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This judgment will decide the challenge made by two appellants Khima Ram @ Khema S/o Bhagga and Kana Ram @ Kishan S/o Teja, both by caste Gameti (Bhil) and residents of Upali-Barind, Police Station Kelwara, District Rajsamand against the judgment dated 29.11.2003 passed by the Additional District and Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 44/2003, by which the learned trial court convicted both the accused appellants for the offence under Section 302/34, 397/34, 307/34 IPC and further accused appellant Khima Ram was also convicted under Section 4/25 of the Arms Act and they were sentenced as under :-

Further all the sentences were ordered to run concurrently.

D.B. Criminal Appeal No. 44/2004 To decide the above challenge, it would be proper to narrate the facts of the prosecution story which may be summarized as under :-

On 19.03.2003 at about 6.00 a.m., Narpat Singh, Sub-Inspector of the Police Station Rajnagar while holding his camp at Hospital Rajsamand recorded the statement (Ex.P.1) of Trivenidas Guru Ram Narayan Das, aged 27 years, resident of Bardal Ki Nal, Dhuni Ghata Thoriya, Police Station Kelwara, District Rajsamand, in which Trivenidas stated that in the previous night, i.e. in the intervening night of 18.03.2003 and 19.03.2003, at about 12.30-12.45 a.m., someone started throwing stones on the Dhuni, then he alongwith Ganeshdas woke up and went in the room adjacent to the Dhuni and closed the door from inside. Two persons broke up the door with Kulhari and entered the room and started beating both of them with a stick and a sword. He identified both the persons, out of which one was Khema Gameti resident of Barind having a sword in his hand and the second person was identified by his face, but he did not know the name of that person. Khema caused the injury on his left hand with the sword and the another person caused injuries to them with the stick. Ganeshdas died on the spot due to those injuries. Thereafter both the persons started to beat Bhanwardas. Laxman Bheel ran from the scene of D.B. Criminal Appeal No. 44/2004 occurrence to the village. After that some persons came from the village and they managed to open the door of the room.

Bhanwardas also succmbed to the injuries on the spot. The persons who caused the injuries and death of deceased Ganeshdas and Bhanwardas also took with them a Kamandal and Rs.700-800 from the Jholi. Kamandal bears the name of Ganeshdas.

On the basis of the aforesaid statement, a Criminal Case No.33/2003 under Section 396, 307, 460, 450, 341, 323 IPC was registered and the investigation commenced. During the course of investigation, the injuries of Trivenidas were examined by the Medical Jurist, General Hospital, Rajsamand and the autopsy was conducted on the bodies of deceased Ganeshdas and Bhanwardas. Statements of the witnesses were recorded. Both the accused appellants were arrested and in consequence of the information recorded under Section 27 of the Indian Evidence Act, recoveries were made and blood stained clothes alongwith lathi and sword were sent to the Forensic Science Laboratory, Udaipur and the Forensic Science Laboratory report was obtained during the course of investigation. After conclusion of the investigation, charge-sheet was presented in the court of Judicial Magistrate, Kumbhalgarh, from where the case was committed to the court of Sessions Judge, Rajsamand and further the case was transferred to the court of Additional D.B. Criminal Appeal No. 44/2004 District and Sessions Judge (Fast Track), Rajsamand for trial.

The learned Additional District and Sessions Judge (Fast Track), Rajsamand vide judgment dated 29.11.2003 held the accused appellants guilty for the offences and punished them as narrated in the earlier paras.

D.B. Criminal Appeal No. 44/2004 Learned counsel for the accused appellants contended that the conviction of the accused appellant Khima Ram under Section 4/25 of the Arms Act cannot be sjustained because of the fact that no sanction for prosecution under the relevant provision of the Arms Act had been obtained from a competent authority, i.e. the District Magistrate, under Section 39 of the Arms Act, 1959 and in the absence of such sanction, the prosecution of the accused appellant Khima Ram under Section 4/25 of the Arms Act is bad in the eye of law, therefore, he should be acquitted from the charge under Section 4/25 of the Arms Act.