ASHOKSINH JAYENDRASINHversusSTATE OF GUJARAT

                         [2019] 7 S.C.R. 309                            309


                 ASHOKSINH JAYENDRASINH                                 A
                                 v.
                       STATE OF GUJARAT
                 (Criminal Appeal No. 1123 of 2010)
                           MAY 7, 2019                                  B
       [R. BANUMATHI AND S. ABDUL NAZEER, JJ.]
       Penal Code, 1860 – s. 302 r/w. s. 34, s.307 r/w. s. 34 –
Prosecution case was that accused persons including appellant-
accused no. 1 ploughed the disputed road for which a civil suit was
                                                                        C
pending between complainant and the accused persons – When
complainant and his family objected accused from carrying out
ploughing activities, they were abused – Thereafter, complainant
and his family went back to their houses – In the meantime, accused
persons armed with guns and stick went to their houses and accused
Nos. 1 & 2 fired three gun shots which hit victim-deceased (wife of     D
PW-5), PW-6 and PW-7 – Wife of PW-5 died on spot – FIR was
registered – Upon consideration of the evidence of injured eye-
witnesses (PWs 6 and 7), recovery of weapons and other evidence
on record, the trial court convicted appellant-accused No.1 and
accused No. 2 u/s. 302 r/w. s. 34 IPC, u/s. 307 r/w. 34 IPC, u/s.
                                                                        E
25(c) of the Arms Act and u/s. 3(1) (x) of SC and ST (Prevention of
Atrocities) Act, 1989 – High Court acquitted accused No. 2, however,
affirmed the conviction of the appellant-accused No.1 u/s. 302, 307
r/w. s. 34 IPC and u/s. 25 (c) of the Arms Act – On appeal, held: The
occurrence was in the agricultural field of the complainant where it
was dark – In absence of any evidence as to the light aspect, the       F
possibility of identifying the accused in the darkness of the
agricultural field becomes doubtful – There were contradictions in
the case of prosecution as to who fired those gun shots – Further,
PW-1 doctor did not state in his report that the injury was caused
either by bullet or by pellets and also did not state whether wounds
                                                                        G
were caused by rifle or by gun – The witness to the panchnama (Ex.
P-79) for recovery of weapons from accused Nos. 1 & 2 had turned
hostile and there was no independent source to corroborate the
recovery of the weapons – Therefore, the guilt of the accused was
not proved beyond reasonable doubt – Impugned Judgment of the
                                                                        H
                                309
310            SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A     High Court affirming the conviction of the appellant-accused No.
      1 set aside.
            Allowing the appeal, the Court
             HELD : 1. The occurrence was of 23.11.1997 at 09:00 PM
      in the agricultural field of complainant (PW-3), where it was dark.
B     The panchnama of the scene of occurrence (Ex.P-73) shows no
      indication of the electric light either in the animal shed situated
      behind the house of complainant or that there is any electric pole
      anywhere in the vicinity or that there is a light on the well which
      is supplying water. Case of prosecution is that appellant and six
C     other co-accused surrounded the complainant party and there
      were three gunshots fired. The injured witness (PW-6) in his cross-
      examination has admitted that he had not stated anything about
      the burning light either in the animal shed or anywhere in the
      vicinity. In the absence of any evidence as to the light aspect, the
      possibility of identifying the accused in the darkness of the
D     agricultural field of the complainant, particularly at 09:00 PM
      becomes doubtful. It is also to be pointed out that there is no
      evidence as to whether there was moonlight on 23.11.1997 and
      complainant has also not stated that he has identified the appellant
      or other co-accused with the help of moonlight. In the absence of
E     evidence as to the availability of sufficient light, the identification
      of the accused and the overt act attributed to the appellant
      becomes doubtful. [Para 10] [315-E-H]
            2. PW-1-doctor opined that cause of death was due to
      rapturing of trachea, oesophagus and difficulty in breathing. In
F     post-mortem certificate-Ex.P-52, PW-1 has not stated that the
      injury was caused either by bullet or by pellets. PW-1 has also
      admitted that he has not seen the recovered articles i.e. the
      recovered rifle and the double barrel gun. In the absence of
      definite evidence as to which of the fire arm caused the fatal injury,
      the same cannot be attributed to the appellant from whom rifle
G     was recovered. [Para 12] [316-F-G]
            3. Case of prosecution is that as per disclosure statement
      of accused Nos.1 and 2, a rifle was recovered from the house of
      accused No.1 which has a single barrel. Similarly, as pointed out
      earlier in post-mortem certificate (Ex.P-52), a double barrel gun
H     was also recovered from the house of accused No.2. It is merely
    ASHOKSINH JAYENDRASINH v. STATE OF GUJARAT                            311


