PANKAJ Vs STATE OF RAJASTHAN
Bench: V. GOPALA GOWDA,R.K. AGRAWAL
Case number: Crl.A. No.-002135-002135 / 2009
Diary number: 34415 / 2008
Advocates: SUDHIR NAAGAR Vs
MILIND KUMAR
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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
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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.
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(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.
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(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
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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.
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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
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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.
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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.
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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
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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
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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.
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(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
scorching/singeing. Revolver/pistols—within about 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.
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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
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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
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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.
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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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