Ramesh v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.02.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.191 of 2007Ramesh ..Appellant-vs-The State of Tamil Nadu rep.by Inspector of PoliceTindivanam Police StationVillupuram DistrictCrime No.928/96..RespondentMemorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgment dated10.1.2007 made in S.C.No.51 of 2006 on the file of the learnedAdditional District and Sessions Judge cum Fast Track Court,Dharmapuri.For Appellant::Mr.K.V.SridharanFor Respondent::Mr.P.KumaresanAdditional Public Prosecutor.-JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.)The appellant is A.1. He was put up on trial along with A.2in S.C.No.51 of 2006 on the file of the learned AdditionalDistrict and Sessions Judge, Tindivanam. By the judgment dated10.1.2007, he was found guilty for the offences under Section 302I.P.C. and under Section 3 read with 25(1-B)(a) of the Arms Act.He was sentenced to undergo life imprisonment and to pay a fine ofRs.1,000/-, in default to undergo rigorous imprisonment for threemonths for the offence under Section 302 I.P.C and to undergo oneyear rigorous imprisonment and to pay a fine of Rs.1,000/- and indefault to undergo rigorous imprisonment for three months for theoffence under Section 3 read with 25(1-B)(a) of the Arms Act.The learned trial judge however acquitted A.2. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the prosecution is that P.W.1 is thefather of the deceased and he is a resident of Nathamedu atTindivanam. P.W.3 is the wife of P.W.1. P.W.4 is the daughter ofthe second accused and the sister of the first accused and themarriage between deceased and P.W.4 took place about eight yearsprior to the date of occurrence. From the date of marriage, boththe deceased and P.W.4 were living separately in a house. Therewas often quarrel between the husband and wife and therefore P.W.4left the marital house to join with her parents.3. In order to bring back his wife P.W.4, the deceasedwent to his in-laws house at 12 to 12.30 midnight on12/13.4.2005. When he requested his wife to come back with him,the second accused shouted at the deceased as to how he couldcome and call back his wife when she did not like to live withhim. As the quarrel persisted, A.2 asked his son A.1 to pick upthe Gun belonging to him and shoot the deceased. Hence the firstaccused/the appellant herein shot the deceased on his chestfollowed by P.W.4, who is none other than the wife of the deceasedand one Padma, who was also residing there, attacking the deceasedwith stick on his head. Though the deceased tried to escape fromthe scene, due to pellet injuries on his chest, he could not runand fell down and ultimately died on the spot. The above incidentwas witnessed by P.W.1, P.W.2, P.W.3, P.W.4 - a neighbour andP.W.5. P.W.1 thereafter went to Tindivanam Police Station andgave a complaint Ex.P.28 to P.W.16, the Sub Inspector of Police,Tindivanam Police Station. The said complaint was registered inCrime No.554 of 2005 under Sections 341, 294(b) and 302 I.P.C.Read with Section 25(1-B)(a) and 3(1) of the Arms Act. Heprepared Ex.P.29, the printed First Information Report andsubmitted to Judicial Magistrate No.I, Tindivanam and sent theother copies to his Superior Officers.4. On receipt of the copy of the First Information Report,P.W.17, the Inspector of Police, Tindivanam Police Station took upthe investigation and proceeded to the scene of occurrence on13.4.2005 and prepared an Observation Mahazar, Ex.P.30 and drew arough sketch Ex.P.31 in the presence of P.Ws.6 and 11. He alsoseized blood stained earth - M.O.10 and sample earth - M.O.11under Ex.P.32, in the presence of the same witnesses and P.W.9,the Scientific Assistant, Regional Forensic Science Laboratory,Villupuram. He conducted inquest over the dead body in thepresence of panchayatdars and witnesses and Ex.P.33 is the inquestreport. At that time he examined P.Ws.1 to 5 and recorded theirstatements. Then he sent Ex.P.5 requisition to the MedicalOfficer, Government Hospital, Tindivanam though P.W.13 to conductpost-mortem on the body of the deceased. In the same requisitionhe has also mentioned to preserve the pellets found in the body ofthe deceased as well s Viscera for chemical examination. https://hcservices.ecourts.gov.in/hcservices/

