Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 247 (JK)

Raj Din v. State (Now UT) of J&K

2023-06-14

MOHD.AKRAM CHOWDHARY

body2023
JUDGEMENT 1. Through the medium of this judgment, it is proposed to decide the instant Criminal Appeal filed by the appellants, against the conviction and sentence recorded by the court of learned Sessions Judge Kathua ('Trial Court') vide judgment dated 09.04.2011 and order dated 15.04.2011 respectively, whereby appellants have been convicted for the commission of offences punishable U/Ss 7/25, 25(1-a) Arms Act and sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 10,000/- each and in default of payment of fine to undergo further simple imprisonment for a period of one year, in a case, arising out of FIR No. 49/2004 registered at Police Station Bani District Kathua for the commission of offences punishable U/Ss 121, 121-A RPC and 7/25 of Arms Act. 2. The impugned judgment/order have been assailed on the following grounds: “a. that the judgment described in the title of appeal is palpably against law and facts; b. that the conviction is bad in law and the sentence too is severe in the circumstance of the case; c. that appellants have been convicted and sentenced for offence for which charge has not been framed against them; d. that the learned Session Judge has failed to examine the appellants in regard to charge under section 25(1-a) of Arms Act and as such appellants have been prejudiced.” 3. Learned counsel for the appellants has argued that both the appellants have been convicted for the commission of offences punishable under section 25 of the Arms Act vide impugned judgment wrongly, by the trial court for the reason that recovery of weapons had not been proved. There was no credible evidence and corroboration with regard to search and seizure and also there were material contradictions in the statements of the prosecution witnesses. He has argued that PW-1 Niaz Ali who was stated to be an independent witness had denied any weapon had been recovered in his presence or he has ever witnessed the recovery and seizure memo. He has further argued that as per PW-1 Niaz Ali the appellants had surrendered before army, therefore, there was no question of recovery of weapons by the police. He has further argued that as per PW-1 Niaz Ali the appellants had surrendered before army, therefore, there was no question of recovery of weapons by the police. He has further argued that the weapons alleged to have been recovered from the possession of the appellants were neither marked nor produced in the court nor identified by any of the witnesses during trial, therefore, recovery from possession of the appellants cannot be said to have been proved. He has further argued that though the appellants had already undergone the sentence of imprisonment of ten years, however, they reserve the right of appeal being heard on merits so as to remove stigma attached to them for their conviction and prayed that the impugned judgment and order be set aside and the accused be acquitted of the charge by allowing their appeal. 4. Learned counsel for the respondents, on the other hand, argued that from the statement of PW Niaz Ali, it was clear that the appellants had come to his house and were in the upper storey when the security forces cordoned off his house and the appellants, without any resistance, had surrendered themselves to the security forces along with weapons they were carrying. He has further argued that during custody, appellant Raj Din had made a disclosure (EXPW-P1) with regard to other weapons, which were recovered at his instance in presence of the witnesses and all the witnesses to the recovery, including PW Niaz Ali, had proved the recovery of the weapons from the illegal possession of the appellants. He has further argued that the impugned judgment and order do not suffer from any illegality so as to take a different view to allow the appeal. He has further argued that learned counsel for the appellants has projected small discrepancies in the prosecution evidence, which are ignorable and are required to be overlooked to reach a just conclusion. 5. Heard, perused the record and considered. 6. Before appreciating the rival submissions, for convenience of this court to understand the facts of the case, the factual matrix of the case is required to be gone into. 5. Heard, perused the record and considered. 6. Before appreciating the rival submissions, for convenience of this court to understand the facts of the case, the factual matrix of the case is required to be gone into. Shorn of minute details, the facts of the case are that SHO Police Station Bani while camping at Lowang received information on 07.11.2004 from reliable source that some militants, whose aim was to wage war against and to overthrow the Government of J&K, had been hiding in the house of the appellants. On this report, SHO P/S Bani along with constables and army personnel cordoned off the area and search operation was started at Sali; two militants were found who disclosed their identity as Raj Din and Hassan Din and from their possession one AK 47, four AK 56 rifles, one hand grenade, 120 cartridges of AK 47, were recovered from each of them. Both the grenades were destroyed on spot, as such, a case vide FIR No. 49/2004 