Crl.A. 329/2003 BEFORE THE HON’BLE MR JUSTICE P.K.MUSAHARY As usual there is no representation for the accused/appellant. May be due to the reason that the accused/appellant is on bail. I have heard Mr B.B.Gogoi, learn ed Addl. Public Prosecutor, Assam. 2 The Judgment and order dated 29.9.03 passed by the learned Sessi ons Judge of Darrang at Mangaldoi in Sessions Case No.85(DM) 2001 thereby convic ting and sentencing the accused/appellant to undergo R.I. for 5(five) years and to pay fine of Rs. 5000/-, in default, further R.I. for 1(one) year for an offe nce under Section 25(IA) of the Arms Act is under challenge in this appeal. 3 The prosecution story in short is that on the night of 11.3.98 a police party led by S.I. Sorhab Ali of Kharupatia Out Post, raided the house of accused Siraj Ali in connection with harbouring accused Sattar involved in D algaon P.S. Case No. 318/97 U/s 341, 302 IPC. The prosecution examined in all five witnesses while the defence examined three witnesses. The defence case is of total denial. I have gone through the evidence on record as well as the mate rials available on record 4 PW-3, Sohrab Ali was the S.I. of Police posted at Kharupetia Out Post during the relevant period of time and he was the officer who led the poli ce team in raiding the house of the accused. He admitted that the seized arms an d ammunitions were not sent for testing by the Forensic Laboratory. He also ad mitted that the seized articles were sent to the armourer , Sri Umesh Baruah o f 12 AP Bn. Jamugurihat for his opinion. The said armourer was also examined a s PW-5. In his deposition the said armourer stated as under: (1) Ext A and B are fire arms and ammunitions. (2) Ext A is not factory made. Ext B is a factory made ammunitions. (3) Ext A and B are serviceable in its present condition. Ext 3 is his report. 5 It is found from the record that the two villagers PW 1 and PW 2 were examined as seizure witnesses. PW-1, Md Sahad Ali, a villager and neighbo ur of the accused has stated in his evidence that on the date of occurrence pol ice met him at his house and took his signature on Ext-1 but no arm and ammunit ion was shown to him. PW 2. Md Sagar Ali, a neighbour of the accused also depo sed in the same manner. He further stated that out of fear he put his signature on the seizure list and no incriminating article was shown to him by police. S urprisingly these two seizure witnesses inspite of giving evidence against the prosecution, no prayer was made by the learned Public Prosecutor to declare the m as hostile witnesses so as to avail the chance of cross examination to bring out the truth from their mouth. The prosecution failed to prove the case of seiz ure of the arms and ammunitions from the house of the accused/appellant in prese nce of these two witnesses. There remains only one witness in regard to recovery of the arms and ammunitions who is none else than the police officer himself. H is evidence is not supported by the two villagers i.e PW 1 and PW 2 whose signat ures were obtained on the seizure list as witnesses. 6 The prosecsution, for reasons best known to it only did not feel it necessary to send the seized arms and ammunitions for F.S.L.Testing and ther eby to prove its case to the effect that the said arms and ammunitions seized fr om the premises of the accused are serviceable. The opinion of the armourer is t o be supported by Forein sic Testing/report , after all he has expressed his op inion only without any scientific test. What is worth noting is that the prose cution did not take any care to prove the basis fact that the police team, durin g raid in the house of the accused/appellant, the aforesaid arms and ammunitions were seized from his house inasmuch as the so called independent seizure witnes ses have deposed that they were not shown the seized arms and ammunitions and it has not been brought on record that they were not present at the time of raid or seizure of the arms and ammunitions It has also not been brought on record that the seized arms and ammunitions were shown to these independent witnesses, PW 1 and PW 2, before their signatures were obtained on the seizure list. 7 The prosecution is required to prove its case beyond reasonable doubt Here in this case, from the evidence on record, particularly PW 1 and PW 2 , who have not deposed supporting the prosecution case, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. There remains doubt in proving the case of the prosecution. The prosecution has failed to remove the same by adducing sufficient and reliable evidence. 8 The accused/appellant is, therefore, entitled to benefit of doub t and he should be set at liberty on benefit of doubt and accordingly the convic t appellant is acquitted giving him the benefit of doubt. The impugned judgment and order stands reversed, The appeal stands allowed. 9. The bail bond stands discharged. Send down the LCR.