JUDGMENT : The aforementioned criminal appeals are preferred by the appellants namely, Mahmood & Sageer Ahmed against the judgments and orders dated 30-4-2002 passed by the learned Addl. District & Sessions Judge, Roorkee in S.T. Nos. 106/1995, 107/1005 & 108/ 1995. Vide the aforesaid judgments and orders dated 30-4-2002, the learned Addl. District & Sessions Judge convicted the accused/appellants for the offence punishable under Sections 307/34 IPC in S.T. No. 106/1995 and sentenced them to undergo five years rigorous imprisonment with fine of rupees fifteen hundred only, in default of payment of fine, they would undergo simple imprisonment for another period of four months whereas in S. T. Nos. 107/ 1995 & 108/1995, the appellants-Mahmood & Sageer Ahmed respectively were convicted for the offence punishable under Section 25 of the Arms Act and were sentenced to undergo rigorous imprisonment for five years with fine of rupees one thousand only. It was further directed that all the aforesaid sentences would run concurrently. 2. The brief facts of the prosecution case are that on 28-04-1994, the police patrolling party headed by S.O. Pritam Singh was on a patrolling duty. At about 19:30 hours, they saw two persons coming from the side of the canal on its road. As it had become dark so the police patrolling party asked them to stop. Seeing the police patrolling party, both the aforesaid persons threatened the police patrolling party and also stated that they would kill them. One of the miscreants even fired two shots upon the police patrolling party with the intention to kill them. The police patrolling party also started firing in retaliation. Eventually, both the miscreants were apprehended by the police patrolling party. After being apprehended by the police, they disclosed their identities as Mahmood and Sageer Ahmed. Thereafter their search was conducted. From the search of Mahmood, an A.K.-47 rifle bearing no. 1613817 affixed with a magazine having thirty live cartridges in it, was recovered from his possession whereas from the search of Sageer Ahmed, two empty magazines of AK-4 7 rifle as well as 104 cartridges of AK-47 rifle were recovered from his possession. The aforesaid cartridges and magazines recovered from their possession were sealed at the spot butAK-47 rifle was not sealed as it was bearing a registered number. The aforesaid cartridges and magazines recovered from their possession were sealed at the spot butAK-47 rifle was not sealed as it was bearing a registered number. The empty cartridges, which were in consequent to the firing by one of the miscreants upon the police patrolling party, were also recovered from the spot and were sealed separately. A memo to that effect was also prepared at the spot. Thereafter, the accused-appellants alongwith the recovered articles were taken to the police station where the police registered as many as three cases against them, one was under Section 307 IPC and the remaining two cases were under Section 25 of the Arms Act. 3. Three separate trials proceeded against the accused-appellants before the learned Addl. Sessions Judge. The accused appellants were charged of distinct offences in the aforesaid sessions trials and they denied the charges leveled against them, as such, claimed for trial. 4. It is pertinent to mention that the accused appellants have been convicted in all the aforesaid sessions trials. It is also worth mentioning that the witnesses of the prosecution are common in all the cases except one namely, the Co-Surendra Singh who in Sessions Trials Nos. 108/95 & 107/95 has been produced as PW2 & PW3 respectively to prove the sanction obtained by him from the District Magistrate, Haridwar for instituting prosecution under Section 25 of the Indian Arms Act against the accused appellants. Since the recovery as well as the incident pertains to the same transaction of the events, as such, the aforesaid three appeals were clubbed. Now these appeals are being disposed of by me with this common judgment. 5. In the statement recorded under Section 313 Cr.P.C., the accused appellants in all the cases have stated that the evidence, which have been led against them, is totally incorrect and false. They further alleged that they have been falsely implicated in these cases. The accused appellant Sageer Ahmed has stated in his statement that after being apprehended by the police from Manglore bus stand, he was brought to the police station where the other accused-appellant Mahmood was already there in the police station. They further alleged that they have been falsely implicated in these cases. The accused appellant Sageer Ahmed has stated in his statement that after being apprehended by the police from Manglore bus stand, he was brought to the police station where the other accused-appellant Mahmood was already there in the police station. In support of their case, the accused-appellants also adduced the evidence of Moonga DW 1 who has stated in his evidence that he was posted as 'Chowkidar' in the bungalow of the forest and a number of persons also reside near the place where the said incident is alleged to have taken place. He has further stated that a 'temple' is also situated near the place and two priests were residing in it. 6. The prosecution in ST No.1 06/95, in support of its case examined Suresh Pal Singh as PW 1, S.O. Pritam Singh as PW2, Magan Singh Negi as PW3, Head Const. Kailash Chand as CW1 & Y.K. Sharma as CW2 whereas in ST Nos. 107/95 & 108/95., the prosecution also examined the CO-Surendra Singh as PW2 & PW3 respectively besides examining the aforesaid witnesses and the proved that he obtained the sanction from the District Magistrate, Haridwar for instituting prosecution under Section 25 of the Indian Arms Act against the accused appellants. 