Supreme Court of India
PANKAJversusSTATE OF RAJASTHAN
- Citation
- 2016 INSC 862
- Decided
- 9 September 2016
- Disposal
- Appeal(s) allowed
- Bench
- V GOPALA GOWDA
Holding
A conviction for murder cannot be sustained where the prosecution fails to establish, by expert forensic evidence, that the accused's weapon caused the fatal injury and the evidence is riddled with material contradictions, thus the appellant is entitled to the benefit of doubt.
Summary
The appellant Pankaj was convicted under Section 302 read with Section 34 of the IPC and Section 3 read with Section 25 of the Arms Act for allegedly shooting his brother-in-law Raj Kumar, who later died. The prosecution's case rested on the sole eye‑witness testimony of the victim's brother (PW‑8) and corroboration by a distant shopkeeper (PW‑5), while the dying declaration of the deceased was found unreliable. The Supreme Court held that there were material contradictions regarding the distance of fire, no forensic link between the recovered bullet and the accused's weapon, and the dying declaration was infirm, rendering the prosecution's evidence neither credible nor sufficient. It emphasized that in cases involving lethal weapons, expert proof of the weapon's role is mandatory and that benefit of doubt must be given when the genesis of the incident is doubtful. Consequently, the Court set aside the conviction and allowed the appeal, acquitting the appellant.
Issues considered
- The prosecution must prove beyond reasonable doubt that the injuries causing death were caused by the accused's firearm.
- Whether the sole eye‑witness testimony of PW‑8, despite contradictions, is sufficient to sustain a conviction under Section 302 IPC.
- Whether the dying declaration of the deceased is reliable and can be relied upon.
- Whether the lack of forensic connection between the recovered bullet and the accused's weapon defeats the prosecution's case.
- Whether the absence of a clear motive affects the conviction under Section 34 IPC.
Legislation cited
- Arms Act, 1959s. 25, s. 3
- Indian Evidence Act, 1872s. 27, s. 8
- Indian Penal Code, 1860s. 302, s. 307, s. 34, s. 452
Subjects
murderIPC s302IPC s34dying declarationeye‑witness testimonybenefit of doubtforensic evidenceweapon identificationuse of lethal weaponcriminal law
Judgment
[2016] 5 S.C.R. 816
A PANKAJ
v. -
STATE OF RAJASTHAN
B (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
c 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
D 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
E
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 offire,- is material and such an important aspect cannot
be ignored - There is no material to connect that the gunshot injury
F 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.
G 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.
H
816
PANKAJ v. STATE OF RAJASTHAN 817
Allowing the appeal, the Court A
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 B
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 c
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- D
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 E
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 F
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 G
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.
H
818 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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
B
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
c 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
D
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
E 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]
F
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
G 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
H the deceased, the entire story deserves to be rejected. When
PANKAJ v. STATE OF RAJASTHAN 819
the evidence produced by the prosecution has neither quality A
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
B
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 c
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.
D
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 E
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. F
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 G
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. H
820 SUPREME COURT REPORTS [2016) 5 S.C.R.
A (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
B
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.
c
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
D 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
E 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
F 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.
G
(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.
H
PANKAJ v. STATE OF RAJASTHAN 821
[R.K. AGRAWAL, J.]
Rival submissions: A
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 B
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 c
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
D
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 E
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 F
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 G
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. H
822 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G
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
H Shyam Sunder (PW-5), who was present at the relevant time in a nearby
PANKA:J v. STATE OF RAJASTHAN 823
[R.K. AGRAWAL, J.]
shop. Shyam Sunder (PW-5), in his statement has stated that as soon as A
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
B
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- c
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.
D
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 E
. 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.
F
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 G
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
H-
824 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
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:-
c (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
D 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
E 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
F 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
G 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.
H
PANKAJ v. STATE OF RAJASTHAN 825
[R.K. AGRAWAL, J.]
3. Tattooing Handguns upto about 60 cm. A
Rifles upto 75 cm generally.
Shotguns upto 100-300 m
(may be found after careful
search at higher range). B
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 c
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- D
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
E
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:- F
"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 G
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 )."
H
826 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
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.
c 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
D 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
E 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.
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