REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1123 OF 2010

ASHOKSINH JAYENDRASINH                              …..Appellant

VERSUS

STATE OF GUJARAT                                 …..Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal  arises out  of  the judgment dated 05.03.2009

passed by the High Court of Gujarat at Ahmedabad in Criminal

Appeal No.10 of 2001 in and by which the High Court affirmed the

conviction of appellant-accused No.1 under Section 302 IPC read

with  Section  34  IPC  and  the  sentence  of  life  imprisonment

imposed upon him. The High Court also affirmed the conviction of

the appellant under Section 307 IPC read with Section 34 IPC

and under Section 25(c)  of  the Arms Act and the sentence of

imprisonment imposed upon him. The High Court acquitted the

appellant for the offence under Section 3(1)(x) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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2. Brief facts which led to filing of this appeal are:-

On  23.11.1997  at  about  09.00  PM,  accused  Nos.1  to  5

along with their servant (accused No.6) and another one accused

gathered  themselves  and  started  ploughing  the  disputed  road

with a tractor for which a civil suit in Regular Suit No.131 of 1997

filed  by  complainant-Somabhai  Rupabhai  (PW-3)  against

appellant-accused No.1 and accused No.3 was already pending

before  the  Court  of  Civil  Judge,  Modasa.  According  to  the

prosecution, the said road was used by the complainant and his

family members for going to and fro. On the date of incident i.e.

on 23.11.1997 at about 09:00 PM, when accused persons were

ploughing  the  road,  the  complainant  and  his  family  members

intervened and prevented them from carrying out the ploughing

activities on which accused started abusing the complainant and

his family members with caste remarks. Due to fear, complainant

and his family members went back to their houses which were

near to the place of incident. In the meantime, appellant/accused

No.1-Ashoksinh  Jayendrasinh  and  accused  No.2-Kalusinh  @

Harpalsinh  armed  with  guns,  accused  No.4-Balbadhra  Singh

armed with  stick  and accused No.3-Gayendra  Singh who was

driving the tractor came there. Thereafter, accused Nos.1 and 2

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fired  three  gun  shots  which  hit  deceased  Somiben,  wife  of

Hirabhai (PW-5), Ramanbhai (PW-6) and Nandaben (PW-7) due

to which Somiben died on the spot and PWs 6 and 7 got injured.

Thereafter, all the accused ran away from the place of incident.

On  24.11.1997,  on  the  basis  of  the  complaint  lodged  by

complainant (PW-3), FIR was registered against all the accused

under Sections 302, 307, 120B IPC read with Section 34 IPC,

143, 147, 148, 149, 506(II), 323 and 504 IPC, under Section 25(c)

of  the  Arms  Act  and  under  Section  3(1)(x)  of  the  Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. Upon  completion  of  investigation,  charge  sheet  was  filed

against the appellant and other co-accused under Sections 302,

307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149,

506(II),  323 and 504 IPC, under Section 25(c) of the Arms Act

and  under  Section  3(1)(x)  of  the  Scheduled  Castes  and

Scheduled Tribes (Prevention of Atrocities) Act, 1989.  

4. To  bring  home  the  guilt  of  the  accused,  the  trial  court

examined  four  eye-witnesses  viz.  complainant-Somabhai

Rupabhai  (PW-3),  Hirabhai  Somabhai  (PW-5) and injured eye-

witnesses-Ramanbhai  Mulabhai  Rangjibhai  (PW-6)  and

Nandaben  Hirabhai  (PW-7),  Dr.  Rohit  Kumar  (PW-1)  who

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conducted  the  post-mortem  on  the  dead  body  of  deceased

Somiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured

eye-witnesses  and other  witnesses.  Upon consideration  of  the

evidence of  injured eye-witnesses (PWs 6 and 7),  recovery  of

weapons and other evidence on record,  the trial  court  vide its

judgment dated 15.11.2000 convicted the appellant-accused No.1

and accused No.2 under Section 302 IPC read with Section 34

IPC and sentenced them to undergo life imprisonment along with

fine of Rs.5,000/- each. They were also convicted under Section

307  IPC  read  with  Section  34  IPC  and  were  sentenced  to

undergo rigorous imprisonment for seven years along with fine of

Rs.5,000/- each. They were also convicted under Section 25(c) of

the Arms Act and sentenced to undergo rigorous imprisonment for

three years along with fine of Rs.500/- each and under Section

3(1)(x)  of  the  Scheduled  Castes  and  Scheduled  Tribes

(Prevention  of  Atrocities)  Act,  1989 and sentenced to  undergo

rigorous imprisonment for six months along with fine of Rs.500/-

each.  The  trial  court  acquitted  accused  No.1  and  2  under

Sections 147, 148, 149, 323, 504 and 506(II) IPC. The trial court

also  acquitted  accused No.3  to  7  from all  the  charges.  Being

aggrieved,  appellant-accused No.1  and accused No.2-Kalusinh

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filed  Criminal  Appeal  No.10  of  2001  before  the  High  Court.

Challenging the acquittal  of co-accused-No.3 to 7, respondent-

State has also filed Criminal Appeal No.127 of 2001 before the

High Court. By the common judgment dated 05.03.2009, the High

Court  affirmed  the  conviction  of  appellant-accused No.1  under

Section 302 and Section 307 IPC read with Section 34 IPC and

under Section 25(c) of the Arms Act. The High Court acquitted the

appellant  under  Section  3(1)(x)  of  the  Scheduled  Castes  and

Scheduled Tribes (Prevention of  Atrocities)  Act,  1989 and also

acquitted accused No.2-Kalusinh from all the charges by giving

him  the  benefit  of  doubt.  By  the  same  judgment,  the  appeal

preferred  by  the  respondent-State  was  dismissed  by  the  High

Court.  

5. Being aggrieved by the dismissal of his appeal, appellant-

accused No.1 has preferred this appeal. Challenging the acquittal

of  accused  No.2-Kalusinh,  respondent-State  has  filed  Criminal

Appeal  No.1125 of  2010 which we have dismissed  vide order

dated 02.05.2019.

6. Mr. Anuj Bhandari, learned counsel appearing on behalf of

the  appellant  has  submitted  that  the  occurrence  was  of

23.11.1997 at 09:00 PM in the agricultural field of complainant-

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Somabhai Rupabhai (PW-3) and there is no evidence as to the

electric light burning at the time of occurrence so as to enable the

complainant and the witnesses to identify the assailants and in

the absence of any vital evidence regarding the light, identity of

the assailants by the witnesses ought not  to have been relied

upon.  It  was  further  submitted  that  two  panch  witnesses  viz.

Mukeshkumar Pranlal  Sheth (PW-12) and Ramanbhai  Hirabhai

Panchal (PW-17) have not supported the panchnama (Ex.P-89)

and in  the absence of  proof  of  recovery  of  weapons from the

appellant,  the  fatal  injuries  sustained  by  deceased  Somiben

cannot be attributed to the appellant. It was submitted that in the

post-mortem certificate (Ex.P-52),  Dr.  Rohit  Kumar (PW-1) has

stated that there were puncture wounds but it is not clear as to

whether those wounds were caused by rifle  or by gun. It  was

urged that in the absence of any definite evidence as to which

weapon-whether rifle or gun had caused the injuries, the court

ought not  to have convicted the appellant-accused No.1 under

Sections 302 IPC read with Section 34 IPC and Section 307 IPC

read with Section 34 IPC and under Section 25(c) of the Arms Act

and prayed for giving benefit of doubt to the appellant-accused

No.1.

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7. Ms. Jesal Wahi, learned counsel appearing on behalf of the

respondent-State has taken us through the judgment of the trial

court  and  the  impugned  judgment  and  submitted  that  the

evidence  of  injured  eye-witnesses  (PWs  6  and  7)  and  the

evidence of complainant-Somabhai Rupabhai (PW-3) and other

eye-witness Hirabhai (PW-5)  are cogent and consistent and the

courts below rightly convicted the appellant-accused No.1 and the

concurrent findings warrant no interference.  

8. We  have  carefully  considered  the  rival  contentions  and

perused the  impugned judgment  and the  judgment  of  the  trial

court and other materials placed on record.  

9. As per the prosecution case, the motive for the occurrence

is regarding the dispute over the enjoinment of the road in Survey

No.95  of  Dhemda  Village  belonging  to  accused  No.1.

