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     NON-REPORTABLE   

IN THE SUPREME COURT OF INDIA        CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.1392 OF 2008

SUDHIR KUMAR JAIN                              ...APPELLANT(S)

                           VERSUS

THE STATE OF RAJASTHAN                         ...RESPONDENT(S)

J U D G M E N T

R. BANUMATHI,J.

1. This appeal arises out of the impugned judgment dated

03.04.2008 passed by the High Court of Rajasthan at Jaipur

Bench in  Criminal Appeal No. 1717 of 2003 in and by which the

High Court has affirmed the conviction of the appellant-accused

under Section 302 IPC and Section 3 read with 25 of the Arms

Act and the sentence of life imprisonment imposed upon him. On

17.04.2003 at around 09.45 a.m., deceased Rajendra Sahu came to

the auto-stand near Baheti Hospital in his auto rickshaw. At

around 12 noon when he was sitting on his auto-rickshaw, he saw

one Maruti 800 bearing No. RJ-06C-3432 coming and three persons

were sitting in the Car. Out of them, one of the occupants of

the  car  opened  the  left  front  side  door  of  the  car  and

signalled Rajendra Sahu to come nearer to the car. The deceased

- Rajendra Sahu got out from his auto-rickshaw and went near

the car. At that time, the appellant who was sitting  on the

left front side of the said car armed with desi katta opened

fire at deceased as a result of which he received injuries just

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above his navel and blood started oozing out. On hearing the

sound, Farooq (PW-17), Dilip Kumar (PW-9), Shambhu (PW-2) and

Iqbal (PW-4) came running on which persons sitting in the car

drove away. Iqbal (PW-4) then took the deceased to the hospital

in  auto-rickshaw.  In  the  hospital,  PW-22  ASI  recorded  the

parcha bayan of deceased based on which FIR was registered

under section 307 read with section 34 IPC. After the deceased

succumbed to his injuries, FIR was altered to Section 302 IPC.

Dr.  R.K.Sharma  (PW-26)  who  conducted  the  post-mortem  opined

that cause of death was shock as a result of firearm injuries

to intestine and liver which were sufficient to cause death in

the ordinary course of nature. On completion of investigation,

charge-sheet was filed against the appellant viz. Sudhir Kumar

Jain and co-accused Shailendra Gautam.  

2. In  the  Trial  Court,  eye  witnesses   Farooq  (PW-17),

Dilip Kumar (PW-9), Shambhu (PW-2) and Iqbal (PW-4) who took

the deceased to hospital were examined. All the witnesses viz.

Farooq (PW-17), Dilip Kumar (PW-9), Shambhu (PW-2) and Iqbal

(PW-4)  have  turned  hostile.  The  prosecution  also  examined

Harishankar (PW-3) and  Nannu Khan (PW-5) as eye witnesses who

have also not supported the prosecution case and were declared

hostile.  However,  the  prosecution  relied  upon  the  dying

declaration  -  parcha  bayan  of  the  deceased  Rajendra  Sahu

recorded by PW-22 ASI. Suresh Kumar, Constable (PW-18)  in his

evidence stated that he was travelling in the Maruti Car along

with the accused. PW-18 Constable further stated that at about

12 noon when they came near Baheti Hospital, he got down from

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the Maruti Car and started moving and one of the accused called

auto driver and, thereafter, Constable (PW-18) heard the sound

of firing. PW-18 stated that when he turned, he could not see

anything and the car from which he got down was standing there

and PW-18 moved from there and went to the Juvenile Court. The

Trial  Court  held  that  the  parcha  bayan  statement  of  the

deceased was corroborated by the evidence of PW-18 Constable

who travelled in the Maruti Car along with the accused. Based

on  parcha  bayan  and  the  evidence  of  PW-18  Constable  and

recovery of the country made pistol from the appellant-accused,

the Trial Court convicted the appellant-accused under Section

302 IPC and sentenced him to undergo life imprisonment. The

Trial Court also convicted the appellant under Section 3 read

with 25 of the Arms Act and sentenced him to undergo two years

imprisonment  and  imposed  a  fine  of  Rs.1,000/-  with  default

clause. The Trial Court acquitted the co-accused Shailender

Gautam.  In  appeal,  the  conviction  and  the  sentence  of

imprisonment was affirmed by the High Court as aforesaid.

3. We have heard Ms. Gouri Karuna Das Mohanti, learned

counsel appearing on behalf of the appellant as well as Mr.

Harsha  Vinoy,  learned  counsel  appearing  on  behalf  of  the

respondent-State of Rajasthan.

4. The  Trial  Court  mainly  relied  upon  parcha  bayan  of

deceased recorded by PW-22 ASI. Of course, Dr. Renu Raonka (PW-

28) stated that at the time of recording parcha bayan, deceased

Rajendra Sahu was conscious. But in the parcha bayan, deceased

Rajendra Sahu though narrated about the incident and firing by

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one  of  the  occupants  of  the  car,  has  neither  named  the

assailants nor mentioned the identity of the occupants of the

car  who  opened  the  door  and  who  fired  at  him.  Since  the

deceased has not mentioned the names of the assailants, FIR

also does not mention the names of the appellant-accused and

the co-accused Shailendra Gautam.  The eye witnesses who were

examined by the prosecution namely Farooq (PW-17), Dilip Kumar

(PW-9), Shambhu (PW-2) and two other witnesses viz. Harishankar

(PW-3)  and   Nannu  Khan  (PW-5)  have  not  supported  the

prosecution case and all of them were declared hostile. Thus,

none of the eye witnesses examined by the prosecution have

supported the prosecution case.