5. P.W.8, the Senior Civil Surgeon attached to theGovernment Hospital, Tindivanam on receipt of Ex.P.5 requisitionconducted post mortem at about 1.00 p.m. on the body of thedeceased, which was identified by P.W.13, the Head Constable.P.W.9 took M.Os.6 and 7 photographs on the chest portion of thedeceased and had advised the Medical Officer to collect thetissues in and around the pellet injuries for analysis. P.W.8noted the following injuries:-"External Injuries:-(1) A pellet injury scatterly arrangedwith about 135 black charred spots each measuringabout 0.3 cm x 0.3 cm seen on both sides of thechest wall below the clavicles, about 3 cm belowRight and Left clavicles and on right arm; aboutthree in number. The chest wall around the pelletinjury is cherry red in colour and a circular zoneof echymosis seen around the entrance wound. ATatoo mark Jayanthi seen on Right side of thechest below clavicles. Fluid blood oozing fromentrance wound of pellet injury.(2) Contusion of about 2 x 1 cm on leftparietal region.Internal Examination:-Head and Neck: No fracture of skullbones. Membranes intact. Brain about 1400 gramsand congested.Hyoid Bone:- Intact. Thorax:- No fractureof ribs on exploration of pellet injury wound,inter costal muscles were present pierced andteared by numerous pellets and inter costalmuscles were charred and reddish in colour about1500 ml. Of fluid blood (Haemothorax) present inthe thoracic cavity. Heart:- Anterior wall of theheart was penetrated by about 8 pellets. On c/s.Clotted blood present in the left chamber of theheart. Lungs:- Right lung about 450 grams andpierced by many pellets and reddish in colour.Left lung about 400 grams and pierced by manypellets and reddish in colour. On c/s of lungsabout 20-30 black coloured shots have beenrecovered and collected for chemical analysis.Some of them were covered by tissues. Abdomen:Stomach: Contained about 100 ml of undigested foodparticles. Liver:- about 1400 grams on C/s. https://hcservices.ecourts.gov.in/hcservices/ Congested. Spleen: 175 grams congested on c/s.Kidneys:- 150 grams each, congested on c/s. SmallIntestine: Distended with air. Bladder: Empty onC/s. (n.c.) organs were normal. Pelvis: Intact.Spinal Column normal."P.W.8 issued the post-mortem certificate, Ex.P.9 with her opinionthat the deceased would appear to have died of shock andhaemorrhage and irreversible shock due to injuries sustained byhim to the chest wall-vital organs – lungs and heart about 10 to18 hours prior to autopsy. After post-mortem P.W.13 receivedM.O.9, the blood stained lungi which was found on the body of thedeceased and handed over the same to P.W.17.6. P.W.17, sent Ex.P.21 requisition to Judicial MagistrateNo.1, Tindivanam to send the viscera preserved by P.W.8 forchemical analysis. P.W.15 obtained orders from Judicial MagistrateNo.1 and sent the same for chemical analysis through Ex.P.22.Exs.P.6 to P.8 are the Chemical Examiners' Reports. P.W.17arrested both the accused at 1.00 p.m. on 13.4.290905 atTindivanam to Marakkanam Cross Road, through Ex.P.34 Arrest cardand examined them in the presence of P.W.7 and P.W.12. At thattime the first accused gave a voluntary confession statement, theadmissible portion of which is Ex.P.3. Then the first accusedtook P.W.17 and his team along with the witnesses to a lake bundnear Narikuravar colony and identified M.Os.5,1,2,3 and 12 and thesame were seized under Ex.P.17 in the presence of the samewitnesses. From there he took P.W.17 and his team to his house atNarikuravar Colony and produced 650 gm weighing pellets used forthe Gun, which was seized under Ex.P.18 in the presence of thesame witnesses. Out of 650 grams pellets P.W.17 has taken 50grams - M.O.4 series for chemical examination and the remainingare M.O.13 series. Then the accused were taken to the policestation and sent for judicial remand. P.W.15 is the Head Clerk inJudicial Magistrate Court No.I, Tindivanam. In his evidence hehas deposed that on 25.4.2005 P.W.17 