was registered at Police Station Bani for the commission of offences punishable under sections 121, 121A of RPC, and 7/25 of Arms Act. 7. During investigation, accused Raj Din made a disclosure recorded vide memo (EXT.P-1) that he had kept hidden two 303 rifles, three 303 magazines, 67 rounds of 303, three AK 47 magazines, 57 rounds of AK ammunition and one grenade at Dobri Dakli Daggar in the Jungle area and he can get those recovered. The recovery of those weapons was affected on disclosure made by the said accused and a charge sheet was laid against them on conclusion of investigation for the commission of offences punishable U/Ss 121, 121A RPC and 7/25 Arms Act. 8. The Trial Court vide order dated 27.04.2006 charge-sheeted both the accused for the commission of the aforementioned offences who denied the charge and prosecution was directed to lead evidence. 9. On conclusion of trial, the appellants were acquitted of other charges but convicted for the commission of offence punishable under section 7/25 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and fine of ? 10,000/- each and in default of payment of fine further sentenced to one year by the Trial Court vide impugned judgment/order. 10. 10,000/- each and in default of payment of fine further sentenced to one year by the Trial Court vide impugned judgment/order. 10. Since the appellants had already undergone the sentence of imprisonment and had also deposited the fine, however, learned counsel for the appellants submits that even if the appellants as convicts have undergone the sentence, they reserve their right to be heard for disposal of their appeal on merits to remove the stigma that was attached on the basis of conviction, wrongly recorded by the Trial Court. Learned counsel has relied upon a judgment of the Supreme Court of India in a case titled Retti Deenabandhu & Ors. v. State of Andhra Pradesh reported as AIR 1977 SC 1335 wherein it has been held that in case the convict person undergoes the sentence of imprisonment imposed upon him or he is otherwise entitled to be set at liberty by the time his appeal against conviction comes up for hearing in view of length of the period he was in detention during the course of investigation, enquiry or trial, such a person would still be entitled to challenge his conviction and would not debar him from questioning the validity of his conviction, with an object to avoid the other consequences flowing from conviction to erase the stigma resulting from the conviction. This was a case where the High Court while making reference had dismissed the appeal after observing that it was unnecessary to go into the matter as it would be only of an academic interest. Therefore, in view of law laid by the Apex Court even if the appellants have undergone the sentence, their appeal is still to be heard in view of their insistence, and is taken up for disposal on merits. 11. The main thrust of the arguments of the learned counsel for the appellants is that recovery of weapons had not been proved for the reasons that neither the weapons were marked, nor produced, nor identified by any of the witnesses during trial. Therefore, once the recovery is not proved from the possession of the appellants, the possession thereof by the appellants cannot in any manner be attributed to them for the proof of this charge against them. 12. Therefore, once the recovery is not proved from the possession of the appellants, the possession thereof by the appellants cannot in any manner be attributed to them for the proof of this charge against them. 12. The facts attending the occurrence as noted by the Trial Court are that SHO, P/S Bani who was camping at village Lowang received an information from reliable source that some militants whose aim was to wage war and overthrow the Government have been hiding in a house of one PW-Niaz Ali and on raiding the house, the police found both the appellants in the house of said PW Niaz Ali and recovered from them, 4 nos. of AK-47/AK-56, one hand grenade, 120 cartridges. Thereafter the accused appellant Raj Din made a disclosure that he was in possession of some magazines and cartridges and rifles kept behind a hillock and he can get those recovered and on the basis of that information, those weapons were also recovered. 13. It is relevant to mention that vide seizure memo (EXPW-NA) with regard to recovery indicates recovery of one AK-56 rifle, 4 AK-47 magazines, 120 rounds of AK-47, and one grenade had been recovered from appellant Raj Din, while one AK-56 Rifle, its four Magazines and 120 rounds besides one grenade was stated to have been recovered and seized from the possession of appellant Hassan Din vide seizure memo (ExPW-NA/I) in presence of some witnesses, on 07.11.2004, in presence of some witnesses. Strangely, it has not been recorded in both these seizure memos as to at what place these weapons/ammunitions had been recovered from both the appellants. PW-Niaz Ali who is the independent witness had stated that accused had surrendered before the Army along with weapons and further stated that thereafter police came to his house, threatened him and got his signatures on seizure memos and denied the contents of the seizure memos as incorrect and that he had made the statement under pressure and fear of police. Constable Balwant Singh who has also been examined by the prosecution stated that police had cordoned off the entire area and asked the militants to surrender and when they surrendered they had left their weapons as well. Constable Balwant Singh who has also been examined by the prosecution stated that police had cordoned off the entire area and asked the militants to surrender and when they surrendered they had left their weapons as well. He admitted the contents of seizure memo, however, he has stated that the accused Raj Din had made a disclosure vide disclosure memo and the weapons were recovered vide seizure memo (EXPW-NA) though this seizure memo was not regarding those weapons which were stated to have been recovered, pursuant to disclosure made by the accused Raj Din but regarding weapons which were seized at the time of his surrender. 14. Therefore, in view of denial by the independent witnesses Niaz Ali from whose house the accused had surrendered and laid down weapons and the doubtful statement made by PW Balwant Singh with regard to recovery of these weapons after disclosure makes this recovery doubtful. So far as the recovery from the possession of other accused Hassan Din is concerned, the independent witness Niaz Ali had made the same statement whereas PW Balwant Singh stated that the weapons had been recovered from accused Hassan Din. The independent witness PW Niaz Ali has stated that the appellants had surrendered at their own and he had made a request to the army that they wish to surrender and when they were taken away along with weapons by the army, the police came thereafter and got his signatures under duress only. In view of denial by the independent witness and wavering statement of PW Constable Balwant Singh, both the seizure memos with regard to recovery of weapons at the house of PW Niaz Ali have thus not been proved beyond any reasonable shadow of doubt. 15. So far this recovery of weapons from accused Raj Din pursuant to the disclosure made by appellant Raj Din vide disclosure memo (EXT.P-2) with regard to recovery of weapons is concerned, two 303 rifles, three 303 magazines, 67 rounds thereof, three magazines of AK-47 rifles, and 57 AK-47 rounds besides one grenade UBGL the same are stated to have been recovered in presence of constable Balwant Singh and constable Gurdayal Singh of P/S Bani. The disclosure was stated to have been made on 07.11.2004 whereas the recovery was also stated to have been on the same day. The disclosure was stated to have been made on 07.11.2004 whereas the recovery was also stated to have been on the same day. The disclosure memo and the recovery memo with regard to the weapons from a hillock are stated to have been prepared on 07.11.2004 itself when the appellants who are stated to have surrendered and weapons from their possession had been recovered on spot as well. The police had not recorded anything with regard to timing as to when these recoveries had been effected in any of the recovery memos or not even the disclosure memo which is stated to have been recorded on the same day as to where that was recorded. The place of recovery of the weapons which were shown to have been recovered later pursuant to disclosure by one of the accused cannot be at the same time given to the distance of the places where they had surrendered and the place wherefrom some other weapons were recovered. 16. The disclosure memo made by appellant Raj Din has been recorded only in presence of police officials and also the recovery memo with regard to the recovery of weapons from a jungle near hillock also in their presence, makes both these documents doubtful as no independent witness was associated with the process nor any explanation has been given as to their non availability. Constable Gurdayal Singh who has been cited as a witness to both these memos has not been examined. 17. The prosecution had cited PW-4, Major PN Jain of JAKLI and PW-5 Mohd. Qasim as eye witnesses to the occurrence which gives credence to the statement of PW Niaz Ali that the appellants had surrendered in front of the army personnel who had later on were handed over them to the police. The prosecution had withheld PW-Maj PN Jain whereas examined PW-5 Mohd. Qasim who on his examination had stated that the accused had surrendered at the house of one Niaz Ali at Village Sali after persuasion of one hour. The prosecution had withheld PW-Maj PN Jain whereas examined PW-5 Mohd. Qasim who on his examination had stated that the accused had surrendered at the house of one Niaz Ali at Village Sali after persuasion of one hour. He stated that they had recovered the weapons from both the accused and handed over to police which means the weapons were recovered by the military when the appellants had surrendered before Major PN Jain, however, the prosecution had not cited any of the persons from JAKLI to prove the recovery of weapons from the possession of the accused at the time of their surrender before the army which also makes recoveries doubtful. The prosecution has not clearly come out with the evidence as to whether appellant Raj Din as an accused had made disclosure at Police Station or at any other place and at what time and also that how those weapons were recovered pursuant to his disclosure at what time and from which place and as to why the independent witnesses were not associated with the process of disclosure and recovery. 18. The Apex Court in a case titled State of Punjab v. Gurnam Singh reported as AIR 1984 SC 1799 , wherein the High Court had reversed the order of conviction and set aside the sentence recorded by the Trial Court, held that it is unsafe to convict the appellant merely on the basis of incriminating evidence pertaining to the alleged recovery of the weapons at the instance of the respondent and that the respondent was therefore entitled to the benefit of reasonable doubt. 19. The Apex court in another case tilted Jasbir Singh v. State of Punjab reported as 1998 CriLJ 2063 held in para 10 which is extracted as under: “10. What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and the cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were not scaled. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the court was not established by the prosecution. Having gone through the evidence, we find that the contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before the court was not established by the prosecution. Having gone through the evidence, we find that the contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial court. As the identity of the incriminating articles has not been established by the prosecution, we allow this appeal, set aside the conviction of the appellant both under section 5 of the TADA Act and 25 of the Arms Act and acquit him of all the charges leveled against him.” 20. In the case on hand also, there was no identity of weapons/ammunitions and grenades which were also not produced before the court for identification by the witnesses examined by the prosecution as they have denied that they were shown those weapons in the court. Therefore, the identity of the incriminating arms/ammunition had not been established by the prosecution and the conviction as held by the Apex Court in the judgment (supra) is liable to be set aside, entitling the appellants to be acquitted of the charge under sections 25 of the Arms Act. I am fortified to take this view, in view of the law laid down by the Apex Court in a case titled Sans Pal Singh v. State of Delhi reported as AIR 1999 SC 49 held in para 3 which is also reproduced as under: “3. Inter alia, it has been urged by the learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW 5 Head Constable Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW 6 Sub-Inspector Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith.” 21. High Court of Madhya Pradesh in a case titled Dadu alias Indraka v. State of M.P. reported as 2003 CriLJ 1125 to a question phrased as 'whether appellant was found in possession of one 12 bore Katta and one 12 bore cartridge in contravention of Section 5 of the Arms Act', held in Para 15 which is relevant to be extracted as under: “15. There is no iota of evidence to give finding that the Katta seized from the possession of the appellant was in working condition or that the cartridge seized from his possession was alive. There is no evidence of an expert or an armourer to show that the pistol was in working condition or the cartridge was alive. It is true that the police officer, trained to handle the weapon, can find out as to whether the weapon is in working condition even without test firing but in this case none of the police officer says that the weapon seized was in working condition and the cartridge was alive. It is true that the police officer, trained to handle the weapon, can find out as to whether the weapon is in working condition even without test firing but in this case none of the police officer says that the weapon seized was in working condition and the cartridge was alive. Therefore, in the absence of evidence that the pistol was in working condition and cartridge was alive, the conviction of the appellant for offence punishable under section 25(1)(b) of the Arms Act cannot be sustained. In the case on hand also, the weapons and cartridges allegedly recovered from the possession of the appellant had not been sent to any ballistic expert in FSL, with regard to their working condition or being alive, therefore, the law laid down by the Apex Court vide aforesaid judgment is squarely application to the case on hand." 22. In view of the facts and circumstances of the case and particularly in the face of the evidence recorded by the Trial Court and considering the same in the context of the aforestated judgments it comes out that the prosecution had not succeeded to prove its case beyond any reasonable doubt to prove the recovery made without disclosure or with disclosure from the appellants during investigation of the case. 23. For the foregoing reasons and observations made hereinabove, this court is of the considered opinion that the Trial Court had misdirected itself to record conviction of the appellants for the commission of offences punishable under sections 25 read with section 7 of the Arms Act. The judgment is thus not sustainable. 24. The appeal filed by the appellants is thus allowed and the impugned judgment is set aside. Bail/personal bonds of the appellants are discharged. Trial court record along with copy of this judgment be sent down for the information of the Trial Court.