Virendra Saran - (1.) RAMESHWAR s/o. Jeet R/o. Madhapur, P. S. Fatehpur Chaurasi District Uanao has filed this appeal against the judgment and order of Sri U. S. Gupta, Sessions Judge. Non Metropolitan Area, Kanpur dated 18-7-1978, passed in Sessions Trial No. 299 of 1977- - The learned Sessions Judge has convicted the appellant under section 25 Arms Act and sentenced him to two years' R.I.
(2.) ACCORDING to the case of the prosecution. S. I. Prahlad Singh, Station Officer of P. S. Kakwan, District Kanpur was returning to his Police Station after Investigating a case registered at Crime No. 109. u/Sec. 395/ 397 IPC on 15-9-1974. He received Information at Maddupur Pul from an Informer at about 2 P.M. that two persons were coming from towards Nadwa Rampur side and would go to Village Kursi Khera and that the two persons were in possession with illioit arms and stolen property. Thereupon Sub Inspector collected public witnesses, namely, Suraj Pal, Raja Ram and Natha Singh and lay in ambush towards south of the culvert waiting arrival of the culprits. At about 2.30 P.M. two persons, including the appellant, were seen coming from Nadwa Rsmpur side. When they came pear culvert, Sub Inspector accosted them and apprehended them after using necessary force the appellant was carrying a Jhola which was searohed. A country made pistol and three live cartridges were found in the Jhola wrapped in a towel. S. I. Prahlad Singh sealed the same in the Jhola (Est. 2) in presence of the witnesses and prepared recovery memo Evt. Ka-3, The appellant was made Baparda on the spot and despatched to the Police Station. A cheeck FIR. Ext. Ka-4 was drawn on the basis of the recovery memo Ext. Ka-3 and the case was registered against the appellant. The case was investigated by S.I Ram Babu Yadav who after obtaining necessary sanction of the prosecution from the District Magistrate Ext Ka-6 filed charge sheet against the appellant. At the trial the prosecution examined PW 2 Sural Pal, PW 3 Nathu Singh and PW 4 S. I. Prahlad Singh as witnesses of fact. PW 1 Riyazulhaq was constable Moharris who proved the general diary entry Ext. Ka-2 He also proved FIR Ext, Ka-1 and general diary Ext. Ka-2 PW 5 S.I. Ram Babu Yadav is the Investigating Officer of the case. At the close of the prosecution evidence the appellant was examined and he denied the prosecution case he further denied that he was arrested near culvert as alleged by the prosecution. He further denied that any country made pistol or cartridges were recovered from his possession. The appellant further pleaded that he was falsely implicated by the police. The appellant examined DW 1 Puttu Lal and DW 2 Jagdish Prasad in his defence who stated that the appellant was arrested from his house by Sub Inspector and four or five constables and that nothing was recovered from the possession of the appellant. On consideration of the evidence on record the learned Sessions Judge found that prosecution has proved its case against the appellant and hence he convicted and sentenced the appellant as mentioned above. The appellant has now come up in appeal before this Court. I have heard the learned counsel for the appellant and learned Counsel for the State at length and have also perused the material on record.
(3.) THE learned counsel for the appellant has submitted that the sanction of prosecution has been given by the District Magistrate, Kanpur without applying bis mind to the facts and circumstances of the case. He has drawn the attention of the court to the fact that the order of sanction is not a speaking order. THE sanction order reads as follows :- "Seen the case diary, one country made pistol of 12 bore and three cartridges of 12 bore only. Prosecution sanctioned. Sd. District Magistrate Kanpur. 9-4-75". The learned counsel for the appellant has submitted that the sanction order appears to be the handi work of some clerk and the District Magistrate has simply signed the order in mechanical manner. The learned counsel for the appellant has pointed out that the evidence at the trial is that the pistol and the cartridges were sealed on the spot any they remained so sealed and were opened for the first time at the time of evidence of Surajpal PW 2. Learned counsel has referred to the cross-examination of PW 2 Surajpal, who in reply to question no. 19 has stated that the 'Jhola' Ex.1 is sealed with read sealing wax and the seal has been opened In the court and this was the very seal which was fixed on the spot by the 'Daroga'. Learned counsel has submitted that in view of the above evidence the claim of the District Magistrate of having seen the pistol End the cartridges is not correct. The learned State Counsel has not been able to satisfactorily explain the above discrepancy but has submitted that even if the pistol and the cartridges had rot been seers by the District Magistrate it will not have any material bearing on the sanction order. I am unable to accept the submission of the learned State Counsel because if one material fact mentioned in the sanction is found to be incorrect it goes to support the defence contention that the typed sanction order was placed before the District Magistrate who simply singed it. The District Magistrate has not been examined as a witness in the present case and there is no other extraneous evidence to show that the case diary, the pistol and the cartridges were placed before the District Magistrate. PW 5 S. I. Ram Babu Yadav who is the only witness on the point of sanction has simply stated that the typed sanction, which is on the charge sheet, bears the signatures of the District Magistrate. He has nowhere stated that he ever sent the case diary for the perusal of the District Magistrate. Similarly he does not say that the pistol and the cartridges were ever sent to the District Magistrate. In view of the above discussion I am of the opinion that the prosecution has failed to prove that the sanction to prosecute was granted after application of mind by the District Magistrate.;