Complainant-Somabhai  Rupabhai  (PW-3)  filed  a  civil  suit  in

Regular Suit No.131 of 1997 for the land measuring four acres

and  twenty-two  guntas in  the  Court  of  Civil  Judge,  Modasa

against accused Nos.1 and 3. In the said suit, by the order dated

16.10.1998 (Ex.P5), the court has ordered “status quo”. Against

the said order of status quo, accused has filed appeal in CFO

No.67 of 1998 and the copy of said appeal has been marked as

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Ex.P-126. Regarding the enjoyment of the land bearing Survey

No.95,  there  was  enmity  between  the  parties  and  thus  the

prosecution has proved the motive. Proof of motive was taken as

one of the important aspects by the trial court as well as by the

High Court. Though motive is a relevant aspect, it is to be kept in

view  that  motive  is  a  double  edged  weapon.  Proof  of  motive

merely adds to the value of evidence of the eye-witnesses.

10. The  occurrence  was  of  23.11.1997  at  09:00  PM  in  the

agricultural  field  of  complainant-Somabhai  Rupabhai  (PW-3),

where it was dark. The panchnama of the scene of occurrence

(Ex.P-73) shows no indication of  the electric  light  either  in  the

animal  shed situated  behind  the  house of  complainant  or  that

there is any electric pole anywhere in the vicinity or that there is a

light on the well which is supplying water. Case of prosecution is

that  appellant  and  six  other  co-accused  surrounded  the

complainant  party  and  there  were  three  gunshots  fired.  The

injured witness (PW-6) in his cross-examination has admitted that

he had not stated anything about the burning light either in the

animal shed or anywhere in the vicinity. In the absence of any

evidence as to the light aspect, the possibility of identifying the

accused  in  the  darkness  of  the  agricultural  field  of  the

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complainant, particularly at 09:00 PM becomes doubtful. It is also

to be pointed out that there is no evidence as to whether there

was  moonlight  on  23.11.1997  and  complainant  has  also  not

stated that he has identified the appellant  or other co-accused

with the help of moonlight. In the absence of evidence as to the

availability of sufficient light, the identification of the accused and

the overt act attributed to the appellant becomes doubtful.  

11. In the complaint filed by complainant-Somabhai Rupabhai

(PW-3),  it  has  been  stated  that  appellant/accused  No.1-

Ashoksinh Jayendrasinh and accused No.2-Kalusinh fired three

gun shots from their guns. Whereas, in the statement before the

court, PW-3 has stated that “Kalu Sinh fired three shots which

injured  Nandaben  and  Ramanbhai”.  As  per  the  case  of

complainant as stated in the court,  total  three gun shots were

fired and all three were fired by accused No.2-Kalusinh. As rightly

submitted  by  the  learned  counsel  for  the  appellant,  there  are

contradictions in the case of the prosecution as to who fired those

gun shots and the benefit of doubt is to be given to the appellant.

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12. Dr. Rohit Kumar (PW-1) has conducted the post-mortem on

the dead body of  deceased Somiben and as per  post-mortem

certificate (Ex.P-52), PW-1 noted the following injuries:-

(i) One entry wound on left side of chest above the nipple

of 0.5 cm diameter.

(ii) Puncture wound, round, on left side of neck measuring

0.5 cm.

(iii) Injury No. (i) passed into the back forming Exit wound at

the side of middle of spine of right scapula measuring 1

cm in diameter. At the back at the level of 1st Exit wound

5th rib was broken. At the level of 2nd Exit wound 7th rib

was broken at the back side of left chest.

PW-1 opined that cause of death was due to rapturing of trachea,

oesophagus and difficulty in breathing. In post-mortem certificate-

Ex.P-52, PW-1 has not stated that the injury was caused either by

bullet or by pellets. PW-1 has also admitted that he has not seen

the  recovered  articles  i.e.  the  recovered  rifle  and  the  double

barrel gun. In the absence of definite evidence as to which of the

fire arm caused the fatal injury, the same cannot be attributed to

the appellant from whom rifle was recovered.

