HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRAA No.49/2010 State of J&K …..Appellant(s)/Petitioner(s) Through: Mr. Pawan Dev Singh, Dy.AG. q vs Sarfu Ram and Anr. .…. Respondent(s) Through: Mr. Amit Gupta, Advocate. Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 18.09.2025 ORAL: 01. This appeal has been directed against judgment dated 23.01.2010, propounded by learned 3rd Additional Sessions Judge, Jammu, [“the trial Court”], vide which respondent No.1 Sarfu Ram came to be convicted for offences under Sections 7/25 Arms Act and respondent No.2 Sher Singh came to be acquitted of the charge. 02. It is pertinent, at the outset, to mention that respondent No.1 Sarfu Ram passed away during the pendency of the appeal and the present appeal against the said respondent came to abate. 03. As the prosecution story would unfurl, on 11.08.2001, respondent Sarfu Ram came to be apprehended by a Police Party of Police Station Kana Chak during a Naka at Gadola and one timer, three detonators and one Tiffin bomb of 3 kg came to be recovered from his possession. On the disclosure of respondent No.1 Sarfu Ram, respondent No.2 Sher Singh came to be arrested and on his disclosure, two grenades came to be recovered from Lalyal. It was alleged by the prosecution that respondents had got these arms and ammunitions after illegally crossing the border from Pakistan side and sneaking into the territory of India. Sr. No. 09 2 CRAA No.49/2010 04. Respondents came to be charged by the trial Court for offences under Section 3/6 Indian Passport Act, 7/25 Arms Act and 120-B RPC, whereby they pleaded innocence, which prompted the trial Court to ask for the prosecution evidence. 05. The prosecution has examined almost all the witnesses cited in the charge sheet, a brief resume whereof is given hereunder: 06. PW-1 Ghulam Hussain Constable has deposed that a naka was laid at Gadola. He saw accused Sarfu Ram and was asked by PW Mohd. Iqbal to apprehend him. On search, one timer, one detonator and a fused bomb, weighing 3 kg came to be recovered from his possession. The docket was flashed to the Police Station, whereupon FIR came to be registered. The witness goes on to state that accused Sarfu Ram had disclosed about the involvement of accused Sher Singh @ Shera who had two grenades, eight rounds and one pistol in his possession. 07. PW-2 Mohd. Iqbal has stated that on 11.08.2001, he was posted as Munshi H.C. in Police Station, Kana Chak. On 10th at 10 p.m. he had gone to naka duty to Gadola, along with Police Personnels. He told the police party to apprehend accused Sarfu Ram, who was coming from the border side. They apprehend the accused and one time bomb, one detonator and one tiffin bomb weighing 3 kg came to be recovered from the bag in the possession of the said accused. The witness has admitted the seizure memo EXPW-MA. He flashed a docket to the Police Station, which has been admitted by the witness as EXPW- MA/1 in his handwriting. The witness goes on to state that accused Sarfu Ram had disclosed that accused Sher Singh was coming behind him, who was in possession of two grenades, one pistol and eight rounds. However, Sher Singh 3 CRAA No.49/2010 was not found that day and came to be arrested four days after by the SHO. But nothing was recovered from accused Sher Singh in his presence. 08. PW-3 Karan Singh has stated that on 11.08.2002, he had gone to a patrol duty at around 10’O Clock along with police personnels. At Gadola, a person coming from the border side, on seeing the police party tried to run away. They were directed by HC Iqbal Ahmed and they apprehended accused Sarfu Ram, on whose search, one tiffin bomb weighing 3 kg and one timer and one detonator came to be seized on the spot. He has admitted seizure memo EXPW-KS. Thereafter a docket was sent to the Police Station for registration of the FIR. In cross-examination, he has stated that besides him, Ghulam Ali also signed the seizure memo. He does not know what was written in the seizure memo. The seized articles were put in an envelope but were not sealed. No villager was called and accused was caught alone. 09. PW-4 Kishore Kumar has stated that in August, 2001, he was posted in Police Station Kana Chak. On 11.08.2001, while he was performing naka duty along with Police Officials, at about 12:45 a.m., Mohd. Iqbal informed them about a person. They tried to catch hold of him but he started running, he was surrounded by the police party and on search, a timer, a detonator, one tiffin bomb weighing 3 kg came to be recovered. A docket was sent by Mohd. Iqbal to the Police Station through constable Karan Singh. The SHO came on the spot and the entire material was seized. Accused Sarfu Ram was handed over to the SHO, who prepared the seizure memo EXPW-MA and seized the articles vide seizure memo EXPW-KK. The witness has further stated that on being apprehended, accused Sarfu Ram had disclosed about two persons, namely, Shabir and Suman coming after him along with articles. In cross examination, he has stated that seizure memos were prepared by Mohd. Iqbal. 