JUDGMENT : This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 01.07.2005 and Sentence dated 04.07.2005 passed in Cr. Appeal No.96 of 2004 by Sri Ram Babu Gupta, learned Additional Sessions Judge, Fast Track Court, Latehar by which the appellant has been found guilty and convicted for the offences under section 25 a(1-B)a and 26/35 of the Arms Act and sentenced to undergo R.I for three (03) years and to pay the fine of Rs.10,000/- under section 25 a(1-B)a of the Arms Act and further sentenced to undergo R.I for five (05) years and also to pay fine of Rs.2000/- under section 26/35 of the Arms Act. However, all the sentences have been directed to run concurrently. 2. The prosecution case, in brief, is that on 29.02.2004 at about 5.30 p.m while the informant along with other police officials had proceeded for evening patrolling by Police 407 Van and in course of patrolling the informant party reached near Bamy jungle then they found that a Hero Honda Motorcycle bearing Registration No.JH02A 5820 was standing. As soon as the Police Vehicle stopped near the motorcycle then the informant party heard some sound coming towards the jungle. On that the informant along with other police officials ran towards jungle and they saw that 5-7 persons were fleeing away. On chase one person was apprehended and others fled away towards jungle getting the benefit of darkness. On being asked the apprehended person disclosed his name as Arun Sao (i.e. the appellant). Then, in presence of the independent witnesses the search was made and on search a country made loaded pistol and four (04) cartridges were recovered from the possession of the apprehended person. On being asked, he could not produce any paper then in presence of independent witness the alleged articles were seized. The apprehended person further disclosed that yesterday Mohar Ganjhu, Bagalia Ganjhu, Kolia Ganjhu were seating in Balumath Garage. He also went there then Mohar Ganjhu told him that Holi is coming and there is crisis of money then he had also become ready for this and Kalia told that he will take 1-2 boys from Chandwa. On 29.02.2004 at about 6.00 p.m three persons went to Birni Jungle on Motorcycle and they had parked their Motorcycle near the road and they went inside the jungle and where Kalia Ganjhu was present. On 29.02.2004 at about 6.00 p.m three persons went to Birni Jungle on Motorcycle and they had parked their Motorcycle near the road and they went inside the jungle and where Kalia Ganjhu was present. All were talking to commit loot by putting stones, in the meantime, a 407 Police Van was stopped there and they started fleeing away but he was apprehended by the police. 3. Heard Mr. A.K. Cahturvedy, learned counsel for the appellant and Mr. Bishambhar Shastri, learned APP for the State. 4. Learned counsel for the appellant has submitted that the impugned judgment of conviction and sentence passed by the learned Trial Court is illegal and is not sustainable. It is submitted that the impugned judgment and sentence passed by the learned Trial Court is perverse and against the materials on record. It is submitted that the finding of the learned Trial Court is also against the materials and statements of the witnesses. It is submitted that the learned Trial Court has not considered the defence of the appellant. It is submitted that the learned Trial Court has not properly scrutinized the statements of the witnesses and has given findings which is contrary to the materials on record. It is submitted that the learned Trial Court has not considered the material contradictions and also the statements of the witnesses. It is submitted that the proper examination of the accused person under section 313 of the Cr.P.C has not been done. It is submitted that the prosecution has not been able to prove its case beyond all reasons of doubt against the appellant and hence the appellant may be acquitted and the appeal may be allowed. 5. On the other hand, learned APP appearing for the State has submitted that the impugned judgment and sentence passed by the learned Trial Court is fit and proper and hence no interference is required. 6. Perused the Lower Court Records of this case and considered the submissions of the learned counsel for both the sides. 7. It transpires that the F.I.R was lodged on 29.02.2004 for the offences under Section 399/402 of the IPC and Section 25(1- B)a/26/35 of the Arms Act against the appellant-Arun Sao and seven other accused persons. 