Penal Code, 1860 – s. 302 r/w. s. 34, s.307 r/w. s. 34 – Prosecution case was that accused persons including appellantaccused no. 1 ploughed the disputed road for which a civil suit was 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 PW-5), PW-6 and PW-7 – Wife of PW-5 died on spot – FIR was registered – Upon consideration of the evidence of injured eyewitnesses (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. 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 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 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 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. 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 other co-accused surrounded the complainant party and there were three gunshots fired. The injured witness (PW-6) in his crossexamination 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 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 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 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 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 was also recovered from the house of accused No.2. It is merely stated that there were puncture wounds. The post mortem 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 appellantaccused No.1 responsible for the fatal fire arm wounds on the 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 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]
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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.