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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