Jammu & Kashmir High Court
State Of Jammu And Kashmir vs Balkar Singh And on 30 April, 2010
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Acq App No. 34 OF 2006 State of Jammu and Kashmir Petitioners Balkar Singh and Others Respondent !Mr. Gagan Basotra, AAG. ^Mr. B.L. Chatha, Advocate . Hon'ble Mr. Justice Hasnain Massodi, Judge Date: 30.04.2010 :J U D G M E N T :
Admit.
On consensus of the Learned Counsel for the parties the appeal is taken up for final disposal.
This is an acquittal appeal directed against the judgment of Learned Sessions Judge Jammu dated 22nd February 2006 in case titled State Vs. Balkar Singh and others (File No. 95/Sessions) under Section 3 EAO and Section 7/25 Arms Act. The appeal arises in the following circumstances:-
The troops of 143 Bn. BSF on 29th August 2001 noticed movement of two persons near sub distributory No. 17 of India Pakistan Border. The suspected were allegedly called by Sh. Raja Ram and Satish Kumar --BSF personnel, were upon the suspected made an attempt to run away but were given a chase and caught by BSF personnel. Shri A.K. Pandey Coy Commander was informed and suspects -accused 1 and 2 questioned. The accused allegedly spilled beans and admitted to have concealed some explosives between border observation post 15 and Chowani. The search operation is said to have lead to recovery of improvised explosive devices weighing 1.5.Kilogram and 1. Kilogram and four time pencils. The explosives allegedly were brought by the accused 1 and 2 (respondents 1 and 2) from across border and concealed to be used on this side of the border. The matter was reported to Police Station concerned and a case registered. On investigation the respondent accused 1 and 2 were found to have entered into the criminal conspiracy with accused 3 and 4 (respondents 3 and 4) and in execution of the conspiracy so hatched, to have brought the ammunition from across the border for subversive activities. After usual investigation charge sheet alleging commission of offence punishable under Section 3 PSS Act, 120-B, 121, 122, 153-B RPC was presented in the Court of Sessions Judgement Jammu. The accused No. 3 and 4 (respondents) were found to have also committed offence under Section 109 RPC.
The respondents were charged for commission of offence punishable under Section 3 EAO and 7/25 Arms Act. The respondents/accused denied the charge leaving no option for the prosecution but to adduce evidence in support of the charge. The prosecution accordingly examined the witnesses listed in the charge sheet.
Learned Sessions Judge Jammu after going through the charge sheet, the evidence adduced in support of the charge sheet and the explanation tendered by the respondents/accused, found the prosecution to have failed to bring home guilt to the respondents/accused. The respondents/ accused were accordingly acquitted and discharged of their bail bonds.
The impugned judgment is questioned on the grounds that the Learned Trial Court failed to appreciate the evidence in right perspective and that the charge sheet was dismissed despite the prosecution having adduced evidence that helped it to prove its case beyond the reasonable doubt Learned Trial Judge, if the appellant, is believed, has fallen in error and impugned judgment has resulted in miscarriage of justice.
Heard and considered.
Sh. Gagan Basotra, Learned Additional Advocate General, has been fair enough to admit that the appeal does not stand any chance in as much as the prosecution failed to adduce cogent and convincing evidence before Learned Trial Court as would enable it to prove its case against the respondents beyond any shadow of doubt. The stand taken by Mr. Basotra ordinarily must ordinarily prompt the court to dismiss the appeal. However, independent of the statement made by Learned Additional Advocate General, it would be appropriate to visit the prosecution evidence, so as to see whether the prosecution was able to successfully discharge its burden. Needless to mention, that in a Criminal case the burden to prove the prosecution case always lies on the prosecution and does not at any point of time shift to the accused. It is the prosecution that is required to bring home guilt to the accused and not the accused to prove his innocence. It is only after the prosecution succeeds in bringing on the file reliable and credit worthy evidence against the accused that the accused may be confronted with the incriminatory material if any come across in such evidence and asked to offer any explanation if he so desires. The accused may thereafter at his choice, adduce evidence in his defence to lend support to his stand. In the present case, the prosecution case before Learned Trial Court was that the accused 1 and 2 were found roaming near the border and that on being questioned were found to have concealed the explosives near the border. The prosecution expected to draw support from the testimony of Sh. A.K. Pandey cited as PW1 in the charge sheet to whom according to the prosecution case the respondent/accused No. 1 and 2 disclosed that the respondents/accused No. 1 and 2 had concealed the ammunition. PW A. K. Pandey however, in his testimony before the Trial Court denied to have been present on spot when the respondents/accused 1 and 2 were found roaming near the border. The witness has stated that he was informed regarding the occurrence by Incharge Observation Post Chowani, Sh. A.K.Pandey and has excluded his presence from place of occurrence at the time the respondents/accused No. 1 and 2 were allegedly caught by other BSF Personnel. PW A.K.Pandey admittedly did not prepare any disclosure memo to reflect the disclosers attributed to the respondents/ accused 1 and 2. There was no documentary evidence before the Learned Trial Judge to feel convinced that who amongst respondents 1 and 2 was first to make the disclosure statement and what were the surrounding circumstances in which the disclosure statements were made. The documentary evidence in the shape EXPW A.K. did not extend any support to the prosecution case in as much as both the documents narrated post seizure events. In absence of such evidence it was appropriate for Learned Trial Judge to conclude that the disclosure statements attributed to respondents/ accused 1 and 2 were not free from suspicion. The testimony of other two prosecution witnesses namely Raja Ram and Satish Kumar did not also help the prosecution case to sail though, in absence of touching the disclosures attributes to respondents/ accused 1 and 2 and received pursuant thereto evidence. It is apt to point out that the remaining evidence has no direct bearing on the veracity of the prosecution case as the evidence relates to events after the recoveries were allegedly made. Again there was no evidence before the Trial Judge to conclude how and why the other two respondents/accused, who admittedly were not present at the scene of occurrence, were roped in and sent for trial. The conclusions arrived at by Learned Trial Judge, thus against the back drop of the standard of proof required in a criminal trial, can not be found fault with. Learned Trial Judge has been right in holding that the prosecution had failed to prove its case against the respondents/accused beyond reasonable doubt. The respondents/accused were entitled to the benefit of doubt that was rightly given to them.
For the reasons discussed above, the appeal is held to be bereft of any merit and is accordingly dismissed. The Trial Court file be returned and appeal file consigned to records.
(Hasnain Massodi) Judge, Jammu 30.4. .2010 *Yousf*