IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 6 OF MARCH, 2024 CRIMINAL APPEAL No. 532 of 2012 BETWEEN:-

MUKESH S/O SHOBHARAM LODHA, AGED ABOUT 30 YEAR S , VILLAGE BHIDOTA, POLICE STATION SADALPUR, AT PRESENT SHANI GALI DHAR, DISTRICT DHAR (MADHYA PRADESH)

.....APPELLANT (BY SHRI L.R. BHATNAGAR - ADVOCATE)

AND THE STATE OF MADHYA PRADESH THRU. P.S. DHAR, DISTRICT DHAR (MADHYA PRADESH)

.....RESPONDENT ( BY SHRI MAYANK MISHRA - PANEL LAWYER)

This appeal coming on for hearing this day, the court passed the following:

ORDER

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

being aggrieved by the judgment dated 12.04.2012 passed by the learned IV Additional Sessions Judge, district Dhar in S.T.No.395/2010. 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.500/- and in default of payment of fine to further undergo 1 month S.I.

2 . The prosecution story in brief is that complainant Gokul lodged a report that on 17.09.2010 at 8:00 P.M. appellant/accused along with one Torjan Signature Not Verified @ Vijay assaulted him at Mayapuri Colony near BJP office. It is alleged that the appellant used country made pistol and slapped him. On this complaint, the police registered FIR against the appellant and co-accused persons for offence under Section 323, 506, 307/34 of IPC along with Section 25(1)(1-B)(a) of the Arms Act.

3. The complainant and the accused persons made compromise for offence under Sections 323, 323/4 and 506 of IPC, therefore the Court below acquitted the accused persons in this offence and prosecuted them under Section 307, 307/34 of IPC and Section 25(1)(1-B)(a) of the Arms Act.

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 acquitted the appellant for offence under Section 307, 307/34 of IPC and found the appellant guilty and convicted him for offence under Section

25(1)(1-B)(a) of the Arms Act and sentenced as aforesaid.

4 . 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. The prosecution failed to establish the recovery of weapon by any independent witness about the seizure Panchnama Ex.P-10 and same could not be proved in accordance with the Evidence Act. There are material contradictions and omissions in the statement of the prosecution witnesses. The Investigating Officer was unable to prove that seized pistol was sealed on his part and put in proper way in Malkhana. On these grounds, prays for setting aside the impugned judgment and acquittal of the appellant.

5. Learned counsel for the State supported the impugned judgment and Signature Not Verified prays for dismissal of the appeal.

6. Now question arises whether the appeal of the appellant is admissible or not?

7 . After hearing the learned counsel for the parties and perusal of the record, it is found that Gauri Shankar (PW-7) Investigating Officer stated in examination in chief that he arrested the appellant and prepared the memorandum and on the basis of Ex.P-10 he seized the pistol from the appellant. Seizure memo is Ex.P-10. The witnesses of the seizure memo and memorandum were not examined by the prosecution.

8. Hence, considering the evidence available on record, it is found that prosecution was unable to produce independent witness in support of the investigating officer Gauri Shankar (PW-7). It is true that evidence of the police officer cannot be discarded on the basis that independent witness have not support 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 di