Sudhir Kumar Jain vs The State Of Rajasthan

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 Signature Not Verified Digitally signed by MADHU BALA Date: 2019.08.05 17:29:18 IST Reason: 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 2

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 3

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 4

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 5

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 6

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 7

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]