Ugma vs State Of Rajasthan

Farjand Ali, J

The appeal has been preferred against the judgment dated 22.06.1993 passed by the learned Addl. Sessions Judge, Bhilwara in Sessions Case No. 93/1990 whereby he was convicted for committing an offence under Section 307 of IPC and sentenced to suffer 5 years rigorous imprisonment and a fine of Rs. 500/- with a default clause of further undergoing 3 months simple imprisonment in default of making payment of fine.

Succinctly stated, the facts of the case are that the appellant along with three others was tried in regard to an incident alleged to have taken place in the intervening night of 9–10 January 1990. It was alleged by the first informant Amarchand, PW-1, that he along with his family members was sleeping in the house. At or about 12 o’clock, the appellant along with Rameshwar, Mangu, and Deva came in a Jeep; the appellant was having a gun with him and Deva fired upon the first informant. However, he bent on his knee as a result thereof, the pellet did not strike him but instead struck the wall of the house, whereafter the accused fled away from the spot. Exhibit P-1, the FIR, came to be lodged, whereafter, after investigation, four accused including the appellant were challaned, and after usual investigation, the chargesheet for committing an offence under Section 307 of IPC came to be submitted.

2.1 The learned Magistrate took cognizance of the offence and thereafter committed the case for trial. After receipt of the file and the whole proceedings, the learned trial Judge proceeded to frame charge under Section 307 of IPC against the appellant and three others. During the course of investigation as many as six witnesses were examined in the trial and the prosecution placed reliance upon certain documents, particularly Exhibit P-1 FIR, Exhibit P-2 site memo, Exhibit P-3 seizure of pellets and Exhibit P-4 statement of witness recorded during investigation under Section 161 of Cr.P.C. The accused was thereafter examined under Section 313 Cr.P.C. and he absolved himself from the charges and claimed innocence, whereafter the parties were heard on merits and vide the impugned judgment, the learned trial court acquitted the accused Mangu, Rameshwar and Deva from the charge under Section 307 read with 34 of IPC, however the appellant Ugma was convicted for committing the offence under Section 307 of IPC and sentenced as mentioned above.

I have heard learned counsel for the appellant and learned Public Prosecutor. Gone through the record of the case, particularly the statement of PW-1 Amarchand and PW-6, SHO Udai Singh, who conducted investigation in the matter.

Learned counsel for the appellant fervently and vehemently urged that there were no reasonable grounds that the appellant had committed the offence. He was falsely implicated in this case with an oblique motive. The facts and circumstances appearing in the case unerringly suggest that no case for offence under Section

307 of IPC is made out if it is prudently examined. As per him, the circumstances of the crime scene clearly reveal that the story of the alleged gun fire was nothing but a concoction. According to him, the prosecution has miserably failed to prove the charges against the appellant and thus he deserves acquittal.

On the contrary, the learned Public Prosecutor strongly opposed the submissions made by learned counsel for the appellant. As per him, there is strong evidence, particularly the statement of PW-1 Amarchand, that the accused along with three others made an assault over the house and the appellant shot a gun fire targeting the victim Amarchand. He thus prayed that no error has been committed by the learned trial court, therefore the appeal be dismissed.

After pondering over the submissions made by learned counsel for the parties and critically analyzing the evidence brought on record by the prosecution, my observations are as under:-

6.1 Indisputably, a major part of the prosecution story has been belied by the learned trial court itself. It was the case of the prosecution that four accused, after having a common intention to hurt the victim, made an assault over him and a gun shot was fired. However, the learned trial court acquitted three accused namely Mangu, Rameshwar and Deva, but on the same set of evidence, the appellant has been convicted. In my considered view, from the statement of the prosecution witnesses particularly, PW-1 Amarchand and PW-2 Lehari, there seems no distinguishable feature wherefrom only the appellant can be chosen for the alleged commission of crime and three others be exonerated. Why a particular part of these two witnesses PW-1 and PW-2 be discarded and disbelieved and why the same be accepted to bring home the guilt of the appellant only? No justification has been shown by the learned trial court in doing so. This Court is au fait with the principle of law that the maxim falsus in uno falsus in omnibus, meaning a lie at one place is a lie for all purposes has not been followed in our country. It is a settled principle of law that from the evidence of the witnesses examined during trial, it is upon the prudence of the learned trial Judge to pick the reliable and trustworthy part and to disbelieve the rest. After making a meticulous reading of prosecution witnesses, there seems no significant point where a line could be drawn to believe some part of the statement of a witness and to disbelieve the rest. No cogent, plausible and reasonable explanation has been given in the impugned judgment to draw a line between the statements of the two prosecution witnesses based on which the appellant alone can be held guilty and exoneration of the three others be justified.

