S. SERTO, J.

1. Heard Mr. A. Zho, learned Amicus Curiae, for the appellant and also heard Mr. K. Wotsa, learned P.P. Nagaland.

2. This appeal has been filed against the judgment and order dated 09.07.2010, passed by the learned District and Sessions Judge, Dimapur, in GR No. 491 of 2005, challenging the appellant's conviction and sentence under Section 396/34 of the IPC read with Section 25(1)(a) of the Arms Act, 1959.

3. Brief facts of the case:

On 15.11.2005, at around 1:00 A.M. a group of 11 persons armed with guns broke into the shop cum residence of one Mr. Nandu Shah and while committing dacoity, shot dead one Mr. Rafique Ahmed at Zakiesato Colony, Ghorapatti, Dimapur, by two of the dacoits namely, Mr. Hukum Ali and Mr. Shajan Ali and a case was registered by the Dimapur East Police under Dmr. East P.S. Case No. 158/05 u/s 396 IPC. During the investigation police arrested 9 accused and were produced before the Judicial Magistrate First Class, Dimapur on 31.03.2006, and subsequently, the case was committed to the learned District and Sessions Judge, Dimapur. Charge was framed against all the accused persons under section 302/396/34 of the Indian Penal Code read with section 25(1)(a) of the Arms Act.

4. During the course of trial, prosecution produced 10 witnesses and they were examined. Being satisfied after hearing both the sides and the evidence produced in the trial, the learned District and Sessions Judge, by passing the judgment and order dated 09.07.2010, convicted and sentenced Accused Hukum Ali (stated deceased) and Accused Shajan Ali, to undergo imprisonment for life, aggregated to 20 years, for offence of dacoity with murder, U/S. 396/34 of the Indian Penal Code and another 6 years for offence U/S. 25(1)(a) of the Arms Act. Further, the learned Court also sentenced 8 other accused persons to undergo 10 years Rigorous Imprisonment for offences U/S. 396/34 of the Indian Penal Code and another 6 years Rigorous Imprisonment for offence U/S. 25(1)(a) of the Arms Act. All these sentences were directed to run concurrently.

5. The judgment and order of conviction and sentence, dated 09.07.2010, has been called in question in the present appeal on the following grounds;

(i) that learned trial court committed error in law as well as in fact in convicting and sentencing the accused/appellant for life though the case of the appellant was a clear case of acquittal.

(ii) that learned trial court completely failed to exercise his mind in deciding the case.

(iii) that the learned trial court by considering some extraneous matter which are not on the record passed the impugned judgment and as such the same is liable to be set aside/ quashed.

(iv) that the learned trial court did not at all consider the evidence of eye witnesses and as such the impugned judgment and order is vitiated by illegalities and irregularities and as such, it is liable to be set aside and quashed.

(v) that the impugned judgment and order was not passed in accordance with law and as such the same is liable to be set aside and quashed.

6. Mr. A. Zho, learned Amicus Curiae, for the appellant, submitted strongly pressing that the impugned judgment and order of the learned Sessions Judge, is vitiated by non compliance of the mandatory provision of section 39 of the Arms Act, which provides for prosecution sanction of the District Magistrate. He also submitted that assuming but not admitting that the sanction was given since the same was never exhibited, the appellant has been denied the opportunity of assailing validity of it, as such, the same cannot be used as an evidence. Therefore, the learned Trial Court erred in convicting the appellant under section 25(1)(a) of the Arms Act. Mr. A. Zho, also submitted that the seized arms were neither sent for expert opinion to verify whether they were serviceable or not and none of the police officers involved in the investigation has stated in evidence that the arms were in working condition. Further, Mr. A. Zho submitt