NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL APPEAL NO. 1475 OF 2017  

GUMAN SINGH …..            APPELLANT(S)

VERSUS

STATE OF RAJASTHAN …..        RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

The  appellant,  Guman  Singh  impugns  judgment  dated

10.03.2017 passed by the Division Bench of  the High Court  of

Judicature for Rajasthan at Jaipur, which confirms his conviction

under Section 302 of the Indian Penal Code (“IPC”, for short) for

murder of Shiv Charan and under Section 307 read with Section

34  IPC  for  attempt  to  murder  Babu  Singh.  Appellant  stands

sentenced under Section 302 IPC to life imprisonment and fine of

Rs. 10,000/- and in default of payment of fine to serve additional

rigorous  imprisonment  for  one  year  and  for  an  offence  under

Section 307 IPC to rigorous imprisonment of 10 years with fine of

Rs.  1,000/-  and  in  default  of  payment,  an  additional  rigorous

imprisonment of one year.   

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2. The  conviction  arises  out  of  FIR  No.  464/2009  registered  on

30.08.2009 at 8.20 p.m. in Police Station Hindaun City, District-

Karauli, Rajasthan and the consequent charge-sheet filed against

the  present  appellant,  i.e.  Guman  Singh,  and  Jagdish  Singh,

Satvir Singh and Shyam Singh. Jagdish Singh was acquitted by

the Additional Sessions Judge, Hindaun City, Karauli,  Rajasthan

vide  judgment  dated  07.06.2013  and  Shyam Singh  and  Satvir

Singh have been acquitted in the impugned judgment of the High

Court.

3. The primary  issue/question raised before  us relates to  veracity

and  truthfulness  of  the  testimonies  of  Tara  Singh  (PW-1)  and

Varun  Singh  (PW-4),  son  and  nephew  of  the  deceased  Shiv

Charan. Tara  Singh  (PW-1)  and  Varun  Singh  (PW-4)  have

deposed  that  they  along  with  Shivendra  Singh  were  on  a

motorcycle  on  their  way  from  Hindaun  to  Village  Banki.  The

deceased  Shiv  Charan  and  the  injured  Babu  Singh  were  on

another motorcycle a few steps ahead of them. Near Chauve ka

bandh,  another  motorcycle  with  the  present  appellant  Guman

Singh and Satvir Singh s/o Ramoli and Shyam Singh s/o Ummed

Singh, residents of Village Banki, appeared from behind and came

parallel  to the motorcycle driven by the deceased Shiv Charan.

One of the riders from the third motorcycle had then fired a shot

Criminal Appeal No. 1475 of 2017 Page 2

that  had hit  Babu Singh on his side and back.  The motorcycle

skidded  and  Shiv  Charan  and  Babu  Singh  fell  down.  Guman

Singh had then fired at the chest of Shiv Charan.  Satvir Singh

and Shyam Singh too had fired at Shiv Charan. Guman Singh,

Satvir Singh and Shyam Singh had also fired shots at Tara Singh

(PW-1) and Varun Singh (PW-4) who had managed to escape by

running towards the Hindaun City to save their lives. They had,

from STD booth near Chungi, informed their relatives about the

occurrence.  On seeing  a  police  vehicle,  they  drove  along  with

police to the place of occurrence.

4. However,  this  version  as  to  their  presence  at  the  place  of

occurrence and being eye-witnesses to the firing by Guman Singh

is a suspect and in grave doubt, in view of the testimony of Gulam

Navi  (PW-7)  the  Investigating  Officer  and  SHO  Police  Station

Hindaun City, who has deposed that on 30.08.2009 at around 5.30

p.m.  information  was  received  from  an  unknown  person  that

someone had been fired upon by another near Chauve ke bandh.