4 CRAA No.49/2010 10. PW-5 Sanjay Kumar has stated that on 17.08.2001, accused were in Police custody. Accused Sher Singh made a disclosure EXPW-SK that he had hidden two grenades in the bushes at Lalyal and could get them recovered. The witness has admitted the aforesaid disclosure statement. They went to Lalyal along with the said accused who took out two grenades from the bushes, which came to be seized vide seizure memo EXPW-SK/1. The witness has admitted the seizure memo and identified two grenades Mark-A and B in the trial Court. In cross examination, he has stated that he did not know, when accused Sher Singh came to be arrested. Civilians were standing outside the Police Station but they were not called by the SHO. There were shops and houses on way to Lalyal, but no one was taken along by the SHO. The witness goes on to state that many persons had assembled on the spot at the time of recovery but he was not aware whether SHO had obtained signatures of those persons or not. 11. PW-6 Roshan Lal has stated that in September, 2001, he was posted in Central Control Room, when SHO Kotwal of P/S Kana Chak brought a tiffin, which contained 3 kg RDX black in colour, one detonator electronic with PTD switch and three grenades. On 03.09.2001, these articles were brought to the Control Room, where they were diffused and returned. He has admitted the certificate EXPW-RL in this respect. In cross examination, he has stated that he was given training of diffusing bombs including tiffin bombs. 12. PW-7 Madan Lal SPO has stated that on 11.08.2001, he was present with a naka party at Kotey. At about 10 p.m., accused came towards the naka and on being told to stop, he made an attempt to run away but was apprehended. On frisking, one tiffin bomb, one detonator, one timer came to be recovered from a bag of the accused. SHO was called on the spot and the aforesaid articles were seized by him. In cross examination, he has stated that none of the civilians were 5 CRAA No.49/2010 called from the shops and houses near the naka. The accused was coming from border towards the naka. Accused No.1 was caught alone on the spot. He has denied the allegation that FIR was registered against accused No.1 and thereafter, the other accused was falsely implicated. He has also denied that he was not present at the time of occurrence. 13. PW-8 Fareed Ahmed has stated that he was body guard of SHO P/S Kana Chak. On 17.10.2001, accused Sarfu Ram was caught by the Police from whom some arms and ammunition were recovered. Accused Sarfu Ram had disclosed the name of Shera who made a disclosure that he had hidden two grenades in the bushes at Lalyal. The witness has admitted disclosure statement EXPW-SK. Two live grenades came to be recovered on the identification of accused Shera from the bushes. He has admitted the seizure memo EXPW-SK/1. In cross examination, he has stated that at the time of disclosure, no Sarpanch, etc. was called and no civilian was called at the time of recovery of the grenade. 14. PW-9 Arvinder Kotwal was posted as SHO P/S Kana Chak at the relevant time and he has investigated the present case. He has stated that on 11.08.2001, Constable Karan Singh received a written docket addressed by HC Mohd. Iqbal and on the basis of this docket, FIR No.93/2001 came to be registered. It revealed from the docket that a person namely Sarfu Ram came from the Pakistan side, who was caught at Giddala Naka and from his possession, one tiffin bomb, detonator and a timer had been recovered. He has identified the signatures on the FIR, EXPW-AK. He went to the spot. He has admitted the site plan EXPW-AK-1. He seized the seizure memo and took arms and ammunition into his possession. He has identified his signatures on the seizure memo EXPW-KK, whereby aforesaid documents and articles came to be seized. Accused Sarfu Ram was brought to the Police Station 6 CRAA No.49/2010 where he disclosed that he and accused Shera and Suman all together met in Pakistan in the house of one Khushi Mohd. in connection with heroin smuggling. Khushi Mohd. handed over one tiffin bomb, a detonator and a timer to accused Sarfu Ram and two grenades to accused Shera and thereafter both of them crossed over the border from Pakistan and came to India. Accused Sarfu Ram was caught at the naka and on 16.08.2001, accused Sher Singh @ Shera was arrested at Mishriwala. He has admitted the seizure memo EXPW-AK/2. The Investigating Officer has stated that accused Shera made a disclosure that he had hidden two grenades in the bushes at Lalyal and later got two grenades recovered at Lalyal. He has admitted the disclosure statement EXPW-SK and recovery cum seizure memo EXPW-SK/1. Thereafter, he got the arms diffused and obtained a report from the disposal squad. In cross examination, he has stated that the place of occurrence is an open place. They did not take civilians to the spot. The seizure memo EXPW-KS was prepared prior to his arrival. 15. This is the crux of the prosecution evidence. 16. After conclusion of the prosecution evidence, the incriminating circumstances were put to the respondents, whereby they denied the imputations and did not choose to enter the defence. 