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State Of U.P. v. Arun Mittal - GOVERNMENT APPEAL No. 2865 of 2001  RD-AH 1067 (13 April 2005)
Government Appeal No. 2865 of 2001
State of U.P...........................................................Appellant
(Delivered by Hon'ble M Chaudhary,J.)
This is a government appeal filed by State of U.P. from judgment and order dated 18th of May 2001 passed by II Additional Sessions Judge Pilibhit in sessions trial no. 125 of 2000 State versus Arun Mittal under section 4/25 of the Arms Act arising out of crime no. 646 of 1999 connected with sessions trial no. 124 of 2000 State versus Arun Mittal under section 307 IPC arising out of crime no. 645 of 1999 police station Pilibhit Kotwali, District Pilibhit acquitting the accused of the charge levelled against him under section 307 IPC and section 4/25 of the Arms Act.
Brief facts giving rise to this appeal are that at 2: 35 p.m. on 9th of October 99 Shabban Miyan lodged an FIR at police station Pilibhit Kotwali situate at a distance of some four furlongs from Bareilly Gate within the limits of mohalla Faizulla Khan District Pilibhit that he used to carry on the repairing work of old buckets and casks near the salt shop of Chhotey, and Arun Mittal also used to run a salt shop situate adjacently. At about 2:00 p.m. that afternoon Arun Mittal reached him (Shabban Miyan) and told him that he would kill Ashfaq, that thereon he asked him that Ashfaq was a poor man and why he would kill him. Immediately Arun Mittal gave him blows with ''Gupti' (sharp edged weapon) hitting him at his neck and hands; that in the meanwhile hearing the hue and cry raised by him several persons including one Chhotey and Sayeed Ahmad rushed to the scene of occurrence . Some police men who were on duty in nearby area also reached there and with the help of police personnel Arun Mittal was apprehended on the spot with ''Gupti'. Then injured Shabban Miyan with the help of the police personnel and the persons collected there taking Arun Mittal with ''Gupti' went to the police station and handed over accused Arun Mittal with blood stained ''Gupti'to the police there. HM Hukum Singh registered a crime against the accused under section 307 IPC and section 4/25 of the Arms Act. HM Hukum Singh who prepared the check report (Ext Ka 4) also prepared recovery memo of the ''Gupti' handed over by Shabban Miyan (Ext Ka 2) with which Arun assaulted him and sealed that ''Gupti' in a packet. He also made entry regarding registration of the crime in GD (Ext Ka 5).
Injured Shabban Miyan was got medically examined by Dr R.S. Yadav EMO District Hospital Pilibhit at 3:15 p.m. that very afternoon which revealed below noted injuries on his person:
1. Incised wound 3 cm x . 5 cm on back of neck muscle deep with sharp margins.
2. Incised wound 6 cm x .5 cm on right forearm lower part muscle deep with sharp margins.
3. Incised wound 2 cm x .2 cm on dorsum of thumb of left hand muscle deep with sharp margins.
4. Incised wound 2 cm x .2 cm on dorsum of left hand muscle deep with sharp margins.
The doctor opined that all the injuries were caused by sharp weapon, simple in nature and fresh in duration.
SI Sayed Zahurul Haq to whom investigation of the crime was entrusted recorded statements of the witnesses. He also visited the scene of occurrence , inspected the site and prepared its site plan map (Ext Ka 6).
After completing the investigation he submitted charge sheets against the accused under section 307 IPC and section 4/25 of the Arms Act (Exts ka 7 & ka 8).
After framing of the charge against the accused, the prosecution examined Shabban Miyan (PW 1) and Chhotey Khan (PW 3) as eye witnesses of the occurrence. PW 2 Dr R.S.Yadav EMO District Hospital Pilibhit who medically examined injured Shabban Miyan proved the injury report (Ext Ka 3). PW4 HM Hukum Singh who prepared the check report on the basis of the written report handed over to him by Shabban Miyan and made entry regarding registration of the crime in the GD has proved these papers (Exts Ka 4 and Ka 5). He also prepared recovery memo of the blood stained ''Gupti' handed over to him at the police station (Ext Ka 2). PW 5 Sayed Zahurul Haq who investigated the crime and after completing the investigation submitted charge sheets against the accused has proved the police papers.
The accused denied the alleged occurrence altogether denying his arrest and recovery of ''Gupti' from his possession stating that he was got implicated in the case falsely due to enmity. He did not adduce any evidence in his defence.
On an appraisal of evidence and material on the record, the Additional Sessions Judge disbelieved the prosecution evidence and acquitted the accused of the charge levelled against him under section 307 IPC and section 4/25 of the Arms Act.
Feeling aggrieved by the impugned judgment the State of U.P. preferred this appeal for redress.
We have heard learned AGA for the State and Sri P.C. Srivastava learned Amicus Curiae for the accused respondent and gone through the record of the case.