7. Since all the aforesaid three sessions trials relate to a common incident, as such, the witnesses adduced by the prosecution in these trials are almost common and they corroborate each other on the material points and also support the prosecution version. Suresh Pal Singh PW1 has been examined in all the sessions trials and he has categorically stated that on 28-4-1994, he alongwith SO Pritam Singh PW2, Y.K. Sharma and other police officials was on a patrolling duty near the place of incident. At about 19:30 hours, they saw that two persons were coming from the Canal side on its road. SO Pritam Singh PW2 saw them in the torchlight and asked them to stop. Seeing the police patrolling party there, both the miscreants defy them and also threatened to kill them. Thereafter, they fired upon the police patrolling party with an intention to kill them. The police patrolling party also retaliated in their defence and fired upon the miscreants by the arms, which they were having in their hands at the time of the incident. Thereafter, they fired upon the police patrolling party with an intention to kill them. The police patrolling party also retaliated in their defence and fired upon the miscreants by the arms, which they were having in their hands at the time of the incident. Thereafter S.O. Pritam Singh PW2 asked the miscreants to surrender as they had been surrounded by the police and now they could not flee from the spot. Thereupon one of the miscreants immediately asked the other miscreant to fire upon the police, the other miscreant replied that the magazine of the weapon is not working properly. Eventually, with the help of torchlight, both the miscreants were apprehended by the police patrolling party. After being apprehended by the police, they disclosed their identities as Mahmood and Sageer Ahmed. Thereafter their search was conducted. An A.K.-47 rifle bearing no. 1613817 affixed with a magazine having thirty live cartridges in it was recovered from the possession of Mahmood whereas, two empty magazines of AK-47 rifle as well as 104 cartridges of AK-47 rifle were recovered from the possession of Sageer Ahmed. The accused appellants could not show any licence for keeping the weapon as well as for the cartridges. The magazines and cartridges were sealed at the spot and a memo (Ex.Ka-1 ) was prepared at the spot. Since the accused-appellants were arrested suddenly and that too at about 19:30 hours in the evening, as such, no public witnesses could be taken at the time of the incident or at the time of the arrest and recovery. The police patrolling party thereafter took the appellants to the police station where the reports were lodged against the accused appellants. The prosecution also adduced the evidence of S.O. Pritam Singh PW2 who has corroborated the evidence of Suresh Pal Singh PW1 on all material points. He has given vivid details of the incident and also with regard to the recovery of the arms as well as of the cartridges. The prosecution witnesses have also stated that the empty cartridges which were in consequent to the firing by the miscreants upon the police patrolling party, were also recovered from the spot and a recovery memo to that effect was also prepared. Magan Singh Negi PW3 is the Investigating Officer of this case. The prosecution witnesses have also stated that the empty cartridges which were in consequent to the firing by the miscreants upon the police patrolling party, were also recovered from the spot and a recovery memo to that effect was also prepared. Magan Singh Negi PW3 is the Investigating Officer of this case. He investigated all the three cases registered against the accused appellants and recorded the statements of the witnesses under Section 161 Cr.P.C. and also prepared the site plan. After completing the investigation, he filed the chargesheets against the accused appellants. Y.K. Sharma CW2 was examined as court witness. He has stated the details of the incident and corroborates the arrest and seizure of AK-47 rifle, magazines and the cartridges recovered from the possession of the appellants. He has further stated thatAK-47 rifle and thirty live cartridges alongwith the magazine affixed on it was recovered from the possession of the accused appellant Mahmood whereas two empty magazines of AK-47 rifle and 104 cartridges of AK-47 rifle were recovered from the possession of Sageer Ahmed. He also proved the two recovered holes of the used cartridges, used by the appellants and a 'furd' of those empty holes were prepared at the spot. H.C. Kailash Chand was examined by the Court as CW1 and he was happened to be the Head Moharir of the police station- Manglore on 28-4-1994. He recorded the Chik report as well as the G.D. of the said cases at the police station. The prosecution has also examined the CO-Surendra Singh who has been produced as PW2 & PW3 respectively in ST Nos. 108/95 & 107/95. He proved the sanction obtained by him from the District Magistrate, Haridwar for instituting prosecution under Section 25 of the Indian Arms Act against the accused appellants. 