Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Additional Sessions Judge, harda, District Hoshangabad in S. T. No. 108/94 decided on 8. 2. 95. ( 2. ) APPELLANT has been convicted under Section 5 of explosive Substances Act, 1908 (hereinafter referred to as act) and sentenced to rigorous imprisonment for two years with fine of rs. 1,000/-, in default further rigorous imprisonment for four months, by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 24. 12. 93, appellant Phullu had placed few country made bombs in the fields of village Sirkamba for killing wild animals. However, the cow of complainant Ramesh consumed one country made bomb kept in the field, got injured and died subsequently. The matter was reported at Police station Rahatgaon by complainant Ramesh Gujjar, on the basis of which an offence bearing Crime No. 96/93 was registered against the appellant and was investigated. Deceased cow was sent for postmortem examination. During investigation, two country made bombs were recovered from the appellants field at Sirkamba on 1. 1. 94, on the basis of information given by him and recorded under section 27 of the Evidence Act. The seized country made bombs were defused and its remains were sent for forensic examination. As per report of the FSL, presence of explosive substance was found in the seized handmade bombs. After due investigation and obtaining sanction for prosecution from the District Magistrate, appellant was prosecuted under Section 286, 429 of IPC and Section 3/5 of the Act, and was put to trial. ( 4. ) APPELLANT denied the various charges levelled against him under Section 3/5 of the Act and 429 of IPC and pleaded false implication. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted the appellant of the charges under Section 429 of IPC and Section 3 of the Act, but found him guilty for commission of offence under Section 5 of the Explosive Substances Act, 1908, by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellant submitted that the trial court gravely erred in convicting the appellant for the offence under section 5 of the Act without there being any cogent and independent evidence on record of his being found in possession of explosive substances. ( 6. ) LEARNED counsel for the appellant submitted that the trial court gravely erred in convicting the appellant for the offence under section 5 of the Act without there being any cogent and independent evidence on record of his being found in possession of explosive substances. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 8. ) PERUSED the evidence on record. The conviction of the appellant is based mainly on the testimony of A. S. I. Randhir Singh (P. W-8) and FSL report received from FSL Sagar. According to assistant Sub Inspector Randhir Singh (P. W-8) on 31. 12. 93 appellant had given information leading to the recovery of two country made bombs, which was recorded under Section 27 of the Evidence Act vide ex. P-10 and two handmade bombs (lqvjekj ce) were recovered next day from the appellants field at his instance vide seizure memo (Ex. P-11 ). ( 9. ) LEARNED counsel for the appellant strenuously urged that the date of occurrence, as depicted in FIR (Ex. P-13), was 24. 12. 93, but the appellant was arrested and interrogated on 31. 12. 93 and the alleged seizure was made on 1. 1. 94 and thus possibility of planting and foisting a false case against him was not ruled out. ( 10. ) NOW the independent witness to the memorandum (Ex. P-10) and seizure memo (Ex. P-11), namely Harakchand (P. W.-9)has not supported the version of P. W-8 Randhir Singh that appellant gave an information leading to the recovery of country made bombs. On the other hand, according to P. W-9 Harakchand, the seizure of two hand grenades was made at the Police Station and he had not witnessed any seizure from the village. Although, P. W-9 Harakchand was declared hostile to prosecution and was also cross-examined, but even the evidence of a hostile witness is not totally effaced or washed off from the record. There is also a suggestion in the cross-examination of P. W-8 Randhir Singh that appellant was falsely implicated at the instance of one Madhu Patel, who was involved in the murder case of appellants brother. ( 11. ) BE that as it may, there was no cogent evidence on record that the field, where the seizure of country made bombs was allegedly made, belonged to the appellant. ( 11. ) BE that as it may, there was no cogent evidence on record that the field, where the seizure of country made bombs was allegedly made, belonged to the appellant. There was also no spot map or trace map on record depicting the place where the recovery of two country made bombs was allegedly made at the instance of appellant. The spot map (Ex. P-2) is that of the field of Gokul Prasad, which probably relates to the incident dated 24. 12. 93. Moreover, the place of recovery, being an open field, the access of any third person into the said field could not be ruled out. The mere fact that there was a fencing in the field, could not rule out the possibility of entry of third persons into the field in question and planting or keeping the incriminating articles there. ( 12. ) BESIDES, the evidence of Inspector R. R. Singh (P. W-7)reveals that he had defused the two country made bombs seized in crime No. 96/93 of Police Station Rehatgaon on 3. 3. 94 by removing and cutting its thread (lqryh) and prepared a report (Ex. P-9 ). His report (Ex. P-9) also indicates that after defusing the two bombs he had sealed only its remains in a tin, whereas perusal of the FSL report dated 26. 9. 94 in respect of Crime No. 96/93 of P. S. Rehatgaon, which was relied upon by trial court, reveals that the sealed packet in a tin received from Police Station Rehatgaon on 8. 3. 94 at F. S. L. , Sagar contained two live country made bombs containing explosive substances like orsanic sulfate, potassium and clorate etc. It appears very surprising that when two handmade bombs allegedly seized at the instance of appellant were already defused by Inspector r. R. Singh (P. W-7) on 3. 3. 94 by cutting and removing its thread (lqryh) and only its remains were sealed, how the sealed packet received in FSL Sagar on 8. 3. 94 could contain two intact and live country made bombs, as manifest from the FSL report dated 26. 9. 94. ( 13. ) IN view of the aforesaid facts, the evidence and the whole case against the appellant becomes highly doubtful and suspicious and the possibility of manipulation and false implication of the appellant cannot be ruled out. In such circumstances, the FSL report dated 26. 9. 94. ( 13. ) IN view of the aforesaid facts, the evidence and the whole case against the appellant becomes highly doubtful and suspicious and the possibility of manipulation and false implication of the appellant cannot be ruled out. In such circumstances, the FSL report dated 26. 9. 94, could not be said to be the report in respect of the articles allegedly seized from the appellant and could not form the basis of his conviction. ( 14. ) EVEN otherwise, as discussed hereinabove, the factum of recovery of the hand grenades or country made bombs at the instance of appellant from his field was also not proved by cogent and dependable evidence. As held by the Apex Court in the case of mohamad Usman Mohammad Hussain Maniyar V. State of Maharashtra reported in 1981 Cri. L. J. Page 588, in order to bring home the offence under Section 5 of the Explosive substances Act, the prosecution has to prove; (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object. The burden of proof of these ingredients is on the prosecution. The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea. ( 15. ) IN the instant case, however, the prosecution has failed to prove by cogent and dependable evidence and beyond periphery of doubt that the two bombs were recovered from the field of the appellant or any explosive substance was found in his possession. . ( 16. ) IN the wake of aforesaid, the conviction of the appellant under Section 5 of Explosive Substances Act, 1908, cannot be safely maintained. ( 17. ) APPEAL is, therefore, allowed. The conviction of the appellant and the sentence awarded to him under Section 5 of the explosive Substances Act are hereby set aside. Appellant is on bail. His bail bonds shall stand discharged.