8. It transpires that the police had submitted charge sheet against the appellant-Arun Sao under Section 399 and 402 of the IPC and Section 25(1-B)A/26/35 of the Arms Act. 8. It transpires that the police had submitted charge sheet against the appellant-Arun Sao under Section 399 and 402 of the IPC and Section 25(1-B)A/26/35 of the Arms Act. 9. After supplying the police papers to the appellant, case was committed to the Court of Sessions. 10. The charges were framed against the appellant under Section 399/402 of the IPC and Section 25(1-B)A/26/35 of the Arms Act on 20.08.2004 by Sri Nageshwar Prasad, learned Sessions Judge, Latehar to which he pleaded not guilty and claimed to be tried. 11. During trial the prosecution got examined fifteen (15) witnesses, who are as follows:- (i) P.W-1 is Gokul Singh, (ii) P.W-2 is Mohd. Jnifuddin, (iii) P.W-3 is Nawal Kishore, (iv) P.W-4 is Jawed Akhtar, (v) P.W-5 is Marshall Karketta, (vi) P.W-6 is Havildar Ram Lal Singh, (vii) P.W-7 is Ram Khelawan Yadav, (viii) P.W-8 is Surendra Prasad, (ix) P.W-9 is Jal Jha, (x) P.W-10 is Satya Narain Kumar, (xi) P.W-11 is Guruwas Swasi, (xii) P.W-12 is Mahendra Paswan, (xiii) P.W-13 is Mahendra Kumar, (Xiv) P.W-14 is Rajendra Kumar Chaudhary and (xiv) P.W-15 is Manoj Kumar Gupta. 12. During trial the prosecution has got marked the following documents, which are as follows: (i) Exhibit-1 is signature of Gokul Singh on seizure list, (ii) Exhibit-2 is self statement, (iii) Exhibit-3 is Seizure list, (iv) Exhibit-4 is signature of Jawed Akhtar on the seizure list, (v) Exhibit-5 is the whole case diary, (vi) Exhibit-6 is the formal F.I.R (Signature of Dhaneshwar Ram), (vii) Exhibit-7 is prosecution sanction report, (viii) Exhibit-8 and 8/1 is Arms test requisition and report, (ix) Exhibit-9 and 9/1 is registration and forwarding on the margin of the self- statement. 13. During trial the prosecution has got proved the Material exhibits i.e. the pistol, live cartridges and the miss fire cartridges, which are as follows:- (i) Material Ext-I is Pistol and (ii) Material Ext-II to II/3 are Four cartridges. 14. Thereafter the appellant was examined under section 313 of the Cr.P.C and to which he denied the circumstances put forth before him. 15. Neither any defence witness was examined nor any document was marked as exhibit on behalf of the appellant. 16. Thereafter the learned Court below has convicted the appellant under Section 25 a(1-B)A and 26/35 of the Arms Act but had acquitted the appellant under Section 399 and 402 of the IPC, hence this Criminal Appeal has been filed. 17. 15. Neither any defence witness was examined nor any document was marked as exhibit on behalf of the appellant. 16. Thereafter the learned Court below has convicted the appellant under Section 25 a(1-B)A and 26/35 of the Arms Act but had acquitted the appellant under Section 399 and 402 of the IPC, hence this Criminal Appeal has been filed. 17. Thus, this Court has to consider as to whether the judgment and sentence passed by the learned Court below is correct or not? 18. It appears that there were eight (08) persons named in the F.I.R but the police has submitted charge sheet only against the instant appellant-Arun Sao on 29.04.2004. 19. It transpires that even the police had not found any allegations true against any of the accused persons except this appellant. 20. So far as evidence of prosecution witnesses is concerned, P.W-1 is Gokul Singh who is Shopkeeper and a seizure list witness and he stated during his evidence that he is acquainted with Arun Sao (i.e. the appellant). However, he stated that police has not recorded anything during his presence and the police has obtained his signature on paper and he proved his signature as Exhibit-1. 21. During cross-examination, he denied to have stated before the police that while he was returning with Jawed on 29.02.2004 by Motorcycle then police stopped him and where he had seen one person apprehended. He also denied that one loaded pistol and four (04) live cartridges of .315 Bore were recovered. During further cross-examination, he stated that he is not aware about the occurrence and he had put his signature on the Police Station on the blank paper and his statement was not recorded by the police. 