PANKAJ versus STATE OF RAJASTHAN
[2016] 5 S.C.R. 816, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
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[2016] 5 S.C.R. 816 
PANKAJ 
v. -
STATE OF RAJASTHAN 
(Criminal Appeal No. 2135 of2009) 
SEPTEMBER 09, 2016 
[V. GOPALA GOWDA AND R.K. AGRAWAL, JJ.] 
Penal Code, 1860: s.302 r/w s.34 - Murder - Allegation that 
appellant along with other three accused fired bullet at victim-
deceased which hit him in the n_eck due to which deceased fell down 
and became unconscious - Deceased was rushed to hospital where 
he succumbed to injuries after few days - Trial court convicted all 
the accused u/s.302 - High Court upheld conviction of appellant 
while acquitted other accused - On appeal, Held: Sole eye-witness 
(PW-8) stated that he took the deceased to the hospital and the 
blood was oozing from his body - However, during investigation 
blood stained clothes were not seized by the investigation officer -
This made his presence highly suspicious - Testimony of sole witness 
was at variance with the medical evidence - There were several 
infirmities in the dying declaration - There was variance in the 
statements of PW-6 and PW-8 with regard to the distance between 
the deceased and the appellant-accused - The contradiction, i.e., 
the distance of fire,- is material and such an important aspect cannot 
be ignored - There is no material to connect that the gunshot injury 
suffered by the deceased was due to the shot fired from the firearm 
of the appellant-accused - Though the bullet was recovered but the 
same was not connected with the weapon -
Moreover, the
prosecution was~not able to prove the motive clearly - Appellant 
entitled to benefit of doubt - Conviction set aside. 
Criminal law: Use of weapon - Held: In a case where death 
is due to injuries or wounds'caused by a lethal weapon, it is always 
the duty of the prosecution to prpve by expert evidence that it was 
likely or at least possible for the lfl}uries to have been caused with 
the weapon with which and in the manner in which they are alleged 
to have been caused. 
816
PANKAJ v. STATE OF RAJASTHAN 
Allowing the appeal, the Court 
HELD: 1 The prosecution case was that after the alleged 
incident, the deceased was taken to the General Hospital, 
Bharatpur wherefrom he was transferred to Agra for further 
treatment. His dying declaration was allegedly recorded at 10:45 
p.m. on that day at Agra by the then SDM. PW-6 who first 
examined the body of the deceased at the General Hospital 
categorically stated in his statement that the victim-deceased was 
unconscious when he was brought to the hospital at 12:45 p.m. 
It is very hard to believe that the deceased who was unconscious 
in the noon, regained consciousness in front of SDM that too in 
the absence of certificate of the duty doctor that the patient is fit 
to make a statement. In view of such infirmities in the dying 
declaration, the High Court rightly discarded the same. [Para 7] 
[822-D-FJ 
2. At the time of the alleged incident, PW-8, the brother of 
the deceased was present at the spot. He was the sole eye-
witness to the incident. In his statement, he very specifically 
stated that the appellant fired a shot at his brother in front ofhiin 
and fled away from the crime scene along with others. As per the 
prosecution, the case rested upon the sole testimony of PW-8, 
which got corroboration from the statement of PW-5, who was 
present at the relevant time in a nearby shop. PW-5, in his 
statement stated that as soon as he heard the sound of a bullet, 
he came out of the shop and
noticed that the appellant was having 
revolver in his hand and was fleeing away at the relevant time 
along with three others. But it is also pertinent to note that PW-
5 was a resident of village Debra situated at a distance of 12-13 
kms. (approx.) from Bharatpur where incident took place. In his 
statement, he also stated that he came to Bharatpur in order to 
inquire about a locker in the name of his father in the Bank. DW-
2 was examined from the other side who deposed that in the year 
1997-1998 no locker was operated in the name of the father of 
PW-5. In this view of the matter, it is suspicious .and hard to 
believe that he visited the place of the incident at a distance of 
about 12-13 kms. (approx.) just for hair cut. [Para 8] [822-G-H; 
823-A-C] 
3. PW-8, in his statement deposed that both the deceased 
and the appellant-accused were sitting in front of each other. 
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There was a distance of about one and a half feet between them. 
The appellant-accused took out a pistol and fired a bullet on the 
neck of the deceased. However, the version of PW-8 is in conflict 
with the medical evidence. During cross-examination, PW-8 was 
also not able to answer satisfactorily with regard to the 
arrangement of chairs in the shop which is though not material 
but creates a doubt in the mind about the correctness of the 
incident and makes his version highly artificial. 
