The prosecution must prove possession of arms and intent to kill for convictions under Sections 121 and 307 IPC; failure to do so results in acquittal.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, 'CrPC') has been filed by the Appellant Jayram Salam calling in question the legality, validity and correctness of the Judgment and Order dated 9.9.2016 passed by Special Judge (N.I.A. Act/Scheduled Crime), Bastar, Jagdalpur (in short, ‘Trial Court’) in Sessions Case No.26/2015, while acquitting the other two accused persons, namely – Sanjay Hurra and Ramdhar Dhurwa, for the offences punishable under Sections 148/149, 307/149, 121/149 of the Indian Penal Code, 1860 (in short, 'IPC') as well as under Sections 25(1A) and 27(2) of the Arms Act, 1959 (in short, ‘Arms Act’), has convicted the Appellant for the aforesaid offences and sentenced as under:-

All substantive sentences have been directed to run concurrently.

2. Case of the prosecution, in a nutshell, is that on 13.8.2014 at about 10:00 a.m., near the pond, in the field of Mangal Singh Sori situated at Village Ghumsimunda, within the limits of Police Station Antagarh, the Appellant and the aforesaid two acquitted accused persons along with 28 other absconded accused persons, constituted an unlawful assembly armed with deadly and dangerous weapons to fulfill their unlawful object and opened fire on S.D.O.(P) Daulat Ram Porte (PW-2) and police party with automatic rifles and waged war against the Government of India, thereby committed the aforesaid offences.

3. Further case of the prosecution is that on 13.8.2014, the Station House Officer, Police Station Antagarh received a secret information from the Superintendent of Police, Kanker in respect of unlawful assembly of the Appellant and other acquitted and absconded accused persons, being naxalites, at Village Ghumsimunda, near the pond in the field of Mangal Singh Sori, to boycott to the Independence Day. On receiving the aforesaid information, a joint party of S.D.O.(P), Antagarh, B.S.F. and C.A.P.F. cordoned off the field of Mangal Singh Sori and while the joint party was moving forward from the western front, the Appellant and other acquitted and absconded accused persons, opened fire on the joint police party who answered them with counter firing and all the accused persons then ran away towards the jungle from southern part of the area. During the conflict, one accused was found injured with gun shot, who named himself as Jayram alias Jitru, i.e., the present Appellant, and he also told the name of other accused persons, including the two acquitted accused persons, who had fired on the police party and fled from the spot. During the search, certain weapons, daily use articles and naxalite pamphlets etc., were recovered.

4. The matter was registered at Police Station Antagarh and the wheels of investigation started running. Dehati Nalishi was prepared vide Exhibit P-10 and F.I.R. was registered vide Exhibit P-11. Sketch Map of the place of incident was prepared. Vide Exhibit P-3, seizure of one AK-47 Rifle is said to have been made from the present Appellant. One country made pistol and other articles were also seized from the place of incident vide Exhibits