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2025 DAILYLAW 4596 (GAU)

Raju Silla Sangdo v. THE STATE OF AP

Crl.A./23/2022 · 2025-03-31

Kardak Ete

Criminal Appealbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

Page No.# 1/38 GAHC040008172022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./23/2022 Raju Silla Sangdo S/o Fegung Silla Sando, Resident of Silla Village, PO/PS Seppa, East Kameng DIstrict, Arunachal Pradesh. VERSUS THE STATE OF AP Through Public Prosecutor, AP Advocate for the Petitioner : Dicky Panging, D Tamuk,M Doji,T Tayeng,Doge Lona,Kirmar Ado Advocate for the Respondent : P P of AP, Date of Hearing :13.02.2025 Date of Judgment :01.04.2025 Page No.# 2/38 BEFORE HONOURABLE MR. JUSTICE KARDAK ETE JUDGMENT & ORDER (CAV) Heard Mr. D. Panging, learned counsel for the appellant. And also heard Ms. T. Jini, learned Additional Public Prosecutor for the State. 2. This criminal appeal is directed against the judgment and order dated 17.06.2022 passed by the learned Sessions Judge, Bomdila, West Kameng District in Sessions Case No. 12/2020, under Section 506 IPC read with Section 27(1) (2) of the Arms Act, 1959, whereby, the appellant has been convicted and sentenced to undergo imprisonment of 7(seven) years under Section 27(1) and (2) of the Arms Act, 1959 and a sentence of 2 (two) years under Section 506 IPC, 1860. 3. The case set up by the prosecution is that an Enquiry report was received from Inspector Bojum Pusang, Officer-in-Charge, Seppa Police Station, to the effect that on 20.05.2019 evening, he had received a telephonic information from the Superintendent of Police, Seppa that Constable Raju Sangdo (appellant herein), had entered SP’s Bungalow with Arms. On receipt of the said information, he alongwith Sub-Inspector S. Don (Investigating Officer) had visited the S.P. Bungalow, during which, it was found that Constable Raju Sangdo, who was detailed as Sentry Guard at SP’s bungalow, has randomly opened fire from his service rifle (SLR). 4. Upon receipt of the above report, a case was registered being Seppa P.S. Case No. 52/2019, under Section 307 IPC read with Section 27 of the Arms Act, Page No.# 3/38 1959. During the course of investigation, the Investigating Officer (hereinafter referred to as I.O. in short) visited the place of occurrence, rough sketch map drawn and seized 3 rounds of cartridge of 7.62 SLR (Self Loading Rifle) from the compound of the Superintendent of Police (SP in short) Bungalow on 20.05.2019. Thereafter, the statements of the witnesses were recorded. 5. Upon completion of the investigation, police filed the charge-sheet before the Chief Judicial Magistrate, Seppa on 02.09.2020. The learned Trial Court has framed the charges under Section 307 IPC, read with Section 27 (1) & (2) of the Arms Act, 1959, against the accused/appellant and the same was read over to him to which he pleaded not guilty and claimed to be tried. 6. During the course of the trial, the prosecution has examined in all 9 (nine) prosecution witnesses including the I.O. to bring home the guilt of the accused person. On closure of the evidence of prosecution witnesses, the accused/appellant was examined under Section 313 of the Cr. PC, 1973, wherein, the accused/appellant denied the accusations made against him. The defence has adduced evidence by examining the wife of the accused/appellant as DW-1. 7. After consideration and appreciation of materials/ evidences, the learned Sessions Judge, having found that no offence is proved under section 307, IPC, 1860, vide his judgment and order dated 17.06.2022 has convicted the accused/appellant and sentenced him to undergo imprisonment of 7 (Seven) years for the offence under Section 27 (1) & (2) of the Arms Act, 1959, and a sentence of 2 (two) years for the offence under Section 506 IPC, which shall run concurrently. Page No.# 4/38 8. Mr. D. Panging, learned counsel for the appellant, submits that the evidences on record do not warrant the conviction and sentence of the appellant under Section 506 of IPC, 1860 and Section 27 (1) & (2) of the Arms Act, 1959. He submits that the prosecution has failed to establish the rule of circumstantial evidence in as much as that the prosecution has failed to establish each of the circumstances beyond doubt as all the circumstances put together must lead to only one inference and that is the guilt of the accused while joining chain of circumstances. The learned Trial Court did not appreciate the fact that none of the prosecution witnesses had deposed that they had actually seen the appellant firing from the SLR gun issued to him on duty. The learned Trial Court did not appreciate the fact that, in fact, all the prosecution witnesses who were purportedly present had categorically stated that they have not personally seen the appellant firing the gun and that they had only heard 4 rounds of bullets being fired. 9. He submits that the learned Trial Court did not consider the fact that the PW-4, Shri Robin Hissang, who was one of the seizure witness for the purported seizure of the service rifle had categorically deposed that he was called by the Officer-in-Charge of the Seppa Police Station over mobile phone and on his arrival at the police station he was asked to witness and put his signature on the seizure memo but he was never shown the seized item i.e. SLR gun, by the police. The learned Trial Court did not consider the fact that the PW-5 Shri Nyakam Singdo had also deposed that he was also asked by the Officer-in- Charge to sign the seizure memo and seizure was already done before his arrival and the seized rifle was never shown to him. The learned Trial Court did not consider the fact that one Shri Deraka Singdo who was another witness to the purported seizure of the weapon of offence was never examined by the Page No.# 5/38 prosecution before the learned trial court. The learned Trial Court did not consider the fact that Constable W. Mamai who was one of the seizure witnesses for the purported seizure of the 3 (three) empty cartridges from the place of occurrence was never examined by the prosecution. 10. He submits that the learned Trial Court did not consider the fact that there are inherent contradictions in the deposition of the prosecution witnesses in as much as the PW-8, Sub-Inspector S. Don, the I.O, had categorically deposed that the accused person's father and one Mr. Robin Hissang, PW-4, had handed over the weapon of offence in the Seppa Police Station, however, Mr. Robin Hissang had categorically stated that he was called by the OC, PS over mobile phone to come to the Police Station and sign the seizure memo and that the alleged weapon of offence was never shown to him by the police. The learned Trial Court did not consider the fact that the PW-8, had categorically deposed that the accused person's father and one Mr. Robin Hissang (PW-4) had handed over the weapon of offence in the Seppa Police Station, however, the appellant's father was never examined by the prosecution before the learned trial court. The learned Trial Court did not consider the fact that though the prosecution's case was that the accused /appellant had randomly open fire from his service rifle (SLR), the prosecution never exhibited the SLR which was purportedly used by the accused/appellant to randomly fire within the premises of residence of the SP, though from the deposition of the PW-8 it is revealed that the weapon of offence was sent for Forensic Science Laboratory opinion as to whether the empty cartridges were fired from the weapon of offence or not. 11. Mr. Panging, learned counsel submits that the learned Trial Court did not consider the fact that though it was the case of the prosecution that 3 (three) Page No.