Though PW-8 
specifically mentioned that he took the deceased to the hospital 
and the blood was oozing from his body, it is not understandable 
that during investigation why the blood stained clothes were not 
seized by the investigation officer and why he did not resist at 
the relevant time, which also makes his presence highly 
suspicious. PW-6 (doctor) had examined the deceased in the 
General Hospital. As per the post mortem report, drawn by PW-7, 
the cause of the death was shock and hemorrhage due to ante-
mortem injuries. Admittedly, there is·variance in the statements 
of PW-6 and PW-8 with regard to the distance between the 
deceased and the appellant-accused. In a case where death is 
due to injuries or wounds caused by a lethal weapon, it is always 
the duty of the prosecution to prove by expert evidence that it 
was likely or at least possible for the injuries to have been caused 
with the weapon with
which and in the manner in which they are 
alleged to have been caused. In the case on hand, the 
contradiction, i.e., the distance of fire, is material and it would 
not be appropriate to convict the appellant-accused by ignoring 
such an important aspect. [Paras 9, 10, 11) [823-C-F; 824-D-E; 
825-B-C] 
4. There is no material on record to connect that the gunshot 
injury suffered by the deceased was due to the shot fired from 
the firearm of the appellant-accused. Though the bullet was 
recovered but the same was not connected with the weapon. 
Moreover, the prosecution was not able to prove the motive 
clearly: [Para 12] (826-A-B] 
5. It is a well~settled principle of law that when the genesis 
and the manner of the incident is doubtful, the accused-cannot be 
convicted. Inasmuch as the prosecution failed to establish. the 
circumstances in which the appellant was alleged to have fired at 
the deceased, the entire story deserves to be rejected. When
PANKAJ v. STATE OF RAJASTHAN 
the evidence produced by the prosecution has neither quality 
nor credibility, it would be unsafe to rest conviction upon such 
evidence. The evidence on record in the case is not sufficient to 
bring home the guilt of the appellant. In such circumstances, the 
appellant is entitled to the benefit of doubt. 
The evidence of 
PW-8 inspires no confidence at all, therefore, the conviction and 
sentence awarded to the appellant is set aside. [Paras 13, 14) 
[826-C-E] 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 
2135 of2009. 
From the Judgment and Order dated 03 .09 .2008 of the High Court 
of Judicature for Rajasthan, Jaipur Bench in D. B. Criminal Appeal No. 
1071 of2002. 
Rakesh Kr. Khanna, Sr. Adv., Sudhir Nagar, Pramod Chaudhary, 
Ad vs. for the Appellant. 
Puneet Parihar, (For Milind Kumar), Adv. for the Respondent. 
The Judgment of the Court was delivered by 
R.K. AGRAWAL, J. I. This appeal has been filed against the 
judgment and order dated 03.09.2008 passed by the Division Bench of 
the High Court of Judicature for Rajasthan at Jaipur in Criminal Appeal 
No. I 071 of2002 whereby the High Court dismissed the petition filed by 
the appellant herein. 
2. Brief facts: 
(a) On 19.03.1998, a First Information Report (FIR) being No. 
136 of 1998 was filed by one Shri Ram Babu stating that when he was 
present in his juice shop, which is situated in his house at Ketan Darwaja, 
Bharatpur, Pankaj-the appellant herein, along with three other
persons, 
visited that place and ordered 4 (four) glasses of juice. At the relevant 
time, Raj Kumar (since deceased), elder brother of Ram Babu, came at 
the shop from the house who was called inside the shop by Pankaj-the 
appellant herein. It is the case of the prosecution that Pankaj used to 
come to the abovesaid juice shop and used to consume juice without 
paying for the same and when this matter was informed to the uncle of 
the appellant-accused by Raj Kumar, he developed a grudge against 
him. 
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(b) As soon as Raj Kumar went inside the shop, Pankaj, who was 
present there along with three others, took out a country made pistol 
from his pocket and fired one bullet on Pankaj which hit him from straight 
side in the neck due to which he fell down on the ground and became 
unconscious. Immediately after the incident, all the accused persons 
fled away from the scene of crime. Ram Babu (PW-8), younger brother 
of Raj Kumar, took him to the General Hospital, Bharatpur from where 
he was referred to Agra for treatment. 
( c) A FIR being No. 136 of 1998 got registered under Sections 
452, 307 and 34 of the Indian Penal Code, 1860 (in short 'the IPC') 
against Pankaj-the appellant-accused and other accused persons at P.S. 
