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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2194 OF 2014

Pawan @ Rajinder Singh and another … Appellants

Versus

State of Haryana …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated

02.04.2014, passed by the High Court of Punjab and Haryana

in Criminal Appeal No. D-391-DB of 2002 whereby said Court

has  dismissed  the  appeal  affirming  the  conviction  and

sentence  under  Section  302/34  IPC,  against

accused/appellants Pawan @ Rajinder Singh and Ajit @ Dara

Singh, recorded by the Additional Sessions Judge, Fast Track

Court No. 1, Faridabad.  The High Court has further affirmed

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the  conviction  and  sentence  recorded  against

accused/appellant Ajit @ Dara Singh under Section 25 of the

Arms Act, 1959.

2. Heard learned counsel  for  the parties and perused the

record of the case.

3. Prosecution story, in brief, is that Deepak (deceased) was

elder brother of PW-6 Amit Kumar (complainant).  Amit Kumar

had a business of selling flowers, and his elder brother used to

do the delivery work.   Their  neighbour Gola (not  examined)

had  taken  a  loan  of  10,000/-  on  interest  from  accused₹

Pawan,  and  he  (the  debtor)  had  returned  the  same  except

250/-.  On 09.11.2000 at about 8.30 p.m. accused Pawan @₹

Rajinder  Singh  and  his  cousin  accused  Ajit  @  Dara  Singh

demanded remaining 250/- from Gola to which the deceased₹

requested them to waive the said amount due to which some

altercation  took  place  between  the  deceased  and  the  two

accused.   About  half  an  hour  thereafter  both  the  accused

came back on a scooter, and Deepak (deceased) also left with

them but on his separate scooter bearing registration No. HR

51 E-4749.  Deepak did not return till late night.  On this,

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PW-6 Amit Kumar and his father Ram Nath started search for

him.  In the next morning they came to know that dead body

of a person is lying near Air Force ground.  Both, father and

son went there and saw that it was the dead body of Deepak.

Suspecting that appellants Pawan @ Rajinder Singh and Ajit @

Dara Singh had committed the murder, a report (Ex PE-1) was

given to the police in the early hours of 10.11.2000 mentioning

their names.  On the basis of said report, First Information

Report  No.  803 dated 10.11.2000 (Ex.PK)  was  registered at

Police Station, N.I.T., Faridabad.   

4. Investigation was initiated by PW-9 ASI Jai Singh, and

later PW-12 Inspector Raj Pal Singh took over the same.  PW-9

ASI Jai Singh, after taking the dead body in his possession,

got  the  inquest  report  (Ex.  PL-1)  and  site  plan  (Ex.PM)

prepared.   An empty  cartridge was also  recovered from the

place of incident.  PW-12 Inspector Raj Pal Singh, Investigating

Officer  got  sent  the  empty  cartridge  to  Forensic  Science

Laboratory for examination.  He also took the blood stained

earth  from  the  spot.   He  interrogated  the  witnesses.

Meanwhile, PW-1 Dr. D.S. Rathi, along with Dr. Sunita Gupta

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and Dr. P.S. Yadav, conducted the post mortem examination

on 10.11.2000 at about 5.00 p.m.  In the autopsy report (Ex.

PL) following ante mortem injury is mentioned: - “A circular circumscribed wound 2.5 c.m. x 2.5 c.m. in diameter and 2 c.m. from middle of chest on left side at level of 10th rib.  On probing going downward posteriorly, blackening and singeing present around the wound, margins inverted.  On examination  few pellets  found  embedded,  underneath  the  skin  and soft  tissues.   On  dissection  the  pleural  cavity contained blood.  A few metallic pellets found inside in left chest and pleural cavity, removed.  On further dissection hole in stomach also present.  On further examination a foreign body of rounded shape 2 c.m. in size was found and removed.  The pellets and the foreign body sealed in a vial.”

5. During  investigation,  the  Investigating  Officer  arrested

both  the  accused,  and  on  their  disclosure  scooter  bearing

registration No. HR 51 C 1609 was recovered from their house.

The prosecution case is that a country made pistol was also

recovered  on  the  disclosure  statement  (Ex.  PK)  made  by

accused Ajit @ Dara Singh.  A broken butt of the pistol was

said  to  have  been  found  from the  place  of  incident.   After

completion  of  investigation  charge  sheet  was  filed  by  the

Investigating Officer against both the accused.

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6. On  committal,  after  framing  charge,  the  trial  court

recorded evidence.  Prosecution got examined PW-1 Dr. D.S.

Rathi,  PW-2  MMHC  Hari  Chand,  PW-3  Constable  Manoj

Kumar,  PW-4  Pappu,  PW-5  Surender  Singh,  PW-6  Amit

Kumar, PW-7 Ram Nath, PW-8 Constable Ash Mohd.,  PW-9

ASI  Jai  Singh,  PW-10  ASI  Ami  Lal,  PW-11  Naimuddin  and

PW-12 Inspector Raj Pal Singh.  After putting the documentary

and oral evidence under Section 313 Cr.P.C. to the accused

persons,  the  trial  court  found  both  the  accused  guilty  of

charge  of  offence  punishable  under  Section  302/34  IPC.

