The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. In the absence of reliable evidence identifying the accused as the person from whom the firearm was seized, the prosecution failed to discharge this burden.

Joymalya Bagchi, J.

The appeal is directed against the judgment and order dated 30th September, 1988 passed by the learned Additional Session Judge, Asansol in Session Trial No. 7 of 1988 convicting the appellant for commission of offence punishable under Section 25(1)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs. 200/- only in default further rigorous imprisonment for one month more.

2. Prosecution case, as alleged, against the appellant is that on 05.04.1981 in the evening officer-in-charge of Kulti Police Station received intelligence about assembly of five or more persons in a dilapidated and abandoned hotel situated by the side of G.T. Road at Kultora with arms for committing dacoity and other heinous offences. On the basis of such information, officer-in-charge, Subhas Ganguly of Kulti Police Station along with force went to that place and surrounded the abandoned and dilapidated hotel. They found seven to eight persons assembled in a room in the said hotel. On being challenged those persons tried to escape but the raiding police party managed to catch hold of three of them. Upon search a five chambered country-made revolver loaded with two live cartridges of .32 bore were seized from one of the miscreants who gave his name as Aslam. The police party seized the firearm with cartridges alongwith other articles under a seizure list. The miscreants were arrested and brought to the police station. On the basis of written complaint of the officer-in-charge of the police station, Kulti P.S. Case No. 12 dated 05.04.1981 under Section 399/402 of the Indian Penal Code read with Sections 25(1)(a) and 27 of the Arms Act was registered against the appellant and five other persons. Upon conclusion of investigation, charge sheet was filed in the instant case against the appellant and two other persons viz. Chotka @ Md. Alam and Ram Naresh Singh. The case, being a sessions and triable one, was committed to the Court of Sessions, Burdwan and transferred to the Court of learned Additional Session Judge, Asansol for trial and disposal. Charges were framed under Section 399/402 of the Indian Penal Code against the appellant and other accused persons and under Section 25(1)(a) and 27 of the Arms Act against the appellant. The appellant and other accused persons pleaded not guilty and claimed to be tried.

3. In the course of trial prosecution examined as many as seven witnesses and exhibited a number of documents. The plea of defence was one of innocence and false implication. In conclusion of trial learned Trial Judge by judgement and order dated 30th September, 1988 convicted the appellant for commission of offence punishable under Section 25(1)(a) of the Arms Act and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 200/- only in default further rigorous imprisonment for one month more. By the self-same judgement and order learned Trial Judge acquitted the appellant and other accused persons of the charge under Section 399/402 of the Indian Penal Code and under Section 27 of the Arms Act so far as it relates to the appellant.

4. Mr. Dipanjan Dutta, learned Counsel appearing as amicus curiae, submits that the prosecution case has not been proved. The P.Ws. 1 and 2 was unable to identify the appellant as the person from whom the firearm was seized. P.W 3 also could not identify the person from whom the firearm was seized. Defacto complainant has not been examined in the instant case. Accordingly, it cannot be said that the firearm was seized from the possession of the appellant.

5. Mr. Banerjee, learned Additional Public Prosecutor, submits that seizure of the firearm has been proved through the evidence of P.Ws. 1, 2 and 3. He further submits that the opinion of the arms expert, P.W. 5, showed that the seized firearm was in working condition and ammunition's were live. He accordingly prays for dismissal of the appeal.

6. Having perused the evi