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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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