6.2 Besides the above, manifest errors have been noticed in the course of investigation. Admittedly, the victim sustained no injuries as he explained that seeing the appellant firing upon him, he suddenly bent down and thus escaped from sustaining injuries. It is the case of the prosecution that the pellets hit the wall spreading over the length of more than 70 feet. These circumstances clearly show that the marks noticed by the Investigation Officer could not have been from the gun fire. Interestingly, neither the gun was recovered from the appellant nor were the pellets recovered from the spot sent to the forensic or ballistic expert. The crime scene was not photographed; the photographs of the crime scene and the pellets taken from the spot were not sent to the FSL for the report of a ballistic expert to ascertain whether the marks appearing on the wall were from the recovered pellets. In the absence of an expert report that the pellets allegedly found at the spot and sent to the FSL were fired at a time proximate to when they were collected, it cannot be said with utmost certainty that on the day of the incident these pellets came from the gun allegedly wielded by the appellant with which he opened fire. There should be a nexus between the firearm and the pellets which has not been established in this case. In the absence of a specific ballistic report and non-seizure of the gun from the appellant, it would be highly unsafe to convict the appellant for having an arm and opening gun fire upon PW-1 Amarchand, particularly when he sustained no injuries.

6.3 Looking from the other aspect of this case, if the accused were four and the victim was all alone, and the accused were having a gun in their hand, then there was occasion for them to hit again and again to cause harm to the victim if there had been an intent to kill him. Why repetitions were not made when the accused were in a dominant position and the victim was in a hapless and helpless condition having no assistance from anywhere? It was midnight and there was no rescue for the victim. There was nothing special noticing which the accused, after seeing the failure of one gun shot, would not make an attempt to trigger a second round. The story of their fleeing from the spot after making a blank gun fire certainly causes a serious dent upon the genuineness and truthfulness of the prosecution story and certainly goes to the root of the case, and a cloud of suspicion arises. It is a well-settled principle of law that the burden always lies upon the prosecution to prove the guilt beyond every shade of reasonable doubt, which in this case it utterly fails to do.

6.4 The learned trial court, based on surmises and conjectures, observed that if the victim Amarchand had not shouted or he had not bent down, the accused might have killed him. This court is surprised to see this imaginary conclusion because neither such statements were made by the prosecution witnesses nor were there any such circumstances to draw an inference in this regard. An inference or presumption of committing any crime must always be based on sound, legally admissible evidence and certainly should not be based on hypothesis. The findings of the learned trial court are based upon the statement of PW-6 Udai Singh, Sub-Inspector, who verified the fact that the marks appearing on the wall were of gun shots. Whether PW-6 had such expertise is a further question open to moot.

6.5 This Court also noticed certain incongruences in FIR Exhibit P-1 and the statement of Amarchand, PW-1. If the narrative shown in FIR Exhibit P-1 is accepted, then it would reveal that the accused was in close proximity of the victim and the gun was pointed at his chest. But when the same is compared with his statement and the statement of other prosecution witnesses, any prudent person can easily notice significant discrepancies. The contradictions and discrepancies appearing in the statements of prosecution witnesses further weaken its case.

After having a careful examination of the statements of prosecution witnesses, Exhibit P-1 FIR, Exhibit P-2 site memo and Exhibit P-3 seizure of pellets, this Court feels that the prosecution did not succeed in proving its case beyond reasonable doubt. At the cost of repetition, it is again reiterated that there is no distinction to absolve three from the charges and choose the appellant alone for the act allegedly committed by four persons.

Interestingly, no appeal has been preferred by the State against the three persons who were acquitted by the learned trial court. Taking serious note of the above, this Court concludes that there is force in the appeal and it deserves acceptance.

Accordingly, the instant appeal is allowed. The judgment of conviction and order of sentence dated 22.06.1993 passed by the learned Addl. Sessions Judge, Bhilwara in Sessions Case No. 93/1990 is hereby set aside.

The appellant is acquitted of the charges. He is on bail. His bail bonds are canceled. He need not surrender back. The record be sent back forthwith.

However, keeping in view the provisions of Section 437-A CrPC, the appellant shall furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of 3 months to the effect that in the event of filing of a Special Leave Petition against the present judgment, on receipt of notice thereof, the appellant shall appear before the Supreme Court.