By Court : The present appeal is directed against the judgment of conviction and order of sentence dated 10.02.2003 passed by Sri Bireshwar Jha, Praveer, 2nd Additional Sessions Judge, Fast Track Court, Jamtara in Sessions Case No. 101 of 2002/3 of 2002 arising out of Narayanpur P.S. Case No. 32 of 2002 whereby and whereunder the appellant has been convicted under section 25(1-B) of the Arms Act and sentenced to undergo R.I. for three years and appellant has been convicted under section 411 of the IPC and sentenced to undergo R.I. for two years. The sentences of imprisonment would run concurrently. The learned court below further orders to pay a fine of Rs. 500/-for the offence punishable under section 25 (1-B) of the Arms Act and in default of payment of fine, the appellant will undergo S.I. for three months. 2. The prosecution case in brief as per the information received by one Chetlal Singh in his Fardbayan recorded by S.I. M.M.P. Singh of Narayanpur Police Station on 23.05.2002 at 15.30 hours at Ghortaria is that on 23.05.2002 in the afternoon in his village he was sitting near a Bargad tree with 5 to 7 other persons. At around 11.00 A.M., his aunty who was the wife of Late Jagdish Singh informed him that for the last one week, three persons have been coming on red motorcycle to the Palash Jungle and have been beaconing the women to come to them and that those three persons have again come on the motorcycle near Ghortaria Palash Jungle and siting there. On receiving this information 5 to 7 persons, asked those three persons as to why they are sitting alone in the Jungle. In reply they said that they are resting to which he replied that if you want to rest then you can go beside the Road side or go to the village why are you resting in the silence of the Jungle. On hearing this, three persons starting abusing and said that go away, this will be better for you and do not you recognize Bakridwa. In between, he sent some persons to go to the village and within five minutes they raised alarm in the village on which many persons started moving towards the Jungle. On hearing this, three persons starting abusing and said that go away, this will be better for you and do not you recognize Bakridwa. In between, he sent some persons to go to the village and within five minutes they raised alarm in the village on which many persons started moving towards the Jungle. On seeing the people coming, two of the persons took out one bomb each and third persons took out a pistol and threatened that if you follow us then we will kill you. He started fleeing in eastern direction and two persons started running in southernly direction. On this, he and some other villagers followed after the persons who had shown them the pistol. After being chased some distance, the accused person fired from the pistol which hurt him on the the right foot and he became injured. He still followed the accused even after being hit or injured. Seeing the villagers following, the accused again fired and the villagers to protect themselves, surrounded the accused and some persons from the crowed started assaulting him due to which he was injured. He tried to save the accused persons and from him a country made pistol was also recovered with a wooden butt, on the opening of which an empty cartridge of brass was found. The injured persons was seriously injured and he was not in a position to tell his name and address and they took the injured persons towards Chainpur, on the way, he died. The persons who followed other two accused, informed that the other two accused persons were fleeing and they threw one bomb each, due to distance being maintained, no body was injured. After following them for sometime, other accused were apprehended by the villagers. On asking, they revealed the names as Bakrid Mian son of Late Bashir Mian and secondly Kutka @ Murla Mian son of Late Kolha Mian and they also informed them that deceased friend was Imtiyaz Mian. The Bakrid Mian was searched by the villagers, from his waist, iron country made pistol and two live cartridges were found. On searching Kutka Mian, an old torn bag was found in which an old Lungi and three country made bombs were found. Where the accused persons were resting, red coloured Kawasaki Aspire Motorcycle bearing Registration No. JH 10A 7938 was found. On searching Kutka Mian, an old torn bag was found in which an old Lungi and three country made bombs were found. Where the accused persons were resting, red coloured Kawasaki Aspire Motorcycle bearing Registration No. JH 10A 7938 was found. Regarding that motorcycle, Bakrid Mian informed them that Motorcycle is stolen which he and deceased Imtiyaz Mian and one friend of Imtiyaz had stolen from Mohanpur Baspool, Bindapathar Police Station. While, chasing, accused were injured. When they were going towards the police station to give information then the police from Narayanpur Police Station came, so he gave his statement to them. The incident is of around 11.30 A.M. to 12.30 P.M. He has said that from the apprehended accused Bakrid Mian, one pistol and two live bullet and from Kutka Mine, one bag with Lungi and three live bombs and from the deceased Imtiyaz, one loaded country made pistol and one red coloured motorcycle was recovered. 