SUMERSINBH UMEDSINH RAJPUT @ SUMERSINH v. STATE OF GUJARAT

Citation: [2007] 13 S.C.R. 68

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SUMERSINBH UMEDSINH RAJPUT @ SUMERSINH v. STATE OF GUJARAT.pdf

Judgment text

SUMERSINBH UMEDSINH RAJPUT @ SUMERSINH v. 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. fprosecution that only one shot wus/iJ·,~d - Complainant himself had finger on trigger of revolver ut the time ofincident- 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) 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 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 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 ' v. STATE OF GUJARAT discrepancies. 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.

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 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 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 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 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 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 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 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, 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 ofBihar (2004) 13 SCC 189, Sagayam v. State of Karnataka (2000) 4 SCC 454; Merambhai Punjabhai Khachar and Ors.

i~ State ofGujarat AIR (1996) SC 3236 - relied on. ·'" 2. If the prosecution case of attempt to murder of 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 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. 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 ~-- S. B. SINHA, J. 1. Leave granted. 2.

Appellant was charged with and convicted for commission of offences under Sections 307 and 353 ofthe Indian Penal Code as also Section 25(1 )(a) ofthe Arms Act; and sentenced to undergo rigorous imprisonment of five years and fine ofRs. 5,0001-, two years and fine of Rs. 1000/" and three years and fine of Rs. 1000/- respectively. 3. Prosecution case shortly stated is as under: Appellant was a driver ofa Tata Spacio Car. Three other persons were accompanying him. They were sitting on the back seat. The said 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 ofthe 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 ofthe 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) 1 x Yi cm abrasion (illegible) superficial Black gas seen on cloth and puncture and baniyan occurs" 4. The clothes ofthe complainant as also the revolver with the -~ cartridges were sent for testing to the Forensic Science Laboratory. It was found: "Sample-A: It is a pant. On being performing (sic) chemical analysis and microscopic examination ofthe hole on the pocket ofthe said pant, it suggests that the hole on sample A has occurred 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 ofthe waist of 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 ofLama Company made in Spain. On being analyzing barrel wash (before performing test firing in this laboratory) ofthe 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 ofthe revolver ofSample 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 ofthe 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 ofthe cartridge. While performing examination and comparison in the microscope about the characteristics of the indentation mark on the percussion cap ofthe said cartridge and firing pin mark on the percussion cap ofthe cartridge that was test fired from the revolver ofSample D, they were found similar. It suggests that sample ofcartridge 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 (Sample 8) will be sent separately on being received from the ~- biology department. " ·'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 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 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 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 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 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 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 r. 'l 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 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 ofpatient, 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 gaiments owned by the complainant, there existed a lot ofdiscrepancies. 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 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 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 rhe 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 ofsound offire. He had immediately put his finger in the trigger ofthe revolver and caught the appellant from his wrist.

Ifthe finger of j the complainant himselfwas on the trigger ofthe 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 ofthe vehicle and as the driver ofthe 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... " II. He resiled from the said statement and built up another story in his examination - in - chiefthat 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 ofthe 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 ofthe 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 : I hand of accused were tied from wrist. That time his hand were 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 m~nner 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 in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence ofthe 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 (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 ofGujarat 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, we are of the opinion that no case has been made out even under Section 353 ofthe Indian Penal Code. The apped is allowed. Appellant is directed to be set at liberty unless wanted in connected with any · other case. Appeal a]~mved. D. G.