Surendra Alias Suniya Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. 1. this appeal is directed against the judgment and order dated 21-10-87 passed by shri amar singh godara, sessions judge, sriganganagar, in sessions case no. 76/86 convicting the appellant under section 302 of the indian penal code and sentencing him to suffer imprisonment for life and a fine of rs. 100/- and further convicting him under section 27 of the indian arms act and sentencing him to undergo one year's rigorous imprisonment and a fine of rs. 1001/-. both the sentences were ordered to run concurrently.2. the facts giving rise to the present appeal briefly stated arc that on 24-10-86, first information report was lodged by one ram lal at police station matilirathan in ganganagar district that he received information from one kana ram that his brother has been shot dead by the accused surendra near the liquor shop. investigation was taken up. the accused was arrested and prosecution commenced in sessions case no. 76/86. on 19-12-86 the accused was charged of murdering raji ram by shooting him dead after little wordy exchange. the prosecution has examined 9 witnesses to prove its case. the accused denied commission of any offence. the learned sessions judge, on appreciation of the evidence on record, convicted the accused under section 302 of the indian penal code to suffer imprisonment for life.3. of the 9 witnesses examined by the prosecution, pw/1 kana ram is the sole eye-witness. pw/ 2 ram lal is the person who lodged the first information report and who is brother of the deceased. he went to the scene of offence on receipt of information from pw/1 kana ram, saw the dead body of his brother and proceeded to the police station to lodge the complaint.4. pw/3, dr. rajendra kumar gupta is the medical practitioner who conducted autopsy on the body of deceased raji ram and has deposed that death was caused due to gun shot. p/w 4 aadram is the owner of the field where kana ram had gone to work and from where he was returning when he witnessed the incident. pw/5 is the police, in-charge of malkhana. pw/6 sahiram is the station house officer who conducted the investigation. pw/7 satpal is the police constable who took samples to forensic science laboratory, jaipur. pw/8 is prabhati lal who proved ex. p/1 by which the accused was arrested. pw/9 is gangajal who has deposed that on the date of incident the accused was working as salesman at the liquor shop. accepting the testimony of these witnesses, therefore, the learned sessions judge found the accused guilty o(f the offence of murder as aforesaid, which judgment is now impugned in this appeal.5. the learned counsel appearing on behalf of the accused assailed the judgment of conviction on several grounds, which we will consider hereafter. the first and foremost contention raised by the learned counsel was the entire case rests on the testimony of sole eye-witness which is obviously a chance witness, if not got up one. admittedly, he is an agricultural labourer and it is improbable that such person would work free with any person. there is no reasonable explanation coming forth from the witness as to what he was doing at 10.30 in the night and how did he happen to pass by the pub. the learned counsel took-us through the evidence of this witness and pointed out the several improvements which according to him are material. he, therefore, contended that the witness pw/i kana ram is liable to be disbelieved.6. it is true that this witness has deposed that he was working occasionally with aadram, pw/4 and this fact is corroborated by pw/4. in fact, perusal of the evidence of pw/4 serves solely for the purposes of lending corroboration to the testimony of pw/1 kana ram and reduce the intensity of the criticism that pw/i kana ram is a chance witness. the testimony of this witness does, however, show that there was a wordy quarrel between the deceased and the accused which resulted in the accused firing a gun shot on the deceased. however, this evidence of pw/1 kana ram does not find material corroboration from the intrinsic evidence on record in the shape of opinion of the ballistic expert. the learned counsel, therefore, contended that even if the testimony of pw/i is accepted as corroborated by pw/ 4, the conviction as recorded by the learned sessions judge is unsustainable.7. we have carefully considered the submissions made by the learned counsel and we find much substance in the same. perusal of the report given by the ballistic expert on 24-6-87 lends substantial support to the contention of the learned counsel. it reads as under:-'(1) one 12 bore country made pistol (w/1) is a serviceable firearm and had been fired sometime before, it was received in the laboratory.(2) based on microscopic examination, it is the opinion that it has not been possible to link definitely one 12 bore cartridge case (c/1) with submitted 12-bore country made pistol (w/1) due to lack of sufficient evidence.(3) lead pellets and wads from packets b & d could have been come out from submitted 12-bore cartridge case (c/1).'8. there is, thus, no evidence on record to show that the pellet. article c/1 was fired from the gun article w/1. thus, the basic link in the chain of evidence is missing and because of this the testimony of pw/1, kana ram, becomes unacceptable. it is true that the ballistic expert has opined that the pellets recovered from the body of the deceased could have come up from the pistol c/1. but unless it is proved on record that pellet which killed the deceased was fired from the pistol recovered from the accused, the order of conviction cannot be sustained.9. it was then contended by the learned counsel, relying on the testimony of the doctor that the entire story of the prosecution is unbelievable. none of the witnesses deposed to presence of blood on the scene of offence where as the doctor has deposed that on post-mortem he noticed that the heart-chamber was empty. if such is the position there has to be some blood shed by the deceased immediately after being injured. the body panchnama does not show any presence of blood nor is there any deposition by any witness that there was blood. relying on a judgment of this court reported in 1986 rlw 128, it was urged that the accused is entitled to acquittal.10. we have carefully perused the judgment and we are in respectful agreement with the same. it is, therefore, not possible to support the conviction recorded by the learned sessions judge.11. it is obvious that there is serious infirmity in the prosecution case. the evidence of the sole eyewitness is not supported by material evidence on record in the shape of opinion of the ballistic expert. it is not proved that the pellets recovered from the body of the deceased were fired from the gun recovered from the accused. the basic link is, thus, missing. we, therefore, reverse the judgment of conviction.12. in the result, the appeal is allowed. the order of conviction and sentence dated 21-10-87 passed by the sessions judge, srigungunagur, is set aside. the accused surendra alias suniya, be released forthwith, if not required for any other crime.