SUMERSINBH UMEDSINH RAJPUT @ SUMERSINHversusSTATE OF GUJARAT

A       SUMERSINBH UMEDSINH RAJPUT @ SUMERSINH
                           v.
                   STATE OF GUJARAT
                          DECEMBER 11, 2007
B          [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 -
c   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
D   - Complainant himself had finger on trigger of revolver ut the
    time of incident- 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)

E         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
F   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
G         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
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 SUMERSINBH UMEDSINH RAJPUT @SUMERSINH                        69
           v. STATE OF GUJARAT

discrepancies. Some sort of make-shift report was placed before     A
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       B
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     C
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   D
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 E
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 F
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 G
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
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     70      SUPREME COURT REPORTS            [2007] 13 (Addi.) S.C.R.

A 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
c been stated by PW-4, it seems certain
                                    I
                                        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 of Bihar (2004) 13 SCC
D 189, Sagayam v. State of Karnataka (2000) 4 SCC 454;
  Merambhai Punjabhai Khachar and Ors. i~ State of Gujarat 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
E
  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
F 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.
G 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
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       SUMERSINBH UMEDSINH RAJPUT@SUMERSINH                               71
             v. STATE OF GUJARAT [SINHA, J.]

           S.B. SINHA, J. 1. Leave granted.                                      A

            2. Appellant was charged with and convicted for commission of
      offences under Sections 307 and 353 of the Indian Penal Code as also
      Section 25(1 )(a) of the Arms Act; and sentenced to undergo rigorous
      imprisonment of five years and fine of Rs. 5,0001-, two years and fine B
      of Rs. 1000/" and three years and fine of Rs. 1000/- respectively.
            3. Prosecution case shortly stated is as under:
            Appellant was a driver of a Tata Spacio Car. Three other persons
      were accompanying him. They were sitting on the back seat. The said c
      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 of the 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 of the D
      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)                         E
            1 x Yi cm abrasion (illegible) superficial
            Black gas seen on cloth and puncture and baniyan occurs"

-~
            4. The clothes of the complainant as also the revolver with the
      cartridges were sent for testing to the Forensic Science Laboratory. It F
      was found:
            "Sample-A: It is a pant. On being performing (sic) chemical
            analysis and microscopic examination of the hole on the pocket
            of the said pant, it suggests that the hole on sample A has occurred G
            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 of the waist of
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    72      SUPREME COURT REPORTS                 [2007] 13 (Addi.) S.C.R.


A        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 of Lama Company made in Spain.
B              On being analyzing barrel wash (before performing test firing
         in this laboratory) of the 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.
c
               On being firing from the chamber of the revolver of Sample
         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 of the said Sample Dis in working condition.
D        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 of the cartridge. While performing examination and
         comparison in the microscope about the characteristics of the
         indentation mark on the percussion cap of the said cartridge and
E        firing pin mark on the percussion cap of the cartridge that was
         test fired from the revolver of Sample D, they were found similar.
         It suggests that sample of cartridge of Sample E is fired from the
         revolver of Sample D.

F        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
G        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
H        (Sample 8) will be sent separately on being received from the
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       SUMERSINBH UMEDSINH RAJPUT @SUMERSINH                                  73
             v. STATE OF GUJARAT [SINHA, J.]
           biology department."                                                    A
·'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 B
      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 c
           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 D
           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 E
           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 F
      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 G
      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
    74       SUPREME COURT REPORTS                  (2007] 13 (Addi.) S.C.R.


A         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
B        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
C        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 of patient, 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
D        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 of discrepancies.
E 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
F 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
G 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
H
      SUMERSINBH UMEDSINH RAJPUT@SUMERSINH                                  75
            v. STATE OF GUJARAT [SINHA,J.]
     be caused, one in the trouser and other in rhe waist, by one shot of A
     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 B
     hearing of sound of fire. He had immediately put his finger in the trigger
     of the revolver and caught the appellant from his wrist. If the finger of
j    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 c
     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 D
            in the farm by opening the doors of the vehicle and as the driver
            of the 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 ... "
                                                                                  E
            I I. He resiled from the said statement and built up another story
     in his examination - in - chief that 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 of the appellant and had been asking him to get down F
     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 driving seat were locked.
                                                                            G
           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
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    76           SUPREME COURT REPORTS              [2007] 13 (Add!.) S.C.R.


A         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
B
    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
C 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 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.
D
        The ingredients of Section 307 are:
          (i)     an intention of or ki:owledge relating to c01runission of
                  murder; and

E         (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 of Gujarat
    AIR 1996 SC 3236]
F
          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,
G we are of the opinion that no case has been made out even under
  Section 353 of the Indian Penal Code. The apped is allowed. Appellant
  is directed to be set at liberty unless wanted in connected with any ·
  other case.

H D.G.                                                       Appeal a]~mved.