Therefore, identification by Tara Singh (PW-1) and Varun Singh (PW-4) of the appellant- Guman Singh as one of the perpetrators who had fired on Shiv Charan and Babu Singh (PW-3) is unreliable and should not be accepted without substantial corroboration and supporting material/evidence to establish involvement of the appellantGuman Singh. On the aspect of corroboration, prosecution relies upon the FSL report, exhibit P-48, opining that barrel residue examination of ‘8mm/.315’ country-made pistol (W/1) had revealed that pistol had been fired, but, definite time of its last firing could not be ascertained. The FSL report also opines that it was not possible to link definitely the ‘8mm/.315’ Soft Round nose Copper Jacketted Bullet ‘B/1’ from packet ‘D 1’ with the country-made pistol (W/1) from packet ‘E’ due to lack of sufficient evidence.Thus, the bullet ‘B/1’ recovered from the body of Babu Singh (PW3) would not be matched with the country-made pistol. The bullets recovered from the body of deceased Shiv Charan were not sentfor ballistic examination and comparison. This is surprising as bullets were certainly recovered from the body of the deceased Shiv Charan and no explanation is forthcoming why these bullets were not sent for ballistic examination.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
CRIMINAL APPEAL NO. 1475 OF 2017
GUMAN SINGH ….. APPELLANT(S)
VERSUS
STATE OF RAJASTHAN ….. RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
The appellant, Guman Singh impugns judgment dated
10.03.2017 passed by the Division Bench of the High Court of
Judicature for Rajasthan at Jaipur, which confirms his conviction
under Section 302 of the Indian Penal Code (“IPC”, for short) for
murder of Shiv Charan and under Section 307 read with Section
34 IPC for attempt to murder Babu Singh. Appellant stands
sentenced under Section 302 IPC to life imprisonment and fine of
Rs. 10,000/- and in default of payment of fine to serve additional
rigorous imprisonment for one year and for an offence under
Section 307 IPC to rigorous imprisonment of 10 years with fine of
Rs. 1,000/- and in default of payment, an additional rigorous
imprisonment of one year.
Criminal Appeal No. 1475 of 2017 Page 1

  1. The conviction arises out of FIR No. 464/2009 registered on
    30.08.2009 at 8.20 p.m. in Police Station Hindaun City, DistrictKarauli, Rajasthan and the consequent charge-sheet filed against
    the present appellant, i.e. Guman Singh, and Jagdish Singh,
    Satvir Singh and Shyam Singh. Jagdish Singh was acquitted by
    the Additional Sessions Judge, Hindaun City, Karauli, Rajasthan
    vide judgment dated 07.06.2013 and Shyam Singh and Satvir
    Singh have been acquitted in the impugned judgment of the High
    Court.
  2. The primary issue/question raised before us relates to veracity
    and truthfulness of the testimonies of Tara Singh (PW-1) and
    Varun Singh (PW-4), son and nephew of the deceased Shiv
    Charan. Tara Singh (PW-1) and Varun Singh (PW-4) have
    deposed that they along with Shivendra Singh were on a
    motorcycle on their way from Hindaun to Village Banki. The
    deceased Shiv Charan and the injured Babu Singh were on
    another motorcycle a few steps ahead of them. Near Chauve ka
    bandh, another motorcycle with the present appellant Guman
    Singh and Satvir Singh s/o Ramoli and Shyam Singh s/o Ummed
    Singh, residents of Village Banki, appeared from behind and came
    parallel to the motorcycle driven by the deceased Shiv Charan.
    One of the riders from the third motorcycle had then fired a shot
    Criminal Appeal No. 1475 of 2017 Page 2
    that had hit Babu Singh on his side and back. The motorcycle
    skidded and Shiv Charan and Babu Singh fell down. Guman
    Singh had then fired at the chest of Shiv Charan. Satvir Singh
    and Shyam Singh too had fired at Shiv Charan. Guman Singh,
    Satvir Singh and Shyam Singh had also fired shots at Tara Singh
    (PW-1) and Varun Singh (PW-4) who had managed to escape by
    running towards the Hindaun City to save their lives. They had,
    from STD booth near Chungi, informed their relatives about the
    occurrence. On seeing a police vehicle, they drove along with
    police to the place of occurrence.
  3. However, this version as to their presence at the place of
    occurrence and being eye-witnesses to the firing by Guman Singh
    is a suspect and in grave doubt, in view of the testimony of Gulam
    Navi (PW-7) the Investigating Officer and SHO Police Station
    Hindaun City, who has deposed that on 30.08.2009 at around 5.30
    p.m. information was received from an unknown person that
    someone had been fired upon by another near Chauve ke bandh.
    PW-7 on reaching the spot along with other police officials found
    Babu Singh lying in an injured condition. Shiv Charan had already
    died. One motorcycle was lying at the spot. On directions of
    Gulam Navi (PW-7), the deceased Shiv Charan and Babu Singh
    were taken to the hospital. Gulam Navi (PW-7) has not deposed
    Criminal Appeal No. 1475 of 2017 Page 3
    and accepted presence of Tara Singh (PW-1) and Varun Singh
    (PW-4) at the spot at 5.30. p.m. on 30.8.2009. As per PW-7, his
    first meeting with Tara Singh (PW-1) was at the hospital at around
    8.20 p.m., when a written complaint was given to him by Tara
    Singh (PW-1). Upon receipt of the written complaint, steps were
    taken for registration of the FIR. Similarly, Babulal Bhaskar (PW10) Sub-Inspector, has deposed that on 30.08.2009 at 5.30 p.m.
    he had left the police station and had reached the hospital at
    around 5.55 p.m. Around 8.20 p.m., he had initiated the
    proceedings after preparing the panchnama etc. In his crossexamination, PW-10 had testified that till 8.20 p.m. none of the
    witnesses had disclosed and named the attacker(s) and they had
    also not indicated as to the type of weapon used in the offence.
