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Saturday, September 10, 2016

when the genesis and the manner of the incident is doubtful, the accused cannot be convicted= recovery of fire arm at the instance of appellant-accused was planted by the police and it could not have been relied upon. This Court, in a number of cases, has held that the evidence of circumstance simplicitor that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. In the above backdrop, it would be appropriate to quote the Forensic Report dated 25.06.1999 with regard to the alleged recovery of the country-made pistol recovered at the behest of the appellant-accused which is as under:- “Result of Examination 1. One .32 country made pistol (W/1) from packet ‘D’ is a serviceable firearm. 2. The examination of the barrel residue indicates that submitted .32 country made pistol (W/1) had been fired. However, the definite time of its last fire could not be ascertained. 3. Based on stereo and comparison microscopic examination it is the opinion that one .32 lead bullet (B/1) from packet ‘C’ has not been fired from submitted .32 country made pistol (W/1).” It is clear from the above that there is no material on record to connect that the gunshot injury suffered by the deceased was due to the shot fired from the firearm of the appellant-accused. It is also discernible that though the bullet was recovered but the same has not been connected with the weapon. Moreover, the prosecution is not able to prove the motive clearly. Though motive is not sine qua non for the conviction of the appellant-accused, the effect of not proving motive raises a suspicion in the mind. In the present case, it appears that the theory behind motive has been given after much thought process.= It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt.=the evidence of PW-8. Since the same inspires no confidence at all, therefore, we are constrained to set aside the conviction and sentence awarded to the appellant.

                                     REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 2135 OF 2009



Pankaj                                              .... Appellant(s)

            Versus

State of Rajasthan                                             ....
Respondent(s)















                         J U D G M E N T


R.K. Agrawal, J.
1)    This appeal has been  filed  against  the  judgment  and  order  dated
03.09.2008 passed by the Division Bench of the High Court of Judicature  for
Rajasthan at Jaipur in Criminal Appeal No. 1071 of  2002  whereby  the  High
Court dismissed the petition filed by the appellant herein.
2)    Brief facts:
(a)   On 19.03.1998, a First Information Report (FIR) being No. 136 of  1998
was filed by one Shri Ram Babu stating that  when  he  was  present  in  his
juice shop, which is situated in his  house  at  Ketan  Darwaja,  Bharatpur,
Pankaj-the appellant herein, along with three other  persons,  visited  that
place and ordered 4 (four) glasses of juice.   At  the  relevant  time,  Raj
Kumar (since deceased), elder brother of Ram Babu, came  at  the  shop  from
the house who was called inside the shop by Pankaj-the appellant herein.  It
is the case of the prosecution that Pankaj used to  come  to  the  abovesaid
juice shop and used to consume juice without paying for the  same  and  when
this matter was informed to  the  uncle  of  the  appellant-accused  by  Raj
Kumar, he developed a grudge against him.
(b)   As soon as Raj Kumar went inside the shop,  Pankaj,  who  was  present
there along with three others, took out  a  country  made  pistol  from  his
pocket and fired one bullet on Pankaj which hit him from  straight  side  in
the neck due to which he fell down on the  ground  and  became  unconscious.
Immediately after the incident, all the accused persons fled away  from  the
scene of crime.  Ram Babu (PW-8), younger brother of Raj Kumar, took him  to
the General Hospital, Bharatpur from where  he  was  referred  to  Agra  for
treatment.