3. On the basis of aforesaid Fard Beyan, Narayanpur P.S. Case No. 32 of 2002 corresponding to G.R. Case No. 183 of 2002 was registered against two accused persons. After completing the investigation, police submitted charge sheet against the appellant under sections 307/34 and section 411 of the Indian Penal Code and also under section 25(1-B)a and 27 of the Arms Act. It appears that after the cognizance, the case was committed to the court of sessions. 4. The appellant has denied all the charges levelled against him and he pleaded not guilty and claimed to be tried and said that he is innocent. 5. The prosecution examined altogether 11 witnesses and on the conclusion of the trial, learned court below convicted the appellant for the offence under section 25(1-B) of the Arms Act and section 411 of the IPC and sentenced him as aforesaid. 6. P.W. 4, the informant is Chetlal Singh. He has deposed that the incident is about three months ago. The time was at around 11.30 to 12 O'clock in the noon and at that time he was in house. He came to know that three criminals had entered the Jungle. His own aunt had informed that those accused persons used to tease and trouble the women. He has deposed that the incident is about three months ago. The time was at around 11.30 to 12 O'clock in the noon and at that time he was in house. He came to know that three criminals had entered the Jungle. His own aunt had informed that those accused persons used to tease and trouble the women. They went to the Jungle and asked them what they were doing there, they responded they are resting to which he said that why not you rest near the Road or under the Tree. Thereafter he informed many persons of the village and people gathered. They asked the accused to show them what was in their bag and they took out a lungi and shown them the same but they did not give the bag and started fleeing away. People started chasing them and then they snatched the bag from them. From the bag, three bombs were found. During fleeing away, the accused had also fired and threatened them to take their lives. Due to the firing from the accused, he was injured on the right foot due to which he stopped chasing the accused. The people caught two of the accused. Third accused who had been chased in another direction, was also caught and assaulted. The police came at around 4.30 P.M. and recorded his statement. The accused were taken to the police station with them. He was sent for treatment to Narayanpur where he died. On his statement, the case was instituted which was read out to him. He has recognized the two accused in the dock. In his cross examination, he has deposed that the bag and pistol which were recovered, are not in the court. The incident took about 2 hours and that the village people had picked him up and brought him to the village. The accused had fired from the pistol with a gap of about 20-25 minutes. The person, who died, had Lungi and Pistol. He does not know whether anything was recovered from the other two persons because he was injured and gone home. He further deposed that only one bag was recovered and that he had informed the police that on searching Kutka, a bag was recovered from which a lungi and three live bombs were recovered. He does not know whether anything was recovered from the other two persons because he was injured and gone home. He further deposed that only one bag was recovered and that he had informed the police that on searching Kutka, a bag was recovered from which a lungi and three live bombs were recovered. He had informed the police that from the bag recovered from Bakrid, one Lungia and three live bombs were recovered. He has further deposed that the police had taken his statement at around about 6-7 O'clock in the evening. Another person Ruplal had also signed on the statement and some Manjhi had also signed. The statement was not read out to him aloud and police had merely asked to sign on it. Who had apprehended whom, he does not know. 7. P.W. 7 Chandrika Prasad, he is the S.I. of Narayanpur police station. He has deposed that the formal FIR is in the handwriting of the then A.S.I., Rajendra Singh and in his signature and recognizes the writing and signature. He has also recognized the signature of Madan Mohan Prasad Sinha, Officer-in-Charge on the formal FIR. He has proved the formal FIR which has been listed as Ext-2 and the signature of officer-in-charge as Ext.-1/2, as well as the writing in the Fardbayan which is exhibited as Ext.-3. He has examined the place of occurrence which was in the forest near the Palash tree half k.m south of Ghortaria village. The two accused Bakrid Mian and Kutka were apprehended by the villagers. According to the villagers, the accused had also blasted bomb near he Palta Jungle. However, on the searching there was no traces of bomb. He has further deposed that on search by villagers, from the waist of Bakrid, one country made pistol and two live cartridge of 3/5 bore was recovered from his pocket. From Murla Mian @ Kutka Mian, an old bag in which three live bomb were said to have been found. From the deceased accused Imtiyaz Mian, one country made pistol and empty cartridge was found. Both the apprehended accused were arrested and the memo of arrest was prepared in the presence of two independent witnesses i.e. Ruplal Singh and Mahesh Singh. From the deceased accused Imtiyaz Mian, one country made pistol and empty cartridge was found. Both the apprehended accused were arrested and the memo of arrest was prepared in the presence of two independent witnesses i.e. Ruplal Singh and Mahesh Singh. He has recognized the two memos of arrest which he has said are in his handwriting and have been marked as exhibit 4 & 4/a. He has also deposed that the seizure list is in his handwriting with his signature and had prepared it in front of two independent witnesses and it bears the signature of two independent witnesses which also bears the signature of Madan Mohan Prasad Sinha and he recognized his signature. The seizure list has been marked as Ext.