C.R. Sarma, J.

1. This appeal is directed against the judgment and order, dated 28.9.2007, passed by the learned Addl. Sessions Judge (FTC). Hojai at Sankardev Nagar in Sessions Case No. 349 (N)/2005 arising out of G.R. Case No. 588/1999 under Sections 399/307 IPC read with Section 25(1-B) of the Arms Act. By the impugned judgment and order, the learned Addl. Sessions Judge (FTC), Hojai convicted the appellant, under 25(1-B) of the Arms Act and sentenced him to suffer rigorous imprisonment for 2 years and pay fine of Rs. 1,000/- in default, suffer simple imprisonment for 30 days.

2. The prosecution case, in brief, is that on 10.9.1999, the Officer-in-Charge of Hojai Police Station received a secret information that some miscreants with firearms and weapons had assembled in the verandah of Sri Joyanta Paul of Bishnu Polly, Hojai, Nagaon for the purpose of committing crime. Accordingly, the Officer-in-Charge, alongwith his office staff namely, S.I., Sri D. Roy and Sri D. Bora rushed to the spot and cordoned the area at about 12-30 pm. At the arrival of the police, the miscreants fired at the police party by using revolver and compelling the police party to retaliate by opening fire, as a result of which one of the miscreants sustained bullet injury. However, they managed to run away by throwing the revolver into the jungle. The police party chased the miscreants and caught two of the miscreants, namely, Shri Bhusan Roy (appellant) and Sri Nepal Roy (since acquitted). In order to trace out the revolver, alleged to be thrown by Shri Bhushan Roy into the jungle, the police searched the same in the nearby the jungle and recovered a point 38 revolver and one round of life cartridge from the jungle.

3. Accordingly, police registered a case under Sections 387/307 IPC, read with Sections25(1)(1-B)/27 of the Arms Act.

4. At the close of the investigation, police submitted charge sheet under Sections 387/307IPC read with Sections 25(1)(1-B)/27 of the Arms Act.

5. The case was committed to the court of Sessions for trial. The learned Addl. Sessions Judge (FTC), Hojai framed charges under Sections 399/307 IPC and Section 25(1-A) of the Arms Act. The charge was read over and explained to the accused persons, to which they pleaded not guilty.

6. In order to prove its case, the prosecution examined as many as 7(seven) witnesses including the Investigating Officer. At the close of the evidence, the accused persons were examined under Section 313 Cr.P.C. The denied the allegations and declined to adduce defence witness.

7. Considering the evidence, on record, the learned Addl. Sessions Judge (FTC), Hojai came to the findings that the prosecution failed to establish the charge against the appellant, under Section 25(1-B) of the Arms Act Accordingly, the appellant was held guilty of the offence under Section 25(1-B) of the Arms Act and he was convicted and sentenced, as indicated above. The other accused namely Sri Nepal Roy was acquitted.

8. Aggrieved by the said conviction and sentence, the appellant has come up with this appeal.

9. I have heard Mr. I. Uddin, learned counsel for the appellant and Mr. K. Munir, learned Addl. Public Prosecutor, Assam, appearing for the State respondent.

10. Mr. I. Uddin, learned counsel for the appellant, taking this court through the evidence, on record, has submitted that the prosecution failed to establish, beyond all reasonable doubt, that the fire arm i.e. the revolver with the cartridge was found in the possession of the appellant. The learned counsel has submitted that there is nothing, on record, to show that the pistol, alleged to be thrown by the appellant, into the jungle, was the pistol recovered and seized by the Investigating Officer. It is also submitted that the evidence given by P.W. 2, who was an independent witness, belies the prosecution version that the pistol, alleged to be thrown by the appellant was recovered by the police.

11. The learned counsel for the appellant further submitted that the