(c)   A FIR being No. 136 of 1998 got registered  under  Sections  452,  307
and 34 of the Indian Penal Code, 1860 (in short ‘the IPC’)  against  Pankaj-
the  appellant-accused  and  other  accused  persons  at  P.S.  Mathuragate,
District Bharatpur at the behest of Ram Babu. Raj  Kumar  succumbed  to  his
injuries on 25.03.1998.  On completion of investigation, a charge sheet  was
filed against the accused persons under Sections 302, 452 and 34 of the  IPC
and under Section 3 read with Section 25 of the Arms Act, 1959 and the  case
was committed before the Court of Additional District  and  Sessions  Judge,
(Fast Track) No. 1, Bharatpur.
(d)   Learned ADJ, by judgment and order  dated  03.08.2002,  acquitted  all
the accused  persons  under  Section  452  of  the  IPC  and  convicted  the
appellant herein  under  Section  302  of  the  IPC  and  sentenced  him  to
imprisonment for life.   The  appellant  herein  was  further  sentenced  to
rigorous imprisonment (RI) for 2 (two)  years  under  Section  3  read  with
Section 25 of the Arms Act, 1959.  The  other  three  accused  persons  were
convicted under Section 302 read  with  Section  34  of  the  IPC  and  were
sentenced to imprisonment for life.
(e)    Being  aggrieved  by  the  order  of  conviction  and  sentence,  the
appellant herein filed D.B. Criminal Appeal  No.  1071  of  2002  and  other
accused persons filed D.B. Criminal  Appeal  Nos.  1070  and  1052  of  2002
before the High Court.  The High Court, by  its  judgment  and  order  dated
03.09.2008, dismissed  the  appeal  filed  by  the  appellant  herein  while
exonerating other accused persons of all the charges.
(f)    Aggrieved  by  the  above  said  order,  the  appellant-accused   has
preferred this petition by way of special leave before this Court.
3)    Heard Shri  Rakesh  Kumar  Khanna,  learned  senior  counsel  for  the
appellant-accused  and  Shri  Puneet  Parihar,  learned  counsel   for   the
respondent-State.
Rival submissions:
4)    Learned senior counsel  for  the  appellant-accused  contended  before
this Court that there was no motive behind the killing  of  Raj  Kumar.   He
further contended that it is beyond imagination that a  person  without  any
provocation, motive  or  instigation  will  straight  away  open  the  fire.
Learned senior counsel further contended that the brother of the deceased  –
Ram Babu (PW-8) is the only witness  to  the  alleged  incident  who  is  an
interested witness and there are  several  material  contradictions  in  his
statement.  He further contended that conviction basing  reliance  upon  the
statement of PW-8 corroborating with the evidence of Shyam Sunder (PW-5)  is
baseless.  It was  further  contended  that  the  alleged  recovery  of  the
country made revolver is false and that the same has  been  planted  by  the
police. He finally contended that in  view  of  the  doubtful  features  and
other infirmities in the prosecution evidence as discussed above, it is  not
safe to rely  upon  the  evidence  of  PW  8  whose  evidence  needs  to  be
scrutinized with due care and caution. The High Court failed  to  take  note
of certain telling factors emerging from the evidence on  record  and  there
are other fatal infirmities in the evidence relied upon by  the  prosecution
which were not adverted to by the High  Court.  He  finally  submitted  that
conviction based on unsustainable evidence is nothing  but  sheer  abuse  of
law and should be set aside.

