a material omission. when the presence of accused is doubtful - accused can not be convicted under sec.147 and 148 IPC = The naming of the appellant subsequently in the court statement for the first time is certainly an improvement over the earlier statement and a material omission. - The omission in the police statement with regard to the presence of the appellant at the time of occurrence cannot be considered as trivial. The witness was specifically confronted with the omission also.= The appellant is therefore held entitled to acquittal on benefit of doubt, with regard to his presence at the time of occurrence.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.1232 OF 2018
(arising out of SLP(Crl.) No.308 of 2018)
AMRISH RANA ....APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2.  The appellant stands convicted under Section 307 and other
provisions of the Indian Penal Code (IPC) read with Section 25 of
the Arms Act and sentenced for ten years along with fine and
default stipulation.
3. Learned   counsel   for   the   appellant   Shri   Gaurav   Agrawal
submits that the testimony of PW­11 Naresh Kumar, implicating
the appellant is unreliable. The witness, in his court statement
deposed that he knew the appellant from before as an inmate of
the Kanda Jail.  There was no animosity between them.  Yet, the
witness   did   not   name   the   appellant   in   the   FIR,   and   named
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accused   Gurjant   Singh   alone,   accompanied   by   four   unknown
persons.  Despite claiming to know the appellant from before, the
witness   has   made   omnibus   allegations   of   scuffle   against   the
unknown accused. The first firing is attributed to Gurjant Singh
and the second to an unknown assailant.   Reliance was also
placed   on   the   cross­examination   of   the   witness,   inviting   his
attention   to   the   contradictions   between   his   statements   under
Section   161,   Cr.P.C.   and   the   deposition   in   the   court.   The
presence of the appellant at the time of occurrence was therefore
highly doubtful.   The appellant is entitled to acquittal on the
benefit of doubt. 
4. Learned counsel for the State submitted that the presence of
the   appellant   stands   confirmed   by   PW­11   who   is   an   injured
witness.  The conviction being with the aid of Sections 147 & 148,
IPC, the absence of any overt act is irrelevant in so long as the
presence of the appellant stands established.
5. We   have   considered   the   submissions   on   behalf   of   the
parties.   PW­11, was the Warder in Model Central Jail, Kanda, at
an earlier point of time when the appellant and Gurjant Singh
were in custody there.   The appellant and Gurjant Singh are
stated to have absconded from custody when the occurrence took
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place on 19.03.2003.   In the FIR, the witness named Gurjant
Singh only, accompanied by four unknown persons.  There is no
allegation   that   any   of   the   unknown   accused   had   their   face
covered.  The witness is stated to have been assaulted by Gurjant
Singh in the Kanda Jail.   Subsequently while deposing in court,
the witness in his examination­in­chief stated that the appellant
was also present and that he knew him from before. The first shot
fired at him is attributed to Gurjant Singh and the second to an
unnamed accused, even while the witness states that he did not
recognize   the   remaining   three   persons.     If   the   appellant   was
known to the witness since earlier, we see no reason why the
witness could not have named him as present at the time of
occurrence, or any specific overt act committed by the appellant.
The naming of the appellant subsequently in the court statement
for the first time is certainly an improvement over the earlier
statement and a material omission. 
6.  In   the   cross­examination,   the   witness   stated   that   the
appellant was sitting on the back seat of the vehicle. His attention
was specifically invited to his police statement under 161 Cr.P.C.
that the second shot was fired by an unknown accused, and
which   he   now   sought   to   deny.     The   omission   in   the   police
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statement with regard to the presence of the appellant at the time
of occurrence cannot be considered as trivial.  The witness was
specifically confronted with the omission also.
7. In the facts and circumstances of the case, we are satisfied
that the prosecution cannot be stated to have established the
presence of the appellant at the time of occurrence beyond all
reasonable doubt.   The appellant is therefore held entitled to
acquittal on benefit of doubt, with regard to his presence at the
time of occurrence.   It is ordered accordingly.  The appellant is
directed to be released from custody forthwith unless wanted in
any other case.
8. The appeal is allowed.
…………...................J.
[RANJAN GOGOI]
…………...................J.
[NAVIN SINHA]
NEW DELHI
SEPTEMBER 28, 2018.
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