-5. He has also proved the signature of Rajendra Kumar Choudhary, Sergeant Major, Deoghar regarding application for the examination of the seized arms, which has been marked as Ext.-1/C. He has further deposed that bomb disposal expert had come in his presence and all the three bombs were defused. Sample of the bombs were sent to FSL, Ranchi. However, the report of FSL has not been received as yet. The report of Disposal Experts has been marked as Ext.-6. He has further deposed that a letter was written to the Deputy Commissioner, Jamtara for seeking prosecution sanction and sanction was received and he has deposed that he recognizes the signature of Deputy Commissioner. The prosecution sanction has been marked as Ext.-7. In his cross examination, he has said that whatever items that were given to him by Chetlal are not with him right now. He has further deposed that he did not make separate seizure list for the items seized or recovered because all the items were present in one place. The informant Chetlal had told him even after being injured he had followed the accused. He has further deposed in his cross examination that the fardbeyan was registered at 3.30 and the informant in his restatement stated that from Kutka Mian three bombs and one lungi were recovered from an old bag. From Bakrid Mian, in a bag one lungi and three live bombs were recovered. However, this bag along with the bombs were not presented to him during the investigation. Regarding the sanction letter by the Deputy Commissioner, which has been referred as Ext.-7, this was not written by the Deputy Commissioner in front of him. From Bakrid Mian, in a bag one lungi and three live bombs were recovered. However, this bag along with the bombs were not presented to him during the investigation. Regarding the sanction letter by the Deputy Commissioner, which has been referred as Ext.-7, this was not written by the Deputy Commissioner in front of him. 8. P.W. 8 is Rajendra Singh. He was posted at Narayanpur police station as A.S. I. He has deposed that he was directed to produce material exhibits in the court. In court, he has produced one country made pistol with a wooden butt which is marked as material exhibit-1. Then he has produced another pistol with Iron butt and this is marked as material Exhibit-1/A. The other items produced were two live cartridges and one spent cartridge and these were marked as material Ext-2, 2/a and 2/b. In his cross examination, he has said that he has not produced any bomb in the Court. He has also said that he does not know whether the items were produced were ever photographed or not and he cannot say anything about any of the items produced. 9. P.W. 9 Vinay Kumar Mahto, he is from Mauza Kishori Bindapathar police station, District-Bardwan. He has deposed that Anand Gopal Mahto is his son and that he has Bajaj Kawasaki motor cycle red in colour which was looted from his son on 30.04.2002. He does not recognizes who had looted. A case was registered then in the Bindapahaar police station against unknown persons. After some days, he was informed that his motorcycle was in Narayanpur police station. On receiving information, he went to Narayanpur police station and on seeing his motorcycle, he recognized it and tallied the chassis and engine number and found that the motorcycle was his. However, the registration number had been changed. He had given an application for releasing his motorcycle in court and the court had given the order for release of the motorcycle. On that basis, he received the motorcycle from Narayanpur police station. He has parked the motorcycle in court premises on that date. 10. P.W.3 is Maheshwar Singh, Ghortariya village, Narayanpur police station, District-Jamtara. He had given an application for releasing his motorcycle in court and the court had given the order for release of the motorcycle. On that basis, he received the motorcycle from Narayanpur police station. He has parked the motorcycle in court premises on that date. 10. P.W.3 is Maheshwar Singh, Ghortariya village, Narayanpur police station, District-Jamtara. He has deposed about the incident and that on being informed about certain miscreants who had been coming to the Jungle and harassing woman, he along with other persons went towards the jungle and seen the three accused along with motorcycle. After some questioning, then one of the accused has taken out pistol and threatened them with it at which they started running away in fear. When the miscreants started running then they chased them. One of the miscreants was apprehended by the villagers but he does not know his name and the person who was apprehended is now dead and his body had been taken to the police station. He had given the same information to the police which he is giving now. He has deposed that he has signed on the memo of arrests and identified his signature and he proved the exhibits which are listed as Ext.