After going through the impugned judgment and order and the record of the case we are unable to find ourselves in full agreement with the findings recorded by the Additional Sessions Judge regarding the main offence. PW 1 Shabban Miyan, injured and the first informant stated in his examination in-chief that at about 2:00 p.m. on 9th of October 99 he was repairing casks at his shop when accused Arun came to him and stated that he would commit the murder of Ashfaq ; that then he tried to make him understand that he should not do that; that immediately Arun gave ''Gupti' blow at his neck and immediately on hearing his screams several persons including Chhotey and Sayeed rushed to the scene of occurrence; that Arun again gave ''Gupti' blows to him which he took on his hands ; that in the meanwhile the police personnel on duty at the level crossing rushed to the scene of occurrence and captured Arun with ''Gupti'; that ''Gupti' was given to him by the police personnel and all of them proceeded to police station Kotwali; that on the way he got report of the occurrence scribed by one Mohd Aamin (Ext Ka 1) and went to the police station and he handed over written report of the occurrence to the Head Constable there, that he also handed over Arun, the assailant and ''Gupti' recovered from him to the Head Constable who prepared recovery memo of the ''Gupti' (Ext Ka 2). He was subjected to gruelling and searching cross-examination but nothing useful to the accused could be elicited therefrom. PW 3 Chhotey Khan corroborated him stating likewise deposing that at about 2:00 p.m. on 9th of October 99 he alongwith Sayeed Ahmad was standing near the shop of Shabban Miyan; that accused Arun reached to Shabban Miyan and told him that he would kill Ashfaq; that then Shabban Miyan tried to make him understand not to do the wrong; that immediately Arun gave a ''Gupti' blow to Shabban Miyan hitting him at his neck and hands; that on hearing the hue and cry raised by him several persons and some policemen also rushed to the scene of occurrence and caught hold of accused Arun with ''Gupti' and that he also accompanied Shabban Miyan alongwith the police personnel and accused Arun to the police station and handed over written report and ''Gupti' to the police there. He too was subjected to searching and rambling cross-examination but nothing substantial could be elicited therefrom. The testimony of the two eye witnesses including Shabban Miyan, the injured stands well corroborated by the FIR of the occurrence lodged promptly by the injured himself at the police station. Medical evidence further lends assurance to the prosecution version as to the weapon used in the assault and the time the injuries were inflicted upon the victim.
The court below disbelieved evidence of the two eye witnesses including the injured mainly because of some discrepancies and inconsistencies in their statements. But after going through the sworn testimony of these two witnesses we are of the view that the alleged inconsistencies and discrepancies in the statements of these two witnesses are that of minor nature. As for example the number of blows given by the assailant to the victim is not the same as stated by the two witnesses. It is not possible for the witnesses to tell the exact number of the blows given by the assailant with the weapon to the victim. The inconsistencies in the statements of these two witnesses are of insignificant nature not going to the very root of the case. It is a case of broad day light assault and assailant Arun with blood stained ''Gupti' was apprehended on the spot and was taken by the police personnel and the witnesses who on hearing the shrieks of injured Shabban Miyan rushed to the scene of occurrence. PW 3 Chhotey Khan has corroborated the testimony of Shabban Miyan, the injured (PW 1) on all material points.
Since the incident took place at spur of the moment as the attack on Shabban Miyan by accused Arun was not premeditated and the injuries sustained by Shabban Miyan were found to be simple in nature we are of the view that only the offence under section 324 IPC is made out.
However offence under section 4/25 of the Arms Act has not legally been proved against the accused respondent. Neither PW4 Hukum Singh who prepared recovery memo of the ''Gupti' (Ext Ka 2) nor PW 5 Sayed Zahurul Haq, the investigating officer who after investigating the crime submitted charge sheet against the accused under section 4/25 of the Arms Act has narrated description of the blade of the ''Gupti' allegedly recovered from the possession of accused Arun in their deposition. Thus there is no substantial evidence on the record that the blade of ''Gupti' recovered from the possession of accused respondent Arun was of prohibited length. Since it is not proved that the ''Gupti' with which Arun gave blows to Shabban Miyan was that of prohibited blade he cannot be convicted under section 4/25 of the Arms Act.
Since it is a case of broad day light assault and the court below failed to appreciate sworn testimony of the two eye witnesses including the injured on the point of assault at Shabban Miyan by accused Arun in its true perspective attaching undue significance to the minor inconsistencies in their statements ignoring the FIR lodged promptly by the injured himself at the police station and spot arrest of the assailant, his acquittal under section 307 IPC has to be set aside.
The appeal is allowed in part to the extent that the acquittal of accused appellant Arun Mittal under section 307 IPC is set aside and he is convicted under section 324 IPC. It is submitted by learned amicus curiae for the accused respondent that during the trial and pendency of this appeal he has been confined in jail in this crime for nearabout one year and he may be sentenced to the period already undergone. From a perusal of the record it appears to be correct. Hence accused Arun Mittal convicted under section 324 IPC is sentenced to the period already undergone.
Sri P C Srivastava, Amicus Curiae who argued the appeal for the accused respondent shall get Rs 1000. 00 as his fee.
Office shall send certified copy of the judgment alongwith record of the case to the court concerned for necessary compliance under intimation to this court within two months from today.
Dated: 13.4. 2005
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