JUDGMENT : 1. Heard Mr. D.K. Deori, learned counsel for the appellant and also heard Mr. G. Tado, learned Additional P.P. for the State respondent. 2. This is an appeal against the judgment and order dated 11.02.2020, passed by the learned Session Judge, Tirap, Changlang and Longding in Sessions Case No. 83/2019, whereby, the present appellant was convicted under Section 25(1A) of the Arms Act, 1959 for possessing one Chinese made MQ-5 Assault Rifle along with 02 magazines and 56 Nos. of live ammunition in violation of the Section 7 of the Arms Act and sentenced him to a rigorous imprisonment for 10 years and a fine of Rs. 10,000/-. 3. The prosecution was lodged on the basis of a F.I.R. filed by one O.R. Sharma, Assam Rifle Personnel, interalia, alleging that based on intelligence input about presence of Armed NSCN (K) in village Borduria, a search operation was carried out on 19.02.2014 and apprehended the accused with one MQ-5 assault rifle (Chinese made), Magazines 2 Nos. and 56 round of ammunition etc. It was further alleged that the said accused is also wanted in connection with some other cases. 4. On the basis of such information, the Officer-in-charge of Khonsa P.S. namely, S. S. Singhera seized the arms and ammunition in presence of one Subhash Singh RS M. No.5010877 and another person namely, Sher Bahadur Khatri, a personnel of Assam Rifle. 5. During investigation, the investigating authority got the confessional statement of the accused recorded under Section 164 Cr.P.C. and finally submitted Charge-sheet on 05.08.2014 under Section 25(1A) of the Arms Act. 6. After committal, the learned Trial Judge charged the accused for commission of offence under Section 25(1A) read with Section 7 of the Arms Act, which the accused pleaded not guilty and accordingly, the trial started. 7. To bring home the charges, the prosecution examined as many as 10 witnesses and exhibited the seizure list and the statement of the accused recorded under 164 Cr.P.C., and also exhibited the arms as materials exhibit. After completion of the trial, the accused was examined under Section 313 Cr.P.C., the accused had not laid any defense evidence. On the basis of the materials available on record, the learned Trial Court below passed the impugned judgment and sentenced him. Since the date of arrest till date the appellant is in custody for almost 8 years. After completion of the trial, the accused was examined under Section 313 Cr.P.C., the accused had not laid any defense evidence. On the basis of the materials available on record, the learned Trial Court below passed the impugned judgment and sentenced him. Since the date of arrest till date the appellant is in custody for almost 8 years. Being aggrieved, the present appeal is preferred. 8. The learned counsel for the appellant argues that the prosecution has miserably failed to bring home the charge under Section 25(1A) of the Arms Act, 1959. The further contention of the learned counsel for the appellant is that the prosecution has also failed to prove that the materials exhibits are prohibited weapons by bringing any expert. And therefore, no case under Section 25(1A) or Section 7 of the Arms Act was made out. 9. The learned counsel further argues that the necessary requirement under Section 313 of Cr.P.C., was also not followed while recording the statement of the accused by the learned Court below. 10. In support of his contentions, the learned counsel for the appellant relies on the judgment of the Hon’ble Patna High Court in the case of Kapildeo Thakur vs. State of Bihar, reported in 2022 SCC Online PAT 1881 and the judgment of a Co-ordinate Bench of this Court in Rohmingthanga Vs. State of Mizoram & Anr., reported in 2021 SCC online Gau 2586. 11. To buttress his argument to the point of non-adherence of procedure laid down under 313 Cr.P.C., the learned counsel for the appellant relies on the decision of this Court in the case of Jai Prakash Tiwari Vs. State of Madhya Pradesh, reported in 2022 SCC online SC 966. 12. Countering the arguments of the learned counsel for the appellant, Mr. G. Tado, learned Additional P.P. for the State submits that the prosecution has fully established their case and it is also clearly established that it is the accused from whose possession the arms were recovered. The learned counsel contends that though the arms were not recovered from the personal possession of the accused, however, the same were recovered from a nearby jungle as led by the accused himself. Therefore, the minor contradictions in the version of the PWs regarding the seizure of the weapons from the accused should be ignored. 13. The learned counsel contends that though the arms were not recovered from the personal possession of the accused, however, the same were recovered from a nearby jungle as led by the accused himself. Therefore, the minor contradictions in the version of the PWs regarding the seizure of the weapons from the accused should be ignored. 13. The learned Additional P.P. further contends that the accused has in no unambiguous term admitted his guilt as recorded under provisions of Section 164 Cr.P.C., by the Judicial Magistrate and the said Judicial Magistrate has duly been examined as Prosecution-witness and the defense has failed to shake such deposition and hence, it was proved that the confession of the accused was voluntary and was appropriate. Therefore, taking note of the corroborative evidence of the seizure witnesses and the statement of the accused recorded under 164 Cr.P.C., the learned Trial Court has not committed any error convicting the accused. 