22. Thus, from scrutinizing the evidence of P.W-1-Gokul Singh, it is evident that he has not supported the prosecution case and he has denied the recovery of any material from the appellant. Thus, P.W-1 is not reliable as he has not supported the prosecution case. 23. P.W-4 is Jawed Akhtar, who is owner of the Medical Store and he proved his signature on seizure list marked as Exhibit-4. However, he stated that nothing was seized during his presence. This P.W-4 was declared hostile by the prosecution. During cross-examination, he stated that the police has not recorded his statement and he is not aware of the occurrence and the accused is innocent. 24. However, he stated that nothing was seized during his presence. This P.W-4 was declared hostile by the prosecution. During cross-examination, he stated that the police has not recorded his statement and he is not aware of the occurrence and the accused is innocent. 24. Thus, from scrutinizing the evidence of P.W-4, it is evident that P.W-4 has also not supported the prosecution case and he has denied the complete seizure and thus the evidence of P.W-4 is not reliable. 25. P.W-2 is Md. Janifuddin, who was Officer in-charge, Balumath and has stated during his evidence that while he was Patrolling along with S.I M. Kispotta and armed forces on 29.02.2004 at 5.30 p.m and arrived near Barni Jungle at 6.45 p.m. then he had seen one Motorcycle parked on the road side and upon which he stopped his Vehicle. When his Vehicle stopped then he heard the sound of fleeing away and whispering and on chase, he had seen that 5-6 persons were fleeing away and one person was apprehended and brought at the road. In the meantime, one Motorcycle was arriving on which Gokul Singh and Jawed were going to Bariatu and the apprehended person disclosed his name as Arun Sao (i.e. the appellant) and on search a loaded Desi Pistol and four (04) live cartridges were recovered. Thereafter a seizure list was prepared and the said person confessed his guilt that miscreants namely Mohar Ganjhu, Sunil Ganjhu, Kalia Ganjhu @ Zomato Ganjhu @ Suresh Ganjhu, Lambu, Kodhai had prepared to commit dacoity by blocking the road but in the meantime, the police arrived and they fled away. He has proved the confessional statement of the accused-appellant marked as Exhibit-2. Thereafter he handed over investigation to S.I-M. Kispotta. He further proved the seizure list and also the signature of accused which is marked as Exhibit-3. 26. During cross-examination, he stated that Motorcycle was seen just near the road but none was present. It was down time and he had seen the Motorcycle in the light of Head light. He admitted that shop of Jawed Khan is situated at a distance of 50 Yard from the Police Station where as Gokul Singh has got hotel in the middle of the market. 27. He could not remember as to whether seized fire arm was seized or not in presence of witnesses. He admitted that shop of Jawed Khan is situated at a distance of 50 Yard from the Police Station where as Gokul Singh has got hotel in the middle of the market. 27. He could not remember as to whether seized fire arm was seized or not in presence of witnesses. He could not remember as to whether the seized fire arms were sealed or not, while being deposited in the Malkhana. He could not remember as to how the seized articles/materials were handed over to the Investigating Officer in what manner. He denied the suggestion for not having recorded anything from the accused. 28. Thus, from scrutinizing the evidence of P.W-2, it is evident that he is informant of this case and he has claimed to have apprehended the accused-appellant along with one pistol and four live cartridges. However, during cross-examination, he admitted that he could not remember as to whether the fire arms were sealed or not in presence of witnesses. He also could not remember as to whether the fire arms were deposited in sealed condition in Malkhana or not. He also could not remember as to in which condition the sealed fire arms were handed over to the I.O of this case. 29. Thus, from scrutinizing the evidence of P.W-2, it is evident that he has failed to prove the basic ingredients of seizure of fire arms and he could not clarify as to whether the seized fire arms were sealed or not and on which condition it were sent to Malkahna and in which condition it were handed over to Investigating Officer. Thus, seizure is doubtful as the informant could not say about sealing of the fire arms alleged to have been recovered from the appellant. 