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2014 Supreme(Raj) 420
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
GOVIND MATHUR and ATUL KUMAR JAIN, JJ.
Abdul Hamid & Ors. - Applicant(s)
vs.
State of Rajasthan - Respondent(s)
Criminal Appeal No.929/2013 against the judgment dated 28.4.2012 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in Sessions Case No.36/2010.
Decided On : 31st October, 2014
Advocate Appeared:
Mr. Dhirendra Singh, for the appellants.
Mr. J.P.Bhardwaj, Public Prosecutor, for the State.
Headnote:
Ranbir Penal Code - Sections 121, 121-A, 122, 123 - Foreigners Act - Section 14 - Arms Act - Section 7 and 25 - Charge sheet - Evidence - Recovery of arms - Appeal against conviction - As per contents of first information report, at about 1350 hours on security personnels of India while patrolling on Border spotted few suspicious persons in forest area of village - One person under suspicion was over powered by security personnels and on interrogation he revealed presence of seven other persons in nearby area - On search being made seven other persons were forced to surrender - Persons named above also surrendered huge arms and ammunitions including eight AK-56 guns, AK-32 rifles, hand grenades 15, hand grenades (Pak)-1 and ammunitions AK-960 - Complainant also informed that from persons apprehended were interrogated by security force and after availing necessary instructions from senior officers report was filed and that caused delay in lodging first information report - Seizure memo with regard to recovery of arms comprising of eight paper leaves was also submitted alongwith first information report -Honble High Court of Jammu & Kashmir by an order dated quashed order passed by learned Principal Judge, Kupwara acquitting accused persons and remanded matter to be tried afresh - Trial in pursuance to an order passed by Honble Supreme Court of India came to be transferred to learned Sessions Judge - Held, it is apparent that accused persons though were armed with sophisticated weapons did not choose to fire on patrolling persons of Indian Army but decided to surrender and put down their arms - No document or other material was recovered from them to arrive at conclusion that they in any manner intending to lodge any kind of war against Indian Government - Despite unavailability of such evidence there is no doubt about entry of these foreign nationals in Indian territory with sophisticated weapons and that indicates for concealment of their intention to facilitate design to wage war - As such in our opinion in view of material available on record accused appellants could have been convicted for an offence punishable under Section 123 Ranbir Penal Code but not for offences punishable - Offence relating to Section 14 of Foreigners Act and Section 25 read with Section 7 of Arms Act has not been contested by learned counsel for appellants as i.e. apparently established and further that accused appellants have already served sentence awarded for these offences - Conviction of accused appellants for offences punishable is declared illegal and therefore same is set aside -Sentence awarded by trial court for offences referred above too is set aside - Conviction of accused appellants for offence punishable under Section 123 Ranbir Penal Code is affirmed and sentence awarded by trial court for that is maintained - Appeal deserves acceptance in part - Accordingly, same is allowed in part.
GOVIND MATHUR, J.
Being questioned correctness of the judgment dated 28.4.2012 passed by the Court of learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in Sessions Case No.36/2010, this appeal is before us. By the judgment impugned learned trial Judge convicted the accused appellants for the offences punishable under Sections 121, 121-A, 122, 123 Ranbir Penal Code read with Section 14 of the Foreigners Act and Section 25 read with Section 7 of the Arms Act.
The facts necessary to be noticed for adjudication of this appeal are that on 31.10.1997 at 1700 hours Mohd. Makbool, Constable No.15/kp of police post Karalpora, Police Station Trehgam, District Kupwara (Jammu & Kashmir) produced a first information report signed by Major P.Rajnarain at police station Trehgam and on basis of that a case bearing numbers 187/1997 was registered. As per contents of the first information report, at about 1350 hours, on 19.10.1997, the security personnels of India while patrolling on Border spotted few suspicious persons in the forest area of village Kachama. One person under suspicion was over powered by security personnels and on interrogation he revealed presence of seven other persons in the nearby area. On search being made seven other persons were forced to surrender. The eight persons surrendered before the security force disclosed their identity as Taza Sarbaz, Abdul Hamid, Abdul Gair, Kharuddin Khan, Zohrab Khan, Ayub Khan, Mohd. Hamza and Baaz Mohd, residents of Afghanistan. The persons named above also surrendered huge arms and ammunitions including eight AK-56 guns, AK-32 rifles, hand grenades 15, hand grenades (Pak)-1 and ammunitions AK-960. The complainant also informed that from 19.10.1997 to 31.10.1997 the persons apprehended were interrogated by the security force and after availing necessary instructions from the senior officers the report was filed and that caused delay in lodging the first information report. The seizure memo with regard to recovery of arms comprising of eight paper leaves was also submitted alongwith the first information report.
A charge sheet was submitted before the competent court after completing necessary investigation. On denial of charges trial commenced and by judgment dated 31.7.2006 learned Principal Judge, Kupwara acquitted all the accused persons being lacking evidence to establish the charges. Hon'ble High Court of Jammu & Kashmir by an order dated 1.5.2008 quashed the order passed by learned Principal Judge, Kupwara acquitting the accused persons and remanded the matter to be tried afresh. The trial in pursuance to an order passed by Hon'ble Supreme Court of India came to be transferred to learned Sessions Judge, Jodhpur.
Learned Sessions Judge, Jodhpur transferred the case to the court of learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in the month of July, 2010. On 11.7.2011 learned trial court framed amended charges and the same were read over and explained to the accused persons. On denial of the same trial commenced as desired. Important to mention here that after amendment of charges the prosecution did not choose to adduce any further evidence beyond the evidence already adduced before the trial court at Kupwara in State of Jammu & Kashmir. Looking to this fact the trial court did not find any need to provide further opportunity to the accused persons to explain the adverse and incriminating circumstances existing in the prosecution evidence, hence no further opportunity was given as required under Section 313 Code of Criminal Procedure. The statement given before the trial court at Kupwara was accepted the explanation of the accused persons as per provisions of Section 313 Code of Criminal Procedure.
In defence statements of DW-1 Soharab Khan @ Zohab Khan were recorded and two documents Ex.D/1 (police statement of Major P.Rajnarain) and Ex.D/2 (police statement of Kushal C8hand) were exhibited.
During pendency of trial one acc