# 6/38 empty cartridges were seized from the place of occurrence and the empty cartridges alongwith the weapon of offence was sent for Forensic Science Laboratory examination as to whether the empty cartridges were fired from the weapon of offence or not, the seized empty cartridges were never exhibited before the court. The learned Trial Court did not consider the fact that the I.O. had only exhibited the exhibit challan for 3 (three) numbers of empty cartridges but never exhibited the actual empty cartridges before the court. The learned Trial Court did not consider the fact that the CCTV footage was not exhibited by the prosecution and only the challan was exhibited before the learned trial court. The learned Trial Court did not consider the fact that the Arms Register maintained by Kote RPL Register was not exhibited by the prosecution before the court. Therefore, in the absence of the weapon of offence, empty cartridges and FSL report being exhibited before the learned trial court, there was no evidence to come to a finding that the accused/appellant had randomly fired in the premises of the bungalow of SP, and as such the whole conviction of the accused/appellant is based on conjectures and surmises and therefore, liable to be interfered with as the prosecution has failed to establish the alleged offence against the appellant beyond all reasonable doubt and the impugned judgment is only based on preponderance of probability and as such the conviction is bad in law and as such the same is liable to be set aside. 12. He submits that the prosecution did not examine vital witnesses including the father of the accused who as per the statement of the I.O. and Officer-in- Charge of Seppa Police Station had handed over the weapon of offence coupled with the fact that the weapon of offence was never exhibited. Further, Constable W.Mamai who was one of the seizure witness for the purported seizure of 3 (three) empty cartridges was also not examined and the empty cartridges were Page No.# 7/38 never exhibited though the judgment reflects the same was exhibited, the same is not borne out by the records. Therefore, in view of the above, he submits that the prosecution has miserably failed to prove their case against the accused/appellant as such the accused/appellant may be acquitted of all charges. 13. Having submitted above, Mr. Panging, learned counsel on conviction under Section 27(1) and (2) of the Arms Act, 1959, submits that the appellant was a police personnel who was admittedly on sentry duty as per the depositions of the PWs and was issued arm by the competent authority and therefore, the appellant could not have been convicted under Section 27(1) and (2) of the Arms Act, 1959 for purported contravention of Section 5 & 7 of the Arms Act, 1959. He submits that the citations relied upon by the learned Additional PP, in given facts of the case that there were witnesses who have deposed that the appellant was on sentry duty, in fact, supports the case of the appellant that the appellant being a police personnel who was bearing arms under permission from competent authority could not have been convicted under Section 27(1) and (2) of the Arms Act, 1959. Therefore, since the appellant has been under custody since 17.06.2022, in the event also this Hon'ble Court comes to a finding that there are materials against the appellant, the appellant is entitled to be released because the appellant has already undergone more than 2 years imprisonment and the appellant was convicted for 2 years only under Section 506 IPC. 14. In support of his submissions, Mr. D. Panging, learned counsel for the appellant has relied on the following judgments:- i. Harchand Singh Vs. The State of Haryana reported in AIR 1974 SC 344. Page No.# 8/38 ii. Budhua Mura Vs. State of Assam reported in 2002 (2) GLT 103. iii. Mohd. Aman Vs. The State of Rajasthan reported in (1997) 10 SCC 44. iv. Kipa Sero Vs. State of Arunachal Pradesh reported in 2005 (4) GLT 86. v. Takhaji Hiraji Vs. Thakore Kubersing Chamansing reported in (2001) 6 SCC 145. vi. Jodhan Vs. State of Madhya Pradesh. reported in (2015) 11 SCC 52. 15. Ms. T. Jini, learned Additional Public Prosecutor for the State, submits that the PW-2 is an eye witness to the entire incident. As per the statement of PW-2, on 20.05.2019 he was deputed as a Guard Commander at SP Bungalow. The accused after coming back from bazaar took possession of arms and cocked the arm and pointed at PW-3 had asked to show the bedroom of SP and then pointed the arms at him with instruction to accompany and lead to room of SP. Meanwhile, PW3 ran towards SP Bungalow and locked the room from inside. PW-2 saw the accused going towards the gate of the SP Bungalow and kicked the door. Having been able to take a chance to fled away from place of occurrence, PW-2 heard bullet firing from a distance. 16. She submits that PW-3 had stated that the accused asked for his scooty key to go to market. When he came to the guard room to collect the key, the accused cocked the arm and pointed towards him to reveal or lead to the bedroom of SP. Meanwhile, when the accused diverted his arm towards PW-2, PW-3 ran away towards the bungalow. The accused chased him but he could not catch PW-3. He locked the door before the accused could arrive and informed the SP about the same. PW-3 then heard bullet shots. Later on PW-3 and PW-7 seen the accused leaving the place in the CCTV footage after firing. 17. She submits that PW-7, the victim SP, had stated that since the accused was unable to break the door manually, he fired from the rifle on the door to Page No.# 9/38 break open the door. PW-7 also stated that the accused took position from the badminton court outside the building and fired from SLR aiming towards 1st floor of room and the bullet hit the wall of the 1st floor. PW-7 called PW-9 and when PW-8 and PW-9 reached at the place of occurrence, the accused pointed the gun towards them and threatened them. PW-7 further stated that the accused while running again fired and the bullet hit the boundary iron railing of 1st floor. 18. She submits that PW-8 had deposed that on receiving the information about the incident, he along with PW-9 arrived at the PO and saw the accused standing with his service rifle at the gate of SP Bungalow. PW-8 climbed up the wall and since he was acquainted with the accused, he called the accused. The accused, however did not listen his proposal to come back, rather pointed the service gun towards his side. PW-8 then got down from the wall and when he was going back to get his service rifle, he heard firing sound. 19. She submits that PW-9 had stated that on receiving the information, he along with PW-8 immediately rushed to the official bungalow of SP and on reaching the PO he found that all the lights of the bungalow was off and the main entrance of the gate was also locked from inside. After few minutes he heard firing sound inside the campus of the bungalow. Later he was informed by the SP about the accused. In section 313 Cr.PC statements, the accused/appellant had stated that he was never detailed on duty at the SP bungalow. 20. Ms. T. Jini, learned Additional Public Prosecutor, submits that a conjoint reading of the statements of PW-2, PW-3, PW-7, PW-8 and PW-9 would clearly establish the chain of event to prove the accused as guilty of offence under section 506 R/W section 27(1) and (2) of the Arms Act. The chain of Page No.# 10/38 circumstances is that the accused had taken the service rifle and cocked towards PW-2 and PW-3 to reveal and lead to the bedroom of the SP. PW-3 while escaping also saw the accused chasing him. On reaching the bungalow, he locked the door and later heard the sound of bullet firing. PW-2 and PW-3 are the prime witnesses and their statements under section 161 and 164 of Cr.PC as well as their depositions are corroborated and consistent. The learned Trial court had rightly found the statements of PWs to be true, trustworthy and reliable and there is no material to doubt the credibility and reliability of the witnesses. 