Mathuragate, District Bharatpur at the behest of Ram Babu. Raj Kumar 
succumbed to his injuries on 25.03.1998. On completion ofinvestigation, 
a charge sheet was filed against the accused persons under Sections 
302, 452 and 34 of the IPC and under Section 3 read with Section 25 of 
the Arms Act, 1959 and the case was committed before the Court of 
Additional District and Sessions Judge, (Fast Track) No. 1, Bharatpur. 
(d) Learned ADJ, by judgment and order dated 03.08.2002, 
acquitted all the accused persons under Section 452 of the IPC and 
convicted the appellant herein under Section 302 of the IPC and sentenced 
him to imprisonment for life. The appellant herein was further sentenced
to rigorous imprisonment (RI) for 2 (two) years under Section 3 read 
with Section 25 oftheArms Act, 1959. The other three accused persons 
were convicted under Section 302 read with Section 34 of the IPC and 
were sentenced to imprisonment for life. 
( e) Being aggrieved by the order of conviction and sentence, the 
appellant herein filed D.B. Criminal Appeal No. 1071 of2002 and other 
accused persons filed D.B. Criminal Appeal Nos. 1070 and 1052 of 
2002 before the High Court. The High Court, by its judgment and order 
dated 03.09.2008, dismissed the appeal filed by the appellant herein while 
exonerating other accused persons of all the charges. 
(f) Aggrieved by the above said order, the appellant-accused has 
preferred this petition by way of special leave before this Court. 
3. Heard Shri Rakesh Kumar Khanna, learned senior counsel for 
the appellant-accused and Shri Puneet Parihar, learned counsel for the 
respondent-State.
PANKAJ v. STATE OF RAJASTHAN 
[R.K. AGRAWAL, J.] 
Rival submissions: 
4. Learned senior counsel for the appellant-accused contended 
before this Court that there was no motive behind the killing of Raj 
Kumar. He further contended that it is beyond imagination that a person 
without any provocation, motive or instigation will straight away open 
the fire. Learned senior counsel further contended that the brother of 
the deceased - Ram Babu (PW-8) is the only witness to the alleged 
incident who is an interested witness and there are several material 
contradictions in his statement. He further contended that conviction 
basing reliance upon the statement of PW-8 corroborating with the 
evidence of Shyam Sunder (PW-5) is baseless. It was further contended 
that the alleged recovery of the country made revolver is false and that 
the same has been planted by the police. He finally contended that in 
view of the doubtful features and other infirmities in the prosecution 
evidence as discussed above, it is not safe to rely upon the evidence of 
PW 8 whose evidence needs to be scrutinized with due care and caut~ 
The High Court failed to take note ofcertain telling factors emerging 
from the evidence on record and there are other fatal infirmities in the 
evidence relied upon by the prosecution which were not adverted to by 
the High Court. He finally submitted that conviction based on unsustainable 
evidence is nothing but sheer abuse of law and should be set aside. 
5. Per
contra, learned counsel for the respondent-State submitted 
that the testimony of informant Ram Babu (PW-8) corroborates with 
Shyam Sunder (PW-5) and the appellant-accused can be convicted on 
the sole testimony of PW-8 as the ocular evidence is cogent, credible 
and trustworthy and variance, if any, in the statements of PW-8 and 
PW-5, is of no consequence. Learned counsel further submitted that 
trustworthy evidence given by a single witness would be enough to convict 
the appellant-accused and thus rejection of their testimony on the ground 
that they are interested witnesses is not proper. It was further submitted 
that the country made pistol was recovered at the behest of the appellant-
accused. The appellant-accused led the police party to the spot and 
pointed out the place where the country made pistol was thrown, which 
fact stands confirmed by its recovery and it cannot be presumed that the 
recovery of the fire arm at the instance of the appellant-accused is 
untrustworthy. He finally submitted that in view of the cogent and reliable 
evidence against the appellant-accused, the conviction is fully valid and 
sustainable in the eyes of law and there is no reason to discard the 
same. 
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Discussion: 
6. According to the case of the prosecution, on March 19, 1998, 
when the informant (PW-8) was in his juice shop, the appellant-accused, 
along with 3 (three) others, visited the shop. When Raj Kumar (since 
deceased) - elder brother of the informant came to the shop, Pankaj 
called him inside and opened fire at him using a country made pistol 
which hit him on his neck. Raj Kumar fell down on the ground and PW-
8 took him to the hospital at Bharatpur. He succumbed to his injuries on 
March 25, 1998 at Agra. The appellant-a<;cused along with others was 
convicted by the Court of Additional District and Sessions Judge, (Fast 
Track), Bharatpur under Sections 302 read with 34 of the IPC and under 
Section 3 read with Section 25 of the Arms Act. In appeal before the 
High Court, the conviction and sentence of the appellant-accused was 
maintained while the other accused persons were acquitted of all the 
charges. 