-1 & 1/a. He has deposed that the police had seized two pistols and two bullets in front of him and the seizure list was prepared in front of him. From amongst the two, who were arrested, one was Bakrid and he does not know the other persons. He recognizes him from the face. From Bakrid, one pistol and bullets was seized. He has said in his cross examination that in the place of occurrence 1000 to 1200 persons had collected from various villages. That Chaukidar, Rupen had been informed. He has further deposed that police had taken signature on blank paper. 11. P.W. 5 Tulsi Rajwar. He has deposed that he does not live in Marichwad village. Ramnagar and Marichwad are adjacent to each other. He has deposed that the incident is four months ago and he does not remember the month but the time was 2 O'clock in the noon. He was in his house, on hearing alarm, he went to the Palash Garden where many people from the village were gathered. People had apprehended two thieves, a bag was recovered from a thief. He has deposed that the incident is four months ago and he does not remember the month but the time was 2 O'clock in the noon. He was in his house, on hearing alarm, he went to the Palash Garden where many people from the village were gathered. People had apprehended two thieves, a bag was recovered from a thief. He waited 10-15 minutes and he did not see what was contained in the bag and he returned home. The police had not taken his statement. He has deposed that he does not recognize the accused in the dock. He has been declared hostile. In his cross examination, he has deposed that he had not told the police that from the accused, two country made pistol, two live cartridges, a shell of cartridge, three live bombs and one checked lungi and one Kawasaki Spare motor cycle was recovered and which was handed over to the police. 12. P.W. 6 is Ruplal Singh. He is resident of Ghortariya, police station-Narayanpur, District-Jamtara. He has deposed that the incident is about three months ago at 2 O'clock in the after noon and he was in his house. On hearing, the sound of the drums, he went to the Palash Garden where many persons from the village had gathered. There was a bag placed on bush. People were shouting catch-catch. He went to do his agricultural work. He has further deposed that his signature is affixed to the memo of arrest. He has further deposed that he has affixed this signature on the next date in the police station and that the police had not taken his restatement. He has further deposed that it is not so that the memo of arrest and the seizure list was made at the place of occurrence itself and that he had signed on it. He has denied cooperating with the accused and hiding the true fact. He has been declared hostile. In his cross examination, he has deposed that the informant Chetlal Singh is his uncle and that the police had taken his signature on a paper already written, in the evening of the next day. What was written on it was not read out to him. The bag that was in the bush is not in the court today. 13. Learned counsel for the appellant Mrs. What was written on it was not read out to him. The bag that was in the bush is not in the court today. 13. Learned counsel for the appellant Mrs. Priya Shrestha has denied the application of section 411 of the IPC as well as sections of the Arms Act as against this appellant. She has read out section 411 of the IPC which reads as follows:- 411. Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. She has argued that no stolen property was recovered from this appellant so he cannot be held guilty for conviction under this section. Arguing further, she has stated that the motorcycle which was alleged to have been stolen pertains to another case that has been registered in Bindapathar police station and he was not involved in the theft of the motorcycle, rather it is against one of the other accused or the deceased person. She has further argued that no pistol was found from this appellant rather the pistol which was used was done so by the other accused who is now deceased and the other apprehended accused Bakrid Mian. So sections of the Arms Act under section 25(1-b) of the Arms Act is also not applicable in the case of this appellant. Regarding the use of firing by pistol, it is falsified by the report of the doctor. She has further said that there seems to be allegation made for the possession of bombs by this appellant. However, she has said that though in the evidence there is reference of recovery of bombs from a bag and even bomb explosion being made in the forest but no live bombs or diffused bomb were produced in Court. Even though it has been said that expert had diffused the bombs, so when they have been diffused, they could have been produced in court. So in the absence of bomb that were not produced, it cannot be said that any live bombs were recovered from this appellant. Even though it has been said that expert had diffused the bombs, so when they have been diffused, they could have been produced in court. So in the absence of bomb that were not produced, it cannot be said that any live bombs were recovered from this appellant. She has further submitted that it seems that no bomb or bomb sample was even sent to Forensic Science Laboratory because no report has been produced from the Forensic Science Laboratory and exhibited in court regarding the bombs. She has also said that it has come in the evidence it was Imtiyaz who had exploded the bombs but anyway since no trace was there, it is doubtful whether any bombs were ever carried by the appellant or any of the accused. 