Questions regarding where, when and in what condition and when, and by whom are to be answered beyond reasonable grounds: Chhattisgarh High Court

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.12114 Judgment Reserved on : 9.2 . 2021 Judgment Delivered on : 8.6.2021 Mahanguram S o Sukara Baghel aged about 48 years resident of School Para Village Gumalwada P.S. Nagarnar Revenue and Civil District Bastar State of Chhattisgarh through Police Station Nagarnar District Bastar Appellant Respondent Shri Abhishek Chandravanshi Advocate on behalf of Shri Harshwardhan Parganiha Advocate : Shri Ghanshyam Patel Government Advocate Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT This appeal has been preferred against judgment dated 26.11.2014 passed by 1st Additional Sessions Judge Bastar at Jagdalpur in Sessions Trial No.45 of 2014 whereby the Appellant has been convicted and sentenced as under: Under Section 123 of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.2000 with Under Section 4(B) of the Explosive Substances Act the ‘ES Act’ for brevity Rigorous Imprisonment for 5 years and fine of Rs.2000 with Under Section 8(1) of the Jan Suraksha Adhiniyam the ‘JS Adhiniyam’ for Rigorous Imprisonment for 1 year and fine of Rs.500 with Under Section 8(2) of the JS Adhiniyam Under Section 8(3) of the JS Adhiniyam Under Section 8(5) of the JS Adhiniyam Rigorous Imprisonment for 6 months and fine of Rs.500 with Rigorous Imprisonment for 1 year and fine of Rs.500 with Rigorous Imprisonment for 3 years and fine of Rs.1000 with All the jail sentences are directed to run concurrently Prosecution case in short is that on 2.2.2014 Surendra Uike PW7) Station House Officer of Police Station Nagarnar along with his staff was on forest search and village visit. At that time he received a secret information that the Appellant Sarpanch of Village Gumalwada had kept naxal literature and explosive substance in his house. He reached the spot along with search party and witnesses. He searched the cow kothaof the Appellant He found there explosive substance detonators naxal literature banners and pamphlets. They were seized vide seizure memo Ex.P2). Search Panchnamawas prepared. The seized explosive substance detonators were sent to BDS Jagdalpur for examination. They were examined by Santosh Kumar Verma PW5) a non commissioned officer of BDS Jagdalpur. His report is Ex.P5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. Necessary sanction for prosecution of the Appellant was obtained from the competent authority. On completion of the investigation a charge sheet was filed against the Appellant. The Trial Court framed charges against To bring home the offence the prosecution examined as many as 8 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt pleaded innocence and false implication. One Chaituram Baghel was examined as a witness in defence of the Appellant. On completion of the trial the Trial Court convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment Hence this appeal. Learned Counsel appearing for the Appellant submitted that the Trial Court has convicted the Appellant without there being clinching and sufficient evidence against him. There is no documentary or oral evidence on record on the basis of which it could be said that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession. It was further submitted that none of the independent witnesses has supported the case of the prosecution. The conviction is based only on the statements of police witnesses. It was further submitted that after their seizure the explosive substance and other articles were kept where when and in what condition and when by whom and in what condition they were sent for examination no evidence is available on record in this regard When and where was the seized explosive substance examined by Santosh Kumar Vermahis reportmentions nothing about it. There is also no evidence on record to show that whether the seized article was received by Santosh Kumar Vermain a sealed condition or not. Therefore the prosecution does not get support to its case from the examination reportand Fagnuram and went to the house of the Appellant along with them. He has further deposed that he searched the kotha of the house of the Appellant in presence of witnesses Laxminathand Fagnuramfrom there. Constable Sandeep Kumar Bhagat who was one of the members of the search party and the two witnesses of the seizure i.e. Laxminath and Fagnuram have supported the case of the prosecution. Laxminathand Fagnuramis the only independent witness who has not supported the case of the prosecution. Investigating Officer Surendra Uike has admitted the fact that he had prepared only spot mapand had not obtained any revenue map from any revenue officer. He has further deposed that the kotha which was searched was of ownership of the Appellant no document relating to this effect was obtained by him. According to this witness he was told by the witnesses that the said kotha was of the Appellant. One of the witnesses of the search and seizure Laxminathhas admitted the fact that he was not aware of the persons living nearby the house of the Appellant. He was also not aware that how many rooms were made in the house of the Appellant. He has further admitted that he had also not gone inside the cow kothawhere the search was made. Other witness of the search and seizure Fagnuramhas also admitted the fact that he was not aware of the persons living nearby the house of the Appellant. He has further admitted that how many rooms were made in the house of the Appellant was not known to him. In paragraph 10 he has deposed that the cow kotha which was searched was situated at some distance from the house of the