sent Ex.P.23 requisition tosubject the case properties for chemical examination and the samewere sent thorough Ex.P.24 letter. Ex.P.25 is the ChemicalExaminer's Report and Exs.P.27 and P.8 are the Serologists'Reports received from the laboratory.7. P.W.17 submitted a requisition Ex.P.35 on 25.4.2005 toJudicial Magistrate No.I, Tindivanam to send M.Os.1 to 4, 6 to 8for chemical examination. After obtaining orders, he sent thesame to the Director of Forensic Science Laboratory, Chennai forchemical examination. P.W.10 is the Scientist Assistant Grade-Iand Fire Arms Expert, who after examining the case propertiesreceived by him issued Ex.P.8 report. P.W.17 examined P.Ws.8 and10 on 8.9.2005 and recorded their statements. Then he addressed https://hcservices.ecourts.gov.in/hcservices/ to the District Collector, Villupuram through the DistrictSuperintendent of Police to know whether the accused are havinglicence to use the Gun. P.W.14 the District Collector, VillupuramDistrict, on receipt of Ex.P.19 requisition from theSuperintendent of Police seeking prosecution, after perusing therecords and after obtaining opinion from the Assistant Director ofProsecution, accorded Ex.P.20 prosecution Sanction Order underSection 39(3) of the Arms Act to prosecute the accused. P.W.17also examined P.W.14 and recorded his statement. Aftercompleting the investigation, P.W.17 laid the final report againstthe accused before the Court.8. To prove its case, the prosecution had examined P.W.1 to17 and marked Exs.P.1 to P.35 apart from producing M.Os.1 to 13.When the accused were questioned under Section 313 of the Code ofCriminal procedure as to the incriminating materials appearingagainst them, they denied the entire case of the prosecution asfalse. However the learned trial Judge had accepted the case ofthe prosecution as against A.1/the appellant herein; found himguilty, convicted and sentenced him as stated earlier. Thelearned trial Judge on the other hand did not accept the case ofthe prosecution in so far as A.2 is concerned and acquitted him.Questioning the conviction and sentence, the present appeal hasbeen preferred by A.19. We have heard Mr.K.V.Sridharan, learned counsel appearingfor the appellant and Mr.P.Kumaresan, learned Additional PublicProsecutor for the State.10. Mr.K.V.Sridharan, learned counsel would submit that thepresence of P.Ws.1 and 3, who were examined to speak about theoccurrence as eye witnesses, is highly doubtful. He would submitthat though P.W.16, the Sub Inspector of Police had deposed thatP.W.1, the father of the deceased had lodged the complaint atabout 2.30 p.m. on 13.4.2005 and after registering the complainthe obtained his thumb impression, the evidence of P.W.1 isotherwise. According to P.W.1 though he went to the policestation and lodged the complaint, he specifically disowns anythumb impression obtained by P.W.16. Therefore the complaintEx.P.28 had not been established by the prosecution, through theauthor of the scribe. He would also submit that even the copy ofthe complaint was not marked through P.W.1. But it was markedonly through P.W.16, the Sub Inspector of Police who, recorded theFirst Information Report. Neither the complaint nor the evidenceof P.W.1 indicate the presence of the other eye witness namely,P.W.3. Hence the learned counsel would submit that it would behighly unreliable to place any conviction on the accused on thebasis of the evidence of P.W.1. In so far as the evidence ofP.W.3 is concerned, learned counsel would submit that her presence https://hcservices.ecourts.gov.in/hcservices/ is doubtful, as her presence was not spoken to by P.W.1, the othereye witness. Further even in the inquest report, her presence wasnot mentioned. Though P.W.3 had spoken about the head injuryinflicted on the deceased by P.W.4 and one Padma with stick, thepost-mortem Doctor, P.W.8 has reported that there is no suchinjury on the head. Hence the learned counsel would submit thatthe presence of P.W.3 in the scene of occurrence is doubtful.Learned counsel would also submit that yet another witnessexamined on behalf of the prosecution namely, P.W.2 had turnedhostile