Full Judgment Text
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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.