7. It is evident from material on record that when Raj Kumar 
was shot at, he was taken to the General Hospital, Bharatpur wherefrom 
he was transferred to Agra for further treatment. The dying declaration 
of Raj Kumar was allegedly recorded at 10:45 p.m. on 19.03.2008 at 
Agra by Shri Naresh Pal Gangwal, who was the then SOM. Dr. Vanay 
Singh 
(PW-6), who first examined the body of the deceased at the 
General Hospital categorically stated in his statement that he was 
unconscious when
he was brought to the hospital at 12:45 p.m. The 
dying declaration is also alleged to have been recorded on the said date 
at 10:45 p.m. It is really very hard to believe that Raj Kumar, who was 
unconscious in the noon, regained consciousness in front of SOM that 
too in the absence of certificate of the duty doctor that the patient is fit 
to make a statement. In view of such infirmities in the dying declaration, 
we are of the opinion that the High Court has rightly discarded the same. 
It has already been held by this Court in a catena of cases that when a 
dying declaration is suspicious, it should not be acted upon without 
corroborative evidence. 
8. At the time of the alleged' incident, Ram Babu (PW-8) was 
present at the spot. Meaning thereby, he was the sole eye-witness to 
the incident. In his statement, he has very specifically stated that Pankaj 
fired a shot at his brother in front of him and fled away from the crime 
scene along with others. As per the prosecution, the case rests upon the 
sole testimony of PW-8, which gets corroboration from the statement of 
Shyam Sunder (PW-5), who was present at the relevant time in a nearby
PANKA:J v. STATE OF RAJASTHAN 
[R.K. AGRAWAL, J.] 
shop. Shyam Sunder (PW-5), in his statement has stated that as soon as 
he heard the sound of a bullet, he came out of the shop and noticed that 
Pankaj was having revolver in his hand and was fleeing away at the 
relevant time along with three others. But it is also pertinent to mention 
here that PW-5 is a resident of village Dehra which is situated at a 
distance of 12-13 kms. (approx.) from Bharatpur. In his statement, he 
also stated that he came to Bharatpur in order to inquire about a locker 
in the name of his father in the Punjab National Bank. Vijay Kumar 
(DW-2) was examined from the other side who deposed that in the year 
1997~!998 no locker was operated in .the name of the father of Shyam 
Sunder (PW-5). In this view of the matter, it is suspicious and hard to 
believe that he visited the place of the incident at a distance of about 12-
13 kms.(approx.)just for hair cut. 
9. PW-8, in his statement, has deposed that both Raj Kumar and 
the appellant-accused were sitting in front of each other. There was a 
distance of about one and a half feet between them. The appellant-
accused took out a pistol and fired a bullet on the neck of Raj Kumar. 
However, the version of PW-8 is in conflict with the medical evidence 
which we will discuss in the later part of the judgment. Du.!ing cross-
examination, PW-8 was also not able to answer satisfactorily with regard 
to the arrangement of chairs in the shop which is though
not material but 
creates a doubt in the mind about the correctness of the incident and 
makes his version highly artificial. Though PW-8 specifically mentioned 
. that he took the deceased to the hospital and the blood was oozing from 
his body, it is not understandable that during investigation why the blood 
stained clothes were not seized by the investigation officer and why he 
did not resist at the relevant time, which also makes his presence highly 
suspicious. 
IO. Dr. Vanay Singh (PW-6) is the person who examined Raj 
Kumar at the General Hospital, Bharatpur. It is imperative to mention 
here some of the portion of his statement which is as under:-
" ... when killer and object, i.e., injured person both remains on the 
right angle, i.e.,just in front of each other, then it is possible, as 
there was no burning, plunging and tattooing as such. As per rule 
of thumb of fire arms the distance was more than 3 feet. The 
exact distance can be decided only by the opinion of the plastic 
expert." 
"It is corect that if the injured is in front of the killer and who 
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caused a injury by a fire arm in the neck ofinjured from a distance 
of 2 feet. Then the wound would not come in the shape of as 
shown in Exh. P-5. As per Rule of thumb, the fire made from 
maximum, nearest place, the entrance would will be big, then the 
exit wound and as distance will be increased the entrance wound 
become -smaller then the exit wound, ·it means part of foreign 
body came out from a fire arm, as the distance will increase the 
passage of foreign body will be spread and will cause more loss in 
the nearby area ... " 
Prior to his death, injury received by Raj' Kumar was examined 
which reads as under:-
(1) 
One punctured lacerated wound with bleeding circular in 
shape of !cm x !cm x soft tissue to bone deep on right side 
neck region on stemo mastoid muscle line to middle part. 