and he had not supported the case of the prosecution.P.W.4, the wife of the deceased was also examined to speak aboutthe occurrence but she also turned hostile. Learned counsel alsosubmits that the opinion of the Forensic Expert as to the fingerprint of A.1 having not found in the Gun, the use of the Gun byA.1 itself is doubtful. He would also submit that even thoughP.W.9 had recommended to send the Gun for examination of a fingerprint expert, the investigating officer had not done so, whichthrowing serious doubt about the use of the Gun by A.1/theappellant. He would also submit that the Ballistic Expert'sreport also does not support the case of the prosecution. In thisregard he would draw our attention through the evidence of P.W.10,the Ballistic Expert, where he had stated that there was noevidence that the Gun was fired in close range and he could notsee any small particles of explosives in the Gun, if the Gun isfired in the close range. Learned counsel would also argue thatthe prosecution had failed to establish that M.O.1, the Gun was aprohibited arm to bring home the offence under the provisions ofthe Arms Act. He would submit that even the District CollectorP.W.14 had not stated as to whether the Gun was licenced orunlicenced. In the absence of the same, the Gun cannot beconsidered to be a prohibited arm and therefore the charge underthe provisions of the Arms Act itself is unsustainable.11. Mr.P.Kumaresan, learned Additional Public Prosecutorappearing for the State on the other hand submits that theevidence of P.Ws.1 and 3 should be accepted and for the saidstatement, the learned Additional Public Prosecutor would draw ourattention to the fact that though P.W.1 had disowned his thumbimpression in the complaint Ex.P.28, he had admitted the contentsof the complaint, in his evidence. He had also spoken about theoccurrence and had specifically implicated the accused. Learnedcounsel would also submit that the evidence of P.W.3 has beenrightly accepted by the learned trial Judge as she has alsodeposed of having seen the first accused/appellant shooting at thedeceased on his chest. He would further submit that the conductof inquest is only to find out the cause of death and the merefact that the name of P.W.3 has not been mentioned in the inquestreport would not be a ground to disbelieve her evidence of havingseen the occurrence. Learned Additional Public Prosecutor would https://hcservices.ecourts.gov.in/hcservices/ also submit that the arrest and recovery has been establishedthrough the attesting witness namely, P.W.7, the VillageAdministrative Officer. Having regard to the evidence of P.Ws.1and 3 as to the occurrence and also as to the specific overt actscaused by A.1 on the deceased coupled with the evidence ofP.W.7, the Village Administrative Officer as to the recovery ofM.O.1, the learned trial Judge had correctly come to theconclusion as to the guilt of the appellant/first accused andtherefore had rightly convicted him. Insofar as the submission asto the Arms Act, learned Additional Public Prosecutor would submitthat the fact remains that the Gun was licenced in favour of A.2and the same has been unauthorisedly used by A.1. Theinvestigating officer had deposed that he had made aninvestigation as to whether the Gun was licenced or not, throughthe District Collector and he received a letter Ex.P.20 from theDistrict Collector stating that the Gun was unlicenced. He wouldfurther submit that in the absence of any other evidence, theevidence of the investigating officer can be accepted in thisregard.12. We have carefully considered the arguments advanced oneither side. Law as to how the evidence of a hostile witness canbe considered is laid down by the Apex Court in the judgmentreported in 1976 S.C.C.