30. From perusal of Exhibit-3, it would appear that one loaded Pistol along with four (04) live cartridge were recovered from the possession of accused appellant-Arun Sao in presence of seizure list witnesses Gokul Singh and Jawed Akhtar. However, said Gokul Singh (i.e. P.W-1) and Jawed Akhtar (i.e. P.W-4) have not supported the prosecution case and have not supported the recovery of articles during his presence and they have not disputed regarding seizure of said fire arms from the possession of the appellant-Arun Sao. 31. However, said Gokul Singh (i.e. P.W-1) and Jawed Akhtar (i.e. P.W-4) have not supported the prosecution case and have not supported the recovery of articles during his presence and they have not disputed regarding seizure of said fire arms from the possession of the appellant-Arun Sao. 31. P.W-3 is Nawal Kishore Singh who stated during his evidence that he was accompanying Officer-in charge on 29.02.2004 in evening patrolling and in course of which he had seen one Motorcycle standing in the Jungle and had heard the sound of whispering and some persons started fleeing away but one person was apprehended with one Desi Pistol and four (04) live cartridges. The apprehended person disclosed the name of some persons but P.W-3 could not said the name of those persons who had fled away as disclosed by P.W-1. 32. During cross-examination, he stated to have apprehended the appellant after chase about half kilometer. He Could not say as to whether the witnesses have put signature in the Police Station or not. 33. Thus, from scrutinizing the evidence of P.W-3, it is evident that he is under the influence of P.W-4 namely Jawed Akhtar and he had not disclosed the name of other persons who had fled away and thus, the evidence of P.W-3 is not reliable. 34. P.W-5 is Marshall Karketta who is also a Police Constable and stated that during evening patrolling with the Officer in-charge they had arrived near Tamtam Toli Petrol Pump near the jungle and had seen 5-6 persons fleeing away but they had apprehended one person and on search one Desi Pistol and four (04) live cartridges were recovered and a seizure list was prepared and the apprehended person disclosed his name and the names of his associates. However, he could not identify the accused in the Court. 35. During cross-examination, he admitted to have heard the occurrence and he has no clear knowledge of the occurrence. 36. Thus, from scrutinizing the evidence of P.W-5, it is evident that he has not supported the prosecution case during cross examination and he is a hearsay witness. Hence, the evidence of P.W-5 is not reliable. 37. P.W-6 is Ram Lal Singh who is also Havildar and has tried to support the prosecution case during his examination in-chief and has stated about the apprehension of the appellant. However, he also could not identify the appellant in the Court. Hence, the evidence of P.W-5 is not reliable. 37. P.W-6 is Ram Lal Singh who is also Havildar and has tried to support the prosecution case during his examination in-chief and has stated about the apprehension of the appellant. However, he also could not identify the appellant in the Court. He could not state about the presence of independent witnesses during search. Thus, the evidence of P.W-6 is not reliable as he could not identify the appellant in the Court. 38. P.W-7 is Ram Khelawan Yadav who has supported the prosecution case during examination in-chief. However, he could not identify the appellant in Court and could not say the name of the apprehended person. 39. Even during cross-examination, he stated that he does not remember the name of independent witnesses. He also admitted in para-8 that Investigating Officer of this case has not recorded his statement and he is giving evidence for the first time in Court. 40. Thus, from scrutinizing the evidence of P.W-7, it is evident that he had not identified the appellant in Court and even he could not state the name of independent witnesses and the persons who had fled away and he is giving evidence for the first time in Court. Hence, the evidence of P.W-7 is not reliable. 41. P.W-8, P.W-9, P.W-10 and P.W-11namely, Surendra Prasad, Jal Jha, Satya Narain Kumar and Guruwas Swasi have tried to support the prosecution case. However, they admitted that they are neither able to identify the appellant and nor taken the name of the appellant and the name of the associates of the appellant who had fled away. Thus, the evidence of P.W-8, P.W-9, P.W-10 and P.W-11namely, Surendra Prasad, Jal Jha, Satya Narain Kumar and Guruwas Swasi are not reliable. 