PAWAN @ RAJINDER SINGH AND ANR Vs. STATE OF HAYRANA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2194 of 2014, Judgment Date: Mar 08, 2017

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2194 OF 2014


Pawan @ Rajinder Singh and another                              … Appellants

                                   Versus

State of Haryana                                                 …Respondent



                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and order  dated  02.04.2014,
passed by the High Court of Punjab and Haryana in Criminal Appeal No. D-391-
DB of 2002 whereby  said  Court  has  dismissed  the  appeal  affirming  the
conviction   and   sentence    under    Section    302/34    IPC,    against
accused/appellants Pawan @ Rajinder Singh and Ajit @  Dara  Singh,  recorded
by the Additional Sessions Judge, Fast Track Court No.  1,  Faridabad.   The
High Court  has  further  affirmed  the  conviction  and  sentence  recorded
against accused/appellant Ajit @ Dara Singh under Section  25  of  the  Arms
Act, 1959.

Heard learned counsel for the parties and perused the record of the case.

Prosecution story, in brief, is that Deepak (deceased) was elder brother  of
PW-6 Amit Kumar  (complainant).   Amit  Kumar  had  a  business  of  selling
flowers, and his  elder  brother  used  to  do  the  delivery  work.   Their
neighbour Gola (not examined) had taken a  loan  of  ?10,000/-  on  interest
from accused Pawan, and he (the debtor) had returned the same except  ?250/-
.  On 09.11.2000 at about 8.30 p.m. accused Pawan @ Rajinder Singh  and  his
cousin accused Ajit @ Dara Singh demanded  remaining  ?250/-  from  Gola  to
which the deceased requested them to waive the  said  amount  due  to  which
some altercation took place  between  the  deceased  and  the  two  accused.
About half an hour thereafter both the accused came back on a  scooter,  and
Deepak (deceased) also left with them but on his  separate  scooter  bearing
registration No. HR 51 E-4749.  Deepak did not return till late  night.   On
this, PW-6 Amit Kumar and his father Ram Nath started search  for  him.   In
the next morning they came to know that dead body of a person is lying  near
Air Force ground.  Both, father and son went there and saw that it  was  the
dead body of Deepak.  Suspecting that appellants Pawan @ Rajinder Singh  and
Ajit @ Dara Singh had committed the murder, a report (Ex PE-1) was given  to
the police in the early hours of 10.11.2000 mentioning their names.  On  the
basis of said report, First Information  Report  No.  803  dated  10.11.2000
(Ex.PK) was registered at Police Station, N.I.T., Faridabad.

Investigation  was  initiated  by  PW-9  ASI  Jai  Singh,  and  later  PW-12
Inspector Raj Pal Singh took over the  same.   PW-9  ASI  Jai  Singh,  after
taking the dead body in his possession, got the inquest  report  (Ex.  PL-1)
and site plan (Ex.PM) prepared.  An empty cartridge was also recovered  from
the place  of  incident.   PW-12  Inspector  Raj  Pal  Singh,  Investigating
Officer got sent the empty cartridge  to  Forensic  Science  Laboratory  for
examination.  He also took the  blood  stained  earth  from  the  spot.   He
interrogated the witnesses.  Meanwhile, PW-1 Dr. D.S. Rathi, along with  Dr.
Sunita Gupta and Dr. P.S. Yadav, conducted the post  mortem  examination  on
10.11.2000 at about 5.00 p.m.  In the  autopsy  report  (Ex.  PL)  following
ante mortem injury is mentioned: -
“A circular circumscribed wound 2.5 c.m. x 2.5 c.m. in diameter and  2  c.m.
from middle of chest on left side at level of 10th rib.   On  probing  going
downward posteriorly, blackening and  singeing  present  around  the  wound,
margins inverted.  On examination  few pellets  found  embedded,  underneath
the skin and soft tissues.   On  dissection  the  pleural  cavity  contained
blood.  A few metallic pellets  found  inside  in  left  chest  and  pleural
cavity, removed.  On further dissection hole in stomach  also  present.   On
further examination a foreign body of rounded  shape  2  c.m.  in  size  was
found and removed.  The pellets and the foreign body sealed in a vial.”

During investigation, the Investigating Officer arrested both  the  accused,
and on their disclosure scooter bearing registration No. HR 51  C  1609  was
recovered from their house.  The prosecution case is  that  a  country  made
pistol was also recovered on the  disclosure  statement  (Ex.  PK)  made  by
accused Ajit @ Dara Singh.  A broken butt of the pistol  was  said  to  have
been found from the place of incident.  After  completion  of  investigation
charge sheet was  filed  by  the  Investigating  Officer  against  both  the
accused.

