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2013 DIGILAW 551 (KER)

Azzi v. State of Kerala

2013-07-03

K.HARILAL

body2013
ORDER : K. Harilal, J. The Revision petitioner is the accused in CC.No.791/2006 on the files of the Judicial First Class Magistrate Court-I, Aluva as well as the appellant in Crl.Appeal No.932/2008 on the files of Addl.District and Sessions Judge (Adhoc-III), N.Paravur. He was prosecuted for the offence punishable under Section 27 of the Arms Act and Sections 109 and 506(1) read with Section 34 of the Indian Penal Code. After trial, the learned Magistrate found the Revision Petitioner guilty of the offence under Section 27 of the Arms Act and convicted thereunder. He was sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.5,000/-. In default, to undergo simple imprisonment for three months. He was found not guilty for the offence under Section 506(1) of the Indian Penal Code. Though, he had preferred the above appeal, the appellate court also confirmed the conviction and sentence as such without any interference. This Revision Petition is filed challenging the concurrent findings of conviction and sentence. 2. It is the case of the prosecution that the Revision Petitioner along with the other accused entered into the private bus stand with a sword in his hand and caused an alarming situation in the bus stand by brandishing the sword and threatened the passengers that he would stab each of them to death. The other accused also shouted and intimidated the people gathered in the bus stand as passengers and openly abetted the Revision Petitioner to stab them to death. Thus the Revision Petitioner along with other accused committed the offence alleged against them. In this Revision petition, the counsel for the Revision Petitioner has raised three contentions. The learned counsel for the Revision Petitioner submits that the Revision Petitioner was found not guilty under Section 506(1) of the Indian Penal Code. Therefore, the allegation of intimidation stands not proved. So he cannot be further convicted for an offence under Section 27 of the Arms Act. The second contention is that the prosecution had no case that he had used the sword so as to attract the offence punishable under Section 5(1) of the Arms Act. There is no evidence to show that the sword was put in usage. Therefore he cannot be found guilty under Section 27 of the Arms Act. 3. The second contention is that the prosecution had no case that he had used the sword so as to attract the offence punishable under Section 5(1) of the Arms Act. There is no evidence to show that the sword was put in usage. Therefore he cannot be found guilty under Section 27 of the Arms Act. 3. Coming to the evidence, the prosecution examined Pws.1 to 4 and marked Exts.P1 to P3 and MO1 sword. No evidence was adduced by the accused. There were three occurrence witnesses; among them Pws.1 to 3 are police officers who arrested the accused from the place of occurrence. Pws.4 and 5 are independent witnesses who turned hostile. Pw1, one of the police officers who arrested the accused from the spot deposed that on 19.6.2001 at 5.30 pm, the police received an information stating that two persons were seen standing in the Aluva private bus stand with a sword in hand and the accused was seen threatening the public by brandishing the sword and thereby causing an alarming situation in the private bus stand. Thereupon, Pw1 along with Pws.2 and 3 reached the private bus stand and they saw the accused with MO1 sword in his hand and threatening the passengers. He further deposed that, one person was found threatening passengers by brandishing sword held in his hand and other person was found openly instigating the former to stab passengers to death. On seeing the police they made an attempt to ran away from the place. But, he caught hold of him and seized the sword held in his hand. Pws.2 and 3 who accompanied Pw1 also deposed in the same way in consonance with the evidence of Pw1. After considering the evidence of Pws.1 to 3 the trial court found that the evidence of Pw1 is well corroborated by the evidence of Pws.2 and 3. Pw1 who seized the sword identified the same before the trial court also. Their evidence further gets assurance from Exts.P1 to P3 as prosecution documents prepared contemporaneously at the time of arrest of the accused and seizure of MO1 sword. The accused has no case that Pws.1 to 3 had some grudge or animosity towards him so as to book him in a false case. Their evidence further gets assurance from Exts.P1 to P3 as prosecution documents prepared contemporaneously at the time of arrest of the accused and seizure of MO1 sword. The accused has no case that Pws.1 to 3 had some grudge or animosity towards him so as to book him in a false case. There is no circumstance to disbelieve the evidence of Pws.1 to 3 and the trial court found that nothing brought out in evidence to discredit the evidence of Pws.1 to 3 in their cross examination. 4. In appeal, the appellate court also re-appreciated the entire evidence and confirmed the findings of conviction and sentence. The revisional jurisdiction is a paternal jurisdiction intended to correct the illegality or impropriety committed by the inferior courts. When there is no illegality or impropriety in the findings arrived at by the trial court or appellate court, this Court is not inclined to re-appreciate the entire evidence once again. I do not find any illegality or impropriety in the findings of the court below so also there is no perversity in the appreciation of evidence from which those findings have been arrived. 