BABU KHAN Vs. STATE

JUDGEMENT

(1.) BY this appeal the Appellant challenges the judgment dated 28th January, 2003 convicting him for offence punishable under Section 25 Arms Act and the order on sentence dated 27th February, 2003 directing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 200/- and in default of payment of fine to further undergo simple imprisonment for 15 days.

(2.) LEARNED counsel for the Appellant contends that allegedly the disclosure was made in the other case on 7th November, 1991, however the recovery was made on 9th November, 1991. As per the disclosure the weapon of offence had been given to another person who was a resident of Noida, however the recovery was made from the back side of the house from beneath the debris. The recovery is not pursuant to the disclosure made and thus the recovery cannot be believed. PW3 Mohd. Yasin has not supported the prosecution case. Constable Suraj Prakash has also turned hostile. Thus it cannot be said that the testimony of the investigating officer is corroborated by Constable Suraj Prakash who has admitted the prosecution case in cross-examination by the learned APP. The sanction to prosecute has not been proved properly as the sanctioning authority did not appear in the witness box. The Appellant is thus entitled to the benefit of doubt or in the alternative the sentence may be reduced on the period less than one year for the reasons to be recorded, as the present case is a very old case of the year 1991 and the Appellant has already faced agony of trial and appeal for 22 years.

(3.) HEARD learned counsel for the parties. FIR No. 573/1991 under Section 25 Arms Act was registered at PS Malviya Nagar as a sequel to FIR No. 570/1991 under Section 307/148 IPC and 27 Arms Act. The abovementioned FIR was registered on the statement of PW7 S.I. Kishan Kumar who stated that on 7th November, 1991 while posted as ASI at PS Malviya Nagar he received DD No. 11A, on reaching house No. K-33, Khirki Extension, Malviya Nagar, he found Atique and Zamil on the spot and he apprehended them. Thereafter he went to the hospital and found injured Meharban Ali admitted there on whose statement FIR No. 570/1991 was registered. On 8th November, 1991 he arrested Appellant Babu Khan and Akbar Ali and their personal search was taken vide memo Ex. PE and PP. On interrogation Appellant Babu Khan made a disclosure vide memo Ex.PG. The Appellant was taken on Police remand for one day and on 9th November, 1991 he got recovered one dessi katta, two live cartridges and one empty cartridge. He prepared the sketch of the katta, live cartridges and empty cartridge vide Ex. PX4. The katta and the cartridges were kept in separate pullanda and seized vide memo Ex. PW3/A. Statements of the witnesses were recorded and on the basis of this recovery FIR No. 573/1991 under Section 25 of Arms Act was registered.