Accused Ajit @ Dara Singh was further found guilty of charge

of  offence  punishable  under  Section 25 of  Arms Act,  1959.

They were awarded sentence, as already mentioned above.

7. On appeal by the convicts, High Court agreed with the

findings of the trial court and dismissed the appeal.  Hence

this appeal before us through special leave.

8. At the outset, we would like to mention that in substance

it is a case of circumstantial evidence but for the evidence of

two  chance  witnesses,  namely  PW-4  Pappu  and  PW-5

Surender  Singh.   PW-4  Pappu  is  a  rikshaw  puller  who  is

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resident of Sant Nagar Jhuggi in Faridabad.  PW-5 Surender

Singh, a three wheeler driver, is resident of Railway Colony,

Old Faridabad.  It is relevant to mention here that the incident

is said to have occurred near Air Force ground.  It is further

relevant to mention that the complainant Amit Kumar (PW-6),

his brother Deepak (deceased) and the two accused/appellants

are  residents  of  N.I.T.,  Faridabad.   It  is  not  clear  from the

record as to how these chance witnesses (PW-4 Pappu and

PW-5  Surender  Singh)  who  have  stated  that  they  heard

altercation between the deceased and the two accused after

midnight and thereafter heard sound of fire, knew them.  In

our opinion, the testimony of these witnesses cannot be said

to  be  reliable  or  trustworthy  particularly  when  their

statements  are  not  corroborated  from  other  evidence  on

record.

9. Now,  we  come  to  the  report  of  the  Forensic  Science

Laboratory.  The conclusions of the examination conducted in

the Forensic Science Laboratory, Haryana, Madhuban, Karnal,

are reproduced below from Ex. PF: -

“RESULT

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(1) The  countrymade  pistol  marked  W/1 (chambered for 12 bore cartridges) is a firearm as defined in Arms Act 54 of 1959.  Its firing mechanism was not found in working order.

(2) The countrymade pistol marked W/1 had been fired through.  However, scientifically, the time of its last firing cannot be given.

(3) The percussion cap of cartridge case marked C/1 on which firing pin marks appear due to firing was found missing.  Moreover, the firing mechanism  of  pistol  W/1  was  not  found  in working order.  Therefore, no opinion could be formed regarding the linkage of C/1 in respect of pistol W/1.

(4) One  wooden  piece  and  two  metallic  strips contained in parcel No. III could form part of countrymade  pistol  contained  in  parcel  No. VIII.

……………………………………”

(Emphasis supplied)

In  view  of  the  conclusions  given  by  Forensic  Science

Laboratory on points (1), (2) and (3), quoted above, we are of

the  view  that  the  prosecution  story,  as  narrated  by  PW-4

Pappu and PW-5 Surender Singh, is highly doubtful.

10. Apart  from  this,  though  the  motive  of  crime  is  not

necessarily  required  to  be  proved,  but  in  the  case  like  the

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present one where the appellants are named on suspicion by

informant PW-6 Amit Kumar in the First Information Report

(which  does  not  contain  names  of  PW-4  Pappu  and  PW-5

Surender Singh as witnesses who had seen the occurrence),

the motive appears to be relevant fact.  PW-6 Amit Kumar has

simply  mentioned  that  the  deceased  had  asked  the  two

accused to waive of the remaining amount of 250/- from the₹

loan of 10,000/- taken by Gola but the same does not appear₹

to  be  a  convincing  motive  to  commit  the  crime  by  the

appellants.   Prosecution  has  not  examined  Gola  if  he  had

taken  loan  of  10,000/-  and  paid  off  the  same  minus  the₹

amount 250/-.₹

11. Even  otherwise,  in  the  First  Information  Report  it  is

nowhere mentioned why actually Deepak (deceased) had gone

in his separate scooter with the two appellants from his house.

12. For  the  reasons,  as  discussed above,  we find that  the

trial  court  as  well  as  the  High  Court  has  erred  in  law  in

holding that the charge against the two accused stood proved.

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13. In the light of appreciation of evidence, as above, we are

of  the  opinion  that  the  prosecution  has  failed  to  prove  the

charge  of  offence  punishable  under  Section  302/34  IPC

against the two accused.  We further hold that the charge of

offence punishable under Section 25 of the Arms Act,  1959

against accused Ajit @ Dara Singh is also not proved beyond

reasonable  doubt.   Accordingly,  the  appeal  deserves  to  be

allowed.   

14. The appeal is allowed.  Both the accused, namely Pawan

@ Rajinder Singh and Ajit @ Dara Singh, are acquitted of the

charges.  The appellants shall be set at liberty forthwith if not

required in connection with any other case.

………………………..…….J. [N.V. Ramana]

………………………..…….J. [Prafulla C. Pant]

New Delhi; March 08, 2017.