(Cri.) 160 (SATPAUL vs. DELHIADMINISTRATION) wherein it has been held as follows:-" Even in a criminal prosecution when awitness is cross-examined and contradicted withthe leave of the court, by the party calling him,his evidence cannot, as a matter of law, betreated as washed off the record altogether. Itis for the judge of fact to consider in each casewhether as a result of such cross-examination andcontradiction, the witness stands thoroughlydiscredited or can still be believed in regard toa part of his testimony. If the judge finds thatin the process the credit of the witness has notbeen completely shaken, he may after reading andconsidering the evidence of the witness, as awhole, with due caution and care, accept, in thelight of the other evidence on the record, thatpart of his testimony which he finds to becreditworthy and act upon it. If in a given case,the whole of the testimony of the witness isimpugned, and in the process, the witness standssquarely and totally discredited, the judgeshould, as a matter of prudence, discard hisevidence in toto." https://hcservices.ecourts.gov.in/hcservices/ The Apex Court in the subsequent judgment reported in 2001 S.C.C.Cri. 323 (GURA SINGH v. STATE OF RAJASTHAN) has also held asfollows:-"It is a misconceived notion that merelybecause a witness is declared hostile, his entireevidence should be excluded or rendered unworthy ofconsideration. ......In a criminal trial where aprosecution witness is cross examined andcontradicted with the leave of the court by the partycalling him for evidence cannot, as a matter ofgeneral rule, be treated as washed off the recordaltogether. it is for the court of fact to considerin each case whether as a result of such cross-examination and contradiction the witness standsdiscredited or can still be believed in regard to anypart of his testimony. In appreciate cases the courtcan rely upon the part of testimony of such witnessif that part of the deposition is found to becreditworthy."The very same view has been taken in the judgments reported in1976 S.C.C. (Cri.) 527 (Dalbir Kaur v. State of Punjab) and 2000S.C.C. Cri. 113 (Raman Bhai @ Naranbhai Patel vs State ofGujarat). Law on the above is also reiterated in the judgmentreported in 2006(1) S.C.C. Cri. 661 (RADHA MOHAN SINGH v. STATE OFUTTAR PRADESH). "7. .....It is well settled that the evidenceof the prosecution witness cannot be rejected intoto merely because the prosecution chose to treathim as hostile and cross examined him. The evidenceof such witness cannot be treated as effaced orwashed off the record altogether but the same can beaccepted to the extent his version is found tobedependable on a careful scrutiny thereof."Recently the judgments in Sat Paul's case and Gura Singh's casewere quoted with approval by the Apex Court in the judgmentreported in 2007(1) S.C.C. Cri.28 (SANTHOSH KUMAR v. STATE OFMADHYA PRADESH).13. Keeping the above Law in mind, the evidence of thehostile witnesses should be considered. The prosecution hadexamined P.Ws.1 to 4 as eye witnesses. P.Ws.2 and 4 wereexamined to speak about the specific overt act said to have beencaused by A.1 in firing the deceased on his chest with M.O.1.Both of them have turned hostile and a careful scrutiny of their https://hcservices.ecourts.gov.in/hcservices/ evidence does not support the case of the prosecution. On theother hand P.W.2 in her re-examination made on behalf of theaccused had stated that she heard that the deceased was shot downby one Iyyampettai namely, P.W.1. This evidence of P.W.2 supportsthe defence taken by the accused during the trial wherein evenP.W.1 was questioned that it was P.W.1, who had fired the deceasedand the case was foisted on the accused to save him. Hence theevidence of P.W.2 no way supports the case of the prosecution.P.W.4, the another hostile witness is none other than the wife ofthe deceased. Though she has been examined to speak about theactual specific over act attributed to A.1, she has not supportedthe case of the prosecution. P.W.1 had in fact stated that P.W.4had also assaulted the deceased indicating her presence at thetime of occurrence. However her evidence is otherwise, not onlyhaving seen A.1 shooting the deceased but also the prosecutiontheory that she had also attacked the deceased, is falsified, as anecessary consequence the evidence of P.W.2 is also false.14. This leaves us, the remaining two witnesses namely, P.W.1and P.W.3. P.W.1 is the father of the deceased. As rightlypointed out by the