1. State appeal against acquittal under TADA for arms and explosive possession charges. (Para 1 )
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2000 Supreme(SC) 1862
SUPREME COURT OF INDIA
K.T.Thomas : R.P.Sethi
State Of A.P.
Versus
S.Appa Rao
Case No. : 795 of 1999
Date of Decision : 11/21/00
Conviction for possession of arms under the Arms Act or TADA requires forensic testing of the recovered object to prove it is a weapon falling within the statutory definition; contradictory witness testimony regarding recovery also justifies acquittal.
Headnote:(A) Terrorist and Disruptive Activities (Prevention) Act - Sections 3, 4, 5 and 6 - Arms Act - Explosives Act - Recovery of weapons - Necessity of testing to establish the nature of the weapon - In the absence of evidence to prove that the recovered object is a weapon falling within the statutory categories, conviction cannot be sustained (Paras 6, 7, 8).
(B) Criminal Law - Appreciation of evidence - Diametrically divergent evidence from prosecution witnesses regarding the identity of the accused present at the time of recovery - Such contradictions justify acquittal (Para 5).
Facts of the case:
The State filed an appeal against the acquittal of thirteen persons who were originally charge-sheeted for offences under various statutes, including the Terrorist and Disruptive Activities (Prevention) Act, the Arms Act, and the Explosives Act. The prosecution sought to sustain convictions under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act regarding the recovery of arms and ammunition from certain accused persons in a notified area, and charges under the Arms Act for another accused.
Findings of Court:
For two accused, the trial court's acquittal was upheld because police witnesses provided contradictory testimonies regarding the identity of the persons present during the recovery of arms. Regarding another accused, although a rifle was recovered, the prosecution failed to test the item to determine if it was a functional weapon or a toy, thus failing to prove it fell under the statutory definition of a weapon. For a separate accused charged under the Arms Act, the seizure report was not presented to the Magistrate in a timely manner, and the recovered items were not tested.
Issues: Whether the recovery of untested objects is sufficient to sustain a conviction under the Arms Act or Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, and whether contradictory witness testimony regarding the recovery of arms justifies acquittal.
Ratio Decidendi: To sustain a conviction for the possession of weapons under the Arms Act or Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, forensic testing is necessary to prove that the recovered object is indeed a weapon falling within the specified statutory categories. Moreover, conflicting evidence by prosecution witnesses regarding the identity of the accused during the time of recovery creates reasonable doubt, necessitating acquittal.
Result: Appeal dismissed.
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Table of Contents
2. State argued TADA Sections 3,4,5 and Arms Act violations; defense disputed recoveries and weapon testing. (Para 3 , 4 )
3. Prosecution evidence for TADA Section 5 was contradictory or failed to prove weapon lethality. (Para 5 , 6 , 7 )
4. Testing of a recovered weapon is necessary to prove it falls within Section 5 categories. (Para 7 )
5. Order of acquittal confirmed; appeal dismissed. (Para 9 , 10 )
6. What is required to prove a weapon falls under TADA Section 5?
The weapon must be tested to confirm it falls within the categories enumerated in Section 5. (Para 7 )
7. Can the State succeed in a TADA appeal without reliable evidence?
No, the appeal fails if the prosecution's evidence is contradictory, unreliable, or fails to establish the essential elements of the offence. (Para 5 , 6 , 7 , 8 )
8. What is the consequence of a prosecution witness contradicting the core recovery story?
Such a contradiction, if accepted by the public prosecutor, leaves the court no option but to acquit the accused. (Para 5 )
(1) THIS is an appeal filed by the State of Andhra Pradesh under Section 19 of Terrorist and Disruptive Activities (Prevention) Act (in short TADA). There are thirteen respondents who were arrayed along with a number of other persons as accused before a Designated Court. Altogether forty seven persons were charge-sheeted by the police for various offences under the Indian Penal Code and under Sections 3,4,5 and 6 of TADA; and also under certain Sections of the Indian Arms Act as well as under Section 4 of the Explosives Act. The case proceeded against 17 of those chargesheeted persons. At some stage of the trial, the Public Prosecutor before the Designated Judge did not press the case relating to offences under the Penal Code. So the case was considered only in respect of the remaining offences. During the stage of arguments, the Public Prosecutor candidly admitted that offence under the Explosive Substances Act could not be established on evidence.
(2) ULTIMATELY the Designated Judge acquitted all the accused of all offences as per the judgment impugned in this appeal. But this appeal is confined to 13 out of 47 persons tried before the TADA Court. It would be convenient for us to refer to the 13 respondents with reference to the rank allotted to them in the trial court.
(3) AT the outset we put a question to Mr. A.S. Nambiar, learned senior Counsel who argued for the State of Andhra Pradesh as to whether there is any need for probing into the evidence in respect of the offences under Section 3 or 4 of the TADA (though Section 6 is also included in the indictment, we may point out that the said provision relates only to enhanced penalties and will not by itself constitute an offence). Learned Counsel made an endeavour first to show that the aforesaid offence can also be considered in this appeal. But after making a serious exercise, he realised that it would be an exercise in futility to press for those two offences under TADA. Even the endeavour to bring the offence within the purview of Sub-section (3) of Section 4 also waðs discovered to be an uphill task beyond the limit of mere argument.
(4) WE, therefore, point out at this stage itself that prosecution cannot even venture to establish, on the fact situation in this case, that any of the respondents can be convicted of the offences under Section 3 or 4 of TADA. Learned senior Counsel then focused his address on Section 5 of TADA vis-a-vis three of the respondents. They are A.22-Rajaiah, A.23-Rajeshwari(wife of A.22-Rajaiah) and A.28 Shafat All Khan. Learned Counsel contended that arms and ammunition were recovered from those three accused at places which fell within the territorial limits of State of Andhra Pradesh and that the said area had already been notified under Section 5 of TADA.
(5) WHEN we went into the evidence we noticed that prosecution has given two diametrically divergent evidence regarding A.22-Rajaiah and his wife A.23 -Rajeshwari. When PW.104, Police officer said that he visited the house of A.22 - Rajaiah and found him as well as his wife emerging out and in the search, the arms and ammunition were recovered from that house, PW.25 (who was cited to support the fmer evidence) said that it was A.8 Appa Rao (and not A.22-Rajaiah) who emerged along with A.23 Rajeshwari. We thought initially that it would have been a mistake committed by PW.25 and the same would have been corrected by the Public Prosecutor. But it appears that the Public Prosecutor in the Designated Court had also accepted the said version as true and therefore no effort was made by him to rectify it. The learned Designated Judge adverted to this aspect and made a mention in the impugned judgment itself that PW.25 not only said that is was A.8, Appa Rao but he identified that accused correctly in the Court. In such a situation the TADA Court had no escape from passing a verdict of acquittal in favour of A.22-Rajaiah and A.23- Rajeshwari. The said position could not be salvaged
