STATE OF U P Vs. DHANWAN

JUDGEMENT

(1.) THIS is a Government Appeal under Section 417, Crl. P. C. against the order of the Sessions Judge of Jhansi allowing the appeal of Dhanwan, respondent, and thereby acquitting Lim of the offence punishable under Section 19 (f) of the Arms Act, on the ground that the D. B. M. L. gun said to have been recovered from his possession on 202-1901 was not sealed at the spot and the necessary link evidence not adduced to prove that the gun was recovered in the same condition and was the same as was produced before the trial Court. The learned Ses-sions Judge took this view on consideration of certain decisions of this Court. In view of the fact that the appeal was being allowed on a legal ground, the Sessions Judge did not record a finding whether the prosecution had or had not succeeded in proving the recovery of the gun from the posses-sion of the respondent.

(2.) THE learned counsel for the respondent made a request that in case the above question of law was decided against him, the appeal be remanded for a fresh hearing so that the respondent may also have the benem of a finding of fact of the lower appellate Court. The request is a reasonable one and in the circumstances, we are not expressing any opinion on the merits of the case.

(3.) THE simple question for consideration is If the testimony or eye witnesses as to the identity of the recovered gun can be disregarded because the recovered article had not been scaled at the spot or tne prosecution did not care to produce during the trial formal evidence as to the sealing and safe transit or storage of the recovered article, to prove that the article produced before the Court was one which had been recovered from the possession of the accused.