17. Learned trial Court, having marshalled and critically analysed the evidence brought on record has concluded that though the prosecution had succeeded to establish the guilt of accused Sarfu Ram but failed to prove complicity of respondent-Sher Singh. As a result, respondent Sarfu Ram came to be convicted and respondent No.2 Sher Singh @ Shera came to be acquitted as aforesaid. 7 CRAA No.49/2010 18. The appellant-state is aggrieved of the impugned judgment, primarily, on the ground that learned trial Court, has failed to appreciate the prosecution evidence in the correct perspective. 19. The prosecution in the present case has examined as many as 09 witnesses, however, none of the prosecution witnesses, except PW-5 Sanjay Kumar, PW-8 Fareed Ahmed and the I.O. PW-9 Arvinder Kotwal have deposed anything against respondent Sher Singh. All these witnesses are Police Officials. 20. At the foremost, I find myself in agreement with the observation of learned trial Court that prudence requires that evidence of police officials, who are interested in the outcome of the prosecution needs to be critically analysed and scrutinised with circumspection. 21. It is trite that testimony of a police personnel carries the same weight and credibility as the testimony of any civil witness and there is no principle of law that testimony of a police witness cannot be acted upon. The presumption that a person acts honestly applies as much in favour of a police personnel as any other independent witness. In this respect, the reliance placed by learned trial Court on ‘Karamjit Singh V. State’; AIR 2003 SC 1311 and ‘Sahib Singh V. State of Punjab’; 1996 (3) Crimes 284 is well founded. Relevant excerpt of the observation in Sahib Singh (Supra), being apposite to the context is reproduced for the facility of reference: “In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the Police Officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search.....”. 22. The allegation against respondent No.2 Sher Singh @ Shera is that after respondent No.1 Sarfu Ram came to be apprehended, he disclosed during 8 CRAA No.49/2010 investigation about the involvement of respondent Sher Singh that he had two grenades, eight rounds and one pistol in his possession. PW-1 Constable Ghulam Hussain, PW-2 Head Constable Mohd. Iqbal, PW-8 SHO Fareed Ahmed and the I.O. PW-9 Arvinder Kotwal have supported the prosecution story on this score. All of these witnesses have stated that respondent No.1 Sarfu Ram disclosed about the involvement of respondent No.2 Sher Singh @ Shera that he had two grenades, eight rounds and a pistol in his possession. 23. PW-5 Sanjay Kumar and PW-8 Fareed Ahmed are witnesses to the disclosure of respondent No.2 and the consequent recovery of seizure of two grenades from his possession. Both PW-5 and PW-8 SHO Fareed Ahmed have admitted the disclosure and recovery cum seizure memos with respect to respondent Sher Singh. However, another Police Official PW- Kishore Kumar has discredited the claim of the aforesaid witnesses by stating that accused Sarfu Ram during investigation had disclosed about the involvement of two persons namely Shabir and Suman coming after him along with articles. This is a major contradiction in the prosecution evidence. The testimony of I.O. PW-9 Arvinder Kotwal, in this respect, also needs attention. The I.O. has stated that when respondent Sarfu Ram was brought to the Police Station, he disclosed that he and respondent Shera and Suman together met in Pakistan in the house of one Khushi Mohd. in heroin smuggling. Khushi Mohd. handed over a tiffin bomb, a detonator and a timer to accused Sarfu Ram and two grenades to accused Shera and thereafter both of them crossed over the Pakistan border and came to India. No other prosecution witness, who happen to be Police Officials, has given this detail regarding the involvement of one Suman in the occurrence and their meeting in the house of Khushi Mohd. in Pakistan for the purpose of smuggling of heroin. 9 CRAA No.49/2010 The prosecution case, in view of these discrepancies does not inspire confidence to sustain conviction of respondent Sher Singh @ Shera. 24. Be that as it may, the arms and ammunition from respondent Sher Singh came to be recovered by the Investigating Agency, vide EXPW-SK/1 dated 17.08.2001, consequent upon his disclosure statement of the even date. However, the sanction accorded of the District Magistrate regarding the disclosure of respondent Sher Singh, placed on the trial Court record, is 16.08.2001, which is again a major discrepancy in the prosecution case and is sufficient to dislodge the edifice of prosecution case against respondent Sher Singh @ Shera. 25. Learned trial Court has rightly underlined that failure on the part of the prosecution to associate civilians despite their availability casts a doubt on the genuineness and credibility of the prosecution story. 26. Having regard to what has been observed and discussed, I do not find any illegality or impropriety in the well reasoned impugned judgement. Hence, the present appeal is dismissed and impugned judgment is upheld. 27. Disposed of. (Rajesh Sekhri) Judge Jammu 18.09.2025 Eva Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No