14. I have given anxious consideration to the arguments advanced by the learned counsel for the parties. Perused the materials available on record including the depositions and paper exhibits. 15. Section 25(1A) of the Arms Act, 1959 provides that whoever is having possession or carries any prohibited arms or prohibited ammunitions in contravention of Section 7 of Arms Act, 1959 is liable to be punished with imprisonment for a term, which shall not be less than 7 years but, which may extend to 14 years. However, while the alleged offence was committed, the minimum punishment was 5 years and maximum was extendable up to 10 years and also liable to be fined. The condition precedent for bringing home a charge under Section 25(1A) of Arms Act is that the person who is accused of committing an offence under Section 25(1A) is required to be proved of having in his possession, or has acquired, or was carries any prohibited arms or ammunition as described in Section 7 of the Arms Act. 16. In the present case, the prosecution story is that the accused was caught in an operation while possessing and carrying prohibited arms and ammunitions. This Court is of the considered opinion that to prove such charges, beyond possession, the second criteria, which the prosecution is required to prove is that the arms and ammunitions are prohibited under the Arms Act 1959. 17. This Court is of the considered opinion that to prove such charges, beyond possession, the second criteria, which the prosecution is required to prove is that the arms and ammunitions are prohibited under the Arms Act 1959. 17. In the aforesaid background of legal position, this Court has to first examine the prosecution witnesses, whether the prosecution has been able to establish that the accused appellant was carrying or possessing the material exhibits (arms and ammunitions). 18. The PW-1 is the informant. He deposed that he himself caught the accused along with the prohibited arms from the possession of the accused and he identified the material exhibits in the Court and he also identified the paper exhibit 2 as the handing and taking over of the seized arms and ammunitions from the accused by the Assam Rifles to Police Personnel of Khonsa police station. During cross-examination, he deposed that he did not catch the accused personally but, he was caught by his group. He further deposed that the accused was caught by 3-4 personnel of Assam Rifle, one of them in one Toton Roy. 19. PW-2 is Toton Roy and he deposed that “they” caught the accused with the material exhibits under Section 25(1A) of the Arms Act. He also deposed that police has not recorded his statement. 20. PW-3 is another personnel from Assam Rifles, who according to him, was present when the accused was caught and he deposed that they caught the accused. Before the examination-in-chief, he further deposed that the accused led the Assam Rifles to a place where the weapons were hidden about two and half kilometers away, where the accused was caught. During cross-examination, he identified the ammunitions to be the same ammunitions which were recovered from the jungle. 21. PW-4 is another Assam Rifle Personnel, who was projected to be present when the accused was apprehended. He deposed that around 2.30 P.M, the accused was caught, while he was trying to flee away from the area, and from the accused they recovered the materials exhibits. He also deposed that he along with other persons took the accused in a vehicle with the seized materials and handed over to a guard on duty at their camp at Khonsa. During cross-examination, he deposed that two police officers were also present during the operation and one of them is Mr. He also deposed that he along with other persons took the accused in a vehicle with the seized materials and handed over to a guard on duty at their camp at Khonsa. During cross-examination, he deposed that two police officers were also present during the operation and one of them is Mr. T. Tada, S.I. of Khonsa P.S. During cross-examination, he also deposed that at the time of apprehending the accused he was not present. 22. PW-5 is the seizure witness and also a member of Assam Rifles. During examination, he deposed that he was part of the troop who apprehended the accused. He proved his signature in the seizure list, which was exhibited as paper exhibit 3. He also identified the material exhibits. During cross-examination, he deposed that they were 22 members in the troop to conduct the operation, including officers, on the date of operation. During cross-examination, he deposed that he could not say what the accused was possessing, when he was caught as he was not present at the spot. He also deposed that he signed the seizure list Paper exhibit-3 at the Police Station and not at the place of occurrence. 23. PW-6 was a seizure witness. He put his signature in paper exhibit 3 i.e. the seizure list. He also deposed that the material exhibits were seized by the Khonsa police in his presence. During cross-examination, he deposed that he did not know from where those weapons and materials were recovered by the Assam Rifles. He also deposed that he do not know from where the accused was apprehended by the Assam Rifles. He also deposed that without going through the exhibit 3 and without knowing the contents therein, he has put his signature. 