(2) 
Edges and margin is verted with color of contusion. 
(3) 
No burning, blackening and tattooing seen, sulgesmic of 
wound of entry of fire arm. 
As per the post mortem report, drawn by Dr. B.B. Sharma (PW-
7), the cause of the death was shock and hemorrhage due to ante-
mortem injuries. 
11. Admittedly, there is variance in the statements of PW-8 and 
PW-6 with regard to the distance between the deceased and the appellant-
accused as stated above. In this fact situation, it is imperative to quote 
the "Phenomena observed in Firearm Injuries or Short Holes on Clothing'', 
from Modi 's Jurisprudence (24th
Edition) which is as under:-
Phenomena 
Range and Remarks 
I. 
Flame/burning 
Revolver/pistols-within 
score bing/singeing. 
about 5-8 cm generally. 
Rifles-within about 15-20 
cm generally. 
Shotguns-may sh 0 w 
evidence of scorching upto 
30-10 cm 
2. 
Smoke/powder marks 
Rifles generally upto about 30 
cm (blackening) and about 
I 00 cm (powder residues). 
Handguns upto about 60 cm.
3. 
PANKAJ v. STATE OF RAJASTHAN 
[R.K. AGRAWAL, J.] 
Tattooing 
Handguns upto about 60 cm. 
Rifles upto 75 cm generally. 
Shotguns upto 100-300 m 
(may be found after careful 
search at higher range). 
In a case where death is due to injuries or wounds caused by a 
lethal weapon, it is always the duty of the prosecution to prove by expert 
evidence that it was likely or at least possible for the injuries to have 
been caused with the weapon with which and in the manner in which 
they are alleged to have been caused. 
In the case on hand, the 
contradiction, i.e., the distance of fire, is material and in our considered 
opinion, it would not be appropriate to convict the appellant-accused by 
ignoring such an important aspect. 
12. An objection was raised by learned senior counsel for the 
appellant-accused that recovery of fire arm at the instance of appellant-
accused was planted by the police and it could not have been relied 
upon. This Court, in a number of cases, has held that the evidence of 
circumstance simp/icitor that an accused led a police officer and pointed 
out the place where weapon was found hidden, would be admissible as 
conduct under Section 8 of the Evidence Act, irrespective of whether 
any statement made by him contemporaneously with or antecedent to 
such conduct falls within the purview of Section 27 of the Evidence Act. 
In the above backdrop, it would be appropriate to quote the Forensic 
Report dated 25.06.1999 with regard to the alleged recovery
of the 
country-made pistol recovered at the behest of the appellant-accused 
which is as under:-
"Result of Examination 
I. One .32 country made pistol (W/1) from packet 'D' is a 
serviceable firearm. 
2. The examination of the barrel residue indicates that submitted 
.32 country made pistol (W/l) had been fired. However, the definite 
time of its last fire could not be ascertained. 
3. Based on stereo and comparison microscopic examination it is 
the opinion that one .32 lead bullet (8/1) from packet 'C' has not 
been fired from submitted .32 country made pistol (W/I )." 
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It is clear from the above that there is no material on record to 
connect that the gunshot injury suffered by the deceased was due to the 
shot fired from the firearm of the appellant-accused. It is also discernible 
that though the bullet was recovered but the same has not been connected 
with the weapon. Moreover, the prosecution is not able to prove the 
motive clearly. Though motive is not sine qua 11011 for the conviction of 
the appellant-accused, the effect of not proving motive raises a suspicion 
in the mind. In the present case, it appears that the theory behind motive 
has been given after much thought process. 
13. It is a well-settled principle of law that when the genesis and 
the manner of the incident is doubtful, the accused cannot be convicted. 
Inasmuch as the prosecution has failed to establish the circumstances in 
which the appellant was alleged to have fired at the deceased, the entire 
story deserves to be rejected. When the evidence produced by the 
prosecution has neither quality nor credibility, it would be unsafe to rest 
conviction upon such evidence. After having considered the matter 
thoughtfully, we find that the evidence on record in the case is not 
sufficient to bring home the guilt of the appellant. In such circumstances, 
the appellant is entitled to the benefit of doubt. 
14. After giving our careful consideration, we are unable to place 
any reliance on the evidence of PW-8.
Since the same inspires no 
confidence at all, therefore, we are constrained to set aside the conviction 
and sentence awarded to the appellant. The appeal is allowed. 
Devika Gujral 
Appeal allowed.