8. The learned trial court after appreciation of the evidence found the evidence of the prosecution witnesses to be credible and cogent and further held that the evidence cannot be said to be tainted or unbelievable because AK -47 rifle has been recovered from the possession of the accused appellant Mahmood and live cartridges of AK-4 7 were also recovered from the possession of both the accused appellants. The learned trial court also held thatAK-47 rifle is a prohibited bore and it cannot be planted by the police on the accused appellants. The learned trial court also held thatAK-47 rifle is a prohibited bore and it cannot be planted by the police on the accused appellants. The learned trial court has found that the evidence of the prosecution is consistent and it is further corroborated by the recovery of prohibited bore of AK-4 7 rifle alongwith live cartridges of the same. 9. I have heard the learned counsel for the parties. I have also gone through the evidence and material on record. 10. The learned counsel for the accused-appellants contended that if two shots were fired by the accused appellants upon the police patrolling party with the intention to kill them, it could hit the police patrolling party and it cannot be said to be a probable .story by the prosecution. He further contended that the police could not recover the empty holes, which were fired/used by the police patrolling party in its defence at the time of the incident. Admittedly five fires were made by the police patrolling party from different weapons, which the police officials were carrying at the time of the incident. The learned Add!. GA refuted the contention and supported the findings recovered by the trial court. It is true that five empty holes had not been recovered by the police which the police patrolling party had fired upon the accused appellants in its defence but non-production of the aforesaid empty holes cannot falsify the entire prosecution story. It is an admitted fact that AK-47 rifle- a prohibited bore, the magazines and live cartridges were recovered from the possession of accused appellants, as such, if the prosecution has made remissness by not discovering the said empty holes, it would only amount to be a defective investigation made by the police. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defective investigation. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. In the instant case this may be a remissness on the part of the Investigating Officer (See Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC p-654, Chhotu Vs . State of Maharashtra 1997 CRI.L.J. p/4394(SC), Karnel Singh Vs. Sate of M.P. 1995 CRL.L.J. p/4173 and Ram Sewak Vs. In the instant case this may be a remissness on the part of the Investigating Officer (See Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC p-654, Chhotu Vs . State of Maharashtra 1997 CRI.L.J. p/4394(SC), Karnel Singh Vs. Sate of M.P. 1995 CRL.L.J. p/4173 and Ram Sewak Vs. State of U.P. (2006) 1 SCC (Cri.) 534). At the most, it can be said that there was recovery of AK-47 rifle alongwith magazines and live cartridges from the possession of the appellants. Non-recovery of the empty cartridges does not detract from the case of the prosecution where the direct evidence is acceptable. The Hon'ble Supreme Court in (2000) 9 SCC p/82 in M/s Lakhan Sao Vs. State of Bihar and another has held as follows : "18. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable. Further, PW8 was not questioned on the non-recovery of the pistol by the accused. It was not even suggested to PW6 nor have any of the defence witnesses said that there was any enmity between PW6 and the accused and that PW 6 had any cause for implicating the accused falsely. No inconsistency has been established in his evidence. The naming of the accused and the detailed account of the incident within a short while of the occurrence in the F.IR. militates against any suggestion of fabrication." 11. It is pertinent to mention here that the genesis of the incident is not disturbed with the non-recovery of the said empty cartridges used by the police patrolling party. As far as the fire-arm injuries are concerned which could have been occurred on the police patrolling party, the reason may be that the accused-appellants would have aimed in the night towards the police patrolling party but when the police party saw the appellants/miscreants in torchlight aiming towards them, they would have very well saved themselves by hiding them. Thus, if the police patrolling party have not received any firearm injury in the said incident, it would neither belie the credible prosecution evidence nor entitle the accused-appellants to get the benefit out of it. Thus, I do not find any force in the said contention. 