STATE OF M P Vs. HAJRU JHETU

JUDGEMENT

(1.) THIS appeal and Criminal Appeal No. 88 of 1976 are filed by State against the present respondent and Baloo son of Premsingh respectively, aggrieved by their acquittal from charges under section 25 of the Arms Act recorded by the Chief Judicial Magistrate, Jhabua. Although two separate prosecutions were tiled against the respective respondents for offence under section 25 of the Arms Act; but initially these two respondents along with others were arrested and prosecuted for offences under section 395/397, Indian Penal Code on the allegation that at the time of commission of the offence while running away they had fired some shots to scare away the people, by the muzzle -loading guns and during investigation of that offence under section 395/397, Indian Penal Code from the houses of these two respondents two muzzle -loading guns were recovered. It is alleged that they were recovered on information given by the respondents. In the sessions trial held of these two respondents along with other accused for offences under sections 395/397, Indian Penal Code, which was Sessions Trial No. 433 of 1974 decided by Additional Sessions Judge, Jhabua on 30 -8 -1975, these two respondents along with others were acquitted as the learned Additional Sessions Judge found that the evidence does not indicate that the firearms were used by these respondents in the commission of the offence. The learned Additional Sessions Judge in that trial therefore ordered that these firearms be returned to these persons. Thereafter the police filed these two prosecutions against the respective respondents under section 25(a) of the Arras Act.

(2.) THE only witness examined in both these cases is the investigating officer Babusingh who claims to have recovered the guns at the instance of the respective respondents. In his evidence although he states that information was given by the respondent and he recovered the weapon from the house of the respondent, but neither has he proved what information in exact words was given by the respondent, nor the memo prepared of the information has been brought on record. In his evidence he has also not clearly stated as to how this weapon was recovered or from what particular place the weapon was recovered. It is also not stated that it was the respondent who took out the weapon from some place of concealment and the memo of seizure of the weapon has also not been produced nor exhibited. In the cross -examination the only question put in both these cases to this witness is that the respondents were prosecuted for offences under sections 395/397, Indian Penal Code and were acquitted.

(3.) IT is clear that the evidence of Babusingh as stated above, neither proves the information which was given by the respondents nor proves conscious possession of the respondents of the gun which was recovered from the house when the respective respondent was in custody. The prosecution has not even attempted to produce the seizure memo or the memo prepared of the information. It is therefore clear that this evidence is not at all sufficient to prove that a muzzle -loading gun was recovered from the possession of the respective respondent without a licence and therefore on this evidence the respondents could not be convicted for offence under section 25(a) of the Arms Act.