21. She submits that the chain also continues as PW-7, who is the victim, also saw that when the accused could not break the door manually, the accused fired on the door to break it. PW-7 had also seen the accused taking position from the badminton court and fired aiming towards the 1st floor and the bullet hit the wall of 1st floor. PW-7 then saw PW-8 and PW-9 had reached the PO on getting the information and shouted to accused and the accused pointed the rifle towards them. Then while PW-8 had gone to take his service rifle he had heard a firing sound which also corroborate with the statement of PW-7 that after PW- 8 and PW-9 left, the accused had fired which hit the boundary iron railing of the 1st floor. 22. The statements of PW-2, PW-3, PW-7, PW-8 would also clearly reveal that there were no other person who was carrying gun/rifle at the time of incident at PO and in fact, the statement of PW-9 that the gate of the bungalow was locked from inside and PW-8 climbed the wall and saw the accused holding his service rifle would also establish that no one has entered the bungalow after the accused. As such, taking into consideration the circumstances of event, there is enough proof of the accused committing the crime. 23. She submits that PW-7 had seen the accused firing from the badminton Page No.# 11/38 court of the bungalow and also saw the accused firing when he was running away. PW-2,PW-3,PW-8 and PW-9 had seen the accused holding the service rifle and heard the bullet shots, the statement of all the witnesses with regard to the accused holding the service gun and pointing towards them, and later hearing the bullet firing would complete the chain of circumstances that the accused had committed the offence. 24. Ms. T. Jini, learned Additional Public Prosecutor, submits that the accused had stated in his 313 Cr. PC statements that he has never been detailed as sentry in SP Bungalow and that he was not on duty at the SP Bungalow. As such, the use of the service rifle when the accused was not on duty and the mischief and misdemeanour of the accused for possessing and using the service rifle clearly establishes the case under section 506 IPC as well as under section 27(1) and (2) of Arms act. She submits that section 45 (b) (ii) of the Arms Act exempt only the public servant in course of his duty as public servant. The fact that the accused had stated in his 313 Cr. PC statement that he was never detailed at SP Bunglow and that he was not on duty would not brush off his presence at the crime scene nor would he be exempted from the provision of section 45 of the Arms act. The misdemeanour and the mischief of the accused has been proved by the prosecution and the learned trial court had rightfully convicted the accused under section 506 IPC r/w section 27 (1) and (2) of Arms Act. 25. Ms. T. Jini, learned Addl. PP, submits that all the police of the constable rank have their rifle only when they are on duty and had to deposit the same at the Kote when they are off their duty. The accused herein had stated that he was not on duty and was never detailed at the SP bungalow would clearly establish the mischief and misdemeanour that he had come in uniform and Page No.# 12/38 then later picked up the service rifle and cocked and pointed towards PW-2 and PW-3 to reveal the room of the SP and chased PW-3 towards the SP bungalow and later fired at the door, walls and the railing of the SP bungalow clearly constitute an offence under section 27 of the Arms Act. Further she submits that even if there is any lapse in the investigation, the accused cannot claim acquittal on the ground of faulty investigation. 26. Ms. T. Jini, learned Addl. PP, has placed reliance on the following judgments:- i. State of Rajasthan -Vs- Arjun Singh and Ors. reported in AIR 2011 (SC) 3380/ (2011) 0 Supreme (SC) 842. ii. State through the Inspector of police -Vs- Laly@ Manikandan, reported in AIR 2022 (SC) 5034/(2022) Online Supreme (SC) 1054. iii. Deomuni Sharma -Vs- State of Jharkhand, reported in AIR 2009 (SC) 2731 /(2009 (4) Supreme 459. iv. Surinder Singh -Vs- State (Union Territory of Chandigarh, reported in (2021) 20 SCC 24. v. Edakkandi Dineshan-@P. Dineshan and Ors- Vs- State of Kerela. reported in (2025) Supreme (SC) 31. 27. I have considered the rival submissions of the learned counsel for the parties and also perused the records. 28. The case set up by the prosecution is that a report was received from Inspector Bojum Pusang, the then Officer-in-Charge, Seppa Police Station, to the effect that on 20.05.2019 evening, he had received a telephonic information from the Superintendent of Police, Seppa that Constable Raju Sangdo (appellant herein), had entered SP’s Bungalow with Arms. On receipt of the said information, he alongwith Sub-Inspector S. Don (Investigating Officer) had Page No.# 13/38 visited the S.P. Bungalow, during which, it was found that Constable Raju Sangdo, who was detailed as Sentry Guard at SP’s bungalow, has randomly opened fire from his service rifle (SLR). 29. To appreciate, it would be apposite to refer and examine the deposition of the prosecution witnesses as well as the defence witness. 30. PW-2, Shri Anirudh Prasad, had deposed that on 20.05.2019 he was deputed as guard commander at SP Bungalow. The accused was also deputed as Sentry at SP Bungalow. His duty was 24x7 at SP Bungalow. The duty of the accused was from 5 to 8 pm on 20.05.2019. The accused reported at duty at 5:10 pm and left with the scooty whic belongs to Ranjit Kumar (cook) towards bazaar for some work and he came back at 6:10 pm. The accused took possession of arms and cocked the arms and called Ranjit Kumar. The accused having cocked with the arms and pointed to Mr. Ranjit Kumar asked him to reveal or lead him to the bedroom of SP. He was also present at the spot. The accused again pointed the arms towards him with instruction to accompany him to lead to the room of the SP. Meanwhile, PW-3 runaway towards the SP quarter and locked the room from inside. The accused went towards the gate of SP quarter and kicked the door. Taking the advantage of situation, he fled away from the PO. He heard the sound of bullet firing while crossing the bridge between the bazaar and Type-IV colony. He heard the bullet firing of 4 rounds. He gave statement before Magistrate. The PO where PW-3 and he were pointed with the arms by the accused and the place where he heard the sound is around half km distance. In the cross examination he deposed that he had given statement to the police. He does believe that his statement before police, Magistrate & Court are same. It is true that the accused was not aware about the presence of SP in the Page No.# 14/38 quarter. The accused was not aware about the master bedroom of the SP. The accused was in police uniform and was on duty at the time of incident. The accused was authorized to carry arm at the time of incident. When he sneaked from the main gate the door was left opened. The accused was on duty at SP Bungalow for around last two months from the date of incident. He has not personally seen the accused firing the guns. He also does not know the reasons behind it. He knows the accused had a case of mentally unsoundness. It is true that he did not count the sound of gunshot. It is correct to say that his statements on the sound of gunshot of four rounds are not matched with the statements given before the police & Magistrate. 