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CASE NO.: Appeal (crl.)  1696 of 2007

PETITIONER: Sumersinbh Umedsinh Rajput @ Sumersinh

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 11/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    1696 OF 2007 [Arising out of SLP (Crl.) No. 2557 of 2007]

S.B. SINHA,  J :

1.      Leave granted.

2.      Appellant was charged with and convicted for commission of offences  under Sections 307 and 353 of the Indian Penal Code as also Section  25(1)(a) of the Arms Act; and sentenced to undergo rigorous imprisonment  of five years and fine of Rs. 5,000/-, two years and fine of Rs. 1000/- and  three years and fine of Rs. 1000/- respectively.

3.      Prosecution case shortly stated is as under:

       Appellant was a driver of a Tata Spacio Car.  Three other persons  were accompanying him.  They were sitting on the back seat.  The said car  was intercepted by the complainant PSI Babaji Javanji Vaghela (PW-8) and  other police officers.  The said persons ran  away.  The complainant Vaghela  tried to pull the appellant out of the car.  Allegedly, he resisted.  Force was  applied to take him out of the car.  A scuffle ensued, during which allegedly  he snatched the service revolver of the complainant and fired at him.  Injury  suffered by the complainant Vaghela (PW-8) as appearing from the medical  report, is as under:

"H/O Firing has (sic) done by accused from the  service revolver. (illegible) on right side of loin (illegible) 1 x = cm abrasion (illegible) superficial Black gas seen on cloth and puncture and baniyan  occurs"   4.      The clothes of the complainant as also the revolver with the cartridges  were sent for testing to the Forensic Science Laboratory.  It was found:  "Sample-A: It is a pant.  On being performing  (sic) chemical analysis and microscopic  examination of the hole on the pocket of the said  pant, it suggests that the hole on sample A has  occurred due to fire arms discharge.  The hole on  the said pant can take place with the help of bullet  of sample F. Sample-B: It is a shirt.  On being performing  chemical analysis of the black spot that is seen on  the right hand side of the waist of the said shirt it is  found that the black spot on the right hand side of  the waist of the  said shirt has occurred due to fire

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arms discharge. Sample-D:  It is 0.38" revolver of Lama Company  made in Spain.         On being analyzing barrel wash (before  performing test firing in this laboratory) of the said  revolver the presence of residuals of nitrate and  lead of the fire arms were seen.  It suggests that  firing was done from the revolver of the said  Sample D before it has been brought to this  laboratory.         On being firing from the chamber of the  revolver of Sample D by taking two cartridges of  0.38" revolver from the stock of this laboratory,  the same has been fired successfully.  It suggests  that the revolver of the said Sample D is in  working condition. Sample-E: It is empty case of cartridge of K.F.  0.38" revolver.  There was indentation mark on the  percussion cap of the said empty case of the  cartridge.  While performing examination and  comparison in the microscope about the  characteristics of the indentation mark on the  percussion cap of the said cartridge and firing pin  mark on the percussion cap of the cartridge that  was test fired from the revolver of Sample D, they  were found similar.  It suggests that sample of  cartridge of Sample E is fired from the revolver of  Sample D. Sample-F:  It is one copper jacketed bullet of 0.38"  revolver cartridge.  While performing examination  and comparison in the microscope about the  characteristics of rifling mark on the said bullet  and rifling mark on the bullet that was test fired  from the revolver of Sample D, they were found  similar.  It suggests that bullet of Sample F is fired  from the revolver of Sample D. Note:   Two cases of cartridge test fired from  Sample D and Bullet is enclosed with parcel D.         The test report of blood present on the  banyan of Parcel B (Sample B) will be sent  separately on being received from the biology  department."

5.      The complainant examined himself as PW-8.  One Amratlal (PW-2)  who is the PSI of CID and had allegedly accompanied the complainant  sought to support the prosecution case.  However, he did not have any  personal knowledge about the incident.  He heard thereabout only from the  complainant.  In regard to seizure of the article, PW-7 Khengarbhai stated:

"How many panchanamas were prepared by  police, that I do not know.  I put my signature in 4  to 5.  The panchnama with regard to clothes was  prepared first, thereafter panchnama with regard to  revolver was prepared.  As soon as first  panchnama was concluded, second panchanama  was prepared.  When I went to police station that  time clothes and revolver were lying on table in  police station.  The police, who has prepared  panchnama informed me that those clothes  belonged to PSI Vaghela.  Tharad Police has  shown revolver.  Vaghela was sitting there.  The  said revolver was empty however it did not open.   How many cartridges were present inside, I have  not seen them.  I have seen hole ;in vest and

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trouser.  The hole was present in left side of  trouser.  It was  small and round, whatever has  been shown to me in round hole ;in our language.   I do  not  remember now.  Today, the trouser  which is shown to me has hole on right side."

