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1984 Supreme(All) 154
IN THE HIGH COURT OF ALLAHABAD
I. P. Singh, J.
FAHIM HUSAIN - Appellant
Versus
STATE OF U.P. - Respondents
Criminal App. 2919 Of 1978
Decided On : 03/22/1984
S.C.VERMA, Tapan Ghosh
The non-examination of the investigating officer does not automatically prejudice the defense. The defense must show that it was prejudiced in a specific way by the non-examination.
Headnote:
ARMS ACT - SECTION 25 (1) (A) - CONVICTION - EVIDENCE - RELIABILITY OF WITNESSES - NON-EXAMINATION OF INVESTIGATING OFFICER - PREJUDICE TO THE ACCUSED.
Fact of the Case:
The appellant was convicted under section 25 (1) (a) of the Indian Arms Act for possessing an unlicensed revolver and ammunition. He challenged the conviction on the grounds of discrepancies in the testimonies of prosecution witnesses, the unreliability of a public witness, and the non-examination of the investigating officer.
Finding of the Court:
The court found that the discrepancies in the testimonies of the prosecution witnesses were minor and did not affect the overall credibility of their evidence. The court also found that the public witness was reliable and that his testimony was corroborated by other evidence. Finally, the court held that the non-examination of the investigating officer did not prejudice the defense since the appellant had not pointed to any specific way in which he was prejudiced.
Issues: 1. Whether the discrepancies in the testimonies of the prosecution witnesses affected the overall credibility of their evidence? 2. Whether the public witness was reliable? 3. Whether the non-examination of the investigating officer prejudiced the defense?
Ratio Decidendi: 1. The court held that the discrepancies in the testimonies of the prosecution witnesses were minor and did not affect the overall credibility of their evidence. The court noted that the witnesses were consistent in their accounts of the main events and that the discrepancies were only in minor details. 2. The court found that the public witness was reliable. The court noted that he was a resident of a nearby village and that he had no connection to the police. The court also noted that his testimony was corroborated by other evidence. 3. The court held that the non-examination of the investigating officer did not prejudice the defense. The court noted that the appellant had not pointed to any specific way in which he was prejudiced. The court also noted that the investigating officer's testimony would not have been relevant to the main issues in the case.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence imposed by the trial court.
( 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 t