12. Thus, if the police patrolling party have not received any firearm injury in the said incident, it would neither belie the credible prosecution evidence nor entitle the accused-appellants to get the benefit out of it. Thus, I do not find any force in the said contention. 12. The learned counsel for the appellants further contended that the arms and ammunition, which were recovered from the possession of the appellants, had not been sent to the forensic expert for its examination. As I have pointed out earlier that if the Investigating Officer has not sent it to the forensic expert, it would not make any difference to the genesis of the incident. I have pointed out earlier that it would only show that there is a defect in the investigation, which could not be a ground for the acquittal of the accused-appellants. 13. The learned counsel for the appellants further submitted that AK-47 rifle, which was recovered from the possession of appellant Mahmood at the spot, was having a number, as such, it was not sealed by the police. He further contended that when the said AK-47 rifle was produced before the court, the witnesses have only stated in their evidence that the said rifle was recovered from the possession of the accused-appellant Mahmood but they have not indicated the number of the said rifle, which was printed in the said rifle. The learned counsel for the appellants further pointed out that Suresh Pal Singh PW 1 in the case of Arms Act in ST No. 107/95 has stated that a bundle was opened in which one AK-47 rifle, a magazine & 30 cartridges were kept. The learned Addl. G.A. refuted the contention and contended that Suresh Pal Singh PW 1 appeared in all the three cases for evidence separately and in two cases he has not mentioned this fact that the rifle was kept in a sealed bundle but in one case his evidence has been recorded that the rifle has been kept in a bundle. It is true that the evidence in all the three cases has been recorded separately, and in one case the seal would have been opened while in other cases the magazines, cartridges and the rifle would have been kept alongwith a bundle. It is true that the evidence in all the three cases has been recorded separately, and in one case the seal would have been opened while in other cases the magazines, cartridges and the rifle would have been kept alongwith a bundle. This fact cannot lead to take an inference that the entire credible and cogent evidence of the prosecution is liable to be rejected on this ground. It is revealed from the prosecution evidence that the aforesaid rifle was not sealed at the spot as it bears a registration number and when the said rifle was produced before the court, the prosecution witnesses have stated that it is the same rifle which was recovered from the possession of the accused, as such, nothing is more required to be said by the witnesses. If there was any difference in the number which was written in the recovery memo and the rifle produced before the court, it would have been brought to the notice of the court during the cross-examination. Since such facts have not been put to the witnesses so it cannot be said that there was any difference of number on the weapon. In two cases, it is true that it is not the evidence of Suresh Pal Singh PW1 that the aforesaid rifle was kept in a bundle. It is only a mistake or it is only that in two cases, the material exhibit has been produced before the court and, as such, it was kept wrapped in a bundle and the witness has stated so. Hence, I do not find any force in the contention raised by the learned counsel for the appellants. 14. With the assistance of the learned counsel for the parties,. I have also gone through the entire evidence adduced in all the cases and found that the prosecution witnesses remained consistent during their cross-examination. The defence could not elicit anything form their cross-examination to discredit their testimonies. The learned trial court is justified in holding that the evidence of the prosecution witnesses in all the cases was reliable, convincing, credible and cogent. The recovered articles from the possession of the accused appellants i.e. AK-47 rifle, the magazine and the live cartridges cannot be planted by the police on them. Further, AK-47 rifle is a prohibited bore and it is not readily available in the market. The recovered articles from the possession of the accused appellants i.e. AK-47 rifle, the magazine and the live cartridges cannot be planted by the police on them. Further, AK-47 rifle is a prohibited bore and it is not readily available in the market. Moreover, the genesis of evidence of the incident as given by the prosecution is credible and cogent. 15. In view of the forgoing discussion, I hold that the prosecution has established the guilt against the appellants beyond any reasonable doubt. I find that the learned trial court has rightly convicted and sentenced the appellants. Therefore, I am completely in agreement with the findings recorded by the trial court and no interference is required in this case. 16. Hence, the appeals are dismissed and the order of conviction and sentence passed by the trial court against the appellants is confirmed. 17. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months.