1. Sole appellant Ravindra Singh, who has been found guilty for an offence punishable under Section 25(1-B) a of the Arms Act and directed to undergo R.I. for three years as well as also fined of Rs.500/- in default thereof to undergo R.I. for one month additionally vide judgment of conviction and sentence dated 15.01.2013 rendered by Ad-hoc Additional Sessions Judge, IIIrd, Munger has challenged the same.
2. PW-2, Rakesh Kumar, Officer-in-charge of Hemzapur O.P. recorded his self-statement on 30.01.2012 at about 05:00 A.M. at Durgapur Middle School alleging inter alia that on the same day at about 03:00 A.M. he received confidential information with regard to assemblage of anti-social elements at Durgapur Middle School who were planning to commit an offence, constituted a raiding party and conducted raid during course of which all the other accused managed to escape while appellant Ravindra Singh was apprehended. From his possession one country made loaded pistol along with two, .315 bore live cartridges were seized for which seizure list was prepared in presence of Chowkidar (shown as seizure list witness) as on account of wee hour there was non presence of independent witnesses at the spot.
3. On the basis of the aforesaid statement Dharharar P.S. Case No.11/2012 was registered under Section 399/402 of the IPC and 25(1-B) a, 26, 35 of the Arms Act whereupon investigation was taken up and after concluding the same charge sheet was submitted. Trial commenced thereupon and concluded in a manner, the subject matter of instant appeal.
4. From the lower court record, it is evident that altogether nine PWs have been examined out of whom PW-1 is Arvind Kumar Singh, Ballistic Expert (Sergeant Major), PW-2 is Rakesh Kumar (informant), PW-3 is Anup Paswan one of the seizure list witness, Chowkidar. PW-4 is Awadh Kumar Prasad is a formal witness who had exhibited sanctioned order. PW-5 is Harkishun Singh one of the member of the raiding party, PW-6 is Maharana Pratap Singh, one of the member of the raiding party, PW-7 Vishwa Bandhu Kumar part I.O., PW-8, Satya Narayan Paswan, Chowkidar and PW-9, Kamal Kant Prasad part I.O. Apart from aforesaid oral evidence, prosecution had also exhibited ballistic report Ext.-1, self-statement of PW-2, Ext.-2, seizure list Ext.-3, signature of seizure list witnesses, 3/1, 3/2 respectively, sanction order Ext.-4, as well as had also produced material exhibit as ME-I pistol, ME-II, cartridges.
5. The defence of the appellant as is visualizing from mode of cross-examination as well as from statement recorded under Section 313 of the Cr.P.C. is of complete denial. However, neither any DW nor any document has been adduced during course of trial.
6. From the evidence of PW-1 coupled with Ext.-1, the ballistic report, it is evident that the material exhibits were produced before him in sealed condition. He had further stated that he returned back the arm and ammunition in sealed condition after examination. The aforesaid event is found uncorroborated from the evidence of PW-2, informant PW-7 part I.O. and PW-9 the main I.O. Not only this PW-3 and PW-8 the seizure list witnesses too bolstered as none of them deposed that seized arms and ammunition was ever seized. Then how the so alleged recovered arms and ammunition were produced before the pw-1 in sealed condition happens to be a matter of suspense on account of non-explanation furnished on behalf of prosecution and in likewise manner happens to be another circumstances as from the evidence of PW-1, the sergeant major who in examination-in-chief had stated that after examining the arms and ammunition he returned back after sealing the same and Ext.-1, the report also speaks like so. Material exhibit has been produced before the court by PW-2. From his examination-in-chief, para-6, it is evident that neither arms and ammunition so produced in court was brought up in sealed condition nor from his evidence any specific sign expected to be thereupon was found, revealed while from para-17 of his cross-examination he had clearly stated that he had put specific mark over seized arms and ammunition. He had also affixed paper over the seized arms and ammunition identifying the weapon as well as having the disclosure from whose possession it was seized. That means to say there happens to be complete absence of link to connect the arms and ammunition so produced before the court happens to be the same which was really recovered and seized from possession of appellants.
7. In Jasbir Singh v. State of Punjab reported in AIR 1998 SC 1660 the Honble Apex Court had taken into consideration the lapses on the part of the prosecution in getting the arms and ammunition not properly sealed at the place of occurrence itself and held:
œ3. What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were sealed. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the Court was not established by the prosecution. Having gone through the evidence, we find that contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial Court. As the identity of the incriminating articles has not been established by the prosecution, we allow this appeal, set aside the conviction of the appellant both under Section 5 of the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him.?
8. In the aforesaid facts and circumstances of the case, it looks unsafe to concur with the finding arrived at by the learned trial court and on account thereof, the judgment impugned is set aside. Appeal is allowed. Appellant is under custody, hence is directed to be released forthwith if not wanted in any other case.