STATE OF U P Vs. ABBAL HUSAN

JUDGEMENT

(1.) The state has preferred this appeal against the judgment and order dated 5th of September, 1983 passed by Sri Vishram Singh, First Additional Munsif Magistrate, Saharanpur acquitting the accuse a respondent Abbal Hasan of the charge under section 25 of the Arms Act. The facts which have given rise to this appeal are briefly put as below:

(2.) Three constables, to wit, Nepal Singh, Sheo Raj Singh and Surendra Singh of police station Mirzapur in the district of Saharanpur, were on patrol duty on the night between 13th and 14th of March, 1983. They reached near the culvert of Kasimpur canal in the jungle of Fayaj Garh at about 10.30 P.M. to find the accused coming from the side of village Dadal. The constables flashed their torches and accused made an attempt to escape. He was then overpowered after covering a short distance. No public witness was available at that hour of the- night in the jungle, so they made a search of his person without the presence of any public witness any recovered two live cartridges and one country made pistol from his possession. Nepal Singh prepared the recovery memo on the spot and carried the accused alongwith the incriminating articles to police station, Mirzapur here he lodged the first information report at 0.30 hour on 14-3-1983. The crime was registered in the General Diary and the charge sheet was submitted after investigating and obtaining the sanction of the District Magistrate for the prosecution. Charges were framed -against the accused by the trial court on 1st of July, 1983. He pleaded not guilty and claimed to be tried. The learned Magistrate, therefore, fixed the date, to wit, 23rd July, 1983 for production of the prosecution witnesses as provided under section 242(2) of the Criminal Procedure Code.

(3.) Surendra Singh, one of the prosecution witnesses of fact, appeared on 23rd of July, 1983 but the A.P.O. conducting the case, declined to produce him and moved an application for adjournment of the case on the ground that the informant Nepal Singh was not in attendance. His application for adjournment was allowed and the case was adjourned to 16th of August, 1983 for production of the prosecution witnesses. The prosecution again prayed for adjournment on 16th of August, 1983 on the ground that the Head Constable Clerk was not at the police station. It was further urged that Nepal Singh the informant, was suffering from malarial fever but no medical certificate was filed in support of the contention. The Pairokar Munna Lal Sharma of the police station on oral enquiry by the court informed that Nepal Singh was on duty at the police station. All the witnesses of fact were officials of the police station Mirzapur yet the prosecution was not able to produce them. The Magistrate even then granted one more adjournment to enable the prosecution to produce its evidence and adjourned the case to 5.9 1983 for recording the prosecution evidence. The prosecution again prayed for adjournment on 5-91983 and as there was no good ground for granting any further adjournment the learned Magistrate rejected the prayer for adjournment and closed the prosecution evidence. He recorded the statement of the accused under section 313 Criminal Procedure Code. The accused declined to produce any witness in defence. The learned Magistrate heard the arguments and acquitted the accused.