FAHIM HUSAIN Vs. STATE OF U P

JUDGEMENT

(1.) Fahim Husain convict-appellant has preferred this appeal against the judgment and order of Shri J.P. Sinha, First Additional District and Sessions Judge, Farrukhabad, in S.T. No. 119 of 1916 delivered on 309.1978 convicting and sentencing him under section 25 (1)(a) of the Indian Arms Act to one year R.I.

(2.) The prosecution cases is that on 27-6-1974 at about 8.30 A.M. Hukim Singh Gautam (P. W.3), 5.0., P.S. Qaimganj, District Farrukhabad. received information that four bad characters possessing illicit arms and property looted in a dacoity were sitting at Tehti-Kone crossing for boarding a Bus for Farrukhabad. Believing this information the S.O. (P.W.3.) made relevant entry in G.D: Ex Ka-8) and collected force consisting of a few sub-inspectors and constables including Babu Lal Sharma S.I. I.P.S. He also picked up public witnesses Phool Singh (P. W. 2) and Bar rister Singh from front of the police station. They went informed of the purpose of .taking them along. The party boarded P.A.C. Truck No. 8331 U.P.. and reached Tehti Kono three miles away, at about 9.30 A M. As soon as the truck parked there the four persons were spotted sitting on the Tehraha. The informant, who accompanied the party, pointed out that they were the suspected persons. When the police party started getting down the said truck, these four persons tried to run away towards north east. They were chased by the police party at which the miscreants including Fahim Husain appellant opened fire at the police party which also returned fire. Fortunately, none was hurt by the fire shots. The police party succeeded in catching hold of the two miscreants who happened to be Fahim Husain appellant and his brother Sajid Husain. The other two escaped. The personal searches of the two arrested persons were taken. One English revolver bearing no. 137232 and the name of company of U.S.A. was recovered from the right hand of Fahim Husain appellant. Inside it there were five cartridges. One had been fired. So it was empty. The other four were live. He also carried a Jhola which had been found to contain five more live cartridges, one hand grenade and the ornaments (which were said to be looted in a dacoity). He had no licence or permit for the said revolver and ammunition, The recovery memo (Ex. Kha.1) was prepared on the spot. Recovered articles were also sealed there. I need not refer to the recoveries said to have been made from Sajid Husain as he is not before this Court. The arrested persons and the recovered articles in sealed condition were brought to P.S. Qaimganj where cases were registered one under section 307 I.P.C. (Subject-matter of State v. Fahim Husain and another under section 25, Arms Act (Subject-matter of State v. Fahim Husain. I have mentioned the cases against Fahim Husain appellant only and not against the other co-accused. Both the Sessions Trials were consolidated tried together and disposed of by a common judgment dated 30.9.1978. The appellant was acquitted of the charge under section 307 I.P.C. in S.T. No. 382 of 1974 while convicted under section 25, Arms Act to one years R.I. in S.T. No. 119 of 1976. This conviction has given rise to the present appeal.

(3.) The defence of the appellant was that he was never arrested as alleged by the prosecution and nothing was recovered from his possession. Rather, he was summoned from his house and falsely implicated in .this case by the police under the influence of Anwar Khan in connection with enmity touching Sabir Khan alias Sabir Ali. It was in the course of suggestion give to Babu Lal Sharma, S.I. (P.W.1) that the above defence was further elucidated. It was suggested that Sabir Khan alias Sabir Ali was murdered in which Fahim appellant and his brother Sajid Husain were named as the accused persons. Anwar Khan, M.L.A., was related to said Sabir Khan and he (Anwar Khan) falsely got the appellant implicated in the present case. However the appellant had not led any evidence in his defence. The suggestions on the above line of defence made to Babu Lal Sharma, S.I. (P.W.1), Phool Singh, public witness (P.W.2), Hukum Singh Gautam, S.0. (p.W.3) were denied by them. In this way there is nothing to substantiate the defence plea. The prosecution in order to discharge their onus have examined the above-named three witnesses. Hukum Singh Gautam, S.O.(P.W. 3) has stated that on receiving information at 8.30 A. M. about presence of four bad characters at the crossing of Tehri Kone be collected police personnel and public witnesses and proceeded to the spot on P.A.C. truck and reached the spot, three and a half miles away, at about 9.30 A.M. He then narrated facts in line with the prosecution case resulting in the arrest of the appellant and the recoveries of alleged articles from him. Similarly, Babu Lal Sharma, S I. (P.W. 1) deposed the same facts. The only divergence made by him is that the party had reached the spot at about 8.45 A M. after covering the distance of three miles in the truck within IS minutes. Phool Singh (P.W. 2) who is resident of Azamganj, four miles away from P.S. Qaimgunj, has stated that he uses to go to Qaimgunj for marketing every second or third day. On that particular date he bad come to the market by 9 A.M. He was picked up by the police from front of the police station and the police party started on a truck at about 10 A.M. and reached the spot one hour which would mean by 11 A. M. The learned counsel for the appellant has, therefore, laid just stress on the discrepancies concerning the above three witness and has argued that these were material contradiction believing the hour of the alleged arrest of the appellant which incidentally would also belie the alleged recoveries. But it should be remembered that the incident had occurred on 27-7-74.while the evidence was recorded on 18th arid 19th of November, 1978, after a lapse of about 4 years. Moreover, Phool Singh who comes from country side Seems to have no accurate idea of time. For these reasons. I do not think any capital can be made out of the above discrepancies.