PANKAJ Vs. STATE OF RAJASTHAN

Tags Conviction Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2135 of 2009, Judgment Date: Sep 09, 2016

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 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.

(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.
(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 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.

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 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.
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.
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 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
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.
(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 |Revolver/pistols—within about |
| |scorching/singeing. |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. |
| | | |
|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 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 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.

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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