stated that there were puncture wounds. The post mortem                   A
certificate does not state as to whether those gun wounds were
caused by rifle or by gun. In the absence of any definite indication
as to whether those fatal wounds were caused either by rifle or
by double barrel gun, the courts ought not to have held appellant-
accused No.1 responsible for the fatal fire arm wounds on the
                                                                          B
body of deceased. [Para 13] [316-G-H; 317-A-B]
      4. The police officer-Investigating Officer has spoken about
the recovery of the fire arms. There is no rule of law that the
evidence of police officer has to be discarded or that it suffers
from some inherent infirmity. But in the facts and circumstances
of the present case where two fire arms viz. rifle and gun are said       C
to have been used by accused Nos.1 and 2 respectively, prudence
requires corroboration of recovery of the weapons from
independent source. When panch witnesses in Ex.P-79 have
turned hostile, the court has to seek corroboration from other
sources regarding the recovery of weapons. [Para 14] [317-C-D]            D
      5. There was darkness at the time and the place of
occurrence making it difficult for the witnesses to identify the
assailants. The evidence of eye-witnesses are contradictory to
each other as to the firing of the fatal blow. The guilt of the accused
has not been proved beyond reasonable doubt and the benefit               E
has to be given to the accused. [Para 16] [317-H; 318-A]
      Mahesh Dattatray Thirthkar v. State of Maharashtra
      (2009) 11 SCC 141 : [2009] 3 SCR 1122 – referred
      to.
                       Case Law Reference                                 F
[2009] 3 SCR 1122               referred to              Para 17
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1123 of 2010.
     From the Judgment and Order dated 05.03.2009 of the High Court       G
of Gujarat at Ahmedabad in Criminal Appeal No. 10 of 2001.
      Anuj Bhandari, Ms. Disha Bhandari, Abhinav Srivastava, Ms.
Ruchi Kohli, Advs. for the Appellant.
      Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Advs. for
the Respondent.                                                           H
312            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           The Judgment of the Court was delivered by
            R. BANUMATHI, J.
            1. This appeal arises out of the judgment dated 05.03.2009 passed
      by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.10
      of 2001 in and by which the High Court affirmed the conviction of
B     appellant-accused No.1 under Section 302 IPC read with Section 34
      IPC and the sentence of life imprisonment imposed upon him. The High
      Court also affirmed the conviction of the appellant under Section 307
      IPC read with Section 34 IPC and under Section 25(c) of the Arms Act
      and the sentence of imprisonment imposed upon him. The High Court
C     acquitted the appellant for the offence under Section 3(1)(x) of the
      Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
      1989.
            2. Brief facts which led to filing of this appeal are:-
             On 23.11.1997 at about 09.00 PM, accused Nos.1 to 5 along with
D     their servant (accused No.6) and another one accused gathered
      themselves and started ploughing the disputed road with a tractor for
      which a civil suit in Regular Suit No.131 of 1997 filed by complainant-
      Somabhai Rupabhai (PW-3) against appellant-accused No.1 and accused
      No.3 was already pending before the Court of Civil Judge, Modasa.
E     According to the prosecution, the said road was used by the complainant
      and his family members for going to and fro. On the date of incident i.e.
      on 23.11.1997 at about 09:00 PM, when accused persons were ploughing
      the road, the complainant and his family members intervened and prevented
      them from carrying out the ploughing activities on which accused started
      abusing the complainant and his family members with caste remarks.
F     Due to fear, complainant and his family members went back to their
      houses which were near to the place of incident. In the meantime,
      appellant/accused No.1-Ashoksinh Jayendrasinh and accused No.2-
      Kalusinh @ Harpalsinh armed with guns, accused No.4-Balbadhra Singh
      armed with stick and accused No.3-Gayendra Singh who was driving
G     the tractor came there. Thereafter, accused Nos.1 and 2 fired three gun
      shots which hit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai
      (PW-6) and Nandaben (PW-7) due to which Somiben died on the spot
      and PWs 6 and 7 got injured. Thereafter, all the accused ran away from
      the place of incident. On 24.11.1997, on the basis of the complaint
      lodged by complainant (PW-3), FIR was registered against all the accused
H
    ASHOKSINH JAYENDRASINH v. STATE OF GUJARAT                                313
                 [R. BANUMATHI, J.]