31. PW-3 Shri Ranjit Kumar Mahato, had deposed that he is witness of the case on incident of firing on 20.05.2019. At the time of firing, he was with the SP inside his room. The accused was on duty on that day w.e.f. 5pm as per roster. The accused came to the bungalow and asked his key of scooty to go to market. He gave the key to the accused and the accused left for market and came back around 6 pm. On his arrival, he came to the guard room to collect the key of the scooty. The accused having cocked with the arms and pointed to him to reveal or lead him to the bedroom of SP. The PW-2 was also present at the PO. He was quietly listening to his words. In the mean time, the accused had changed the direction of the gun towards the PW-2. Taking the advantage of the situation, he came out of the PO slowly to a certain distance and ran away from the PO and went inside the bungalow of the SP. The accused chased him when he was running but he could not catch him. He locked the door before the accused could arrive at the door. In the meantime SP came down from the first floor to ground floor and asked what was happening. He narrated the incident. The SP informed the OC, Seppa. He had stayed in the room of SP, Page No.# 15/38 meanwhile, they heard four rounds firing of bullets shot. Later on they watched the accused from CCTV footage that he left the place after firing gunshot. The accused came under influence of alcohol. In the cross examination he had stated that his statements before police, Magistrate & Court are same. The accused was in police uniform and was on duty at the time of incident. He do not know whether the accused was aware of the presence of SP inside the bungalow or not. It is true that at the time of handing over the key to the accused, the SP was not present in the bungalow. It is fact that the accused did not state that he would kill the SP while pointing the gun towards PW-2 & him. It is true that the accused was not aware about the master bedroom of the SP. He also do not know the reasons behind it. It is true that he do not know as to why the accused insisted him to lead or show the bedroom of the SP. It could also be possible that the accused could have straightway gone to the bedroom of the SP without asking him to lead the room of SP as the door was opened. He heard that the accused had a previous case of mentally unsoundness. It is true that he has not stated about the alcoholic condition of the accused before the police as it was not asked by the police. It is correct to say that he had not exactly listened the firing of four gunshots at the time of incident but it may be three to four gunshots. It is true that he has stated the gunshots of four firing before this Court as it was confirmed later on by the police. 32. PW-4, Shri Robin Hissang, had deposed that he has no knowledge about the background of the incident. However, he was called by the OC PS Seppa over mobile phone to come at PS Seppa as accused is from his village. Accordingly, he had arrived at PS and he was asked to witness the seizure memo. He was verbally informed about the material seized from the accused. In Page No.# 16/38 the cross examination he had stated that he was not shown the seized items by the police. The seized item is not shown to him in the Court today. 33. PW-5, Shri Nyakam Singdo, is the seizure witness. He had deposed that on his arrival at PS Seppa, he was asked by OC to sign seizure memo as seized was already done before his arrival. Accordingly, he put his signature on seizure memo. In the cross examination he had stated that he was not shown the seized riffle by the police. The seized riffle is not shown to him in the Court today. He was not willing to become seizure witness but the OC insist him to do so. 34. PW-6, Shri Windad Thingnok, had deposed that he was deployed as writer in the SP Office Seppa on the day of incident. The OC PS Seppa asked him to furnish morning report i.e. Duty deployment register. The IO seized the register in his presence. In the cross examination he had stated that he was unaware of reason of seizure of Duty register. He was not In-charge of the P. Ex. 3 and P. Ex. 3 was not actually seized from him. 35. PW-7, Shri Vikash Kumar, the SP, had deposed that on 20.05.2019, constable Raju Silla Sangdo was deployed at his resident. His duty was from 1700 hours to 2000 hours. At around 1800 hours, accused Raju Silla Sangdo came to Sentry Post which was inside the SP resident. His cook Ranjit Mahato (PW-3) told him later that accused was intoxicated. He was at the 1st floor. The accused pick up the service riffle SLR and cocked the riffle and asked cook Ranjit Mahato to show him his room where he was sitting. The Sentry In-charge Major A. Prasad, (PW-2) was also there and tried to stop the accused from further proceeding towards his resident. But accused pointed the riffle towards Guard Commander A. Prasad (PW-2). In the meantime, cook R. Mahato, PW-3, ran towards the entry door and bolted the door from Inside. Accused followed Page No.# 17/38 the cook R. Mahato till the door and kicked the door many times. Upon being unable to break the door manually, accused fired from the riffle on the door to break it open. But he could not break the door. Then, he took position from the badminton Court outside the building and fired from SLR aiming towards 1st floor room. Bullet hit the wall of 1st floor. When he heard the 1st gunshot, he came outside the room then cook R. Mahato came to him running from the stairs and told him that accused was firing and he was saying that he would kill him on that day. He came back inside the room and locked the room from inside. R. Mahato, PW-3, told him that he had bolted the door of ground floor. He also told him that accused had fired at the door of ground floor. He called OC PS Seppa and told him what was happening. OC PS Mr. B. Pussang alongwith SI S. Don came and shouted at the accused that what was accused doing. Accused pointed the gun towards them also. However, he did not fire at them but threatened them and then he fled away alongwith riffle. The OC was hiding himself in A.D.C quarter which is adjacent to his resident. While running away, he again fired which hit boundary iron railing of 1st floor. He called C.R.P.F and other people also came to his resident. After few days, accused was arrested from his house on information given by intelligence. The riffle was also recovered. In the cross examination he had stated that it is fact that he is the victim of the case. According to him, it is not necessary to his part to become informant to carry out the investigation. He gave statement to the I.0. It is not fact that whatever he deposed in the Court are not true. It is not fact that his statement in the Court is improvised statement. Two gunshots were fired at the door of the ground floor and two at 1st floor. He did not know if the accused had knowledge of his master bedroom. It is fact that his statement regarding Page No.# 18/38 intoxication of accused is not his statement recorded u/s- 161 Cr.PC. However, he had told it to the I.O. It is also fact that his statements regarding threat to his life is not reflected in his statement recorded u/s- 161 CrPC. However, he had told it to the I.O. 36. PW-8, Shri S. Don, had deposed before the case was officially registered, he got a call while he was at PS from victim SP, PW-7, in his mobile phone informing that the accused constable Raju Silla Sangdo cocked his arms and coming towards his bungalow. Accordingly, he alongwith the OC rushed to the PO. On arrival at PO, the accused was standing with his service riffle at the gate of SP bungalow, he climbed up on the wall and called the name of the accused as he was acquainted with the accused for long time back and introduced his name, however, the accused did not listen to his proposal to come back, rather, he pointed the service gun towards his side. So, he got down from the wall and decided to go back to PS with planning to take service riffle from Malkhana. Within two or three minutes, he heard the firing sound of the accused while going back to PS. Anyhow, he went back to PS and collected the arms and come back to PO again, however, by that time, the accused already left the PO. He went to search the accused but not found him. Since the father of the accused is also police personnel, he approached his father for surrender of the accused. Accused's father and one Mr. Robin Hissang Principal Govt. College, Seppa, handed over the weapon of offence at PS. After few days, the accused surrendered before him at PS. He has recorded the statement of accused. During recording of statement, accused disclosed him that he received a show cause notice relating to encroachment of Govt. quarter from previous SP. According to the accused, he had talked with previous SP on the issue, however, no written reply was submitted to the previous SP. After going through the Page No.