24. The PW-8 is the another seizure witness and belongs to Arunachal Police. He deposed that he has submitted the seizure Memo and at the time of seizing the seizure Memo, he saw a material exhibits. On a question by the Trial Judge, “from where the police have seized the above mentioned materials?” he answered that he has not seen from whom the I/O has seized the materials. The defense has not cross-examined him. 25. The PW-7 Shri. T Tangha was one of the I/O of the case in question. On a question by the Trial Judge, “from where the police have seized the above mentioned materials?” he answered that he has not seen from whom the I/O has seized the materials. The defense has not cross-examined him. 25. The PW-7 Shri. T Tangha was one of the I/O of the case in question. During examination, he has deposed that he had recorded the statement of the witnesses and obtained prosecution sanction from the Deputy Commissioner, Khonsa. Having found prima facie case from the materials so collected by his predecessor I/O and materials collected by him, he laid the Charge-sheet against the accused. He proved the Charge-sheet. The defense did not cross-examine the said officer. 26. PW-9 is the Magistrate before whom the confessional statement of the accused was recorded. He deposed that he recorded the confessional statement of the accused under Section 164 Cr.P.C. on being prayed for by the I/O, beyond that he did not depose anything. He had exhibited the confessional statement as exhibit C and his signature. The defense declined to cross examine the same. 27. PW-10 is the initial I/O who started the investigation. He deposed that he has arrested the accused along with the material exhibits. He also prepared a seizure Memo. He was also not examined by the defense prosecution. 28. The law is well settled that conscious possession is core invariants to establish guilt for an offence punishable under Section 25(1A) of the Arms Act, 1959. The possession, in the case in hand, is sought to be proved through the seizure witnesses i.e. PW-5, PW-6 and PW-8. The PW-5 though, in his examination in chief deposed that he was member of the troop who apprehended the accused and put his signature in the seizure list. During cross examination, he deposed that he cannot say what the accused was possessing, when he was apprehended as he was not present at the spot and also deposed that he put his signature in the seizure list at the police station and not at the place of occurrence. Thus, from the evidence of this witness, the prosecution has failed to prove that the seized weapons were in the possession of the accused and the accused was carrying the prohibited arms and ammunitions and the same was seized in presence of the PW-5. 29. Thus, from the evidence of this witness, the prosecution has failed to prove that the seized weapons were in the possession of the accused and the accused was carrying the prohibited arms and ammunitions and the same was seized in presence of the PW-5. 29. Coming to the next seizure witness i.e, PW-6, he also deposed in the similar line and that he put his signature in the seizure list. He deposed that the materials exhibits were seized by the Khonsa police in his presence. However, during examination he deposed that he does not know from where those prohibited materials were recovered by the Assam Rifles. He also deposed that he was even not aware from where the accused was apprehended by Assam Rifles. Further to that, he deposed that he had signed the paper exhibit 3 without knowing the contents therein. Thus, the prosecution has failed to prove the factum of possession of the prohibited arms of the accused and the recovery of the same from him through his witness also. 30. PW-8 another seizure witness deposed in the similar line to that of PW-5 and PW-6 and deposed that he has signed the paper exhibit 3 as one of the witness on being asked by the O/C of the police station. He also identified the materials exhibit to be the same materials which was seized in his presence. During cross, he deposed that he has not seen from whom the O/C has seized the materials. Though, he was not cross examined, on a pointed query of the Court, he answered that he has not seen from whom the O/C of the police station has seized the materials. Thus, this witness is also not aware of the fact from where and from whose possession the alleged prohibited arms have been seized, though he has put his signature in the paper exhibit. 31. Thus, from these 3 witnesses- PW-5, PW-6 and PW-8 the prosecution has miserably failed that the accused was possessing the arms and the same have been recovered from his possession and was seized. 32. 31. Thus, from these 3 witnesses- PW-5, PW-6 and PW-8 the prosecution has miserably failed that the accused was possessing the arms and the same have been recovered from his possession and was seized. 32. PW-1- the informant, though in his examination in chief deposed that he himself caught the accused with arms and ammunitions(materials exhibit) and handed over the same to the Commandant of Assam Rifles and lodged the F.I.R. However, during cross examination, he deposed that he did not caught the accused personally and further deposed the accused was caught by 3-4 personnel of their group, one of them was the PW-2. Therefore, the PW-1 who initially stated that he caught himself the accused with the prohibited arms, during the cross examination he deposed that he did not personally caught the accused. Rather, he deposed 3-4 other person had caught the accused. Thus, from this evidence also the prosecution has failed to prove that it was the accused, who was possessing the arms and ammunitions and the same was caught by PW-1. Further, the Commandant, to whom ammunition was handed over by PW-1 was also not examined by prosecution to bring the true story. 