandeep Yadav, Oy. Govt. Advocate for the State. JUDGMENT (2,^.08.2011) Sunil Kumar Sinha, J. This appeal is directed against the judgment dated 16 of March, 1989 passed in Session Trial No. 228/87 by the Additional Session -. / Judge, Maneridragarh. By the impugned judgment, the appellant has been convicted u/ss 3 & 4 of the Explosive Substances Act, 1908 and sentenced to undergo R.l. for 5 years in each count with direction to run thesentences concurrently. \^ •sy '.slaf"' CriiniRa) Aopeal No. 311 of 1989 (2) The facts, briefly stated, are as under:- Two accused persons namely Deepak Kumar (appellant herein) and Vijay Kumar were tried for the offences punishable u/ss 3 & 4 of Explosive Substances Act, 1908. The case of the prosecution is that 011 2.8.85 at about 9.00 p.m., the accused were found in possession of a bomb which they planted ih the roof of the house of complainant- Ratan Sai (PW-1) in village Kalapani domanhil, and anexplosiorktook place there. Vijay Kumar was acquitted ofthe charges framed against him. However, Deepak Kumar (appellant herein) was convicted and sentenced as aforementioned. (3) Learned Session Judge has mainly based the conviction on the evidence of Investigation Officer - D.R. Tiwari (PW-6) who had scribed the F.1.R. (Ex.-P/1) and hasseizeda bomb from the roof of the house of the complainant videseizure memo Ex.-P/2. Ratan Sai (PW-1), Kalikaprasad (PW-2) and Dalbir (PW-3) were the main witnesses of the prosecution, but these witnesses were declared hostile as they did not support the case ofthe prosecution. (4) The incident took place in the year 1985 and the trial was concludedin the year 1989. After the trial thisappeal was filed in the High Court of Madhya Pradesh in the year 1989. The records of the casewere duly'received by the High Court of Madhya Pradesh, but since long back -i.e. since 5.9.89 'A' part of the record of the sessionscase containing proved documents, evidence o^witnesses,statements of accused, order- sheets and judgment etc. is not traceable since year 1989itself.After transfer of the case from High Court of Madhya Pradesh to High Gourt of Chhattisgarh, on many occasions various judicial orders were passecl to •lft.J,J.i ""^^ ^.•...^' ^^y Criminal ABpeal No. 311 of 1989 trace the 'A' part of the records but even after all efforts the records eould not be traced. By a judicial order, the Additional Registrar(Judicial) was directed to submit a repovt who submitted the report that the records of the sessibn trial along witb a potice was sent to the District Magistrate, Sarguja at Ambikapur on 5.9.89. Thereafter it was never-received either in the High Court of Madhya Pradesh or in the High Court of Chhattisgarh. Various memos, reminders, telegrams and D.0. letlers were sent to District Magistrate, Sarguja by the High Court of Madhya Pradesh. District Magistrate, Sarguja vide his merno dated 15.32000 requested to send information wrth dak number of sending the record. As per report of dispatcher of the High Court of Madhya Pradesh dated 27.4.2000, record of Session Trial No. 228/87 was sent to District Magistrate, Sarguja on 25.9.89 by registered parcel through receipt No. 1950. Theweight of the parcel was 500 grams. A memo was again sent to District Magistrate, Sarguja with full particulars with dispatch numlier, but even after that the record was not traced. Various correspondence were made from the Registry of High Court of Chhattisgarh also as per judicial orders passed by ffiis Court tirne to time, but ultimately they did not yieldany result. The details of efforts made by Registry is contained in summary report filed by A.R.(J) on 8.6.2011. When itappeared to the Couft that it was not possible to trace the record even after efforts of Office of Advocate Generai, this Court directed the counsel for appellant and Gounsel for the State t6 prqduce copies of various documents so as to re-construct the record, but they also coutd not produce any document imaking staterhent on oath of the parties that only the memo of appeal and copy-of Judgment is available with them. The concerned ^ Crirn i nal Appeal No. 31] of1989 .u<:ail -!a1i! authority of the State stated on oath that they have no document except those which are already available with the Court. The State authority has filed subsequent affidavit that the State has no objection if the matter is heard and decided on the basis of record contained in the appellate filed and in part 'B' of record of Session Trial No. 228/87. It is in these circumstances and looking to the fact that this is one of the old matters pending in the High Court, this appeal was heard finally with the consent of learned counsel for the parties on 19.8.2011 . (5) Mr. Bhupendra Singh, learned counsel appearing on behalf of the appellant, argued that the conviction has been based on the evidence of hostile witnesses. Even the complainant and his supporting witnesses have turned hostile. The Investigation Officer has proved that he recorded the F.1.R. (Ex.-P/1) and had seized the bomb from the roof of the house of the complainant. This evidence was not sufficient to convict the appellant for offences punishable u/ss 3 & 4 of the Explosive Substances Act, 1908. (6) Mr. Sandeep Yadav, learned Dy. Govt. Advocate appearing on behalfofthe State, opposed these arguments. (7) In Para-6 of the impugned judgment, it has been recorded that Ratan Sai (PW-'1), Kalikaprasad (PW-2) and Dalbir (PW-3) were main witnesses of the incident, but -they were declared hostile by the Public Prosecutor and were put to cross-examinations. The learned Session Judge has observed in this paragraph that the accused are influential persons, therefore, the witnesses do not depose against them. The \) Criminal Appeal No. 311 of 1989 X Session Judge further observed in Para-9 that Kalikaprasad (PW-2) deposed that on the next day Dalbir (PW-3) told him that he had seen the appellant moving with a bomb at about 6.00 p.m. Dalbir (f3W-3) deposed that on the fateful day at abo.ut 5.00 p.m., he saw that the appellant was having a bomb in his hand and he was running towards the house of Ratan Sai (PW-1). The above evidence given by hostile witnesses was taken to be incriminating against the appellant and taking support from the F.1.R. (Ex.-P/1) and seizure of bomb (Ex.-P/1) from the roof of the house of the complainant, which appears to be proved by the evidence of Investigation Officer only, the Session Judge has convicted the appellant and at the same time the co-accused against whom, nothing at all was deposed was acquitted. When the complainant himself became hostile and he did not support the case of the prosecution, even he did not support the F.1.R. (Ex.-P/1), then only on account of evidence of the other 2 hostile witnesses in cross-examination that they had seen bomb in possession of the appellant at the relevant time, the conviction of the appellant was not possible. These witnesses were not reliable as they denied the incident and their earlier versions. On due consideration of the entire material available with this Court it appears that the learned Session Judge has based the conviction on the evidence of casual statements of hostile -, / witnesses which does not appear to be reasonable. (9) It is a case in whicii all the important witnesses including the complainant have turned hostile, therefore, the offence alleged was not proved beyond all reasonable doubt. ^00 Criminal AoDeal No. 311 ofl 989 (10) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 3 & 4 of the Explosive Substances Act, 1908 are set-aside. The appellant is acquitted of the charges framed against him. While sending back the record of the Session Court, Registry will also send a copy of memo of appeal and judgment of the Session Couri: which shall form the part ofthe record of the session trial. Sd/- Sunii Fi.amar Sinha Judge valti