under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147,         A
148, 149, 506(II), 323 and 504 IPC, under Section 25(c) of the Arms Act
and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
      3. Upon completion of investigation, charge sheet was filed against
the appellant and other co-accused under Sections 302, 307, 120B IPC          B
read with Section 34 IPC, 143, 147, 148, 149, 506(II), 323 and 504 IPC,
under Section 25(c) of the Arms Act and under Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989.
       4. To bring home the guilt of the accused, the trial court examined    C
four eye-witnesses viz. complainant-Somabhai Rupabhai (PW-3), Hirabhai
Somabhai (PW-5) and injured eye-witnesses-Ramanbhai Mulabhai
Rangjibhai (PW-6) and Nandaben Hirabhai (PW-7), Dr. Rohit Kumar
(PW-1) who conducted the post-mortem on the dead body of deceased
Somiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured eye-
witnesses and other witnesses. Upon consideration of the evidence of          D
injured eye-witnesses (PWs 6 and 7), recovery of weapons and other
evidence on record, the trial court vide its judgment dated 15.11.2000
convicted the appellant-accused No.1 and accused No.2 under Section
302 IPC read with Section 34 IPC and sentenced them to undergo life
imprisonment along with fine of Rs.5,000/- each. They were also convicted     E
under Section 307 IPC read with Section 34 IPC and were sentenced to
undergo rigorous imprisonment for seven years along with fine of
Rs.5,000/- each. They were also convicted under Section 25(c) of the
Arms Act and sentenced to undergo rigorous imprisonment for three
years along with fine of Rs.500/- each and under Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,         F
1989 and sentenced to undergo rigorous imprisonment for six months
along with fine of Rs.500/- each. The trial court acquitted accused No.1
and 2 under Sections 147, 148, 149, 323, 504 and 506(II) IPC. The trial
court also acquitted accused No.3 to 7 from all the charges. Being
aggrieved, appellant-accused No.1 and accused No.2-Kalusinh filed             G
Criminal Appeal No.10 of 2001 before the High Court. Challenging the
acquittal of co-accused-No.3 to 7, respondent-State has also filed Criminal
Appeal No.127 of 2001 before the High Court. By the common judgment
dated 05.03.2009, the High Court affirmed the conviction of appellant-
accused No.1 under Section 302 and Section 307 IPC read with Section
                                                                              H
314            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A     34 IPC and under Section 25(c) of the Arms Act. The High Court
      acquitted the appellant under Section 3(1)(x) of the Scheduled Castes
      and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also
      acquitted accused No.2-Kalusinh from all the charges by giving him the
      benefit of doubt. By the same judgment, the appeal preferred by the
      respondent-State was dismissed by the High Court.
B
           5. Being aggrieved by the dismissal of his appeal, appellant-accused
      No.1 has preferred this appeal. Challenging the acquittal of accused
      No.2-Kalusinh, respondent-State has filed Criminal Appeal No.1125 of
      2010 which we have dismissed vide order dated 02.05.2019.
C             6. Mr. Anuj Bhandari, learned counsel appearing on behalf of the
      appellant has submitted that the occurrence was of 23.11.1997 at 09:00
      PM in the agricultural field of complainant-Somabhai Rupabhai (PW-3)
      and there is no evidence as to the electric light burning at the time of
      occurrence so as to enable the complainant and the witnesses to identify
      the assailants and in the absence of any vital evidence regarding the
D     light, identity of the assailants by the witnesses ought not to have been
      relied upon. It was further submitted that two panch witnesses viz.
      Mukeshkumar Pranlal Sheth (PW-12) and Ramanbhai Hirabhai Panchal
      (PW-17) have not supported the panchnama (Ex.P-89) and in the
      absence of proof of recovery of weapons from the appellant, the fatal
E     injuries sustained by deceased Somiben cannot be attributed to the
      appellant. It was submitted that in the post-mortem certificate (Ex.P-
      52), Dr. Rohit Kumar (PW-1) has stated that there were puncture wounds
      but it is not clear as to whether those wounds were caused by rifle or by
      gun. It was urged that in the absence of any definite evidence as to
      which weapon-whether rifle or gun had caused the injuries, the court
F     ought not to have convicted the appellant-accused No.1 under Sections
      302 IPC read with Section 34 IPC and Section 307 IPC read with Section
      34 IPC and under Section 25(c) of the Arms Act and prayed for giving
      benefit of doubt to the appellant-accused No.1.
            7. Ms. Jesal Wahi, learned counsel appearing on behalf of the
G     respondent-State has taken us through the judgment of the trial court
      and the impugned judgment and submitted that the evidence of injured
      eye-witnesses (PWs 6 and 7) and the evidence of complainant-Somabhai
      Rupabhai (PW-3) and other eye-witness Hirabhai (PW-5) are cogent
      and consistent and the courts below rightly convicted the appellant-
H     accused No.1 and the concurrent findings warrant no interference.
     ASHOKSINH JAYENDRASINH v. STATE OF GUJARAT                                  315
                  [R. BANUMATHI, J.]

