Sumersinbh Umedsinh Rajput @ Sumersinh Vs. State of Gujarat  Insc 1254 (11 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 1696 OF 2007 [Arising out of SLP (Crl.) No. 2557 of 2007] S.B.
SINHA, J :
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. 5,000/-, two years and fine of Rs. 1000/- and three years and fine of Rs.
Prosecution case shortly stated is as under:
was a driver of a Tata Spacio Car. Three other persons were accompanying him.
They were sitting on the back seat. The said 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 complainant and fired at him. Injury suffered by the complainant Vaghela
(PW-8) as appearing from the medical report, is as under:
Firing has (sic) done by accused from the service revolver.
on right side of loin (illegible) 1 x = cm abrasion (illegible) superficial
Black gas seen on cloth and puncture and baniyan occurs"
clothes of the complainant as also the revolver with the cartridges were sent
for testing to the Forensic Science Laboratory. It was found:
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 due to fire arms discharge. The hole on the said
pant can take place with the help of bullet of sample F.
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 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.
It is 0.38" revolver of Lama Company made in Spain.
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.
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 D
is in working condition.
It is empty case of cartridge of K.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 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.
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 bullet of Sample F is fired from the revolver of
Note: Two cases of cartridge test fired
from Sample D and Bullet is enclosed with parcel D.
test report of blood present on the banyan of Parcel B (Sample B) will be sent
separately on being received from the biology department."
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 thereabout only from the complainant. In regard to seizure of the
article, PW-7 Khengarbhai stated:
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 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 Police has shown revolver. Vaghela was sitting there. The said revolver
was empty however it did not open.
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 in round hole ;in our language.
not remember now. Today, the trouser which is shown to me has hole on right
the witnesses who were said to be independent witnesses, viz., PWs-3, 6, 7 and
10 turned hostile. According to them, they were made to become witnesses of seizure
of the clothes, etc., which had been kept in the police station.
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-`-vis the report prepared by him,
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
Bushirt is torn then shirt also should have hole on it or Bushirt worn is found
true that looking at trouser. I say that one circle is made on it with pencil.
That is not torn with bullet. It is true that looking at the trouser I say
that, it is not entry cut. It is true that 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.
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 edge has burn mark. In present case
no burn 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.
had black mark. It is true that scratch mark can occur due to rubbing on rough
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 garments owned by the
complainant, there existed a lot of discrepancies. Some sort of make- shift
report was placed before him by way of "Yaadi", which prepared by the
complainant and whereupon he completely relied. If no burn injury was found in
the clothes, it is difficult to believe that some burn injury was noticed in
the wound. 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.
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 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 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 recovered. The mazhar
witnesses did not say that any bullet was recovered from the place of
occurrence in their presence.
According to PW-8, he came to know about the firing on 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 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.
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. In his statement before the investigating officer
under Section 161 of the Code of Criminal Procedure, PW-8 stated:
persons were there in Spacio but they all started running 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 of Spacio"
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.
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 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.
PW-9 stated that the doors of the vehicle near the driving seat were locked.
deposition, he stated:
time I have not seen him pulling out revolver. However, I saw revolver in his
firing sir hold his wrist. The hand of accused were tied from wrist. That time
his hand were in up side. That time firing did not occur. That 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."
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 say
that all the three persons, who had got down from the rear seat and ran away,
were chased by anybody.
Even assuming that PW-8 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 been stated by PW-4 Neelabhai it
seems certain that a scuffle had ensued. A case of Section 307 of the Indian
Penal Code, therefore, has not been made out.
ingredients of Section 307 are:
intention of or knowledge relating to commission of murder; and
the doing of an act towards it.
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]
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.
Having regard to the facts and circumstances of this case, we are of the
opinion that no case has been made out even under Section 353 of the Indian
Penal Code. The appeal is allowed. Appellant is directed to be set at liberty
unless wanted in connected with any other case.