ASHOK KUMAR TIWARI, J.

( 1 ) APPELLANT herein stands convicted under Section 25 (1) (a) of Arms Act vide judgment passed by the Additional Sessions Judge, Bhanpura District Mandsaur in Sessions Trial No. 47/92 on 2/12/2000.

( 2 ) 2 (A ). Prosecutions case as unfolded before the trial Court was that R. S. Jhala (PW-7) was posted as Station House Officer at Police Station, Bhanpura on 15/10/1991. On that day, he received infor-mation from the informer that some armed dacoits have been seen in the forest near a rivulet situated between village Borda and Ledi and they are about to commit dacoity at the house of Ramnarayan Ahir resident of village Ledi. R. S. Jhala (PW-7) entered the information in roznamcha and informed Sub Divisonal Officer (Police) Garoth and the Station House Officer, Gandhi Sagar through wireless message. He requested them to come to Bhanpura Police Station. Thereafter Ramswaroop, Head Constable (PW-1) and some armed police constables were sent to village Ledikala. 02 (b ). R. S. Jhala (PW-7) along with S. D. O. P. Garoth, A. S. I. and the police force of Police Station, Gandhi Sagar started to the spot. Police force was divided in three parties and police parties reached on the bank of rivulet in forest near village Ledi. There some persons were found sitting with arms and engaged in making plan to commit dacoity at the house of Ramnarayan Ahir. Police parties surrounded the accused persons and appellant Bapu, Ram Chandra Kanjar, Indriya Kanjar and Prakash Goswami were apprehended on the spot while 2-3 accused persons fled away from there taking the benefit of darkness of the night. A country made 12 bore pistol (KATTA) and two cartridges were reco-vered and seized from the possession of the appellant Bapu while a sword and a Farsa were seized from the possession of Ram Chandra Kanjar and Indriya Kanjar respectively. A Lathi was seized from the possession of Prakash Goswami. Seizure memos etc. were duly prepared by R. S. Jhala (PW-7 ). Empty bottle of liquor, some eating material and crackers were also seized from the spot. 2 (c ). Accused persons and the articles seized were taken to Police Station, Bhanpura where R. S. Jhala (PW-7) registered crime No. 241/91 vide First Information Report (Ex. P/11 ). After completing the required investigation, charge-sheet was filed against Bapu, Ram Chandra, Indriya and Prakash.

( 3 ) AFORESAID four persons were tried for the commission of offence punishable under Section 399, 402 of Indian Penal Code and Ram Chandra S/c Nathu Singh and appellant Bapu S/c Karan were in addition to the above offences were tried for the commission of the offence punishable under Section 25 and 27 of Arms Act respectively. Accused Prakash Goswami S/c Devigiri Goswami died during the trial. Indriya S/c. Banwari and Ram Chandra S/c Nathu were acquitted of the charges leveled against them. Appellant Bapu was also acquitted of the charge under Section 399 and 402 of Indian Penal Code, but he was convicted under Section 25 (1) (a) of Arms Act instead of Section 27 of Arms Act and sentenced to undergo rigorous imprisonment for 2 years, that is why appellant has filed this appeal.

( 4 ) R. S. Jhala (PW-7) has not deposed in his testimony that pistol (KATTA) was sealed on the spot itself. There is no other evidence also to the effect. The prosecution has also not led evidence as to where and how the seized KATTA was kept after seizure. This creates a doubt about the very fact of seizure of KATTA. Sanction under Section 39 of the Arms Act has also not been properly proved. Even the concerning Arms Clerk has not been produced to prove the signatures of District Magistrate. Even if, the sanction (Ex. P/12) be taken to be proved, there is no evidence to the effect as to whether the KATTA or the arm concerned was produced at the time of obtaining sanction and District Magistrate has seen it before granting the sanction. In the absence of any positive evidence, the above fact cannot be taken as proved an

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