learned counsel for the appellant, P.W.1 hadspecifically stated in his evidence that no thumb impression wasobtained by P.W.16. Of course the learned Additional PublicProsecutor had submitted that P.W.1 had not disowned the contentsof Ex.P.28 and therefore his evidence can be accepted. We couldhave accepted the said statement, in the event, P.W.1 had come tothe court and accepted the contents of the complaint as such. Butin the given case, he had completely contradicted the evidence ofP.W.16 by stating that he had not even put any thumb impression onthe complaint. In any event, the complaint that bears the thumbimpression of P.W.1 lacks credibility. While we refer to theabove, we may reasonably come to the conclusion that the contentsof the complaint Ex.P.28 also cannot be taken into consideration.In that context the submission of the learned Public Prosecutorthat insofar as the contents are accepted, the evidence of P.W.1cannot be discarded, cannot be accepted. It has also beensettled that if the genesis of the First Information Report itselfis doubtful or fabricated, the entire prosecution case must bedisbelieved. This Law is held by the Apex Court in the judgmentreported in 1980 S.C.C. Cri. 985 (MURUDANAL AUGUSTI v. STATE OFKERALA). If the evidence of P.W.1 is eschewed from considerationthen we have left only with the evidence of P.W.3. 15. The presence of P.W.3 is highly doubtful for thefollowing reasons:-Though P.W.1, who is said to have lodged the complaintimmediately after the occurrence has not referred the name ofP.W.3 having present at the time of occurrence in the complaint, https://hcservices.ecourts.gov.in/hcservices/ yet, for the first time in court P.W.1 makes an attempt to make animprovement by stating that she was also present at the scene ofoccurrence. Secondly the inquest was conducted immediately afterthe occurrence and during the course of inquest, the presence ofP.W.3 was not noticed by the investigating officer. Of course thelearned Additional Public Prosecutor would be right in submittingthat the inquest is only for the purpose of ascertaining the causeof death and not for any other purpose. But to find out as to thepresence of a witness, the reference to the name of the witnessmay throw some light in support of the prosecution, as to theevidence spoken to by the said witness of having witnessed theoccurrence. Only to that limited extent, we are inclined toconsider the evidence of the investigating officer, who conductedthe inquest. Therefore non-reference the name of P.W.3 in theinquest report coupled with the fact that her name does not findsplace in the compliant Ex.P.28, leads us to doubt the presence ofP.W.3 in the scene of occurrence. Hence insofar as the evidenceof the four eye witnesses are concerned, there is nothing toimplicate the accused in the commission of the offence. 16. Further the evidence of P.Ws.1 and 3 could be discardedfor the simple reason that both of them have spoken to the factthat the deceased was attacked by both the accused and one Padmaalong with P.W.4 on his head with stick. This evidence is notsupported by medical evidence. P.W.8, the Post-mortem Doctor whilecertifying the injuries had not referred to any injury sustainedby the deceased on the head. In the absence of any correspondinginjury on the head of the deceased, the evidence of P.Ws.1 and 3that P.W.4 and one Padma assaulted the deceased with stick on hishead cannot be believed.17. We now come to the recovery, which is much spoken to byP.W.7, the Village Administrative Officer. Law on the recovery isby now well settled by the Apex Court. The conviction andsentence cannot be based solely on the basis of recovery, as therecovery would be only an additional circumstance to support theprosecution case let in through the other evidence. Theprosecution had not established the recovery to the satisfactionof the court. Firstly the prosecution has not marked the recoverymahazar for the Gun and only the signature of P.W.7, the VillageAdministrative Officer was marked as Ex.P.4. It is seen from therecords that on 13.4.2005 the first accused/appellant had produceda