33. Coming to Tuton Roy, who was examined as PW-2, he deposed that “they caught” the accused with the prohibited arms. However, he deposed that he is not aware when the accused was handed over to the police of Khonsa police station and that the police have not recorded his statement. 34. The PW-2, who was also part of the team, who conducted the operation on the alleged date of incident now has depicted a totally different story. He deposed that first the accused was caught and thereafter he led the Assam Rifle personal to a place near an orphan hostel about two and half kilometre away from the place, where he was caught and the arms were recovered. Thus, a new story has been depicted through PW-3 of leading to discovery whereas the whole case laid through the prosecution witness PW1, (the informant) PW2, PW5, PW6 and PW8 that the arms were recovered from the person of the accused inasmuch as same story was depicted in F.I.R. 35. Coming to deposition of another Assam Rifle personal PW-4, who was projected to be present during the operation. Coming to deposition of another Assam Rifle personal PW-4, who was projected to be present during the operation. Though he deposed that they caught the accused and brought him in a vehicle along with the seized material and handed over the accused to the guard on duty at their camp, however, during cross examination, he deposed that at the time of apprehending the accused, he was not even present. Thus, the serious dent is caused to the prosecution story by way of this witness and a serious doubt regarding recovery of the arms from the accused as well as the place of recourse has become doubtful. The guard on duty stated by PW-4 was also not examined to bring the true story. 36. In view of the aforesaid, this court is of the considered opinion that the question whether the arms were prohibited arms or not, need not detain the court any further inasmuch as the prosecution has failed to prove the possession and recovery of the alleged prohibited arms from the accused. 37. In view of the aforesaid, this court is of the considered opinion that the learned trial court has failed to appreciate the evidences and deposition in proper prospective in the backdrop of settled proposition of law. 38. The learned Additional Public Prosecution relies on the decisions of Sucha Singh and another vs. State of Punjab reported in (2003) 7 SCC 643 , Bishnu Prasad Sinha and another vs. State of Assam reported in (2007) 11 SCC 467 and Shankaria vs. State of Rajasthan reported in 1978 0 Supreme (SC) 147 to buttress his arguments. 39. The judgment of Sucha Singh Singh (supra) relied on by the learned Additional PP to buttress his argument that doubt created was a fair doubt and therefore such doubt should be ignored is not applicable in the given fact of the present case, inasmuch as the prosecution has failed even to lay the foundational fact of possession of prohibited arms of the accused. 40. 40. The other judgment relied on by the learned Additional Public Prosecutor is Bishnu Prasad Sinha and another (supra) regarding the confessional statement, is also not applicable in the present case inasmuch as in the case of Bishnu Prasad (supra) the Hon’ble Apex Court held that the true confession voluntary made can be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. The prosecution has not laid any evidence to show that the retraction was an afterthought and earlier statement was true. Rather the evidence of the prosecution witnesses as discussed hereinabove depicts a totally different story that of the confession made under Section 164 Cr.P.C. Therefore, in the considered opinion of this court such ratio is not applicable in the given fact and circumstance of the present case. 41. The other judgment of the Hon’ble Apex Court in Shankaria (supra) is also not applicable in the present case to convict the accused inasmuch as in Shankaria (Supra), the Hon’ble Apex Court has clearly laid down that while relying on a confessional statement to convict an accused, the court should carefully examine the confession and compare with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case. However, in the present case as discussed hereinabove, the ratio laid down in Shankaria rather helps the case of the accused inasmuch as the confession made by the accused do not fit in the rest of the evidences and the circumstances inasmuch as it was the case of the accused that he came to surrender before the police being frustrated of the organization, which he joined due to atrocities by arms forces and other extremists organization done to him and the case of the prosecution is that he was caught read handed along with the prohibited arms from the place of occurrence. 42. In view of the aforesaid discussions, reasons, this court is of the unhesitant view that the present appellant is entitled for acquittal. Accordingly, the impugned judgment and order of conviction dated 11.02.2020 and order of sentence dated 13.02.2020, passed by the learned Session Judge, Tirap, Changlang and Longding in Sessions Case No. 83/2019, are set aside and quashed and the appellant is set at liberty. 43. Accordingly, the impugned judgment and order of conviction dated 11.02.2020 and order of sentence dated 13.02.2020, passed by the learned Session Judge, Tirap, Changlang and Longding in Sessions Case No. 83/2019, are set aside and quashed and the appellant is set at liberty. 43. The appellant be released forthwith from custody if he is not in custody in connection with any other case. 44. Send the LCRs to the learned trial court below. 45. Registry to forward a copy of this order forthwith to the learned court below.