PW-7 on reaching the spot along with other police officials found

Babu Singh lying in an injured condition. Shiv Charan had already

died.   One  motorcycle  was lying  at  the  spot.  On  directions  of

Gulam Navi (PW-7), the deceased Shiv Charan and Babu Singh

were taken to the hospital.  Gulam Navi (PW-7) has not deposed

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and accepted presence of  Tara Singh (PW-1) and Varun Singh

(PW-4) at the spot at 5.30. p.m. on 30.8.2009. As per PW-7, his

first meeting with Tara Singh (PW-1) was at the hospital at around

8.20 p.m.,  when a written complaint  was given to him by Tara

Singh (PW-1). Upon receipt of the written complaint, steps were

taken for registration of the FIR.  Similarly, Babulal Bhaskar (PW-

10) Sub-Inspector, has deposed that on 30.08.2009 at 5.30 p.m.

he  had left  the  police  station  and  had reached the  hospital  at

around  5.55  p.m.  Around  8.20  p.m.,  he  had  initiated  the

proceedings  after  preparing  the  panchnama  etc.  In  his  cross-

examination, PW-10 had testified that till  8.20 p.m. none of the

witnesses had disclosed and named the attacker(s) and they had

also not indicated as to the type of weapon used in the offence.  

5. On  reading  testimonies  of  Gulam  Navi  (PW-7)  and  Babulal

Bhaskar (PW-10), we find that their versions contradict the version

given by Tara Singh (PW-1) and Varun Singh (PW-4) as to their

presence at the place of occurrence and their claim that they were

following the deceased Shiv Charan and the injured Babu Singh

on another motorcycle.  Their presence is highly doubtful and their

eye-witness account apparently conjured, as they were not found

at the spot when Gulam Navi (PW-7) the SHO and Investigating

Officer had recached  Chauve ke bandh at around 5.30 p.m. on

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30.08.2009. Gulam Navi (PW-7) in his cross-examination also had

accepted as correct that the informant Tara Singh (PW-1) was not

present at the place of the occurrence till the time Babu Singh was

sent to hospital. Between 5.30 p.m. to 8.20 p.m., PW-7 was not

informed and told as to who had fired upon Shiv Charan. First

conversation between Tara Singh (PW-1) and Varun Singh (PW-4)

and Gulam Navi (PW-7) was in the hospital at about 8.20 p.m.,

nearly 3 hours after the occurrence, and both had then for the first

time projected themselves as eye witnesses. The assertion and

claim of Tara Singh (PW-1) and Varun Singh (PW-4) of being eye-

witnesses to the incident was clearly on second thoughts and after

due deliberation.  

6. Statements of Tara Singh (PW-1) and Varun Singh (PW-4), under

Section 161 of the Code of Criminal Procedure, 1973 (“the Code”,

for short), were recorded by the SHO and the Investigating Officer

Gulam Navi (PW-7) three days after  the date of occurrence on

03.09.2009.  This  delay  is  substantial  and  assumes  some

importance as it  has been alleged that the FIR has been back

dated  and  was  never  sent  to  the  Magistrate  as  required  vide

Section 157 of the Code.

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7. While the aforesaid contention as recorded in paragraph 6 may

not by itself be significant, but testimony of Babu Singh (PW-3) is.

Babu Singh, it is stated, had returned from Jaipur on 3.09.2009

and thereupon his statement under Section 161 of the Code was

recorded.  Pertinently, Babu Singh (PW-3) in his examination-in-

chief had turned hostile and did not name the appellant and three

others who were charge-sheeted.  Babu Singh’s presence on the

spot cannot be doubted, as he was the only injured witness. Babu

Singh (PW-3) did not depose as to the presence of Tara Singh

(PW-1) and Varun Singh (PW-4) on another motorcycle or  that

they were following them.  He had stated that he was fired from

behind and thereafter,  had become unconscious and had fallen

down.  On  regaining  consciousness,  he  had  noticed  police

personnel and a person holding camera. Thereafter, he was taken

to the hospital.   He did not know who had fired at  him.  Babu

Singh (PW-3) was certainly conscious when he was brought to the

hospital  because  he  had  also  signed  the  Medical  Examination

Report  /  MLC.   Babu  Singh  (PW-3)  did  not  depose  as  to  the

presence of the present appellant nor did he identify any of the

assailants.   

