SUMERSINBH UMEDSINH RAJPUT @ SUMERSINH

STATE OF GUJARAT

DECEMBER 11, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Penal Code, 1860: ss.307 and 353 - Scuffle between complainant-police officer and accused - Accused allegedly snatched service revolver of complainant and fired shot at him - Conviction by Courts below UIS. 307 ands. 353 !PC and 25(1) Arms Act - Justification of - Held. Not justified - Lot of discrepancies in regard to manner in which incident took place - Witnesses resilingfrom statement - Two bullets sentfor examination although specific case o.f prosecution that only one shot wus/iJ, d

- Complainant himself had finger on trigger of revolver ut the time of incident- Case not made out under s.307 nor under s.353

- Resultantly, prosecution under s. 25 of Arms Act also fails -- Arms Act, 1959 - s. 25(l)(a)

E Prosecution case was that the car driven by appellant was intercepted by the Complainant P\V-8 and other police officers.

Three persons sitting on back seat ran away. The complainant tried to pull appellant out of car. A scuffle ensued, during which appellant snatched the service revolver of complainant and fired F at him. Courts below convicted the appellant for commission of offences under ss.307 and 353 IPC as also under s.25(1)(a) of Arms Act. Hence the present appeal.

Allowing the appeal, the Court

G HELD: 1.1. In the deposition, Doctor, PW-5 conceded the deficiencies in the prosecution case vis-a-vis the report prepared by him. From his statements, it is evident that even in relation to the purported marks of entry of the bullet through the garments worn by the complainant, there existed lot of H 68

SUMERSINBH UMEDSINH RAJPUT @SUMERSINH 69

v. STATE OF GUJARAT

discrepancies. Some sort of make-shift report was placed before A him by way of "Yaadi", which was prepared by the complainant and whereupon he completely relied. 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. The injury received B by the complainant was allegedly caused to his loin. How such a simple injury could be caused from a shot fired from a firearm 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 C that two bullets were sent to the Forensic Science Laboratory, although the specific case of the prosecution was 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 D recovered. The. mazhar witnesses did not say that any bullet was recovered from the place of occurrence in their presence. [Paras 7-9] [73-G, 74-E-H, 75-A-B]

1.2. According to the complainant, he came to know about E the firing on hearing of sound of fire. He immediately put his finger on 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 F 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. He resiled from the said statement and built up another story in his examination-in-chief that other police personnel chased them G and tbat they had fled away. PW-9 in his deposition stated that complainant 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 H

A the vest of the complainant did not contain any blood stain.

Significantly, PW-9 stated that the doors of the vehicle near the f-· driving seat were locked. 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 8 say that all the three persons, who had got down from the rear seat and ran away, were chased by anybody. Even assuming that complainant received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible,

c having regard to the positive evidence of the prosecution as has

I been stated by PW-4, it seems certain that a scuffle had ensued.

A case of s.307 of the IPC, therefore, has not been made out. [Paras 10- 14] [75 B-C, E~G, 76 B-D]

• Parsuram Pandey and Ors. v. State of Bihar (2004) 13 SCC D 189, Sagayam v. State of Karnataka (2000) 4 SCC 454; Merambhai Punjabhai Khachar and Ors. i~ State of Gujarat AIR

(1996) SC 3236 - relied on. '"

2. If the prosecution case of attempt to murder of

E complainant by gun-shot injury fails, resultantly, the prosecution under s. 25 of the Arms Act would also faff. Having regard to the facts and circumstances of the case, no case has been made out even under s.353 of the IPC. [Paras 15,16] [76 F-G)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal F No. 1696 of 2007.

From the final Order/Judgment dated 7.12.2006 of the High Court of Gujarat at Ahmedabad in Crl. A. No. 1832/2006.

S.B. Upadhyay, Santosh Mishra, Shivmangal Sharma, Rajesh R.

G Dubey. Tejmal Raka and Sharmila Upadhyay for the Appellant.

V. Madhukar, Pinky, Jesal Wahi and Sangeeta Singh (for Hemantika Wahi) for the Respondent. ,.

The Judgment of the Court was deli; ered by fl

I ~--

SUMERSINBH UMEDSINH RAJPUT@SUMERSINH 71

v. STATE OF GUJARAT [SINHA, J.]

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. 5,0001-, two years and fine B 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 c 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 D

-~ complainant and fired at him. Injury suffered by the complainant Vaghela (PW-8) as appearing from the medical report, is as under:

"HJO Firing has (sic) done by accused from the service revolver.

(illegible) on right side ofloin (illegible) E

1 x Yi 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 F

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 G 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 H

A 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 arms discharge.

Sample-D: It is 0.38" revolver of Lama Company made in Spain.

B 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 Dis in working condition.

Sample-E: It is empty case of cartridge ofK.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 H (Sample 8) will be sent separately on being received from the

SUMERSINBH UMEDSINH RAJPUT @SUMERSINH 73

v. STATE OF GUJARAT [SINHA, J.]

biology department." A '4

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 B 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 c 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 D 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 trouser. The hole was present in left side of trouser. It was small and round, whatever has been shown to me E

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 F 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 G purport, he conceded the deficiencies in the prosecution case vis-a-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 aushirt is tom then shirt also should 'l r.

have hole on it or Bushirt worn is found tom.

It is true that looking at trouser. I say that one circle is made on it with pencil. That is not tom 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 C edge has bum mark. In present case no bum 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 D 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 gaiments owned by the complainant, there existed a lot of discrepancies.

E Some sort of make-shift report was placed before him by way of

"Yaadi", which was prepared by the complainant and whereupon he completely relied. If no bum injury was found in the clothes, it is difficult to believe that some bum injury was noticed in the wound.

Prosecution did not obtain any clarification from him as to whether the F nature of the injury which the complainant suffered could not take

; Jlace 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 G 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 H

SUMERSINBH UMEDSINH RAJPUT@SUMERSINH 75

v. STATE OF GUJARAT [SINHA, J.]

be caused, one in the trouser and other in rhe waist, by one shot of A 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 B 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

j 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 c 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 D

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 ofSpacio ... "

E I I. 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.

I2. 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 F

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.

G 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

SUPREME COURT REPORTS [2007] 13 (Add!.) S.C.R.

A in up side. That time: firing did not occur. Timt 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

mnner in which the incident had taken place. The complainant himself in his evidence did not say that all the three persons, who had got dow; i from the rear seat and ran away, \Vere chased by anybody.

14. Even assuming that PW-8 received a fire arm injury which C 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 scuffie 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 ki:owledge relating to c01runission of murder; and

E (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, G we are of the opinion that no case has been made out even under Section 353 of the Indian Penal Code. The apped is allowed. Appellant is directed to be set at liberty unless wanted in connected with any other case.

H D.G.

Appeal a]mved.