Mahanguram vs State Of Chhattisgarh
2021 Latest Caselaw 185 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.1213 of 2014

                           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,
Chhattisgarh
                                                             ---- Appellant
                                versus
State of Chhattisgarh through Police Station Nagarnar, District Bastar,
Chhattisgarh
                                                          --- Respondent

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For Appellant : Shri Abhishek Chandravanshi, Advocate on behalf of Shri Harshwardhan Parganiha, Advocate For Respondent : Shri Ghanshyam Patel, Government Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. 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:

Conviction Sentence

Under Section 123 of the Rigorous Imprisonment for 7 Indian Penal Code years and fine of Rs.2000 with default stipulation Under Section 4(B) of the Rigorous Imprisonment for 5 Explosive Substances Act years and fine of Rs.2000 with (the 'ES Act' for brevity) default stipulation Under Section 8(1) of the Rigorous Imprisonment for 1 Jan Suraksha Adhiniyam year and fine of Rs.500 with (the 'JS Adhiniyam' for default stipulation brevity)

Under Section 8(2) of the Rigorous Imprisonment for 6 JS Adhiniyam months and fine of Rs.500 with default stipulation Under Section 8(3) of the Rigorous Imprisonment for 1 JS Adhiniyam year and fine of Rs.500 with default stipulation Under Section 8(5) of the Rigorous Imprisonment for 3 JS Adhiniyam years and fine of Rs.1000 with default stipulation

All the jail sentences are directed to run concurrently

2. 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 kotha (cowshed) of the Appellant.

He found there explosive substance detonators, naxal literature,

banners and pamphlets. They were seized vide seizure memo

(Ex.P2). Search Panchnama (Ex.P3) was 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

him.

3. 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 (DW1) in defence of the

Appellant.

4. On completion of the trial, the Trial Court convicted and sentenced

the Appellant as mentioned in 1 st paragraph of this judgment.

Hence, this appeal.

5. 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 Verma (PW5), his report (Ex.P5) mentions nothing

about it. There is also no evidence on record to show that whether

the seized article was received by Santosh Kumar Verma (PW5) in

a sealed condition or not. Therefore, the prosecution does not get

support to its case from the examination report (Ex.P5). In spite of

that, the Trial Court, relying on Ex.P5, has convicted the Appellant,

which is not sustainable.

6. Opposing the above arguments, Learned Counsel appearing for

the State supported the impugned judgment.

7. I have heard Learned Counsel appearing for the parties and

perused the entire material available including the statements of

witnesses with due care.

8. In his Court statement, Investigating Officer Surendra Uike (PW7)

has deposed that on the date of incident, during forest search and

village patrolling, he received a secret information from an

informant that the Appellant/Sarpanch of Village Gumalwada had

kept explosive substance and naxal literature in his kotha. He gave

notice to witnesses Laxminath (PW3) and Fagnuram (PW4) 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 Laxminath (PW3) and Fagnuram (PW4)

and other members of the search party. On being searched,

explosive substance and naxal literature were found there. They

were seized vide seizure memo (Ex.P2). He gave notice to the

Appellant under Section 91 of the Cr.P.C. and demanded

documents relating to ownership of the recovered and seized

articles, but the Appellant could not give him any such document.

He has further deposed that after return to the police station, he

registered First Information Report (Ex.P13). He has further

deposed that during investigation, on 14.4.2014, he sent the seized

explosive substance to B.D.S., Jagdalpur for examination and

obtained examination report (Ex.P5) from there.

9. Constable Sandeep Kumar Bhagat (PW2), who was one of the

members of the search party and the two witnesses of the seizure,

i.e., Laxminath (PW3) and Fagnuram (PW4) have supported the

case of the prosecution. Laxminath (PW3) and Fagnuram (PW4)

are residents of Village Kawapal. Search was made in Village

Gumalwada. Both these witnesses of seizure have admitted that

they were constables.

10. Kotwar Suktaram (PW6) is the only independent witness who has

not supported the case of the prosecution.

11. Investigating Officer Surendra Uike (PW7) has admitted the fact

that he had prepared only spot map (Ex.P16) and 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, Laxminath (PW3) has 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 kotha (cowshed) where the

search was made.

12. Other witness of the search and seizure, Fagnuram (PW4) has 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

kotha.

13. Constable Sandeep Kumar Bhagat (PW2), 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.

14. 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 Bhagat (PW2), it 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.

15. As stated by Investigating Officer Surendra Uike (PW7), 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.

16. Santosh Kumar Verma (PW5), 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 (Ex.P5), 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.

17. From the above statements of Santosh Kumar Verma (PW5) and

Surendra Uike (PW7), 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 report (Ex.P5) that the seized articles were brought

for examination in a sealed condition. Who brought the seized

explosive substance to Santosh Kumar Verma (PW5) and 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.

18. 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

sustainable.

19. Consequently, the appeal is allowed. The conviction and sentence

of the Appellant is set aside. He is acquitted of the charges framed

against him.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal