Acquittal In Terror Arms Case Upheld | J&K High Court Finds Disclosure And Recovery Of AK-56, RDX Marred By Contradictions, Hostile Witnesses And Procedural Lapses
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem dismissed the criminal acquittal appeal filed by the State, thereby upholding the acquittal of two individuals charged under various provisions of the Explosive Substances Act, Arms Act, and Ranbir Penal Code. The Bench concluded that the prosecution failed to prove its case beyond reasonable doubt and found no perversity or illegality in the trial court’s judgment. The appeal was dismissed, and the judgment of acquittal passed by the trial court was maintained.
The case arose from an incident dated 24.08.2005 when a source information was received by PW-6 Diwakar Singh, SHO, Police Station, Gandhi Nagar, Jammu, alleging that two individuals, Tajinder Singh and Ravinder Singh, were involved with a militant organization known as K.Z.F., reportedly operating under the control of Pakistan’s Inter-Services Intelligence (ISI). It was alleged that the accused were attempting to lure youth from the Satwari, Gadigarh, and Gandhi Nagar areas of Jammu to join the terrorist organization.
Based on this information, FIR No. 195/2005 was registered under Sections 121, 121-A, 122, 123, and 120-B of the Ranbir Penal Code (RPC), and the investigation was assigned to PW-8, Sub-Inspector Vikas Gorkha. A police team from Gandhi Nagar, in collaboration with officers from Police Station Satwari, laid a naka at Satwari Chowk, where the accused were apprehended.
During the interrogation, it was claimed that the accused disclosed the location of concealed arms and explosives, which included an AK-56 rifle, two magazines containing 99 live cartridges, and 30 rolls of RDX. These were allegedly recovered from a plastic bag buried beneath the earth near Nikki Tawi at Sajadpur. The materials were reportedly provided to the accused by one Bua Ditta alias Suman, who had received the consignment from across the border and had since absconded.
Following the investigation, a police report was submitted, and formal charges under Sections 4/5 of the Explosive Substances Act, 7/25 of the Arms Act, and 120-B of the RPC were framed on 23.05.2007. The accused denied the charges, and the trial commenced before the Special Judge (Principal Sessions Judge), Jammu.
During the course of the trial, the prosecution examined 12 witnesses out of the listed 18. When examined under Section 342 Cr.P.C., the accused denied the allegations and claimed that they were falsely implicated. No evidence was led in defence.
The trial court, upon evaluating the evidence, acquitted the accused. The primary basis of acquittal included contradictions in the testimonies of prosecution witnesses, many of whom were police officials. Notably, independent civilian witnesses were not associated at the time of disclosure or recovery, despite their availability. Additionally, several key witnesses, including Kulvinder Singh and Daljeet Singh, turned hostile.
The State, aggrieved by the acquittal, filed the instant appeal, arguing that the trial court had overlooked the consistency in witness testimonies and had given undue weight to minor discrepancies. The State contended that the recovery of arms and explosives, coupled with the alleged confessions, established the guilt of the accused.
In response, counsel for the accused submitted that the disclosure and recovery were not witnessed by credible individuals, and the testimonies of the police witnesses were inconsistent. It was argued that no arms were sealed on the spot, and no independent witnesses were associated, even though the area was populated.
The Division Bench undertook a thorough evaluation of the trial court’s findings and the prosecution’s case. The court stated in "Since we are dealing with the acquittal appeal, whereby the accused have earned the acquittal, therefore, it is important to keep in mind the reasoning prevailed with the trial court while acquitting the accused, so as to find out as to whether the view taken by the trial court is also a plausible and reasonable view on the touchstone of the law governing the subject."
With regard to the arrest, the court noted: "PW-1 Kulvinder Singh, though, turned hostile, but deposed that the accused were apprehended while travelling in a matador... PW-6 Diwakar Singh... deposed that... the accused were spotted walking across the Satwari Chowk and were apprehended on the spot... Therefore, testimonies of material witnesses... is full of contradiction... the initial arrest of the accused itself becomes doubtful."
On the point of disclosure, the court recorded: "PW-1 Kulvinder Singh deposed that at the time of questioning of accused, he was not present in the said room... This witness was declared hostile... PW-3 Gautam Sangra... deposed that he did not remember as to whether the accused were questioned in Police Station in his presence or not... Therefore, this attesting witness also falsified the prosecution case..."
Regarding the recovery, the Bench noted inconsistencies: "PW-2 Gulzar Ahmed deposed that the arms and ammunition were recovered from the bushes, but in cross-examination he went on to state that the bag was buried under the ground... PW-9 Subash Chander in cross-examination deposed that the recovery... was made from the bushes and... were handed over to the Munshi of the Police Station..."
The court further pointed out deficiencies in procedural compliance: "Neither mattock... was seized nor produced in the Court... the source of light used during the night recovery was not established... even the seal embossed during the seizure is not proved during the trial nor sealing and re-sealing... proved by examining the Magistrate..."
The court cited Supreme Court precedents to support the trial court’s view. In Tota Singh & ors. vs State of Punjab AIR 1987 SC 1083, the Supreme Court held: "The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made... unless the approach made by the lower Court... is vitiated by some manifest illegality..."
Similarly, in Ballu alias Balram alias Balmukund & anr. vs. State of Madhya Pradesh AIR 2024 SC 1678, it was stated: "Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted."
In conclusion, the Bench remarked: "All the material witnesses, who were to prove the disclosure statements alleged to have been made by the accused, which lead to the recovery of prohibited arms and ammunition, lacks credibility... Hence the very foundation on which edifice of the prosecution story rests... is badly shaken and renders the same unworthy of reliance."
The Division Bench concluded that the judgment of acquittal passed by the trial court did not suffer from any perversity or manifest illegality. The High Court stated: "We do not find the impugned judgment, whereby A-1 and A-2 are acquitted, suffers from any perversity or impossibility, calling for interference or warranting any contrary view than the one taken by the trial court."
Accordingly, the court directed: "Therefore, the judgment dated 02.01.2014 passed by the trial court is upheld and resultantly the Appeal No. CRAA No. 139/2014 is dismissed."
It further ordered: "Registry is directed to send down the original record of the trial court against proper receipt."
Advocates Representing the Parties:
For the Petitioners: Mr. Ravinder Gupta, Additional Advocate General
For the Respondents: Mr. Prince Khanna, Advocate
Case Title: State of Jammu and Kashmir v. Tajinder Singh and Anr.
Case Number: CRAA No. 139/2014
Bench: Justice Sindhu Sharma and Justice Shahzad Azeem
