ORDER

This appeal has been filed by the appellant under Section 374 of Cr.P.C.

being aggrieved by the judgment dated 14.12.2012 passed by the learned II Additional Sessions Judge (Fast Track) Kukshi, District Dhar in S.T.No.229/2012. By the impugned judgment, the trial Court has convicted the appellant no.1-Bhjansingh for offence under Section 324 of IPC and sentenced to six months R.I. with fine of Rs.500/- and also under Section 25(1)(b) of the Arms Act and sentenced to 1 year R.I. with fine of Rs.500/- with default stipulation.

2 . Being aggrieved by the impugned judgment, the appellant filed this appeal on the ground that the trial Court failed to see that there is no evidence on record to prove that accused was guilty. There are material contradictions and omissions in the statement of the prosecution witnesses. The Investigating Officer was unable to prove that seized Falia was sealed on his part and put in proper way in Malkhana. The independent witness turned hostile and did not support the prosecution case. On these grounds, prays for setting aside the impugned judgment and acquittal of the appellant no.1-Bhajansingh.

3 . The trial Court framed charges against the appellant, which was denied by the appellant. The trial Court after recording the evidence and hearing the arguments found the appellant no.1-Bhajansingh guilty for offence under the aforesaid Sections and convicted him as aforesaid.

4. Learned counsel for the State supported the impugned judgment and prays for dismissal of the appeal.

5. Now question arises whether the appeal of the appellants is admissible or not?

6 . So far as conviction for offence under Section 324 of the IPC is concerned, I have gone through the evidence adduced by the prosecution and examined it minutely. From perusal of overall evidence on record, it is clearly established that learned trial Court did not commit any error in convicting the appellant no.1 under Section 324 of the IPC. Hence, findings recorded by the trial Court with respect to conviction are affirmed.

7. So far as sentence is concerned, appellant no.1 remained in custody from 03.05.2012 to 04.05.2012. Accused was 40 years of age at the time of incident and now he is near about 52 years old. Hence, while modifying the sentence of imprisonment, appellant no.1 is sentenced to the period already undergone by him with fine as imposed by the trial Court. The appellant no.1 is on bail. His bail bonds stands discharged accordingly.

8. So far as offence under Section 25(1)(b) of Arms Act is concerned from perusal of the record, it is found that the Investigating Officer stated in examination in chief that he seized the Falia from the appellant no.1, but he did not stated in the examination in chief that he sealed the Falia on the spot. It is true that evidence of the police officer cannot be discarded on the basis that independent witness has not supported him. It also true that evidence of police officer must be examined as independent witness and if it is found that he was doing investigation without any malicious intention then his evidence cannot be discarded on the basis that he was a police witness. Prosecution was unable to produce Malkhana register by which seized article was put in Malkhana in proper manner.

9. In the case of Varghese Vs. State of Kerala 1998 (1) MPWN S.N. 209 SC and Jasbir Singh Vs. State of Punjab reported in AIR 1998 SC 1660 it was held that weapon was sealed on the spot and there is no evidence produced by the prosecution that after seizing the weapon it was kept in Malkhana of Police Station properly and not produced Malkhana register, then seizure of the weapon is doubtful.

10. In the case of State of Rajasthan Vs. Gurmail Singh reported in AIR 2005 SC 1578 the Apex Court held that if it was not proved by evidence that seized weapon was kept in Malkhana in sealed situation, then prosecution case may be doubtful.

11. In view of the afore