13. Case of prosecution is that as per disclosure statement of

accused Nos.1 and 2, a rifle was recovered from the house of

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accused No.1 which has a single barrel. Similarly, as pointed out

earlier in post-mortem certificate (Ex.P-52), a double barrel gun

was also recovered from the house of accused No.2.  It is merely

stated  that  there  were  puncture  wounds.  The  post  mortem

certificate does not state as to whether those gun wounds were

caused by rifle or by gun. In the absence of any definite indication

as to whether those fatal wounds were caused either by rifle or by

double barrel gun, the courts ought not to have held appellant-

accused No.1 responsible for the fatal  fire arm wounds on the

body of deceased Somiben.

14. Yet  another  circumstance  raising  doubts  about  the

prosecution  case  is  to  be  pointed  out.   Mukeshkumar  Pranlal

Sheth (PW-12) and Madhusudanbhai Arvindbhai Pandya (PW-13)

are the witnesses to the panchnama (Ex.P-79) for  recovery of

weapons from accused Nos.1 and 2 and both of them have not

supported the prosecution case. The police officer-Investigating

Officer has spoken about the recovery of the fire arms. There is

no  rule  of  law  that  the  evidence  of  police  officer  has  to  be

discarded or that it suffers from some inherent infirmity. But in the

facts and circumstances of the present case where two fire arms

viz. rifle and gun are said to have been used by accused Nos.1

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and 2 respectively, prudence requires corroboration of recovery of

the weapons from independent source. When panch witnesses in

Ex.P-79 have turned hostile, the court has to seek corroboration

from other sources regarding the recovery of weapons.  

15. Learned  counsel  appearing  for  the  appellant  mainly

contended that  fired  bullet  was  not  recovered and only  empty

cartridges made of bronze were recovered near the mango tree.

Contention of  the appellant  is  that  since the fired bullet  which

caused  fatal  injuries  to  the  deceased  was  not  recovered,  the

ballistic expert cannot give definite opinion as to which weapon

was  used  to  cause  the  fatal  gun  wounds  to  the  deceased.

Learned counsel further contended that ballistic expert has stated

that he only tested the fired bullet C2 from rifle C1 and examined

only empty bullet recovered and therefore, from the evidence of

ballistic expert, it cannot be said that gun shot injury was caused

to the deceased only from the rifle recovered from the appellant.

Non-recovery  of  bullet  cannot  be  said  to  be  fatal  to  the

prosecution case.  Since benefit of doubt is given to the accused

on other aspects like darkness in the place of occurrence and

doubts  as to  who caused fatal  injuries,  we are not  inclined to

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consider the merits of the contention assailing the opinion of the

ballistic expert.  

16. There was darkness at the time and the place of occurrence

making it difficult for the witnesses to identify the assailants. The

evidence of eye-witnesses are contradictory to each other as to

the firing of the fatal blow. The guilt of the accused has not been

proved beyond reasonable doubt and the benefit has to be given

to the accused.

17. We are conscious that the Supreme Court would be slow to

interfere with the concurrent findings of the courts below. In an

appeal under Article 136 of the Constitution of India, concurrent

findings  of  fact  cannot  be  interfered  with  unless  shown  to  be

perverse  (vide  Mahesh  Dattatray  Thirthkar  v.  State  of

Maharashtra  (2009)  11  SCC  141).  Where  the  appreciation  of

evidence  is  erroneous,  the  Supreme  Court  would  certainly

appreciate the evidence. In our considered view, the High Court

ought to have weighed and considered the materials. When the

findings of the trial  court  and the High Court  are shown to be

perverse and there is no proper appreciation of evidence qua the

appellant,  the Supreme Court would certainly interfere with the

findings of fact recorded by the High Court and the trial court. It is

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to be pointed out that the High Court has not appreciated the oral

evidence, other evidence and the points raised by the appellant-

accused No.1. In our considered view, the impugned judgment

affirming the conviction of the appellant-accused No.1 cannot be

sustained and the impugned judgment is liable to be set aside.  

18. The  conviction  of  appellant-accused  No.1  under  Section

302 IPC read with Section 34 IPC and Section 307 IPC read with

Section 34 IPC and under Section 25(c) of the Arms Act is set

aside and this  appeal  is  allowed. The appellant/accused No.1-

Ashoksinh  Jayendrasinh  is  ordered  to  be  released  forthwith

unless his presence is required in any other case.

                                                   ..…………………….J.                                                                         [R. BANUMATHI]

………………………….J.                                                                    [S. ABDUL NAZEER]

New Delhi; May 07, 2019.

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