a material omission. when the presence of accused is doubtful – accused can not be convicted under sec.147 and 148 IPC = The naming of the appellant subsequently in the court statement for the first time is certainly an improvement over the earlier statement and a material omission. – The omission in the police statement with regard to the presence of the appellant at the time of occurrence cannot be considered as trivial. The witness was specifically confronted with the omission also.= The appellant is therefore held entitled to acquittal on benefit of doubt, with regard to his presence at the time of occurrence.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1232 OF 2018
(arising out of SLP(Crl.) No.308 of 2018)
AMRISH RANA ….APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant stands convicted under Section 307 and other
provisions of the Indian Penal Code (IPC) read with Section 25 of
the Arms Act and sentenced for ten years along with fine and
default stipulation.
3. Learned counsel for the appellant Shri Gaurav Agrawal
submits that the testimony of PW­11 Naresh Kumar, implicating
the appellant is unreliable. The witness, in his court statement
deposed that he knew the appellant from before as an inmate of
the Kanda Jail. There was no animosity between them. Yet, the
witness did not name the appellant in the FIR, and named
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accused Gurjant Singh alone, accompanied by four unknown
persons. Despite claiming to know the appellant from before, the
witness has made omnibus allegations of scuffle against the
unknown accused. The first firing is attributed to Gurjant Singh
and the second to an unknown assailant. Reliance was also
placed on the cross­examination of the witness, inviting his
attention to the contradictions between his statements under
Section 161, Cr.P.C. and the deposition in the court. The
presence of the appellant at the time of occurrence was therefore
highly doubtful. The appellant is entitled to acquittal on the
benefit of doubt.
4. Learned counsel for the State submitted that the presence of
the appellant stands confirmed by PW­11 who is an injured
witness. The conviction being with the aid of Sections 147 & 148,
IPC, the absence of any overt act is irrelevant in so long as the
presence of the appellant stands established.
5. We have considered the submissions on behalf of the
parties. PW­11, was the Warder in Model Central Jail, Kanda, at
an earlier point of time when the appellant and Gurjant Singh
were in custody there. The appellant and Gurjant Singh are
stated to have absconded from custody when the occurrence took
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place on 19.03.2003. In the FIR, the witness named Gurjant
Singh only, accompanied by four unknown persons. There is no
allegation that any of the unknown accused had their face
covered. The witness is stated to have been assaulted by Gurjant
Singh in the Kanda Jail. Subsequently while deposing in court,
the witness in his examination­in­chief stated that the appellant
was also present and that he knew him from before. The first shot
fired at him is attributed to Gurjant Singh and the second to an
unnamed accused, even while the witness states that he did not
recognize the remaining three persons. If the appellant was
known to the witness since earlier, we see no reason why the
witness could not have named him as present at the time of
occurrence, or any specific overt act committed by the appellant.
The naming of the appellant subsequently in the court statement
for the first time is certainly an improvement over the earlier
statement and a material omission.
6. In the cross­examination, the witness stated that the
appellant was sitting on the back seat of the vehicle. His attention
was specifically invited to his police statement under 161 Cr.P.C.
that the second shot was fired by an unknown accused, and
which he now sought to deny. The omission in the police
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statement with regard to the presence of the appellant at the time
of occurrence cannot be considered as trivial. The witness was
specifically confronted with the omission also.
7. In the facts and circumstances of the case, we are satisfied
that the prosecution cannot be stated to have established the
presence of the appellant at the time of occurrence beyond all
reasonable doubt. The appellant is therefore held entitled to
acquittal on benefit of doubt, with regard to his presence at the
time of occurrence. It is ordered accordingly. The appellant is
directed to be released from custody forthwith unless wanted in
any other case.
8. The appeal is allowed.
………………………….J.
[RANJAN GOGOI]
………………………….J.
[NAVIN SINHA]
NEW DELHI
SEPTEMBER 28, 2018.
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