1. Assail is to the judgment dated 5.8.08 passed by the Additional Sessions Judge and Special Judge, (Dacoity Act), Panna in Special Case No: 76/08, whereby the appellant Chirku @ Lakhanlal has been convicted under Section 25 (1) (b) (a) of Arms Act read with Section 11/13 of M.P. Dacoity Ewam Vapharan Prabhwit Kshetra Adhiniyam, 1981 (in short 'the Adhiniyam') and sentenced to 3 years rigorous imprisonment and fine of Rs. 500/- indefault one months rigorous imprisonment.

2. Case of the prosecution in a nutshell is that SHO Police Station, Dharampur on intervening night of 21-22/4/08 received secret information that in village Dharampur one person is roaming possessing katta. The information was entered vide Exhibit P-8C. RG Tiwari along with police party and panch witnesses reached on the spot. He saw a person running infront of Durgapur School, that man was apprehended by the police. The personal search of the person apprehended was taken. A 315 bore katta containing live cartridge was found in possession of that person. On interrogation, he disclosed his name as Chirku @ Lakhanlal. Katta and cartridge were seized vide seizure memo Exhibit P-l, Panchnama Exhibit P-10 was lodged by R.G Tiwari (PW-7). Shahbuddin Dwivedi (PW-5) on examining seized katta and cartridge opined that fire can be made by katta and live cartridge of 315 bore. Sanction for prosecution under Arms Act was accorded vide Exhibit P-5. After completion of investigation, the appellant was charge-sheeted.

3. Learned trial Court framed charge under Section 25 (1) (b) (a) of Arms Act read with Section 11/13 of the Adhiniyam. The appellant abjured the guilt and pleaded innocence and false implication. His defence is that he was going to forest, Inspector arrested him and put him in thana, he has been falsely implicted.

4. Prosecution has examined 7 witnesses, no witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant under Section 25 (1) (b) (a) read with Section 11/13 of the Adhiniyam and sentenced him as hereinabove, mentioned. Being aggrieved by the impugned judgment, the appellant has preferred the appeal.

5. I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record.

6. Learned counsel for the appellant vehemently argued that the prosecution has failed to prove that the appellant is a dacoit or on fateful night, he was going to commit dacoity. The offence under Arms Act is not specified offence under the Act. Hence, he cannot be convicted with the aid of Section 11/13 of the Adhiniyam. R.G Tiwari (PW-7) lodged FIR, seized alleged katta and cartridge from the appellant. He conducted investigation, hence, without corroboration his testimony cannot be relied upon and conviction cannot be based on his testimony. There are material contradictions and omissions in the statement of prosecution witnesses. Independent witnesses are not supporting the prosecution case. Sanction for prosecution under Arms Act Exhibit P-5 is not in accordance with law. Learned trial Court committed error in convicting and sentencing the appellant as hereinabove mentioned. Contrary to that learned Public Prosecutor supported the impugned judgment and submitted that learned trial Court did not err in convicting and sentencing the appellant.

7. Decoit is defined under Section 2 (b) of the Adhiniyam thus :-"(b) "dacoit" in relation to a dacoity and kidnapping affected area, means a person who commits or has committed an offence punishable under Section 395 of the Indian Penal Code (XLV of 1860) or a specified offence, or as the case may be, a person accused of commission of any such offence."

Specified offences is defined in Section 2 (f) of the Adhiniyam thus:-

"(f) "Specified Offence" means:-

(1) an offence specified in the schedule committed in relation to an area declared under Section 3 being an offe