5. The  evidence  relied  upon  by  the  prosecution  is  the

evidence of Suresh Kumar, Constable (PW-18) who claimed to have

travelled in the Maruti Car bearing  Registration No. RJ-06C-

3432 along with the accused. PW-18 stated that on his way to

the Court he travelled in the car along with the accused and

got down near Baheti Hospital and started moving. After moving

some distance, he heard the sound of firing and when he turned

he could not see anything; but he found that the car from which

he got down was standing there. The Trial Court mainly relied

upon  the  evidence  of  PW-18  Constable  and  took  it  as

corroborating evidence to substantiate the parcha bayan. It is

pertinent to note that PW-18 Constable though claims to have

heard the firing and saw the car standing there he has not

given his statement regarding the occurrence at the earliest

point  of  time.  Though  occurrence  was  of  17.04.2003,  his

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statement  was  recorded  after  lapse  of  about  18  days  i.e.

04.05.2003. PW-18 in his evidence claimed that though he was

going to the Court he was in plain clothes and that he kept his

uniform in the Bag. The delay in recording statement of PW-18

constable and not reporting the matter to the police station

about the occurrence by PW-18 raises serious doubt about the

credibility of the testimony of PW-18.

6. The other evidence relied upon by the prosecution is

the  recovery  of  12  bore  country  made  pistol  based  on  the

disclosure statement of the appellant. It is to be pointed out

that the witnesses for recovery of the country made pistol from

the  accused  under  Ex.P-15  (Recovery  Memo)  namely,  Mahender

Gurjar(PW-11) and Mahender Mayuri (PW-12) have not supported

the case of the prosecution. PW-12 turned hostile; while PW-11

stated that he has taken the signatures in Ex.P-15 (Recovery

Memo) in the police station. Of course, it is well settled that

merely because the independent witnesses have not supported the

recovery memo, the case of the prosecution as to the recovery

cannot  be  doubted.  Considering  the  recovery  and  Ex.P-37

(Ballistic Report) it is seen that three packets marked as A, B

and C were sent to the Ballistic Expert (PW-25). Description of

Articles as under:

Packet 'A' contained two lead pellets

Packet 'B' contained nineteen lead pellets

Pactet 'C' Contained one 12-bore country made Pistol,  marked W/1

Upon  examination  of  the  country  made  pistol  and  the  other

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packets, PW-25  opined as under:

1. One  12-bore  country  made  pistol  (W/1)  from packet  'C'  is  not  a  serviceable  firearm  in  the present  condition  due  to  some  defect  in  its mechanism.  However,  after  repair  it  can  be  made serviceable.

2. The  examination  of  the  barrel  residue indicates that submitted 12-bore country made pistol (W/1) had been fired. However, the definite time of its last fire could not be ascertained.

3. Twenty one lead pellets from packet 'A' & 'B' are  normally  used  in  12-bore  ammunition.  These pellets could have been fired from 12-bore country made pistol (W/1) from packet 'C'.

7. The  accused  was  arrested  on  the  same  day  i.e.

17.04.2003 at 5.50 p.m. and the 12-bore country made pistol

was  recovered  immediately  thereafter.  The  opinion  of  the

ballistic expert that the 12 bore country made pistol from

packet 'C' is not serviceable firearm in the present condition

due to some defect in its mechanism raises doubt about the

weapon used in the occurrence. Of course PW-25 has stated that

the twenty one lead pellets contained in Packet 'A' and 'B'

are  normally  used  in  12-bore  ammunition  and  these  pellets

could have been fired from 12-bore country made pistol (W/1)

from  packet 'C'. Since the 12-bore country made pistol (W/1)

recovered  pursuant  to  the  disclosure  statement  made  by

appellant was not in working condition due to some defects in

its mechanism, this raises doubt about the user of the weapon.

Considering the fact that all the eye witnesses have turned

hostile, in our view, it is unsafe to rely upon the recovery

of  the  weapon  and  the  opinion  of  the  ballistic  expert  to

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sustain  the  conviction.  Learned  counsel  appearing  for  the

respondent-State has submitted that the deceased Rajendra Sahu

has stated about the Maruti Car bearing No. RJ-06C-3432  which

was recovered in front of Niranjan Kumar who is the father of

the appellant. It is pointed out that the prosecution has not

produced RC of the car to show that it stands in the name of

Niranjan Kumar. In any event, the piece of evidence regarding

the recovery of the Maruti Car in front of the father of the

appellant alone cannot form basis for conviction.

8. Considering the totality of the circumstances and that

all the eye witnesses have turned hostile and the FIR does not

mention  the  names  of  the  accused  coupled  with  other

circumstances, we hold that the prosecution has not established

the guilt of the appellant beyond reasonable doubt. The Trial

Court and the High Court erred in basing the conviction upon

evidence of PW-18 Constable and which in our view cannot be

sustained. The conviction of the appellant under Section 302

IPC  cannot be sustained and is liable to be set aside. The

conviction of the appellant is set aside and the appellant is

acquitted under Section 302 IPC and under Section 3/25 of the

Arms Act.

9. The appeal is, accordingly, allowed.

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

NEW DELHI ....................J. 31ST JULY, 2019 [A.S. BOPANNA]