5)    Per contra, learned counsel for the  respondent-State  submitted  that
the testimony of informant Ram Babu (PW-8) corroborates  with  Shyam  Sunder
(PW-5) and the appellant-accused can be convicted on the sole  testimony  of
PW-8 as  the  ocular  evidence  is  cogent,  credible  and  trustworthy  and
variance, if any, in the statements of PW-8 and PW-5, is of no  consequence.
 Learned counsel further submitted that  trustworthy  evidence  given  by  a
single witness would be enough to convict  the  appellant-accused  and  thus
rejection of  their  testimony  on  the  ground  that  they  are  interested
witnesses is not proper. It was further  submitted  that  the  country  made
pistol was recovered at the behest of the appellant-accused.  The appellant-
accused led the police party to the spot and pointed  out  the  place  where
the country made pistol was thrown,  which  fact  stands  confirmed  by  its
recovery and it cannot be presumed that the recovery of the fire arm at  the
instance of the appellant-accused is untrustworthy.   He  finally  submitted
that in view of the cogent and  reliable  evidence  against  the  appellant-
accused, the conviction is fully valid and sustainable in the  eyes  of  law
and there is no reason to discard the same.
Discussion:
6)    According to the case of the prosecution, on March 19, 1998, when  the
informant (PW-8) was in his juice shop, the appellant-accused, along with  3
(three) others, visited the shop.  When Raj Kumar (since deceased)  –  elder
brother of the informant came to the shop,  Pankaj  called  him  inside  and
opened fire at him using a country made pistol which hit him  on  his  neck.
Raj Kumar fell down on the ground and PW-8  took  him  to  the  hospital  at
Bharatpur.  He succumbed to his injuries on March 25,  1998  at  Agra.   The
appellant-accused  along  with  others  was  convicted  by  the   Court   of
Additional District  and  Sessions  Judge,  (Fast  Track),  Bharatpur  under
Sections 302 read with 34 of the IPC and under Section 3 read  with  Section
25 of the Arms Act.  In appeal before the High  Court,  the  conviction  and
sentence of the appellant-accused was maintained  while  the  other  accused
persons were acquitted of all the charges.
7)    It is evident from material on record that when  Raj  Kumar  was  shot
at, he was taken  to  the  General  Hospital,  Bharatpur  wherefrom  he  was
transferred to Agra for further treatment.  The  dying  declaration  of  Raj
Kumar was allegedly recorded at 10:45 p.m. on 19.03.2008  at  Agra  by  Shri
Naresh Pal Gangwal, who was the then SDM.  Dr. Vanay Singh      (PW-6),  who
first  examined  the  body  of  the  deceased  at   the   General   Hospital
categorically stated in his statement that he was unconscious  when  he  was
brought to the hospital  at  12:45  p.m.   The  dying  declaration  is  also
alleged to have been recorded on the said date at 10:45 p.m.  It  is  really
very hard to believe that Raj  Kumar,  who  was  unconscious  in  the  noon,
regained  consciousness  in  front  of  SDM  that  too  in  the  absence  of
certificate of the duty doctor that the patient is fit to make a  statement.
 In view of such infirmities  in  the  dying  declaration,  we  are  of  the
opinion that the High Court has  rightly  discarded  the  same.      It  has
already been held by this Court in a catena  of  cases  that  when  a  dying
declaration  is  suspicious,  it  should   not   be   acted   upon   without
corroborative evidence.
8)    At the time of the alleged incident, Ram Babu (PW-8)  was  present  at
the spot.  Meaning thereby, he was the sole  eye-witness  to  the  incident.
In his statement, he has very specifically stated that Pankaj fired  a  shot
at his brother in front of him and fled away  from  the  crime  scene  along
with others.   As  per  the  prosecution,  the  case  rests  upon  the  sole
testimony of PW-8, which gets corroboration  from  the  statement  of  Shyam
Sunder (PW-5), who was present at  the  relevant  time  in  a  nearby  shop.
Shyam Sunder (PW-5), in his statement has stated that as soon  as  he  heard
the sound of a bullet, he came out of the shop and noticed that  Pankaj  was
having revolver in his hand and was fleeing away at the relevant time  along
with three others.  But it is also pertinent to mention here that PW-5 is  a
resident of village Dehra which is situated at  a  distance  of  12-13  kms.
(approx.) from Bharatpur.  In his statement, he also stated that he came  to
Bharatpur in order to inquire about a locker in the name of  his  father  in
the Punjab National Bank. Vijay Kumar (DW-2) was  examined  from  the  other
side who deposed that in the year 1997-1998 no locker was  operated  in  the
name of the father of Shyam Sunder (PW-5).  In this view of the  matter,  it
is suspicious and hard to believe that he visited the place of the  incident
at a distance of about 12-13 kms.(approx.) just for hair cut.
9)    PW-8, in his statement, has  deposed  that  both  Raj  Kumar  and  the
appellant-accused were  sitting  in  front  of  each  other.   There  was  a
distance of about one and a half feet between  them.  The  appellant-accused
took out a pistol and fired a bullet on the neck  of  Raj  Kumar.   However,
the version of PW-8 is in conflict with the medical evidence which  we  will
discuss in the later part of the judgment.  During  cross-examination,  PW-8
was also not able to answer satisfactorily with regard  to  the  arrangement
of chairs in the shop which is though not material but creates  a  doubt  in
the mind about the correctness of the incident and makes his version  highly
artificial.    Though PW-8 specifically mentioned that he took the  deceased
to the hospital  and  the  blood  was  oozing  from  his  body,  it  is  not
understandable that during investigation why the blood stained clothes  were
not seized by the investigation officer and why he did  not  resist  at  the
relevant time, which also makes his presence highly suspicious.
10)   Dr. Vanay Singh (PW-6) is the person who examined  Raj  Kumar  at  the
General Hospital, Bharatpur.  It is imperative to mention here some  of  the
portion of his statement which is as under:-
      “…when killer and object, i.e., injured person  both  remains  on  the
      right angle, i.e., just in front of each other, then it  is  possible,
      as there was no burning, plunging and tattooing as such.  As per  rule
      of thumb of fire arms the distance was more than 3  feet.   The  exact
      distance can be decided only by the opinion of the plastic expert.”


      “It is corect that if the injured is in front of the  killer  and  who
      caused a injury by a fire arm in the neck of injured from  a  distance
      of 2 feet.  Then the wound would not come in the shape of as shown  in
      Exh. P-5.  As per Rule of thumb, the fire made from  maximum,  nearest
      place, the entrance would will be big, then  the  exit  wound  and  as
      distance will be increased the entrance wound become smaller then  the
      exit wound, it means part of foreign body came out from a fire arm, as
      the distance will increase the passage of foreign body will be  spread
      and will cause more loss in the nearby area…”


