Judgment ( 1. ) THIS appeal is preferred under Section 374 (2) of the Criminal Procedure Code being aggrieved by the judgment dated 26. 7. 1990 passed by Second Additional Sessions Judge, Chhatarpur in S. T. No. 155/86 convicting the appellants under Section 25 (1) (b) (a) of the Arms Act, 1959 and each of them sentenced for one year RI. During pendency of this appeal the appellants No. 1 and 2 had died, hence the appeal was ordered to be abated against them vide dated 7. 3. 2006. Accordingly, this appeal is being decided in respect of only appellant No. 3. ( 2. ) AS per the case of prosecution, on dated 22. 7. 1986 at about 7. 00 Oclock in the evening when complainant Mohanlal was sitting at the door of his residence at village Benipur, nereby his brother Dwarka, uncle Sada Shiv were also sitting. At the same time, accused Chandra Bhushan, Laxmi Prasad and Devideen with rifile and this appellant Chhota with Ballam and country made pistol and one more person with Ballam were standing behind the doors of one Chunkai Nai and telling to kill the said Mohanlal. In connection of it Chandra Bhushan deceased appellant No. 1 instigated to ether accused to kill the complainant and also made fire to indicate the complainant. The pellets of such fire were mat to the wall of the complainant house. In order to save himself complainant concealed himself at the back side of the wall and saw the incident. Then second gun shot was made by appellant No. 2 Late Laxmi Prasad while Indrapal made third gun shot fire and Devideen has also made the same. Then the villagers Pooran Kumri, Bua Kurmi and Ram Milan came there. Such fire, were made by Late Chandra Bhushan and his accompanied accused on account of old enmity with the complainant. The Assistant Sub Inspector of Police M. S. Bhadoriya was present in the village hence a Dehati Nalishi (Ex. P/2) was drawn up immediately after the incident, the same was sent to Police Station Gorihar where an offence against the appellant and some other accused was registered under Section 147, 148, 149 and 307 of the IPC. During investigation the accused were arrested. On giving informations by all the appellants the memorandums under Section 27 of the Evidence Act were recorded. Out of it, the memorandum Ex. During investigation the accused were arrested. On giving informations by all the appellants the memorandums under Section 27 of the Evidence Act were recorded. Out of it, the memorandum Ex. P/6 by M. S. Bhadoriya (PW 15) was recorded at the instance of appellant No. 3 in presence of witnesses namely Saduva (PW6) and Nirbhay Singh (PW 5 ). In pursuance of it, the recovery of country made pistol was also made at the instance to the appellant No. 3 from Raipur hill. The seizure memo Ex. P/15 was prepared by said MS Bhadoriya (PW 15 ). ( 3. ) ON completion of the investigation the appellants and other accused were charge-sheeted under Sections 307, 147, 148, 149 of the IPC, while on committal the matter to the Sessions Court the charges under Section 307/149, 148 of the IPC and under Section 25 read with Section 27 of the Arms Act were framed against the appellants. While the charges under Section 307 read with Section 149 and 148 of the IPC were framed against other accused. ( 4. ) ON denying same the trial was held in which the prosecution has examined as many as 16 witnesses to prove its case while no one was examined on behalf of the accused appellant in their defence. ( 5. ) ON appreciation of the evidence the appellants and other accused were acquitted from the charge under Section 307/149 and 148 of the IPC and Section 27 of the Arms Act, while appellant No. 3 Chhota alongwith appellants No. 1 and 2 Were found guilty under Section 25 (1) (b) (a) of the Arms Act and each of them was sentenced as said above hence this appeal is preferred against such conviction. ( 6. ) THE learned Counsel For the appellant has submitted his submissions on the following grounds: (A) Without taking sanction as required under Section 39 of the Arms Act such prosecution was not maintainable against the appellant. (B) The memorandum under Section 27 of the Evidence Act Exp/6 as alleged against the appellant No. 3 was not proved either by the witnesses of it or by Investigating Officer himself. Hence, in the lack of any evidence in this regard the recovery memo Ex. P/15 could not be relied on. In support of this contention he has cited one decided case of this Court reported in 2003 MPLJ Vol. Hence, in the lack of any evidence in this regard the recovery memo Ex. P/15 could not be relied on. In support of this contention he has cited one decided case of this Court reported in 2003 MPLJ Vol. 4 page 243 the same is based on a decision of the Apex Court. (C) In addition, it was submitted that the seizure memo Ex. P/15 has also not been proved against the appellant by independent witnesses One of the witness Ram Pratap Singh was not examined by the prosecution and no sufficient explanation was put forth by the prosecution regarding his nonexamination. Another witness Balloo (PW9) has not supported the same. Thus mere on the testimony of investigating officer such memo could not be found to be proved against the appellant. (D) When the appellants were acquitted from the alleged substantive offences men they could not be convicted under the aforesaid section. (E) The inconsistent statements of the prosecution witnesses and inconsistency have not been considered by the trial Court in appreciation of the evidence before holding the guilty to appellant. Lastly, he has submitted, in case, the aforesaid submissions are not concluded in his favour in such case, the appellant should be extended the benefit of the Probation of Offenders Act as he had no criminal history or antecedents in his past and prayed for allowing the appeal accordingly. ( 7. ) WHILE, other hand, Shri Ramesh Shukla learned Dy. Govt. Advocate has justified the impugned judgment as well as the conviction and sentence imposed by the trial Court against the appellant. He also submitted that findings