42. P.W-12 is Mahendra Paswan who is A.S.I and has produced the loaded pistol and four(04) live cartridges before the Court. The loaded pistol was marked as Material Exhibit-I and the live cartridges were marked as Material Exhibit-II to II/3. He stated that S.I- M. Kispotta is seriously ill and has admitted to RIMS and he has proved the diary from para-1 to para-117 in writing of signature of M. Kispotta which is marked as Exhibit-5. He further proved the formal F.I.R, marked as Exhibit-6. 43. He stated that S.I- M. Kispotta is seriously ill and has admitted to RIMS and he has proved the diary from para-1 to para-117 in writing of signature of M. Kispotta which is marked as Exhibit-5. He further proved the formal F.I.R, marked as Exhibit-6. 43. During cross-examination, he stated in para-3 that all the Material Exhibits have been brought to the Court on the oral order of Officer in-charge before the Court below but it has not been entered into the station diary. He also stated that all Material Exhibits were handed over to him by the Officer in-charge and the signature of C.J.M, Latehar dated 25.03.2004 is pasted on all exhibits. He admitted that force is being used in running the pistol and it is version of the P.P that pistol can be started by simple force. Pistol is not maintained as it was kept in the Malkhana. 44. Thus, from scrutinizing the evidence of P.W-12, it is evident that he is a formal witness but he has merely produced the entire fire arms by the order of the Officer in-charge. However, the Court below has committed grave illegality by marking the Para-1 to Para-117 of the case diary as Exhibit-5 as case diary which was written by M. Kispotta-S.I i.e. I.O. Thus, Exhibit-5 cannot be relied upon. 45. It is well settled that the case diary cannot be marked as Exhibit. Even the pistol produced by the P.W-12 Mahendra Paswan was not found in working condition and thus, the evidence of P.W-12 is not reliable. 46. P.W-13 is Assistant in Legal Section, Deputy Commissioner of Latehar. He has proved the sanction order of Deputy Commissioner-A.K. Some, I.A.S of the fire arms which is marked as Exhibit-7. Thus, P.W-13 is a formal witness. 47. P.W-14 is Rajendra Kumar Choudhary who is Seargent Major of Palamau Police Line, Daltonganj and has stated during his evidence that S.I-M. Mikhiel Kispotta had sent application dated 24.04.2004 and the order of C.J.M, Latehar and he had tested the fire arms in the light of said order of C.J.M, Latehar and found that seized pistol and five (05) live cartridges are effective. The seized pistol was prepared illegally and its firing pin, spring and trigger and other parts are effective and proper and the length of Barrel is 11.5 c.m, the length of body is 8.8 c.m, length of But is 8.3 c.m, length of Nozal below but is 20.5 c.m and the Bullet of .315 bore is used in the Barrel and the cartridges are dangerous for the human life. All cartridges from seized pistol can be used for firing and dangerous for life. He has proved his test report and signature of S.I-M. Kispotta which were marked as Exhibit-8 and 8/1 respectively. 48. However, during cross-examination, he admitted that seized materials were brought before him by the Investigating Officer without sealing. There was no signature of witness on the seized exhibits. He had not fired from the seized pistol and trigger of pistol was working working in normal condition. 49. Thus, from scrutinizing the evidence of P.W-14 who is Seargent Major, it is evident that the seized fire arms i.e. the seized country made pistol and four (04) live cartridges were brought to him by the I.O in unsealed condition and it did not contain the signature of the witnesses. Thus, from the evidence of P.W-14, it is evident that the informant and I.O had not followed the provisions of law. Thus, the evidence of P.W-14 does not support the prosecution case. 50. P.W-15 is Manoj Kumar Gupta who is clerk of P.P and who has proved the written report in writing and signature of Dhaneshwar Ram-A.S.I which was marked as Exhibit-9 and also proved the forwarding report marked as Exhibit-9/1. 51. During cross-examination, he admitted that he admitted that he has no personal knowledge of the occurrence. 52. Thus, from scrutinizing the evidence of P.W-15, it is evident that he is formal witness and he is not competent to prove the written report as well as forwarding report. 