Raj Din vs State (Now UT) of J&K - 2023 Supreme(J&K) 751

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 751

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
MOHD. AKRAM CHOWDHARY, J.
Raj Din & Anr. – Appellant
Versus
State (Now UT) of J&K & Ors. – Respondent
CRA No. 25 of 2011
Decided on : 14-06-2023

Advocates:
Advocate Appeared:
For the Appellant : Mohd. Arif
For the Respondent: Dewakar Sharma

Headnote:(A) Arms Act, 1959 - Sections 7 and 25 - Criminal Procedure Code - Appeal against conviction and sentence - Conviction of appellants set aside due to failure of the prosecution to prove possession of weapons beyond reasonable doubt and absence of independent witnesses to substantiate recovery - Trial Court convicted appellants based on uncorroborated evidence and contradictions in witness testimonies. (Paras 1, 6, 24)

(B) Evidence - Credibility of witness - Independent witness denied witnessing weapon recovery, raising doubts about authenticity of the prosecution's case. (Paras 12, 14)

Facts of the case:
The appellants were convicted based on alleged recovery of arms from their possession during a police operation. The primary evidence included witness testimony and an alleged disclosure by an appellant about additional weapons, both deemed unreliable due to contradictions and lack of corroboration. (Paras 1, 6)

Findings of Court:
The court found that the prosecution failed to establish the identity and condition of the seized weapons, rendering the conviction unsafe and unsustainable. (Paras 22, 24)

Issues: The key issues were whether the prosecution proved the recovery of weapons, the credibility of witness testimonies, and the legal sufficiency for conviction based on the evidence presented. (Paras 18, 20)

Ratio Decidendi: The court emphasized that conviction cannot be based on uncorroborated evidence and reiterated the principle that uncertainty in evidence must benefit the accused, thus ruling in favor of the appellants. (Paras 19, 22)

Result: Appeal allowed; conviction and sentence set aside.

Table of Content
1. overview of the case and prior convictions. (Para 1 , 6 , 7 , 8)
2. arguments against the conviction and evidence issues. (Para 2 , 3 , 4)
3. doubts regarding evidence and witness credibility. (Para 12 , 14 , 15 , 17 , 18)
4. judicial precedents questioning validity of evidence. (Para 19 , 20 , 21)
5. conclusion reversing conviction based on evidence insufficiency. (Para 22 , 23 , 24)

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:

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 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 ill