Appellant and he has also deposed that no door was fixed in the said kotha. He has deposed that only a bamboo was fixed in the Constable Sandeep Kumar Bhagat who was one of the members of the search party has also admitted that how many persons were living in the house of the Appellant and how many rooms were made in the said house were not known to him. He has further admitted that the place from where the seizures were made was open from all sides On a minute examination of the above evidence it is clear that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession no documentary evidence was collected by the prosecution in this regard. It appears that other members were also residing in the house of the Appellant. Therefore the cow kotha was of exclusive possession of the Appellant is not established. Apart from this from the admission made by Constable Sandeep Kumar Bhagatit is also clear that the kotha from where the seizures were made was open from all sides. In the circumstances possibility of keeping planting the seized articles in the kotha in question from outside cannot be ruled out. Therefore the kotha was of ownership of the Appellant or was in his exclusive possession is not established. As stated by Investigating Officer Surendra Uike on 14.4.2014 he had sent the seized explosive substance to B.D.S. Jagdalpur for examination. According to the statement of this witness before that the seized articles were kept in Malkhana But the prosecution has not submitted any Malkhana Register or Stock Register showing entry of deposit of the seized articles in the Malkhana. During cross examination in paragraph 24 this witness has deposed that no entry was done in Malkhana Register regarding deposit of the seized articles in Malkhana and their taking out from the Malkhana. He has deposed that such entry is made in Rojnamcha Sanha. He has admitted that no such Rojnamcha Sanha was produced before the Court. Santosh Kumar Verma who examined the explosive substance has deposed that on 14.4.2014 he had examined the explosive substance. He has admitted that in the examination report he has not mentioned the place and time of the examination. He has further admitted that in Ex.P5 it is also not mentioned that the said substance was given to him in sealed condition. He has further admitted that he has also not mentioned in Ex.P5 about the person who had brought him the said seized explosive substance. From the above statements of Santosh Kumar Vermaand Surendra Uike it is established that when and in what condition the seized articles were kept in Malkhana and when those articles were taken out from the Malkhana there is no documentary evidence available on record in this regard. There is no mention in the examination reportthat the seized articles were brought for examination in a sealed condition. Who brought the seized explosive substance to Santosh Kumar Vermaand at which place and at what time he examined the said substance there is no mention about these in the examination report (Ex.P5). Looking to the above the entire inquiry proceedings become suspicious. From the above discussion I find that the kotha was of ownership of the Appellant or was in his exclusive possession is not established. It is established that there is no evidence on record to show that when by whom and in what condition the seized articles were kept in Malkhana and when by whom and in what condition the seized explosive substance was taken out from the Malkhana for sending for examination there is no documentary evidence available on record in this regard. The examination proceeding of the explosive substance is also suspicious. Therefore I find that the prosecution is unable to prove the offence beyond reasonable doubt. Hence the conviction imposed upon the Appellant is not Consequently the appeal is allowed. The conviction and sentence of the Appellant is set aside. He is acquitted of the charges framed sustainable. against him. Sd (Arvind Singh Chandel JUDGE 

Summary: When there is a seizure, questions regarding where, when, and in what condition and when, and by whom are to be answered beyond reasonable grounds. Evidence produced must be sufficient to prove the above-stated conditions. In absence of the evidence, the conviction is not sustainable. A single-judge bench comprising of Justice Anubha Rawat Choudhary adjudicating in the matter of Mahanguram v. The State of Chhattisgarh (Criminal appeal No.1213 of 2014) dealt with an issue of whether to grant bail to the accused or not.  In the present case, the appellant is appealing against the judgement dated 26.11.2014 where the appellant was convicted under section 123 of IPC along with Section 4(B) of the Explosive Substances Act. The Respondents stated that they had received a piece of secret information that the Appellant who is the sarpanch of his village had kept Naxal literature and explosives in his house. The police found that explosive substance detonators, Naxal literature, banners, and pamphlets in the cowshed. The Appellant denied his guilt and pleaded innocence and stated that he has been falsely implicated.  The Appellant contended that no documentary or oral evidence on record on the basis of which it could be said that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession. In the present case, there are no independent witnesses to support the case of the Respondent. Also, no evidence was found regarding the seizure of the explosive substance and other articles were kept where, when and in what condition and when, by whom, and in what condition they were sent for examination. The Respondents opposed to the contentions made by the Appellant and witnesses made their depositions before the court.