53. Thus, the prosecution has failed on the point of preparation to commit dacoity including the appellant to commit dacoity. 54. It transpires that the pistol was not sealed at the place of occurrence which is in complete violation of the judgment passed by the Hon’ble Supreme Court. 55. It has been held in the case of Amarjit Singh vrs. 53. Thus, the prosecution has failed on the point of preparation to commit dacoity including the appellant to commit dacoity. 54. It transpires that the pistol was not sealed at the place of occurrence which is in complete violation of the judgment passed by the Hon’ble Supreme Court. 55. It has been held in the case of Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217 and paragraph No.7 of the said judgment is as follows:- “Para.7: The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW4 that he did not test-fire the revolver. 56. It has been held in the case of Sahib Singh vrs. State of Punjab reported in 1996 (11) SCC 685 and paragraph No.6 of the said judgment is as follows:- “ Para.6:- Having gone through the record we find much substance in each of the above contentions. Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is 6 not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In a given case it may so happen that no such person is available or, even if available, is 6 not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility. We next find from the record that the arms and ammunition allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by PW 3 till it was sent to the Arms Expert for testing through Head Constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.” 57. It has been held in the case of Salim Akhtar @ Mota versus State of U.P reported in (2003) 5 SCC 499 and paragraph No.9 of the said judgment is as follows:- “ Para.9:- The evidence on record clearly shows that the pistol alleged to have been recovered from the polythene bag which was allegedly taken out from the mud by the appellant was not sealed on the spot. PW 1 in his cross- examination has stated that the pistol was not sealed as it was factory-made and in the recovery memo its "number" or "make" was not written as the same was not clear and legible. However, the cartridges and bomb and RDX were sealed. PW 1 in his cross- examination has stated that the pistol was not sealed as it was factory-made and in the recovery memo its "number" or "make" was not written as the same was not clear and legible. However, the cartridges and bomb and RDX were sealed. Similar statement has been given by PW 2 S.N. Tripathi and PW 4 S.P. Sharma that at the time when the pistol was deposited in the malkhana, the same had not been sealed. In the FIR, no details have been given to fix the identity of the pistol. PW 4 has stated that the same was of Chinese-make while PW 6 Tej Pal Sharma, Head Constable of PS Lisari Gate, where the recovered articles were deposited, has stated that the same was of English- make. In Amarjit Singh v. State of Punjab and Sahib Singh v. State of Punjab it has been held that the possibility of tampering cannot be ruled out where the recovered articles were not sealed on the spot. We are little surprised that though the 7 cartridges were sealed but the most important object, namely, the pistol was not sealed on the spot and the same was deposited as it is in the police station and, thereafter at the malkhana. In our opinion the fact that the pistol alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number nor its make etc. to fix its identity was mentioned in the recovery memo or in the FIR, raises considerable doubt regarding the factum of recovery.” 58. Thereafter, in view of the discussion made above, this case appears to be a case of false implication. 59. Under the circumstances, the judgment of conviction dated 01.07.2005 and Sentence dated 04.07.2005 passed in Cr. Appeal No.96 of 2004 by Sri Ram Babu Gupta, learned Additional Sessions Judge, Fast Track Court, Latehar is set aside and the appellant namely, Arun Sao is acquitted for the offences under sections 25 a(1-B)A and 26/35 of the Arms Act and the appellant namely, Arun Sao is also discharged from the liability of his bail bonds. 60. Thus, the Criminal Appeal (SJ) No.895 of 2005 is allowed and stands disposed of. 61. Let the Lower Court Records be sent back to the learned court below at once.