IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 96 of 2002 Date of decision: 22.12.2008 State of H.P. Appellant Versus Dharmender Kumar Sinha Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Ms. Shubh Mahajan, Deputy Advocate General. For the respondent: Mr. Bimal Gupta, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of Himachal Pradesh against the judgment of the Court of learned Chief Judicial Magistrate, Sirmaur District at Nahan, dated 7.9.2001, vide which the respondent was acquitted of the charge framed against him under Section 9-B of the Indian Explosives Act. Briefly stated, the facts of the present case are that on receipt of a telephonic information that some explosives have been kept by the respondent in his house, S.I. B.D. Bhatia alongwith H.C. Gulam Akbar, proceeded to raid the house of the respondent and associated two independent witnesses PW-3 Vinod Kumar and PW-4 Daulat Ram, owner of the house, in which the respondent was a tenant. On search of the premises, the Investigating Officer recovered 7 boxes of Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 gelatin, 12 boxes of detonators and two boxes of safety fuse wires and the respondent could not produce any valid permit for possessing the same. On checking, the recovered explosive materials gelatin sticks etc. were recovered and samples were taken out of them. After receipt of the report of the expert and after investigation, the challan was filed as against the respondent before the learned trial Court, who tried the respondent, leading to his acquittal. I have heard learned counsel for the parties and have also gone through the record of the case. On appraisal of the evidence led by the prosecution, it is clear that the prosecution had examined seven witnesses to substantiate their case and out of them, statements of four witnesses can be said to be most material. It is no doubt true that PW-6 H.C. Gulam Akbar, a member of the raiding party and PW-7 B.D. Bhatia, Investigating Officer/S.H.O. Police Station, Renukaji, have stated about the recoveries effected from the house of the respondent during the search conducted by them. It was suggested to these witnesses that these articles were lying outside in van and these were taken in possession and respondent was impleaded as an accused. PW-6 H.C. Gulam Akbar denied this suggestion and was not able to state in which vehicle or in which the vehicle number or the name of the driver in which these articles were taken to the Police Station. PW-7 B.D. Bhatia also could not state the van number or the name of the driver or owner of the vehicle in which the case property was taken. This is a minor infirmity in the statements but since the case solely rests upon the statements of the Investigating Officer and Head Constable accompanying him, these minor contradictions are material. The main ground taken by the learned trial Court in disbelieving the prosecution 3 version is that the Investigating Officer associated two independent witnesses PW-3 Vinod Kumar and PW-4 Daulat Ram but when examined, they turned hostile and denied that they were associated at the time of search or the said recoveries were effected from the house of the respondent in their presence. Their signatures are, however, there on the recovery memo Ext.PW3/A proved in evidence. However, the learned trial Court had concluded that since both the independent witnesses have not supported the prosecution story, the statements of the official witnesses becomes doubtful and cannot be relied upon in the absence of independent corroboration. The view taken by the learned trial Court cannot be said to be perverse. The other ground taken by the learned trial Court was that the report has been proved by the prosecution under the signatures of Senior Scientific Officer. After referring to the provisions of Section 293 Cr.P.C., the learned trial Court concluded that the said officer was not expert within the provisions of Section 293 Cr.P.C. The learned Deputy Advocate General for the appellant has not been able to substantiate her point to show that the said officer was an expert within the meaning of Section 293 Cr.P.C. and she has not been able to supplement her submissions that non-examination of the said officer does not prove fatal for the prosecution. Once it is held that the said officer was not an expert within the provisions of Section 293 Cr.P.C. and the report in question was not proved in evidence from his statement, therefore, the final conclusion arrived at by the learned trial Court cannot be termed as perverse calling for an interference by this Court. 4 In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged forthwith. December 22, 2008 ( V.K.Ahuja ), (BSS) Judge 5