Telangana High Court

Feroze Hussian vs The State Of A.P. on 6 September, 2022

Bench: K.Surender

        HIGH COURT FOR THE STATE OF TELANGANA
                       AT HYDERABAD
                             *****

Criminal Appeal No.840 OF 2009

Between:

Feroz Hussain                                ... Appellant
                           And
The State of Andhra Pradesh,
through High Court Public Prosecutor.         ... Respondent
                Criminal Appeal No.861 OF 2009

Between:
Mohd.Bin-Mazi and another                    ... Appellants

                           And
The State of Andhra Pradesh,

through High Court Public Prosecutor ... Respondent DATE OF JUDGMENT PRONOUNCED: 06.09.2022 Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER 1 Whether Reporters of Local newspapers may be allowed to see Yes/No the Judgments?

 2   Whether the copies of judgment
     may be marked to Law                   Yes/No
     Reporters/Journals

 3   Whether Their
     Ladyship/Lordship wish to see          Yes/No
     the fair copy of the Judgment?


                                            _________________
                                            K.SURENDER, J

* THE HON'BLE SRI JUSTICE K.SURENDER + CRL.A. No.840 of 2008

% Dated 06.09.2022

# Feroz Hussain ... Appellant

And

$ The State of Andhra Pradesh, through High Court Public Prosecutor. ..Respondent.

+ CRL.A. No.861 of 2009

# Mohd.Bin‐Mazi and another ... Appellant

And $ The State of Andhra Pradesh, through High Court Public Prosecutor. ..Respondent.

! Counsel for the Appellant: Sri M.Govind Reddy in Crl.A.No.840 of 2009 Sri K.Suresh Reddy in Crl.A.No.861 of 2009 ^ Counsel for the Respondent: Public Prosecutor

>HEAD NOTE:

? Cases referred

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.840 and 861 OF 2009 COMMON JUDGMENT:

1. Since both these appeals arise out of Common Judgment

passed in three cases i.e, S.C.No.348 of 2007, S.C263 of 2008

and S.C 10 of 2009, they are being heard and disposed off by

way of this Common Judgment.

2. The appellant/A1 i.e., Feroz Hussain, S/o.Ahmed Husain

was convicted and sentenced to undergo simple imprisonment

for a period of four years for the offence under Section 25(1)(a)

of the Arms Act, 1959 and found not guilty for the offence

under Sections 399 and 402 IPC in Criminal Appeal No.840 of

2007.

3. The Appellants/A4 and A5 in Crl.A.No.861 of 2009 were

convicted for the offence under Section 25(1)(a) of the Arms

Act and sentenced to undergo simple imprisonment for a

period of four years vide judgment in SC No.263 of 2008 and

found not guilty for the offences under Section 399 and 402 of

IPC. However the accused who is arrayed as A3 in SC No.10 of

2009 is not before this Court.

4. The appellants in both the SC Nos.348 of 2007 and 263

of 2008 were convicted for the offence under Section 25(1)(a) of

the Arms Act.

5. According to the case of the prosecution, P.W.1 was

working as SI of Task Force, who received information on

28.03.2006 at 9.15 p.m stating that some persons were

preparing to commit dacoit of petrol pump situated in

Vidyanagar and were waiting in a Indica Car. Immediately,

P.W.1 informed his superiors and along with the staff went to

the said place and found four persons in the car. The said four

persons are A1, Feroz Hussain/appellant in Crl.A.No.840 of

2009, A3, who is not before this court and two other accused

i.e., A4 and A5, appellants in Crl.A.No.861 of 2009.

6. P.W.1 in the presence of P.W.2 and another independent

witness seized the Tata Indica car and also knives. MO1 was

seized from A1, MOs.5 and 6 were seized from A4 and A5. The

said seizure of MOs was under panchanama under Ex.P1.

According to P.W.1, the appellants and two others were

planning to commit dacoit of owner of IBP Petrol pump at

Vidyanagar at knife point. However, even prior to the said

attempt of dacoit, the appellants/Accused were caught. The

police, after investigation filed charge sheet for the offence

under Sections 399 and 402 of IPC and also under Sections

25(1)(a) of the Arms Act.

7. The learned Magistrate found that these appellants not

guilty for the offence under Sections 399 and 402 of IPC i.e,

making preparation to commit dacoit and assembling for the

purpose of dacoit. However, for being in possession of knives,

which fall within the definition of arms under the Arms Act,

conviction was recorded.

8. As seen from the record, P.W.1 has seized the said knives

in the presence of P.W.2. P.W.2 was declared as hostile to the

prosecution case as he stated that the police asked for

signatures on a blank white paper and he does not know any

of the contents of Ex.P1, confession and seizure panchanama.

Ex.P1 was drafted and seizures were affected. Even according

to the police, the knives and swords were on the person of

these appellants. In the said circumstances, when the police

already knew about the MOs, which were in possession of the

appellants, the seizure becomes doubtful as the same does not

fall within the ambit of Section 27 of the Indian Evidence Act.

Under Section 27 of the Act, any discovery of fact is made

admissible, which fact is not known to the police. When P.W.1

and other police personnel already knew about the knives

which are MOs.1, 4 and 5 being with the appellants herein,

the question of discovering any new fact does not arise.

9. Further, the police have failed to give the description of

the knives seized from these appellants. As seen from Ex.P3,

which is document pertaining to the case property at column

NO.9, the description of the knives are not mentioned and

stated as "nil". Further, P.W.1 admitted that he has not noted

the descriptive particulars of M.Os which were seized from

these appellants.

10. Merely describing as knives, which were seized from the

appellants would not be in conformity with definition of

Section 2(c) of the Arms Act, 1959, which is extracted

hereunder:

"(c) "arms" means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharpedged and other deadly weapons, and parts of, and machinery for manufacturing, arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons;"

11. Unless the articles whose description is given and such

articles are designed or adopted as weapons for offence or

defence, such articles cannot be called as arms. Though P.W.1

has described the articles seized from these appellants as

knives, there is no description given as to why the articles

seized were called knives and also the property register

mentioned as "nil" at column No.9. The prosecution ought to

have described the handle length, blade length and also state

that they can be used as weapons. Unless such evidence is

adduced, Court cannot assume that the articles mentioned as

knives can be determined as 'arms'. In the said circumstances,

when the prosecution has failed to prove that the articles