8. In view of the testimonies of Babu Singh (PW-3) and Gulam Navi

(PW-7), there is a clear contradiction and direct conflict between

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the  version  given  by  them  and  Tara  Singh  (PW-1)  and  Varun

Singh (PW-4),  who assert  and  claim their  presence and being

eye-witnesses to  the occurrence.  We would  for  reasons stated

above rely on the version given by Babu Singh (PW-3), Gulam

Navi  (PW-7)  and  Babu  Lal  Bhaskar  (PW-10).  Therefore,

identification by Tara Singh (PW-1) and Varun Singh (PW-4) of the

appellant- Guman Singh as one of the perpetrators who had fired

on Shiv Charan and Babu Singh (PW-3) is unreliable and should

not be accepted without substantial corroboration and supporting

material/evidence  to  establish  involvement  of  the  appellant-

Guman Singh.    

9. On the aspect of corroboration, prosecution relies upon the FSL

report,  exhibit  P-48,  opining  that  barrel  residue  examination  of

‘8mm/.315’ country-made pistol (W/1) had revealed that pistol had

been  fired,  but,  definite  time  of  its  last  firing  could  not  be

ascertained.  The FSL report also opines that it was not possible

to  link  definitely  the  ‘8mm/.315’  Soft  Round  nose  Copper

Jacketted  Bullet  ‘B/1’  from packet  ‘D  1’ with  the  country-made

pistol  (W/1)  from packet  ‘E’ due  to  lack  of  sufficient  evidence.

Thus, the bullet ‘B/1’ recovered from the body of Babu Singh (PW-

3) would not be matched with the country-made pistol. The bullets

recovered from the body of deceased Shiv Charan were not sent

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for  ballistic  examination  and  comparison. This  is  surprising  as

bullets were certainly recovered from the body of the deceased

Shiv Charan and no explanation is forthcoming why these bullets

were not sent for ballistic examination. Prosecution however relies

on the finding in the FSL report that the hole on the shirt worn by

Babu Singh appeared to have been caused by a copper jacketted

bullet.  In  the  factual  matrix  and  the  evidence  established  and

proved, the aforesaid opinion on the hole in the shirt and the bullet

is rather a weak evidence that would not be sufficient to implicate

and corroborate the involvement the present appellant.  

10. In Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC

367, this Court had graded witnesses into genus of wholly reliable,

wholly unreliable, neither wholly reliable nor wholly unreliable and

had dealt with the consequences that flow from the testimonies

from  each  of  these  categories.  In  the  present  case,  the

testimonies of Tara Singh (PW-1) and Varun Singh (PW-4) have to

be held to be in the second category as wholly unreliable. Even if

we treat their testimonies as falling in the third genus where the

Court  has  to  treat  the  same  with  circumspection  and  look  for

corroboration  in  material  particulars  by  reliable  evidence/

testimony,  direct  or  circumstantial,  the  case  of  the  prosecution

would  fail,  for  there  is  nothing  to  support  and  show  the

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involvement of the appellant in the crime other than the unreliable

attribution by Tara Singh (PW-1) and Varun Singh (PW-4).  The

prosecution, therefore, has to fail as it has failed to prove that the

evidence has a ring of truth, is cogent, credible and trustworthy so

as to establish the charge beyond reasonable doubt.  

11. As noticed above, the charge-sheet in the present case was filed

against present appellant Guman Singh and three others namely

Jagdish Singh,  Shyam Singh and Satvir  Singh.   Jagdish Singh

was acquitted by the trial court and Shyam Singh and Satvir Singh

have been acquitted by the impugned judgment of the Division

Bench of the High Court.

12. In view of the discussion, we would accept the present appeal and

set aside the conviction of Guman Singh, who should be set free

forthwith unless he is required to be detained in any other case in

accordance with law.

......................................J. [INDIRA BANERJEE]

......................................J. [SANJIV KHANNA]

NEW DELHI; MAY 24, 2019.

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