Evidence Act, 1872 – Ss. 8 & 27 – Penal Code, 1860 – Ss. 302, 452 & 34 – Arms Act, 1959 – S. 3 r/w. 25 – 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 non 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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(V. GOPALA GOWDA) AND (R.K. AGRAWAL) JJ.
SEPTEMBER 9, 2016
CRIMINAL APPEAL NO. 2135 OF 2009
Pankaj …. Appellant(s) Versus State of Rajasthan …. Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) 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. 1071 of 2002 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.
(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 of investigation, 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 of the Arms 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 of 2002 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.
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 caution. The High Court failed to take note of certain 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.