# 19/38 records, the victim SP withheld the salary of accused for a period of five months. The accused approached the victim for release of his salary. During discussion, the accused had some arguments with the victim on the day of incident in morning office hours. The incident took place in the evening. During the discussion in office, the SP told the accused that the salary would be released, however, a criminal proceeding would be initiated against the accused. The accused left the office of victim. He has also examined the victim. The incident relating to office was narrated by the victim, who was very much same to the statement of accused. During investigation, he has examined two eye witnesses, i.e. PW-2 & 3. The eye witnesses told him that accused came in the evening on his roster duty and immediately left for bazaar and came back again. On arrival back, the accused took possession of service riffle and asked the cook PW-3 Mahato to show him the bedroom of the victim. In the meantime, PW-2 came and interfered to the accused, taking the advantage of interference of PW-2, PW-3 left the initial PO and went inside the quarter of SP and bolted the door. The incident was reported by the victim and he came at the PO. The PO is around 300 meters from the PS. He do not remember if he reached the PO by walk or by vehicle. He recovered three empty cartridges from PO. He saw the mark of bullet in the building. Two marks found on 1st floor wall and two were found at first and entrance door. The bullet mark hit on the 1st entrance door also caused damaged to pillar of the house inside the common room. He sent the weapon of offence alongwith empty cartridge for FSL opinion as to whether, the empty cartridge was fired from the weapon of offence or not and also as to ascertain that if it is injured to any person then it can take the life of a person or not. He did not collect the report. In the cross examination he stated that he has not seen all the seized Page No.# 20/38 articles mentioned in P. Ex. 9 in the Court. It is true that he has not prepared separate seizure memo of pen drive mentioned in P. Ex. 9 as it was not required to make separate seizure of pen drive in terms of section 65 (B) of I.E. Act in his opinion. It is correct that the certificate issued, P. Ex. 10, is the victim himself. It is correct that he has not made any civilian as seizure witness. There is no laid down rules that in a case, if a victim is superior officer, then, the investigation must be investigated by superior officer to the victim. It is not fact that the investigation was done under supervision of victim. It is correct that preliminary enquiry was done by OC, Seppa as he was also present at the time of incident. It is fact that IO had also seen the bullet marks mentioned in M. Ex. 1 to 7. It is fact that FIR cum enquiry report was submitted after completion of preliminary enquiry. It is fact that OC PS, Seppa cum informant did not reveal the motive of firing. It is true that the numbers of gunshots are not mentioned in FIR. It is true that he had not named any person as witness of show-cause notice issued to accused by previous SP. It is fact that the show cause notice was not enclosed in Chargesheet. It is fact that he has not included any witnesses who had seen the accused visiting the SP office on the day of incident in office hours. It is fact that he has not obtained order of withheld the salary of accused. It is also fact that he has not included any witness to prove the salary of accused was withheld. On the day of incident, the accused was authorized to hold the weapon of offence. The accused was also authorized to enter into the entire premises of SP Bungalow. It is correct to say that the accused did not have any knowledge of interior structure of the house like location of bedroom, dinning etc. It is correct that he has not named any person as witness to prove the encroachment of the Govt. quarter by the accused. It is fact that PW-2 had stated u/s- 161 Cr.PC statements that he had heard sound of a gunshot. Page No.# 21/38 However, it may be a grammatical mistake on his part. It is true that no one had seen the exact time of incident of gunshot by the accused but prior & after to the gunshot, the accused was seen with the weapon of offence. It is correct to say that he may change his opinion if the opinion of FSL is opined that if the empty cartridge is not fired from the weapon of offence. It is fact that he had enclosed the forwarding of FSL in Chargesheet. It is fact that accused was having six more live cartridges with the weapon of offence with him and same was recovered. It is fact that the accused did not orally state that he would kill the victim but his action was sufficient that he intended to kill the victim. It is fact that he has not stated or mentioned the bullet injury mark of pillar inside the room of victim which was fired from the gate. It is fact that this fact of bullet mark on pillar inside the room of victim was not told to him by any of the witnesses. The accused stated that he did not remember the alleged incident. He did not personally witness any mental instability of the accused but he had heard it from other police personnel. 37. PW-9, Inspr. B. Pussang, had deposed that one evening, while he was at PS Seppa on duty, he received a mobile phone from SP Seppa informing that his Sentry came to his house with arms and ammunition, as such, the SP asked him to come at his residence. Accordingly, he along with SI S. Don, one constable immediately rushed at the office Bungalow of SP Seppa. On reaching PO, they found that all the lights of the bungalow were in off mode and main entrance gate was locked from the inside. After few moments, they heard the firing sound inside the campus of the bungalow. After hearing the firing sound they also escaped from the entry gate and went towards DC Bungalow. After few moments, there was silent and SP Seppa switched on the lights. In the mean time Reserved Battalion Personnel (RPL) arrived. By that time the accused fled Page No.# 22/38 away from the PO. He has not seen the accused while fleeing away. The SP came down from his bungalow and named the accused Raju Silla Sangdo, The SP instructed him to lodge an FIR. Accordingly, he lodged the FIR. He knew the accused Raju Silla Sangdo. In the cross examination he had stated that it is a fact that he lodged enquiry report after conducting preliminary investigation in the case. It is fact that the reason of firing is not mentioned and also it is silent about the total firing or gunshot in the enquiry report. It is not fact that he has not heard the sound of gunshot. It is fact that he did not state before the IO that he had also heard the sound of gunshot fire. He had not seen the weapon of offence and empty cartridges seized by him in the Court today. 