      8. We have carefully considered the rival contentions and perused          A
the impugned judgment and the judgment of the trial court and other
materials placed on record.
       9. As per the prosecution case, the motive for the occurrence is
regarding the dispute over the enjoinment of the road in Survey No.95 of
Dhemda Village belonging to accused No.1. Complainant-Somabhai                   B
Rupabhai (PW-3) filed a civil suit in Regular Suit No.131 of 1997 for the
land measuring four acres and twenty-two guntas in the Court of Civil
Judge, Modasa against accused Nos.1 and 3. In the said suit, by the
order dated 16.10.1998 (Ex.P5), the court has ordered “status quo”.
Against the said order of status quo, accused has filed appeal in CFO
No.67 of 1998 and the copy of said appeal has been marked as        Ex.P-        C
126. Regarding the enjoyment of the land bearing Survey No.95, there
was enmity between the parties and thus the prosecution has proved the
motive. Proof of motive was taken as one of the important aspects by
the trial court as well as by the High Court. Though motive is a relevant
aspect, it is to be kept in view that motive is a double edged weapon.           D
Proof of motive merely adds to the value of evidence of the eye-
witnesses.
        10. The occurrence was of 23.11.1997 at 09:00 PM in the
agricultural field of complainant-Somabhai Rupabhai (PW-3), where it
was dark. The panchnama of the scene of occurrence (Ex.P-73) shows               E
no indication of the electric light either in the animal shed situated behind
the house of complainant or that there is any electric pole anywhere in
the vicinity or that there is a light on the well which is supplying water.
Case of prosecution is that appellant and six other co-accused surrounded
the complainant party and there were three gunshots fired. The injured
witness (PW-6) in his cross-examination has admitted that he had not             F
stated anything about the burning light either in the animal shed or
anywhere in the vicinity. In the absence of any evidence as to the light
aspect, the possibility of identifying the accused in the darkness of the
agricultural field of the complainant, particularly at 09:00 PM becomes
doubtful. It is also to be pointed out that there is no evidence as to whether   G
there was moonlight on 23.11.1997 and complainant has also not stated
that he has identified the appellant or other co-accused with the help of
moonlight. In the absence of evidence as to the availability of sufficient
light, the identification of the accused and the overt act attributed to the
appellant becomes doubtful.
                                                                                 H
316                SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A            11. In the complaint filed by complainant-Somabhai Rupabhai
      (PW-3), it has been stated that appellant/accused No.1-Ashoksinh
      Jayendrasinh and accused No.2-Kalusinh fired three gun shots from
      their guns. Whereas, in the statement before the court, PW-3 has stated
      that “Kalu Sinh fired three shots which injured Nandaben and
      Ramanbhai”. As per the case of complainant as stated in the court,
B
      total three gun shots were fired and all three were fired by accused
      No.2-Kalusinh. As rightly submitted by the learned counsel for the
      appellant, there are contradictions in the case of the prosecution as to
      who fired those gun shots and the benefit of doubt is to be given to the
      appellant.
C           12. Dr. Rohit Kumar (PW-1) has conducted the post-mortem on
      the dead body of deceased Somiben and as per post-mortem certificate
      (Ex.P-52), PW-1 noted the following injuries:-
            (i)     One entry wound on left side of chest above the nipple of
                    0.5 cm diameter.
D
            (ii)    Puncture wound, round, on left side of neck measuring
                    0.5 cm.
            (iii) Injury No. (i) passed into the back forming Exit wound at
                  the side of middle of spine of right scapula measuring 1 cm
E                 in diameter. At the back at the level of 1st Exit wound 5th rib
                  was broken. At the level of 2nd Exit wound 7th rib was broken
                  at the back side of left chest.
             PW-1 opined that cause of death was due to rapturing of
      trachea, oesophagus and difficulty in breathing. In post-mortem certificate-
F     Ex.P-52, PW-1 has not stated that the injury was caused either by bullet
      or by pellets. PW-1 has also admitted that he has not seen the recovered
      articles i.e. the recovered rifle and the double barrel gun. In the absence
      of definite evidence as to which of the fire arm caused the fatal injury,
      the same cannot be attributed to the appellant from whom rifle was
      recovered.
G
            13. Case of prosecution is that as per disclosure statement of
      accused Nos.1 and 2, a rifle was recovered from the house of accused
      No.1 which has a single barrel. Similarly, as pointed out earlier in post-
      mortem certificate (Ex.P-52), a double barrel gun was also recovered
      from the house of accused No.2. It is merely stated that there were
H     puncture wounds. The post mortem certificate does not state as to
     ASHOKSINH JAYENDRASINH v. STATE OF GUJARAT                                   317
                  [R. BANUMATHI, J.]

