Sudhir Kumar Jain vs The State Of Rajasthan

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 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.

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.

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.

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.