ORDER

This appeal has been filed by the appellants under Section 374 of Cr.P.C. being aggrieved by the judgment dated 30.07.2012 passed by the learned Additional Sessions Judge and Special Judge (Electricity Act), District Indore in S.T.No.1006/2009. By the impugned judgment, the trial Court has convicted the appellants/accused for the offence under Section 25(1-B) (A) of the Arms Act and sentenced to undergo 1 year R.I. each with fine of Rs.1000/-

each with default stipulation.

2 . Being aggrieved by the impugned judgment, the appellants 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 Country made Pistol and Katta were 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 appellants, which was denied by the appellants. The trial Court after recording the evidence and hearing the arguments found the appellants guilty for offence under the aforesaid Section and convicted them 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. Investigating officer PW-29 seized country-made pistol from Inder vide Ex.P-23 and from Vijay vide Ex.P-25 in presence of witnesses and independent witnesses of the seizure memo have not supported the evidence of investigating officer. They have turned hostile and stated that no property was seized in presence of them from the appellant.

7. From perusal of the record, it is found that the Investigating Officer stated in examination in chief that he seized the Country made Pistol and Katta from the appellants, but he did not stated in the examination in chief that he sealed the Country made Pistol and 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. In present case, prosecution was unable to produce Malkhana register by which seized articles were put in Malkhana in proper manner and independent witnesses have also not supported the seizure from the appellants.

8. 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.

9. 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.

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

1 1 . Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence of the accused/appellants imposed by the trial Court is set aside. Their bail bonds shall stand discharged. A copy