whether those gun wounds were caused by rifle or by gun. In the absence           A
of any definite indication as to whether those fatal wounds were caused
either by rifle or by double barrel gun, the courts ought not to have held
appellant-accused No.1 responsible for the fatal fire arm wounds on the
body of deceased Somiben.
       14. Yet another circumstance raising doubts about the prosecution          B
case is to be pointed out. Mukeshkumar Pranlal Sheth (PW-12) and
Madhusudanbhai Arvindbhai Pandya (PW-13) are the witnesses to the
panchnama (Ex.P-79) for recovery of weapons from accused Nos.1
and 2 and both of them have not supported the prosecution case. The
police officer-Investigating Officer has spoken about the recovery of
the fire arms. There is no rule of law that the evidence of police officer        C
has to be discarded or that it suffers from some inherent infirmity. But in
the facts and circumstances of the present case where two fire arms
viz. rifle and gun are said to have been used by accused Nos.1 and 2
respectively, prudence requires corroboration of recovery of the weapons
from independent source. When panch witnesses in Ex.P-79 have turned              D
hostile, the court has to seek corroboration from other sources regarding
the recovery of weapons.
        15. Learned counsel appearing for the appellant mainly contended
that fired bullet was not recovered and only empty cartridges made of
bronze were recovered near the mango tree. Contention of the appellant            E
is that since the fired bullet which caused fatal injuries to the deceased
was not recovered, the ballistic expert cannot give definite opinion as to
which weapon was used to cause the fatal gun wounds to the deceased.
Learned counsel further contended that ballistic expert has stated that
he only tested the fired bullet C2 from rifle C1 and examined only empty
bullet recovered and therefore, from the evidence of ballistic expert, it         F
cannot be said that gun shot injury was caused to the deceased only
from the rifle recovered from the appellant. Non-recovery of bullet cannot
be said to be fatal to the prosecution case. Since benefit of doubt is
given to the accused on other aspects like darkness in the place of
occurrence and doubts as to who caused fatal injuries, we are not inclined        G
to consider the merits of the contention assailing the opinion of the ballistic
expert.
      16. There was darkness at the time and the place of occurrence
making it difficult for the witnesses to identify the assailants. The evidence
of eye-witnesses are contradictory to each other as to the firing of the          H
318                SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A     fatal blow. The guilt of the accused has not been proved beyond reasonable
      doubt and the benefit has to be given to the accused.
             17. We are conscious that the Supreme Court would be slow to
      interfere with the concurrent findings of the courts below. In an appeal
      under Article 136 of the Constitution of India, concurrent findings of fact
B     cannot be interfered with unless shown to be perverse (vide Mahesh
      Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141).
      Where the appreciation of evidence is erroneous, the Supreme Court
      would certainly appreciate the evidence. In our considered view, the
      High Court ought to have weighed and considered the materials. When
      the findings of the trial court and the High Court are shown to be perverse
C     and there is no proper appreciation of evidence qua the appellant, the
      Supreme Court would certainly interfere with the findings of fact recorded
      by the High Court and the trial court. It is to be pointed out that the High
      Court has not appreciated the oral evidence, other evidence and the
      points raised by the appellant-accused No.1. In our considered view, the
D     impugned judgment affirming the conviction of the appellant-accused
      No.1 cannot be sustained and the impugned judgment is liable to be set
      aside.
             18. The conviction of appellant-accused No.1 under Section 302
      IPC read with Section 34 IPC and Section 307 IPC read with Section 34
E     IPC and under Section 25(c) of the Arms Act is set aside and this appeal
      is allowed. The appellant/accused No.1-Ashoksinh Jayendrasinh is
      ordered to be released forthwith unless his presence is required in any
      other case.


F     Ankit Gyan                                                    Appeal allowed.




G




H