ORDER

This appeal has been filed by the appellant under Section 374 of Cr.P.C. being aggrieved by the judgment dated 27.02.2013 passed by the learned Special Judge, District Dhar in S.S.T.No.56/2010. By the impugned judgment, the trial Court has convicted the appellant/accused for the offence under Section 25(1)(1-B) A of the Arms Act and sentenced to undergo 1 year R.I. with fine of Rs.5000/- and in default of payment of fine to further undergo 3 months additional R.I.

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 Katta 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.

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 guilty for offence under the aforesaid Section 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 appellant is admissible or not?

6. From perusal of the record, it is found that the Investigating Officer stated in examination in chief that he seized the Katta from the appellant, but he did not stated in the examination in chief that he sealed the Katta 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.

7. 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.

8. 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.

9. In view of the aforesaid discussion, it is found that prosecution is unable to prove that seized Katta was seized from the appellant. So in the considered opinion of this Court, trial Court has committed error in holding the accused/appellant guilty for offence under Section 25(1)(1-B) A of the Arms Act.

10. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence of the accused/appellant imposed by the trial Court is set aside. His bail bonds shall stand discharged. A copy of this order be sent to the concerned trial Court for information. C.C. as per rules. (HIRDESH) JUDGE RJ