IRFAN Vs. STATE

JUDGEMENT

(1.) By these appeals the Appellants lay a challenge to the judgment dated 26 th November, 2008 convicting the Appellants for offences under Section 393/398/34 IPC read with Section 27 Arms Act and the order dated 3 rd December, 1998 directing them to undergo Rigorous Imprisonment for a period of 7 years under Sections 398/34 IPC, Rigorous Imprisonment for 3 years and fine of Rs. 500/- each and in default of payment of fine to further undergo Simple Imprisonment for 5 days for offences under Sections 393/34 IPC and to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo Simple Imprisonment for 5 days for offence under Section 27 Arms Act. The Appellant Irfan is in custody, however the Appellant Yusuf was released from jail on 28 th October, 2011 after completion of his sentence of 7 years R.I. and fine of Rs. 1000/-.

(2.) Learned counsel for the Appellant contends that the evidence of PW1 the complainant Brij Kishore is not supported by PW2 Ajay, though he had claimed that he had witnessed the incident and had intervened in the matter. Despite PW1 stating that he was given fist blows, no injury was found on his body. Further it is alleged that the Appellants showed him the knife, however there is no injury by the knife on the body of the complainant. Though PW1 has stated that there were 200 people at the spot, PW3 has stated that there were 50-100 people at the spot and PW5 stated that there were 20 people at the spot chasing the accused, however no public witness has been examined. PW2 is an introduced witness and this is evident from the fact that PW1 himself has stated that PW2 did not go to the Police Station and his statement was not recorded in PW1's presence. The Police Officers PWs 3, 5 & 6 claim to be on patrolling duty, however no DD entry has been exhibited to prove that they were on patrolling duty. On the same day the Appellants were arrested in two other FIRs, however they have been acquitted in those two matters. The case of the prosecution being highly improbable and based on conjectures and surmises the Appellants are entitled to the benefit of doubt. Thus they be acquitted of the charges framed.

(3.) Learned APP on the other hand contends that the Appellants were apprehended at the spot. Though PW2 had turned hostile, however he admits that a quarrel had taken place. The Appellants were apprehended with the knives which were seized from them. The case of the Appellants is that they were lifted from their respective houses, however in crossexamination PW3 had denied this suggestion. Further this suggestion is contrary to the statement of the Appellants recorded under Section 313 Cr.P.C. wherein they have admitted that they had consumed beer and they were going together to purchase articles for the birthday of Irfan's nephew and on the way Police officials stopped their and falsely implicated in this case.