On committal, after framing  charge,  the  trial  court  recorded  evidence.
Prosecution got examined PW-1 Dr. D.S. Rathi, PW-2  MMHC  Hari  Chand,  PW-3
Constable Manoj Kumar, PW-4 Pappu, PW-5 Surender Singh, PW-6 Amit Kumar, PW-
7 Ram Nath, PW-8 Constable Ash Mohd., PW-9 ASI  Jai  Singh,  PW-10  ASI  Ami
Lal, PW-11 Naimuddin and PW-12 Inspector Raj Pal Singh.  After  putting  the
documentary and oral evidence under  Section  313  Cr.P.C.  to  the  accused
persons, the trial court found both the accused guilty of charge of  offence
punishable under Section 302/34 IPC.  Accused Ajit @ Dara Singh was  further
found guilty of charge of offence punishable under Section 25 of  Arms  Act,
1959.  They were awarded sentence, as already mentioned above.

On appeal by the convicts, High Court agreed with the findings of the  trial
court and dismissed  the  appeal.   Hence  this  appeal  before  us  through
special leave.

At the outset, we would like to mention that in substance it is  a  case  of
circumstantial evidence but  for  the  evidence  of  two  chance  witnesses,
namely PW-4 Pappu and PW-5 Surender Singh.  PW-4 Pappu is a  rikshaw  puller
who is resident of Sant Nagar Jhuggi in Faridabad.  PW-5 Surender  Singh,  a
three wheeler driver, is resident of Railway Colony, Old Faridabad.   It  is
relevant to mention here that the incident is said  to  have  occurred  near
Air Force ground.  It is further relevant to mention  that  the  complainant
Amit  Kumar  (PW-6),   his   brother   Deepak   (deceased)   and   the   two
accused/appellants are residents of N.I.T.,  Faridabad.   It  is  not  clear
from the record as to how  these  chance  witnesses  (PW-4  Pappu  and  PW-5
Surender Singh) who have stated that  they  heard  altercation  between  the
deceased and the two accused after midnight and thereafter  heard  sound  of
fire, knew them.  In our opinion, the testimony of  these  witnesses  cannot
be said to be reliable or trustworthy  particularly  when  their  statements
are not corroborated from other evidence on record.

Now, we come  to  the  report  of  the  Forensic  Science  Laboratory.   The
conclusions  of  the  examination  conducted   in   the   Forensic   Science
Laboratory, Haryana, Madhuban, Karnal, are reproduced below from Ex. PF: -

                                   “RESULT

(1)   The countrymade pistol marked W/1 (chambered for 12  bore  cartridges)
is a firearm as defined in Arms Act 54 of 1959.  Its  firing  mechanism  was
not found in working order.

(2)   The countrymade pistol marked W/1 had been  fired  through.   However,
scientifically, the time of its last firing cannot be given.

(3)   The percussion cap of cartridge case marked C/1 on  which  firing  pin
marks appear  due  to  firing  was  found  missing.   Moreover,  the  firing
mechanism of pistol W/1 was not  found  in  working  order.   Therefore,  no
opinion could be formed regarding the linkage of C/1 in  respect  of  pistol
W/1.

(4)   One wooden piece and two metallic strips contained in parcel  No.  III
could form part of countrymade pistol contained in parcel No. VIII.

      ……………………………………”

                                                         (Emphasis supplied)


      In view of the conclusions given by  Forensic  Science  Laboratory  on
points (1), (2) and  (3),  quoted  above,  we  are  of  the  view  that  the
prosecution story, as narrated by PW-4 Pappu and  PW-5  Surender  Singh,  is
highly doubtful.

Apart from this, though the motive of crime is not necessarily  required  to
be proved, but in the case like the present one  where  the  appellants  are
named on suspicion by informant PW-6 Amit Kumar  in  the  First  Information
Report (which does not contain names of PW-4 Pappu and PW-5  Surender  Singh
as witnesses who  had  seen  the  occurrence),  the  motive  appears  to  be
relevant fact.  PW-6 Amit Kumar has simply mentioned that the  deceased  had
asked the two accused to waive of the remaining amount of  ?250/-  from  the
loan of ?10,000/- taken by Gola but  the  same  does  not  appear  to  be  a
convincing motive to commit the crime by the  appellants.   Prosecution  has
not examined Gola if he had taken loan of ?10,000/- and paid  off  the  same
minus the amount ?250/-.




Even otherwise, in the First Information Report it is nowhere mentioned  why
actually Deepak (deceased) had gone in his separate  scooter  with  the  two
appellants from his house.

For the reasons, as discussed above, we find that the trial  court  as  well
as the High Court has erred in law in holding that the  charge  against  the
two accused stood proved.

In the light of appreciation of evidence, as above, we are  of  the  opinion
that the prosecution has failed to prove the charge  of  offence  punishable
under Section 302/34 IPC against the two accused.  We further hold that  the
charge of offence punishable under Section 25 of the Arms Act, 1959  against
accused Ajit @ Dara Singh  is  also  not  proved  beyond  reasonable  doubt.
Accordingly, the appeal deserves to be allowed.

The appeal is allowed.  Both the accused, namely Pawan @ Rajinder Singh  and
Ajit @ Dara Singh, are acquitted of the charges.  The  appellants  shall  be
set at liberty forthwith if not required in connection with any other case.


                                                            ………………………..…….J.
                                                               [N.V. Ramana]



                                                            ………………………..…….J.
                                                          [Prafulla C. Pant]
New Delhi;
March 08, 2017.