38. On careful scrutiny of the above testimony, shows that PW-2 & 3 are the eye witnesses of the incident. PW-2 was deputed as Guard Commander at SP Bungalow and the Appellant was deployed as Sentry duty at SP bungalow from 5 PM to 8 PM on 20.05.2019 and the accused reported at 05.10 Pm and left the PO with the Scooty of PW-3 for bazaar and came back at 6.10 PM. The accused took the possession of the service Rifle and cocked the arms and called PW-3. On appearance of PW-3, the accused cocked the arm pointed towards PW-3 and asked him to reveal or lead to the bedroom of the SP. The accused then pointed the gun to PW-2 with an instruction to accompany the accused to lead to the room of the SP, meanwhile, PW-3 left the place and run away towards the SP Bungalow and bolted the room from inside. The accused went towards the gate of SP quarter and kicked the door. Taking advantage of the situation, PW-2 fled away from the PO and heard the sound of firing 4 bullets while crossing the bridge between bazaar and Type -IV colony. PW-3 at the time of firing, was with the SP inside the room. The accused was on duty on the day of incident. The Page No.# 23/38 accused came to the bungalow and asked Scooty of PW-3 to go market and he gave the key and the accused came to bungalow at around 6 PM. He came to guard room to collect the key of the Scooty. The accused having cocked with the arm and pointed him to reveal or lead him to the bedroom of SP and the PW-2 was also present at that time. He was quietly listening the words of the accused, In the meantime, accused had changed the direction of the gun towards PW-2. Taking the advantage of the situation, he came back from the PO slowly for certain distance and ran towards the SP bungalow. The accused was chasing the PW-3, but he could lock the door before the accused could reach at the door. The SP came down from the first floor to ground floor and asked about the happenings. He narrated the incident and the SP informed the OC, PS, Seppa. He stayed in the room of SP during which they heard 4 rounds of bullet firing and the accused was under influence of alcohol. 39. The gun was seized in presence of PW-4 & 5 and seizure memo was prepared at Police station. As per the prosecution, the service record was produced by the father of the accused, however, the father has not been examined by the prosecution and made him as witness. PW-6, is the seizure witness of the deployment register on duty. He exhibited the seizure memo of arms register maintained by Kote RPL, Seppa. 40. As per the deposition of PW-7, the victim, the accused/appellant was on duty at his bungalow on the day of the incident from 5 PM to 8 PM. He was informed about the incident by the PW-3. Upon hearing the sound of kicking of door, he came down to ground floor and the incident was narrated by the PW-3. The accused couldn't break the door, as such, the accused took the position from badminton court side of the building and fired from the SLR gun aiming towards first floor room and the bullet hit the first floor. He informed the Page No.# 24/38 incident to OC, PS, Seppa and the OC, PS PW-9 came with the I.0 at PO. On their shouting at the accused, the accused pointed the gun towards them but did not fire them but threatened them. The accused fled away with the service rifle. While running away, the accused fired again which hit the boundary iron railing of first floor. 41. As per PW-8, the IO, he got a call while he was at PS from PW-7 in his mobile phone informing that the accused/appellant cocked his arms and coming towards his bungalow. Accordingly, he alongwith the OC rushed to the PO. On arrival at PO, the accused was standing with his service riffle at the gate of SP bungalow, he climbed up on the wall and called the name of the accused, however, the accused did not listen to his proposal to come back, rather, he pointed the service gun towards his side. So, he got down from the wall and decided to go back to PS with planning to take service riffle from Malkhana. Within two or three minutes, he heard the firing sound of the accused while going back to PS. Anyhow, he went back to PS and collected the arms and come back to PO again, however, by that time, the accused already left the PO. He approached the father of the appellant for surrender of the appellant. Appellant’s father and one Mr. Robin Hissang Principal Govt. College Seppa handed over the weapon of offence at PS. It is noticed that both the father of the appellant and Mr. Robin Hissang Principal Govt. College Seppa, were not examined, much less not made witnesses. 42. The cause of incident appears to be on account of a show cause notice relating to encroachment of Govt. quarter by the appellant due to which PW-7, SP withheld the salary of accused for a period of five months. The accused approached the PW-7 for released of his salary. During discussion, the accused had some arguments with the PW-7 on the day of incident. Page No.# 25/38 43. The evidence of PW-2 & 3, disclosed that the accused cocked the gun and pointed towards the PW-3 at first instance with a dictation to show or lead to the room of the victim and again changed the direction of the gun towards PW- 2 insisting to lead to the room of the PW-7, show that he had an intention to cause hurt to PW-7. The accused came upto the gate of the SP bungalow and kicked it but the PW-3 could able to bolt the room from inside. The evidences on record show that the accused fired two gunshot at the main gate of the SP bungalow. It leads to show that the accused was having knowledge of the presence of the PW-3 inside the room of main gate and the bullet could hit the PW-3. The accused fired at the gate at the lock latch area, although, he had no intention to kill the PW-3. As such, an offence of criminal intimidation to the PW- 2 & 3 has been committed by the accused as he had earlier pointed at PW-3 with SLR gun to lead to the room of the SP and also to the PW-2. He also followed the PW-3 upto the main gate and on bolted of the room, the accused fired at the door which could took the life of the PW-3. After the first incident of firing at main gate, the accused came to the badminton court area and again fired from there aiming at first floor which was noticed by the PW-7 and heard by PW-2, 3, 8 & 9. 44. The appellant, in his defence had deposed that he did not attend his duty at SP bungalow on the day of the incident as he was suffering from illness. However, the evidence of PW-2, 3 and I.O clearly discloses that he was inside the premises of the PW-7 at the time of incident. He even pointed the gun towards PW-8, I.O who asked him not to do any such act from the wall. As such, the defence evidence of the accused that he was not present at the PO is unacceptable. Thus, the plea of alibi of the accused is not sustainable on the ground that it was not pleaded during initial stage of the investigation and also Page No.# 26/38 the eye witness are very clear that he had committed the offence of criminal intimidation by using fire arms pointing towards PW-3 and then pointed the gun towards PW-2 as well as towards the I.O. when he climbed up on the fencing wall and requested the accused not to commit any offence. 45. 45. It is noticed that the PW-4, Shri Robin Hissang, who was one of the seizure witnesses of seizure of the rifle had deposed that he was called by the Officer-in-Charge of the Seppa Police Station over mobile phone and on his arrival at the police station he was asked to witness and put his signature on the seizure memo but he was never shown the seized item i.e. SLR gun, by the police. PW-5, had deposed that he was also asked by the Officer-in-Charge to sign the seizure memo and seizure was already done before his arrival and the seized rifle was never shown to him by the police. One Shri Deraka Singdo who was another witness to the purported seizure of the weapon of offence was not examined. On Constable W. Mamai who was one of the seizure witnesses of seizure of the 3 (three) empty cartridges from the place of occurrence was also not examined by the prosecution. 