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2. The prosecution story as it stands narrated in the written report ( Ext. 6) of the informant P.W. 9 Harish Kumar Pathak, S.I. of Police, Kuru Police Station ( Latehar District) addressed to the Officer-in-charge, Chandwa Police Station ( District Latehar) was that he received information from the Superintendent of Police, Lohardagga on 22.8.2005 in the wee hours at about 2 a.m. that the appellant Baleshwar Yadav, Zonal Commander of M.C.C. was staying at village Rajgurua and pursuant to such information, three raiding parties of police were organized on the command of the S.P., Lohardagga and the raiding parties arrived at village Rajgurua where the informant was communicated by the said S.P. that though Baleshwar Yadav @ Shyamji was staying there for some time but he proceeded to the house of the widow namely Parvati Devi at village Senha within Chandwa Police Station and accordingly he was directed to immediately conduct raid. The informant informed Cnandwa Police Station on wireless by requesting to assist in the raid to be conducted for the arrest of the appellant and the raiding parlies arrived at village Senna. On the command of the S.P., Lohardagga when the door of the suspected house was knocked, a woman came out and in the same transaction, a person attempted to escape from the back door of the house carrying a bag. When that person was challenged and asked to stop, he turned back and resorted fire from his pistol tout misfired. The raiding party commanded him to surrender but the person again fired shot. Fires were exchanged by the raiding party including the informant in the air, only with a view to terrorize and after chase the appellant was apprehened and a pistol was recovered from his possession which contained two cartridges of 9 m.m. in the magazine i.e. one misfired and another fired cartridge. On search of the bag of he appellant, in presence of the witnesses, the informant narrated that Rs. 1,00,000/- (one lakh) in cash, letter pad of C.P.I. (M), receipt books, papers relating to transaction of levy, pumplates and many other incriminating materials were recovered. The appellant confessed that he was the Zonal Commander of M.C.C. The pistol recovered from his possession was found made in Italy but without authority or licence of such possession. The appellant was arrested and seizure list of the articles recovered from his possession was prepared in presence of the independent witnesses. On the statement of the informant, Chandwa P.S. Case No. 80 of 2005 was registered on 22.08.2005 for the offence under Sections 386,307,333, 323 I.P.C., under Section 25(1B) /26/27 Arms Act and under Section 17 of the Criminal Law Amendment Act, 1908, The appellant was remanded to judicial custody on 23.8.2005.

(ii) Similarly, charge under Section 307 I.P.C could not be proved. The witnesses were consistent that the appellant fired shot from his pistol on the police party. The possibility of shots if fired in the air did not tantamount to an offence under Section 307 I.P.C. Admittedly, none of the members of the raiding police party sustained any gun shot injury. The time of alleged occurrence, according to the written report, was about 3.45 a.m. and the informant P.W. 9 testified that though he had heard the sound of firing shot but he could not guess on account of darkness as to from which direction the fire originated. The prosecution even failed to establish that it was none other than the appellant who fired shot on the raiding party but admittedly without injury to any person, The members of raiding party also claimed by testifying having fired shots in retaliation but without injury to the appellant or another and therefore alleged fire from the side of the appellant and counter fire from the raiding party could not be proved which suggested that the occurrence did not take place in the manner presented by the prosecution in the Trial Court.

7. Advancing his argument Mr. Singh emphatically made submission that the conviction of the appellant under Section 26 as well as 27 of the Arms Act is unsustainable as charges under both the sections may not be framed at a time. Learned Counsel pointed out that the arrest memo of the appellant was proved Ext. 9 and its column 9 indicated, "nothing except clothes" but after some wores it was penned through and then mentioned," according to seizure list" substituted. The arrest memo was proved by P.W. 9 Harish Kumar Pathak, the informant of the case who testified by admitting that the arrest memo was in his pen and signature and he admitted cutting in column 9 by way of certain addition but the cutting had got no bearing of his signal are. This fact was supported by P.W. 10 Ravinder Kumar Rai, Investigating Officer that certain cutting was made in column 9 and substitutior was made in that column in different ink. There was no material on the record in support of the charge under Section 26 Arms Act that the fire arm and ammunition were concealed by the appellant with such intention that the concealment may not come to the knowledge of any public servant. There was no material on the record that the appells it was aware of the fact that raid was likely to be conducted by the police officers and in order to avoid such raid ho had concealed the fire arm and ammunitions from the raiding party. On the contrary, it was alleged that the appellant on witnessing the police raiding party, fired from his pistol and therefore, his conviction under Section 26 Arms act is unsustainable. The witnesses were consistent that he used firearm against the police party and therefore, in this manner the appellant did no; conceal the firearm. As regards the charge under Section 27 Arms Act the witnesses including the informant were consistent that they heard the sound of fire in the wee hours of 22.8.2005 at about 4.15 a.m. without any gun shot injury to any one of either side. The time of incident was wee hours and the visibility was not as such to identify persons standing nearby. Learned Counsel pointed out that the Home-guard P.W. 7 Rajesh Kumar testified that in the torch light he spotted the appellant running away but he admitted that he had not made such statement under Section 161 Cr.P.C. Similarly, no other witness corroborated the statement of P.W. 7 and in this manner the prosecution failed to establish that the appellant fired from the pistol within the sight of any of the prosecution witnesses so as to attract and prove the charge under Section 27 of Arms Act, for want of which, his conviction under such Section cannot sustain. Similarly, Itlay made pistol alleged to be seized from the possession of the appellant was neither sealed nor sent to the Forensic Science Laboratory to find out the fingerprint of the appellant thereon. Admittedly, neither the pistol nor the fired cartridges or live cartridges recovered from the place of alleged occurrence were sealed after alleged seizure at the place of occurrence or at any place and in this manner the opportunity to the prosecution party of changing the arm and amrnunitions cannot be ruled out.

16. Similarly, the next charge was that the appellant being the Zonal Commander of M.C.C. an extremist party did an act by firing pistol on the police party with such intention or knowledge and under such circumstances that if by that act had he caused death of any of the members of the police party he would have been guilty of murder. Learned Counsel for the appellant consistently argued that the witnesses produced on behalf of the prosecution testified that the appellant fired shot from his pistol. But at the same time it is settled that shots if fired in the air did not tantamount to an offence under Section 307 I.P.C. None of the members of the police party sustained any injury alleged to be caused from the shot fired from the pistol of the appellant. The time of such fire was 3.45 a.m. and the informant had simply heard the sound of firing but he could not guess as to from which direction the fire originated in the darkness. I find substance in the argument that the prosecution even failed to establish that it was none other than the appellant who fired shot on the police party. Interestingly, the members of raiding party also claimed by testifying having fired shots in retaliation but without injury to the appellant and therefore, alleged fire from the side of the appellant and counter fire from the raiding party could not be proved. Similarly, P.W. 2 Sergeant Major Anand Shankar Prasad who had examined the pistol as well as misfired and fired cartridges failed to establish that the fired cartridge which was produced before him was actually fired from .9.m.m. pistol allegedly recovered from the possession of the appellant and in this manner also the charge under Section 307 could not be substantiated against the appellant. The prosecution further failed to (sic) that if at all any shot was fired the appellant intended to fire at someone. As regards charge framed under Section 323 I.P.C. against the appellant neither any injury report was brought on the record nor P.W. 9 supported having sustained any injury in scuffle with the appellant and in this manner charge under Section 323 failed. I, therefore, find and observe that the prosecution failed to prove the charge against the appellant under Sections 386/307/323 I.P.C. and accordingly set aside.