of the trial Court are based on proper appreciation of the evidence. It docs not require any interference at this stage and prayed for dismissal of the same. ( 8. ) HAVING heard the learned Counsels, on perusing the record. it is a matter of record that appellant and other accused have been acquitted from the alleged charges of the substantive offences while the appellant No. 3 was convicted as said above. ( 9. ) IN record, I have found the sanction Order Ex. P/16a, for prosecution of the appellant as per requirement of Section 39 of the Arms Act. The same has also been proved by Virndavan Kushwaha (PW 11 ). Thus the submission on behalf of appellant in this regard is not sustainable Hence the same is failed. ( 10. ( 9. ) IN record, I have found the sanction Order Ex. P/16a, for prosecution of the appellant as per requirement of Section 39 of the Arms Act. The same has also been proved by Virndavan Kushwaha (PW 11 ). Thus the submission on behalf of appellant in this regard is not sustainable Hence the same is failed. ( 10. ) SO far the factual matrix are concerned, it is suffice to say that after arrest of the appellant as alleged on his information the memorandum of Section 27 of the Evidence Act Ex. P/6 was prepared by M. S. Bhadoriya (PW 15 ). But, this document was not proved by the independent witnesses namely Sadhuva (PW 6) and Nirbhay Singh, (PW 5) or the said I. O. , M. S. Bhadoriya (PW. 15) hence it is held that Ex. P/6 has not been proved by any reliable evidence. As alleged in pursuance of the said memorandum Ex. P/6 the alleged pistol was seized by M. S. Bhadoriya (PW 15) by Ex. P/15 at the instance of the appellant No. 3 in presence of Ram Pratap Singh and Balloo (PW 9) out of them the independent witness Ram Pratap nither examined nor any satisfactory explanation was put forth by the prosecution regarding his non-examination. While said other witness Balloo (PW 9) has not supported such recovery and its seizure memo Ex. P/15. Although said memo was proved by the said Investigating Officer M. S. Bhadoriya (PW 15) but it is not sufficient to hold guilty to appellant unless the same is corroborated by independent witnesses. ( 11. ) BESIDES the above, one more question is involved, as the memorandum of appellant No. 3 under Section 27 of the Evidence Act Ex. P/6 does not have the signature of the appellant hence in the absence of any other reliable evidence (the same is not available in. the record.) This Ex. P/6 and its preparation appears to be doubtful and can not be relied on. If Ex. P/6 is not reliable then seizure memo Ex. P/15 prepared in pursuance of it, does not remain reliable as laid down by the Apex Court in the matter of Jackaran Singh v. State of Punjab reported in AIR1995 SC 2345 , 1995 Crilj3992. On which this Court has answered this question in the matter of Bahadur Singh v. State of MP. P/15 prepared in pursuance of it, does not remain reliable as laid down by the Apex Court in the matter of Jackaran Singh v. State of Punjab reported in AIR1995 SC 2345 , 1995 Crilj3992. On which this Court has answered this question in the matter of Bahadur Singh v. State of MP. Reported in 2003 (4) M. P. L. J. 243 in which it is held as under: 28. The trial Court has convicted the appellants on the basis of their confession and statement recorded under Section 27 of the Evidence Act followed by the recovery of bones of the deceased and the silver Tabeez. The memorandum of Section 27 of the Indian Evidence Act of appellant Bahadur gave is Ex. P-11. in which according to the prosecution appellant Bahadur gave, information in the custody of police that he along with other co-accused persons kidnapped the deceased and thereafter on account of non-payment of ransom, the deceased was killed by throttling and his dead body has been buried in a pit in a jungle of Panota. This memorandum has not been signed by the accused Bahadur. 29. The Supreme Court in the case of Jckaran Singh v. State, of Punjab AIR1995 SC 2345 , 1995 Crilj3992 has held that in the absence of signature or thumb impression of accused on the statement renders such statements unreliable and thus no reliance can be placed on this document, and the seizure of Tabeez on the basis of this document is of no consequnce. The witnesses to, this document arc PW 5 Munnalal, PW7 Dammulal, but both of them have been declared hostile and none of them have stated that accused Bahadur gave any such statement which is expressed in the document Ex. P- 11. Thus, in this view of the matter, the statement recorded under Section 27 of the Evidence Act could not be relied. So far as the recovery of one Tabeez from this accused is concerned, suffice it to say, it is not a valuable article. According to the prosecution, it had value Rs. 3/ only. A prudent man would not digest the story that an accused would keep this article with him, which is valueless, so as to implicate himself as on accused. Therefore the recovery of Tabeez is also not reliable. ( 12. According to the prosecution, it had value Rs. 3/ only. A prudent man would not digest the story that an accused would keep this article with him, which is valueless, so as to implicate himself as on accused. Therefore the recovery of Tabeez is also not reliable. ( 12. ) IN view of the aforesaid dictum of the Apex Court and this Court the seizure memo Ex. P/15 does not remain reliable. In such circumstance, no inference can be drawn against appellant No. 3 in respect of seizure of the alleged country made Katta from his possession Hence he could not be held guilty for the alleged offence. ( 13. ) THEREFORE, it is held that the trial Court has committed grave error and perversity in holding guilty to appellant for such offence. Thus the conviction and sentence of the appellant under the aforesaid provision of the Arms Act is not sustainable under the law resultantly by allowing this appeal the same is set aside the appellant is acquitted from the alleged charge/offence. The bail bonds and surety bonds of the appellants are hereby cancelled. Appeal is allowed.