46. There are minor contradictions in the depositions of the prosecution witnesses as PW-8 Sub-Inspector S. Don, the Investigating Officer, had deposed that the accused person's father and one Mr. Robin Hissang, PW-4, had handed over the weapon of offence in the Seppa Police Station, however, Mr. Robin Hissang had stated that he was called by the OC PS over mobile phone to come to the Police Station and sign the seizure memo and that the alleged weapon of offence was never shown to him by the police. The fact that the PW-8, had deposed that the accused person's father and one Mr. Robin Hissang (PW-4) had handed over the weapon of offence in the Seppa Police Station, however, the appellant's father was not examined by the prosecution. The learned Trial Page No.# 27/38 Court did not consider the fact that though the prosecution's case was that the accused person/appellant had randomly opened fire from his service rifle, the prosecution never exhibited the 7.62 SLR which was alleged to have been used by the accused/appellant to randomly fire, though from the deposition of the PW-8 that the weapon of offence was sent for Forensic Science Laboratory examination. The seized empty cartridges have not been exhibited before the court, but only exhibited the exhibit challan for 3 numbers of empty cartridges but never exhibited the actual empty cartridges before the court. The CCTV footage was not exhibited by the prosecution and only the exhibit challan was exhibited. The Arms Register maintained by Kote RPL Register was not exhibited by the prosecution. Therefore, in the absence of the weapon of offence, empty cartridges and FSL report being exhibited before the learned trial court, there appears to be a weak evidence to come to a finding that the appellant had randomly fired in the premises of the bungalow of the SP. No doubt cartridges and the Rifle have not been produced before the court and there is no proof of whether the bullets were fired from the said rifle or not, however, non exhibition of cartridges and rifle may not be a sine qua non for conviction and the conviction can be made on the basis of eye witness provided the eye witness is reliable and trustworthy. Mere non exhibition of rifle and cartridges would not detract the case of the prosecution where clinching and direct evidence is acceptable and such non production of Rifle and cartridges , cannot be taken to be construed that no such occurrence had taken place. Minor contradictions in the depositions of the witnesses would not be fatal. It is also settled law that an accused cannot claim acquittal on the ground of faulty investigation. 47. Having examined the above evidence, I find that the prosecution could establish the charge of criminal intimidation as it is proved that the appellant Page No.# 28/38 had cocked the SL Rifle and pointed towards PW-2, PW-3 and 9 and fired randomly towards door and the first floor of the bungalow. The firing by appellant is proved from the evidence of PW-2, PW-3, PW-7 and 9 who are the eye witnesses of the incident. Thus, I am of the view that firing randomly by the appellant is proved beyond reasonable doubt. 48. The appellant is a Police personnel and deployed as Sentry guard at the SP Bungalow, Seppa at the time of incident and thereby he is authorized to possess the Arm for the protection of the PW-7 but it was used as weapon of offence of criminal intimidation to PW-2, PW3, PW-7 & 9. The SL rifle was recovered on being produced by the father of the accused who is also a Police personnel, the PW-4 & 5 as seizure witnesses, but same has been been proved as PW- 4 and 5 have stated that they had only signed the seizure memo and were not shown the gun by the police nor the father of the appellant was made witness much less examination. However, the appellant cannot claim acquittal on the ground of faulty investigation. More so, when the firing randomly by the appellant is established by the eye witnesses. Thus, the prosecution has been able to prove the case against the appellant so far as the incident of the case is concerned. 49. Regard being had to the contention and submissions of learned counsel for the appellant, that the appellant was a police personnel who was admittedly on sentry duty and was issued arms by the competent authority and therefore, the appellant could not have been convicted under Section 27(1) and (2) of the Arms Act, 1959 for contravention of Section 5 & 7 of the Arms Act, 1959, I find some force in the above contention and submission. Therefore, it would be appropriate to consider the relevant provisions of Arms Act, 1959. 50. Section-5 provides which is reproduced herein under: Page No.# 29/38 “5. Licence for manufacture, sale, etc., of arms and ammunition.―1[(1)] No person shall— (a) 2[use, 3[manufacture, obtain, procure]] sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: 5[(2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition: Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be so sold or transferred by any person unless— (a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and (b) a period of not less than forty-five days has expired after the giving of such information.] Section-7 provides as under:- 7. Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition.―No person shall― (a) acquire, have in his possession or carry; or (b) 1[use, manufacture] sell, transfer, convert, repair, test or prove; or Page No.# 30/38 (c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf. Section-27 provides as under:- [27. Section-27 provides as under:- [27. Punishment for using arms, etc.―(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, 2[shall be punishable with imprisonment for life, or death and shall also be liable to fine. 51. On reading of the above provisions, it reflect that whoever uses any arms or ammunition in contravention of section 5 and whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable punishment under Section 27 (1) & (2). Section 5 pertains to Licence for manufacture, sale, etc., of arms and ammunition, which provides that no person shall use, manufacture, obtain, procure, sell, transfer, convert, repair, test or prove, or expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in Page No.# 31/38 this behalf a licence issued in accordance with the provisions of the Act and the rules made there under. Section-7 pertains to prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition and provides that no person shall acquire, have in his possession or carry; or use, manufacture, sell, transfer, convert, repair, test or prove or expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf. Therefore, to constitute offence under Section 27 (1) and (2) of Arms Act, 1959, mischief of sections 5 and 7 has to be established. 52. A reference is made to the case of Deomuni Sharma (Supra), wherein the Hon’ble Supreme Court has held which is reproduced hereunder: “17. For inviting conviction under Section 27 of the Arms Act, it has to be proved that the fire arm has been used in contravention of Section 5 or Section 7 of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act. Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act.” 53. In the present case, the Appellant was admittedly a police constable deputed as Sentry Guard at the time of the incidence and the arm (SLR), was placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed or prohibited weapon, as prohibited under Sections 5 and 7 of the Arms Act. The Arms Act has been enacted to provide a licensing/regulatory regime, to enable law abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain Page No.# 32/38 categories of firearms, unless authorized. As held by the Hon’ble Supreme court, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. Thus, in my view the appellant could not have been convicted under Section 27 (1) and (2) of the Arms Act, 1959. 54. In this context, a reference may be made to the case of Surinder Singh (Supra) wherein the Hon’ble Supreme Court has held which is reproduced herein under: “30. The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law−abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not the subject of the trial.” 