6.      All the witnesses who were said to be independent witnesses, viz.,  PWs-3, 6, 7 and 10 turned hostile.  According to them, they were made to  become witnesses of seizure of the clothes, etc., which had been kept in the  police station.   7.      Dr. Deepak Kumar examined himself as PW-5.  He in his evidence  proved the medical report.  In his deposition for all intent and purport, he  conceded the deficiencies in the prosecution case vis-‘-vis the report  prepared by him, stating;         "It is true that I have written  history in  certificate, that history was recorded in Yaadi.  If  vest has hole then shirt worn on that should have  hole on it or if Bushirt is torn then shirt also should  have hole on it or Bushirt worn is found torn.         It is true that  looking at trouser.  I say that  one circle is made on it with pencil.  That is not  torn with bullet.  It is true that looking at the  trouser  I say that, it is not entry cut.  It is true that  if vest has hole then two holes should have found,   one is entry and other exit hole.  Otherwise, in case  of scratch, vest is found in similar torn manner.         It is true that I have not mentioned fire arm’s  marks. It is true that if any injury is caused with  fire arm or bullet then the edge has burn mark.  In  present case no burn injury is found.  It is true that  if shooter fires from point blank range then black  colour is found near wound.  When I saw injury of  patient, it did not have such black mark on that.   Shirt had black mark.  It is true that scratch mark  can occur due to rubbing on rough substance."

        8.      From the statements made by PW-5, it is evident that even in relation  to the purported marks of entry of the bullet through the garments owned by  the complainant, there existed a lot of discrepancies.  Some sort of make- shift report was placed before him by way of "Yaadi", which prepared by  the complainant and whereupon he completely relied.  If no burn injury was  found in the clothes, it is difficult to believe that some burn injury was  noticed in the wound.  Prosecution did not obtain any clarification from him  as to whether the nature of the injury which the complainant suffered could  not take place due to rubbing of the skin on a rough substance.

9.      We must also notice that the injury received by the complainant was  allegedly caused to his loin.  How such a simple injury could be caused from  a shot fired from a fire-arm is open to question.  So far as the report of the  Forensic Science Laboratory is concerned, the clothes had not been  identified as belonging to the injured.  It may also be recorded that two  bullets were sent to the Forensic Science Laboratory, although the specific  case of the prosecution is that only one shot was fired.  Two bullet holes  were, therefore, not possible to be caused, one in the trouser and other in the  waist, by one shot of fire. It has not been disclosed as to wherefrom the  bullet was recovered.  The mazhar witnesses did not say that any bullet was  recovered from the place of occurrence in their presence.

10.     According to PW-8, he came to know about the firing on hearing of  sound of fire.  He had immediately put his finger in the trigger of the  revolver and caught the appellant from his wrist.  If the finger of the  complainant himself was on the trigger of the revolver, it is difficult to  believe that the appellant was responsible for the act complained of.   According to him, seizure took place at the place of occurrence but panch

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witnesses contradicted him as according to them, they were made to sign the  seizure list only at the police station.  In his statement before the  investigating officer under Section 161 of the Code of Criminal Procedure,  PW-8 stated:

"\005three persons were there in Spacio but they  all  started  running in the farm by opening the doors  of the vehicle and as the driver of the vehicle was  sitting on the stirring (sic for steering) wheel, we  along with police personnel get down from our  mobile van and approach to catch the driver of  Spacio\005"

11.    He resiled from the said statement and built up another story in his  examination \026 in \026 chief that other police personnel chased them and that  they had fled away.   

12.     PW-9 Maan Singh in his deposition stated that Vaghela had held the  hand of the appellant and had been asking him to get down from his vehicle  only when the scuffle took place.  The said witness stated that blood had  oozed out but the vest of the complainant did not contain any blood stain.   Significantly, PW-9 stated that the doors of the vehicle near the driving seat  were locked.

       In his deposition, he stated:         "That time I have not seen him pulling out  revolver.  However, I saw revolver in  his hand.   After firing sir hold his wrist.  The hand of accused  were tied from wrist.  That time his hand were in  up side.  That time firing did not occur.  That is not  true.  Accused has not done firing and sir did not  get injury that is not true.  Sir got scratch mark  during scuffle.  Three accused who escaped and  ran away, they were not caught."

13.     There, thus, exists a lot of discrepancies in regard to the manner in  which the incident had taken place.  The complainant himself in his evidence  did not say that all the three persons, who had got down from the rear seat  and ran away, were chased by anybody.   

14.     Even assuming that PW-8 received a fire arm injury which in the facts  and circumstances of the case does not appear to be plausible, having regard  to the positive evidence of the prosecution as has been stated by PW-4  Neelabhai it seems certain that a scuffle had ensued.  A case of Section 307  of the Indian Penal Code, therefore, has not been made out.   The ingredients of Section 307 are: (i)     an intention of or knowledge relating to commission of murder;  and (ii)    the doing of an act towards it.

       [See Parsuram Pandey and Others v. State of Bihar (2004) 13 SCC  189, Sagayam v. State of Karnataka (2000) 4 SCC 454 and Merambhai  Punjabhai Khachar and others v. State of Gujarat AIR 1996 SC 3236]

15.     If the prosecution case of attempt to murder of PW-8 by gun-shot  injury fails, resultantly, the prosecution under Section 25 of the Arms Act  would also fail.

16.     Having regard to the facts and circumstances of this case, we are of  the opinion that no case has been made out even under Section 353 of the  Indian Penal Code.  The appeal is allowed.  Appellant is directed to be set at  liberty unless wanted in connected with any other case.