Prior to his death, injury received by Raj Kumar was  examined  which  reads
as under:-
      (1)    One punctured lacerated wound with bleeding circular  in  shape
           of 1cm x 1cm x soft tissue to  bone  deep  on  right  side  neck
           region on sterno mastoid muscle line to middle part.
      (2)   Edges and margin is verted with color of contusion.
      (3)   No burning, blackening and tattooing seen, sulgesmic of wound of
           entry of fire arm.
As per the post mortem report, drawn by Dr. B.B. Sharma  (PW-7),  the  cause
of the death was shock and hemorrhage due to ante-mortem injuries.
11)   Admittedly, there is variance in the statements of PW-8 and PW-6  with
regard to the distance between the deceased  and  the  appellant-accused  as
stated above.  In this  fact  situation,  it  is  imperative  to  quote  the
“Phenomena observed in Firearm Injuries or Short Holes  on  Clothing”,  from
Modi’s Jurisprudence (24th Edition) which is as under:-
|     |Phenomena                     |Range and Remarks              |
|1.   |Flame/burning                 |Revolver/pistols—within about  |
|     |scorching/singeing.           |5-8 cm generally.              |
|     |                              |                               |
|     |                              |Rifles—within about 15-20 cm   |
|     |                              |generally.                     |
|     |                              |                               |
|     |                              |Shotguns—may show evidence of  |
|     |                              |scorching upto 30-10 cm        |
|2.   |Smoke/powder marks            |Rifles generally upto about 30 |
|     |                              |cm (blackening) and about 100  |
|     |                              |cm (powder residues).          |
|     |                              |                               |
|     |                              |Handguns upto about 60 cm.     |
|     |                              |                               |
|3.   |Tattooing                     |Handguns upto about 60 cm.     |
|     |                              |                               |
|     |                              |Rifles upto 75 cm generally.   |
|     |                              |                               |
|     |                              |Shotguns upto 100-300 m (may be|
|     |                              |found after careful search at  |
|     |                              |higher range).                 |

In a case where death is due to  injuries  or  wounds  caused  by  a  lethal
weapon, it is always  the  duty  of  the  prosecution  to  prove  by  expert
evidence that it was likely or at least possible for the  injuries  to  have
been caused with the weapon with which and in the manner in which  they  are
alleged to have been caused.   In  the  case  on  hand,  the  contradiction,
i.e., the distance of fire, is material and in our  considered  opinion,  it
would not be appropriate to convict the appellant-accused by  ignoring  such
an important aspect.
12)   An objection was raised by learned senior counsel for  the  appellant-
accused that recovery of fire arm at the instance of  appellant-accused  was
planted by the police and it could not have been relied upon.   This  Court,
in  a  number  of  cases,  has  held  that  the  evidence  of   circumstance
simplicitor that an accused led a police officer and pointed out  the  place
where weapon was found hidden, would be admissible as conduct under  Section
8 of the Evidence Act, irrespective of whether any  statement  made  by  him
contemporaneously with or  antecedent  to  such  conduct  falls  within  the
purview of Section 27 of the Evidence Act.  In the above backdrop, it  would
be appropriate to quote the Forensic Report dated 25.06.1999 with regard  to
the alleged recovery of the country-made pistol recovered at the  behest  of
the appellant-accused which is as under:-
                     “Result of Examination
      1. One .32 country made pistol (W/1) from packet ‘D’ is a  serviceable
      firearm.
      2. The examination of the barrel residue indicates that submitted  .32
      country made pistol (W/1) had been fired.  However, the definite  time
      of its last fire could not be ascertained.
      3. Based on stereo and comparison microscopic examination  it  is  the
      opinion that one .32 lead bullet (B/1) from packet ‘C’  has  not  been
      fired from submitted .32 country made pistol (W/1).”

It is clear from the above that there is no material on  record  to  connect
that the gunshot injury suffered by the deceased was due to the  shot  fired
from the firearm of the appellant-accused.   It  is  also  discernible  that
though the bullet was recovered but the same has  not  been  connected  with
the weapon.  Moreover, the prosecution is  not  able  to  prove  the  motive
clearly.  Though motive is not sine  qua  non  for  the  conviction  of  the
appellant-accused, the effect of not proving motive raises  a  suspicion  in
the mind.  In the present case, it appears that  the  theory  behind  motive
has been given after much thought process.
13)     It is a well-settled principle of law that when the genesis and  the
manner of the  incident  is  doubtful,  the  accused  cannot  be  convicted.
Inasmuch as the prosecution has failed to  establish  the  circumstances  in
which the appellant was alleged to have fired at the  deceased,  the  entire
story  deserves  to  be  rejected.   When  the  evidence  produced  by   the
prosecution has neither quality nor credibility, it would be unsafe to  rest
conviction  upon  such  evidence.   After  having  considered   the   matter
thoughtfully, we find that the  evidence  on  record  in  the  case  is  not
sufficient  to  bring  home  the  guilt   of   the   appellant.    In   such
circumstances, the appellant is entitled to the benefit of doubt.

14)   After giving our careful consideration, we are  unable  to  place  any
reliance on the evidence of PW-8.  Since the same inspires no confidence  at
all, therefore, we are constrained to set aside the conviction and  sentence
awarded to the appellant.  The appeal is allowed.


                            ...…………….………………………J.


                                 (V. GOPALA GOWDA)






































                            .…....…………………………………J.


                               (R.K. AGRAWAL)



NEW DELHI;
SEPTEMBER 9, 2016.

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