55. It is settled law that an accused cannot claim acquittal on the ground of faulty investigation. In the case Edakkandi Dineshan-@P. Dineshan, (Supra), Hon’ble Supreme Court, having found that entire evidence on record suggests that the investigation has not taken place in a proper and disciplined manner and various areas where a properly investigation could have strengthened its Page No.# 33/38 case, has held that the principle of law is crystal clear that on the account of defective investigation the benefit will not inure to the accused persons on that ground alone. It is well within the domain of the courts to consider the rest of the evidence which the prosecution has gathered such as statement of the eyewitnesses, medical report etc. It has been a consistent stand of this court that the accused cannot claim acquittal on the ground of faulty investigation done by the prosecuting agency. 56. The Hon'ble Supreme Court in the case of Harchand Singh (Supra) has held that if in a case the prosecution leads 2 (two) sets of evidences, each one contradicts each other the accused persons would have the benefit in such situations. On the facts of that case, it has held that it would appear that the eye-witness upon whose testimony the prosecution wants to sustain the conviction of the appellants is shown to be an unreliable witness by the other evidence produced by the prosecution. It was a case wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. On that context, it was held that in the above state of affairs, Hon’ble Supreme Court found it difficult to secure a firm ground upon which to base the conviction of the accused appellants. It has been further held that the function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no Page No.# 34/38 reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation. 57. A Division Bench of this Court in Budhua Mura (Supra), has held that when prosecution adduces two sets of witnesses, one contradicting the other, and the Court is not a position to hold confidently as to which set of witnesses has told the truth, then, both sets of witnesses have to be discarded 'or, at least, the set of evidence, which goes-in favour of the accused shall be adopted by the Court by relying on the ase of Harchand Singh (Supra). 58. In the case of Mohd. Aman (Supra), the Hon'ble Supreme Court has held that non-production of the alleged weapon of offence would make the case of the prosecution weak, which is reproduced herein under :- “8. After careful perusal of the evidence adduced in proof of the above circumstance we notice a glaring missing link, in that, the prosecution has failed to establish that the seized articles were not - or could not be - tampered with before it reached the Bureau for examination. Though evidence was led to prove that after seizure the articles were packaged and then sealed, no evidence was led to indicate what was the mark given in the seals and whether the Bureau received the packages with the marked seals intact. Indeed, even the contemporaneous letters exchanged between them (Ext.P. 59 and P. 60) do not throw any light on this aspect of the matter. Rather, other circumstances appearing on record makes the prosecution case doubtful in this regard: first, the articles were kept in the police station for five days without any justifiable reason, secondly the Investigating Officer (P.W. 20) admitted that the seal, mark of which was put on the articles, was with him since the time of seizure and lastly his letter (Ext.P. 59) forwarding the seized articles to the Bureu contains admittedly, an overwriting as regards the date of its writing/despatch and no satisfactory explanation is forthcoming for the same. Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also cast a serious mistrust as to genuineness of the evidence. Even though the specimen finger-prints of Mohd. Page No.# 35/38 Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd. Aman.” 59. In the case of Takhaji Hiraji (Supra) the Hon’ble Supreme Court has held that it is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The Court of facts must ask itself - Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive Page No.# 36/38 then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses. This proposition of law has been reiterated in Jodhan case reported in (2015) 11 SCC 52. 60. On non recovery of weapon, the Hon’ble Supreme Court has held that it is not sin qua non and conviction can be made on the basis of sole eye witness. Reference may be made to the case of Arjun Singh (Supra), wherein it is held that mere non recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, blood stained clothes etc. cannot be taken or construed as no such occurrence had taken place. Therefore, mere non exhibit of SLR and cartridge may not detract the case of the prosecution where clinching and direct evidence is acceptable through the eye witnesses as the same cannot be taken to be construed as no such occurrence had taken place. As per settled position of law, there can be a conviction on the basis of the deposition of the sole eye-witness, if the said witness is found to be trustworthy and reliable. 61. Reverting back to the present case, this court finds that there are 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted. Although, under section 313 Cr.PC statement, the appellant had stated that he was not on duty due to illness, same is not believable as PW-2, 3, 5 , 7, 8 and 9 have clearly deposed that the appellant was present at the place of the incident. These witnesses have no enmity with the appellant and therefore, there is apparently no reason why these witnesses would tell a lie and falsely implicate the appellant. The prosecution did not Page No.# 37/38 examine the father of the accused who as per the statement of the I.O. and Officer-in-Charge of Seppa Police Station had handed over the weapon of offence and the weapon of offence was not exhibited. Further, Constable W.Mamai who was one of the seizure witness of seizure of 3 empty cartridges was also not examined. The learned Trial court scrutinised the statements of all the eye-witnesses and found them consistent and reliable. This court also finds the eye-witnesses consistent and reliable in their narration of the incident. Therefore, in my view, non-examination of other witnesses does not cast any infirmity in the prosecution case. 62. Having held above, at the same time, this court finds that the appellant was a police constable deputed as Sentry Guard at the time of the incidence and the arm (SLR), was placed in his possession under due sanction. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed or prohibited weapon, as prohibited under Sections 5 and 7 of the Arms Act. An illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the mischief and misdemeanour under Section 5 or 7 of the Arms Act. Thus, in my view the appellant could not have been convicted under Section 27 (1) and (2) of the Arms Act, 1959. 63. In view of the discussions and conclusion arrived herein above, in my considered view, the appellant could not have been convicted and sentenced under Section 27 (1) and (2) of the Arms Act, 1959, however, the prosecution has proved the offence of criminal intimidation under section 506, IPC, 1860 beyond reasonable doubt. 64. In the result, the conviction and sentence under Section 27(1) and (2) of Page No.# 38/38 the Arms Act, 1959, is hereby set aside, however, the conviction and sentence under Section 506, IPC, 1860 is affirmed. Criminal Appeal stands disposed of, accordingly. 65. It is stated at the Bar that the appellant has already undergone the sentence, which is more than two years by now. In view of the conclusion that the appellant could not have been convicted under Section 27 (1) and (2) of the Arms Act, 1959, it is provided that the appellant shall be set at liberty by releasing him from the jail forthwith. Send down the TCR. JUDGE Comparing Assistant