14. Learned counsel for the State has argued that this is a case in which all the accused particularly present appellant were having common intention. However, section 34 of the IPC is missing from the charges framed against them and the Hon'ble Court is fully empowered to convict them under section 34 of the IPC. He has said that from the present appellant, three live bombs were recovered as has come in the evidence. He has further deposed that in Ext.-5, which is the seizure list, the signature of independent witnesses are there which would indicate the seizure of items used in the crime, so on the basis of the seizure list, he is liable to be convicted. He has further argued that the arrest memo bears the signature of Mahesh Singh and Ruplal Singh which has been marked as Ext.-4 and this proved that the arrests were made of the people on the spot and hence they were involved in some crime pertaining to what has been reported by the informant. He has said that P.W. 8 who is the A.S.I. has proved material exhibits of one country made pistol and a pistol with Iron Butt, two live cartridges and one empty cartridge marked as Ext-1, 1/a and Ext-2, 2/a and 2/b, and which have been produced in court which would have indicate the involvement of the appellant. He has said that P.W. 8 who is the A.S.I. has proved material exhibits of one country made pistol and a pistol with Iron Butt, two live cartridges and one empty cartridge marked as Ext-1, 1/a and Ext-2, 2/a and 2/b, and which have been produced in court which would have indicate the involvement of the appellant. He has also pointed out illustration (a) of section 114(a) of the Evidence Act which reads as under:- (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; Counsel for the State has submitted that the bike was there and all the three persons were there so it could be presumed that he had stolen the motorcycle. REASONINGS 15. After having gone through the records, evidences and arguments of both the counsels, one of the main defence or rather one would say omission is that as far as the appellant goes, no charge was framed against him under the provision of the Explosive Act, for which there at least seems some allegations are there. The other allegation pertains mostly to the deceased accused and the other accused person. So, in the absence of any charge under the Explosive Act, he will be able to benefit from the lacuna or any doubt raised. 16. Even the counsel for the appellant has submitted that though live bombs are alleged to have been seized from the appellant, they were not, or never produced in court. Further, it has also come from the evidence of the I.O., that no trace of bombs were even found in Jungle or alleged place of occurrence. This is significant, more so because there is allegation of explosion of bombs and bombs being hurled. 17. Regarding the offence of section 411 IPC, allegedly for the theft of motorcycle that was used in this incident also, counsel for the appellant has said that theft pertains to the Bindapathar Police Station and a case in Bindapathar Police station was registered and was not pertaining to this appellant, rather another accused. When there is already another case registered against some other accused person for the theft of the motorcycle, it would not be fair to tie up this appellant for the theft of motorcycle. When there is already another case registered against some other accused person for the theft of the motorcycle, it would not be fair to tie up this appellant for the theft of motorcycle. The section 114 of the Indian Evidence Act, which the learned APP has tried to apply, may in fact be a misuse of the section where a separate case, relating to it is already registered. 18. The allegation under section 25(1-B) of the Arms Act, as per the evidence is applicable to the deceased person and the other accused person. 19. Learned APP has made one more bold attempt to bring the whole incident under section 34 I.P.C, even though none of the I.P.C. sections have been charged along with this section. He has submitted that the Hon'ble High Court has enough power to apply section 34 IPC and convict, even at this stage. Looking at the framed charges it is seen that the section 34 IPC has not been added. The incident is of 23/05/2002, when occurrence took place. It is now almost 14 years since then. Trial was held and conviction made, but the section was never applied or added. At this stage of the case, it would be most inappropriate to do so. Moreover, more so when the allegations in none of the section are being justified against him. Therefore, on the basis of the evidence available, I think it more appropriate to allow this appeal and find him not guilty of the offences alleged. 20. Accordingly, the appellant is not held guilty of the charge under section 411 of the IPC and section 25 (1-B) of the Arms. He is, therefore, discharged from the liability of his bail bonds and set at liberty forthwith. 21. Appeal is accordingly allowed.