5. The learned counsel for the Revision Petitioner pointed out that when the accused is acquitted of the offence under Section 506(1) Indian Penal Code, in the absence of the proof of criminal intimidation, no conviction under Section 5 (1) of the Arms Act can be made against the accused. According to Section 2(n) of the Cr.P.C., an offence means an act or omission made punishable under law. Therefore, I am of the opinion that to bring home guilt of an accused the question is whether he committed an act punishable under law, ie., put it differently, whether the alleged act done constitutes all the ingredients of the said offence. So also each and every offence is to be considered independently unless the ingredients constituting the offences are so inextricably connected with any other offence under law. Here, offences under Section 506(1) of the Indian Penal Code and Section 27(1) of the Arms Act are absolutely independent, mutually exclusive and provided under different penal laws. The act constituting these offences are different and distinct. So, the question, whether the act constitutes the offence must be considered independently. 6. Here, offences under Section 506(1) of the Indian Penal Code and Section 27(1) of the Arms Act are absolutely independent, mutually exclusive and provided under different penal laws. The act constituting these offences are different and distinct. So, the question, whether the act constitutes the offence must be considered independently. 6. The learned counsel for the Revision Petitioner further argued that there is no evidence to prove that the accused had used the arm without licence to attract offence under Section 5 of the Arms Act. The learned counsel pointed out that, MO1 sword is an agricultural implement only used for cutting grass and shrubs. Therefore, it cannot be branded as an arm put in use so as to constitute offence under Section 5(1) of the Arms Act particularly, when the accused has not inflicted injury on any person, even according to prosecution case. Coming to offence under Section 27(1) of the Arms Act, whoever uses any arms or ammunition in contravention of Section 5 of the Arms Act is made punishable under Section 27(1) of the Arms Act. According to Section 5 of the Arms Act, no person shall use any firearms or any other arms of such class or description as may be prescribed, unless he holds licence issued in accordance with the provisions of the Arms Act. Admittedly, the accused has no such case that he has a licence or MO1 sword is not a weapon coming under Section 2(1)(c) of the Arms Act. So, the question is whether there is any evidence to prove that the accused had used MO1 sword as to constitute offence under Section 5 of the Arms Act. The evidence of Pws.1 to 3 police officers would prove that the accused threatened the passengers gathered in the bus stand and put them into fear of death by brandishing the sword held in his hand and shouting that he would stab them to death. The evidence of Pws.1 to 3 police officers would prove that the accused threatened the passengers gathered in the bus stand and put them into fear of death by brandishing the sword held in his hand and shouting that he would stab them to death. I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression 'use' of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence thereunder. 7. Coming to Section 506(1) Indian Penal Code it is seen that the trial court acquitted the accused for the offence under Section 506(1) Indian Penal Code on the sole reason that it was not proved that any of the witnesses got frightened by the act of the accused. The said reasoning is absolutely wrong as such an evidence is not required to prove the offence under Section 506(1) Indian Penal Code. The question whether the accused threatened another in the specified manner with an intend to cause alarm to that person or to cause that person to do an act which he is not legally bound to do or omit to do an act which that person is legally entitled to do need be considered and whether other person whom the accused threatened, got frightened by the result of the act done by the accused need not be considered to bring home guilt under Section 506(1) Indian Penal Code. But here the trial court wrongfully acquitted the Revision Petitioner for the offence under Section 506(1) Indian Penal Code and the appellate court has not considered that question in the absence of the appeal against acquittal. But here the trial court wrongfully acquitted the Revision Petitioner for the offence under Section 506(1) Indian Penal Code and the appellate court has not considered that question in the absence of the appeal against acquittal. Since there is no challenge against acquittal under Section 506(1) Indian Penal Code, this Court is also constrained to leave it as such. 8. But a wrongful acquittal cannot be made use for challenging a rightful conviction, where the offences are independent and mutually exclusive. So, acquittal under Section 506(1) Indian Penal Code is of no consequences at all, for finding conviction under Section 27(1) of the Arms Act. I confirm the verdict of guilty, conviction and sentence imposed on the Revision Petitioner for the offence under Section 5(1) r/w. Section 27 of the Arms Act. The sentence imposed on the Revision Petitioner is minimum sentence, that can be imposed under Section 27 of the Arms Act. So, the sentence imposed by the court below is liable to be sustained as such without any interference and I do so. This Revision Petition is dismissed as above.