Gun from the hut. The evidence of P.W.1 is that he has alsoproduced a Gun to the police station during the course ofinvestigation. In these circumstances, the burden on theprosecution is heavy to establish that the Gun which was actuallyused by the first accused/appellant was the one seized from theaccused. But, in the absence of any actual seizure mahazar and https://hcservices.ecourts.gov.in/hcservices/ only the signature of P.W.7 was marked as Ex.P.4, we are notinclined to accept the recovery as well. M.O.1 is the iron barrelportion of the country made Gun. M.O.2 is the broken wooden piecebutt attached to the iron pipe. Though M.Os.1 and 2 had beenproduced, since no mahazar had been marked, in our consideredopinion, the same is fatal to the prosecution case. Except theevidence of P.Ws.1 to 4 as eye witnesses and the recovery aspect,no other materials are produced before the court to implicate theaccused in offence of murder. Hence we are of the considered viewthat the prosecution had not proved the case beyond reasonabledoubt as to the commission of the offence by the fristaccused/appellant.18. Insofar as the charges relating to the provisions of theArms Act is concerned, the evidence of P.W.14, the DistrictCollector is relevant. The burden is on the prosecution to provethat M.O.1 is the prohibited weapon, to bring home the offenceunder the provisions of the Arms Act. But the same has not beenestablished by the prosecution. On the contrary, the prosecutionhas come forward with a case that the Gun- M.O.1 was a lincencedone and the licence stands in the name of A.2. All that has beenput-forth before the court is that the licenced Gun had beentaken and used by A.1, who is the son of A.2, for the commissionof the offence. The District Collector has not deposed that theGun was either licenced or unlicenced. It must be kept in mindthat the District Collector is the authority to grant licenceunder the Arms Act. He being the licencing authority was notheard as to whether the Gun said to have been used in thecommission of offence was either licenced or unlicenced and if theGun was licenced, it was in whose name. Further, as we have foundthat the prosecution has not succeeded in its case to prove thatthe Gun in question was, in fact, used by A.1 for the commissionof the offence, the charge under the Arms Act is not established.The argument of the learned Public Prosecutor that in the absenceof any other evidence, the evidence of the investigating officeralone would be sufficient for sustaining a conviction, in ourconsidered opinion, cannot be accepted on the facts of this case.As the licencing authority himself was not sure about the factwhether the Gun was licenced or unlicenced, the investigatingofficer is not competent to speak about the same. Hence it wouldbe highly unsafe to rely upon the evidence of the investigatingofficer alone to come to the conclusion that the Gun was alicenced one. 19. For all these reasons, we find that the judgment of courtbelow in holding the first accused/appellant guilty cannot besustained and consequently, the conviction and sentence imposedon the appellant/A1 by the trial Court are set aside and https://hcservices.ecourts.gov.in/hcservices/ the criminal appeal is allowed. The appellant/A.1 is releasedforthwith, if his presence is not required in connection with anyother case. Fine amount, if any, paid is ordered to be refunded.In so far as the material objects are concerned,M.Os.1,2,3,4,5,8,12 and 13 are ordered to be handed over to theArsenal. M.O.6 and M.O.7 are ordered to be kept along with therecords. M.O.9, M.O.10 and M.O.11 are ordered to be destroyedafter the period of appeal to the Supreme Court expires.Tr/Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam2. -do- thru' the Principal Sessions Judge, Villupuram.3. The Superintendent, Central Prison, Cuddalore.4. The Public Prosecutor, High Court, Madras5. The District Collector, Villupuram6. The Director General of Police, Chennai7.The Inspector of Police,Tindivanam Police Station, VillupuramDistrict1 cc to Mr.K.V.Sridharan, Advocate, SR.10455akr (co)dv/13.3.Crl.A.No.191 of 2007