Case: Sumersinbh Umedsinh Rajput @ Sumersinh Vs. State Of Gujarat

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 arms 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 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: "three 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." 11. He resiled from the said statement and built up another story in his examination - in - 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]e 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.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 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-8persons 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.He resiled from the said statement and built up another story in his examination - in - 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, hetime 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.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 307an intention of or knowledge relating to commission of murder; and(ii) the doing of an act towardsParsuram 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.