IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 11 OF MARCH, 2024 CRIMINAL APPEAL No. 1441 of 2012 BETWEEN:-

VIMAL S/O UMASHANKAR SHRIVAS, AGED ABOUT 25 YEARS, OCCUPATION: SERVICE 31/5, PARDESIPURA INDORE (MADHYA PRADESH)

.....APPELLANT (NONE FOR THE APPELLANT )

AND THE STATE OF MADHYA PRADESH THRU. P.S.

KHAJRANA DISTT. INDORE (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 31.10.2012 passed by the learned V Additional Sessions Judge, district Indore in S.T.No.996/2012. By the impugned judgment, the trial Court has convicted the appellant/accused for the offence under Section 25(1-B)(B) 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 additional R.I.

2. The prosecution story in brief is that complainant Chandan Singh was serving at the Malviya Petrol Pump and at about 8:45 P.M. accused Sachin and Signature Not Verified Vimal came there on the bike bearing registration No.MP-09-MK-9308 and asked to fill petrol in the bike and when the complainant asked for payment of the petrol both the accused abused the complainant and fired in the air with their pistol and because of fear complainant gave them the petrol worth Rs.100-150. Accordinlgy, FIR was registered against the appellant and co-accused person for offence under Sections 392,397,294,336,506,34 of IPC along with Section

25(1-B)(B) 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 of the parties found the appellant guilty and convicted him for offence under Section 25(1-B)(B) 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 independent witness Sonu @ Manoj (PW-8) has not supported the seizure memo and memorandum Ex.P-5 and Ex.P-3. He was declared hostile and when asked leading question by the prosecution he stated that police never seized any Katta from the appellant in front of him. There are material contradictions and omissions in the statement of the prosecution witnesses. 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 prays for dismissal of the appeal.

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

7. On perusal of the record and on considering the evidence available on Signature Not Verified record, it is found that the independent witness Sonu @ Manoj (PW-8) has not supported the seizure memo and memorandum Ex.P-5 and Ex.P-3. He was declared hostile and when asked leading question by the prosecution he stated that police never seized any Katta from the appellant in front of him. Prosecution was unable to produce Malkhana register by which seized article was put in Malkhana in proper manner.

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 pr