  4. On reading testimonies of Gulam Navi (PW-7) and Babulal
    Bhaskar (PW-10), we find that their versions contradict the version
    given by Tara Singh (PW-1) and Varun Singh (PW-4) as to their
    presence at the place of occurrence and their claim that they were
    following the deceased Shiv Charan and the injured Babu Singh
    on another motorcycle. Their presence is highly doubtful and their
    eye-witness account apparently conjured, as they were not found
    at the spot when Gulam Navi (PW-7) the SHO and Investigating
    Officer had recached Chauve ke bandh at around 5.30 p.m. on
    Criminal Appeal No. 1475 of 2017 Page 4
    30.08.2009. Gulam Navi (PW-7) in his cross-examination also had
    accepted as correct that the informant Tara Singh (PW-1) was not
    present at the place of the occurrence till the time Babu Singh was
    sent to hospital. Between 5.30 p.m. to 8.20 p.m., PW-7 was not
    informed and told as to who had fired upon Shiv Charan. First
    conversation between Tara Singh (PW-1) and Varun Singh (PW-4)
    and Gulam Navi (PW-7) was in the hospital at about 8.20 p.m.,
    nearly 3 hours after the occurrence, and both had then for the first
    time projected themselves as eye witnesses. The assertion and
    claim of Tara Singh (PW-1) and Varun Singh (PW-4) of being eyewitnesses to the incident was clearly on second thoughts and after
    due deliberation.
  5. Statements of Tara Singh (PW-1) and Varun Singh (PW-4), under
    Section 161 of the Code of Criminal Procedure, 1973 (“the Code”,
    for short), were recorded by the SHO and the Investigating Officer
    Gulam Navi (PW-7) three days after the date of occurrence on
    03.09.2009. This delay is substantial and assumes some
    importance as it has been alleged that the FIR has been back
    dated and was never sent to the Magistrate as required vide
    Section 157 of the Code.
    Criminal Appeal No. 1475 of 2017 Page 5
  6. While the aforesaid contention as recorded in paragraph 6 may
    not by itself be significant, but testimony of Babu Singh (PW-3) is.
    Babu Singh, it is stated, had returned from Jaipur on 3.09.2009
    and thereupon his statement under Section 161 of the Code was
    recorded. Pertinently, Babu Singh (PW-3) in his examination-inchief had turned hostile and did not name the appellant and three
    others who were charge-sheeted. Babu Singh’s presence on the
    spot cannot be doubted, as he was the only injured witness. Babu
    Singh (PW-3) did not depose as to the presence of Tara Singh
    (PW-1) and Varun Singh (PW-4) on another motorcycle or that
    they were following them. He had stated that he was fired from
    behind and thereafter, had become unconscious and had fallen
    down. On regaining consciousness, he had noticed police
    personnel and a person holding camera. Thereafter, he was taken
    to the hospital. He did not know who had fired at him. Babu
    Singh (PW-3) was certainly conscious when he was brought to the
    hospital because he had also signed the Medical Examination
    Report / MLC. Babu Singh (PW-3) did not depose as to the
    presence of the present appellant nor did he identify any of the
    assailants.
  7. In view of the testimonies of Babu Singh (PW-3) and Gulam Navi
    (PW-7), there is a clear contradiction and direct conflict between
    Criminal Appeal No. 1475 of 2017 Page 6
    the version given by them and Tara Singh (PW-1) and Varun
    Singh (PW-4), who assert and claim their presence and being
    eye-witnesses to the occurrence. We would for reasons stated
    above rely on the version given by Babu Singh (PW-3), Gulam
    Navi (PW-7) and Babu Lal Bhaskar (PW-10). Therefore,
    identification by Tara Singh (PW-1) and Varun Singh (PW-4) of the
    appellant- Guman Singh as one of the perpetrators who had fired
    on Shiv Charan and Babu Singh (PW-3) is unreliable and should
    not be accepted without substantial corroboration and supporting
    material/evidence to establish involvement of the appellantGuman Singh.
  8. On the aspect of corroboration, prosecution relies upon the FSL
    report, exhibit P-48, opining that barrel residue examination of
    ‘8mm/.315’ country-made pistol (W/1) had revealed that pistol had
    been fired, but, definite time of its last firing could not be
    ascertained. The FSL report also opines that it was not possible
    to link definitely the ‘8mm/.315’ Soft Round nose Copper
    Jacketted Bullet ‘B/1’ from packet ‘D 1’ with the country-made
    pistol (W/1) from packet ‘E’ due to lack of sufficient evidence.
    Thus, the bullet ‘B/1’ recovered from the body of Babu Singh (PW3) would not be matched with the country-made pistol. The bullets
    recovered from the body of deceased Shiv Charan were not sent
    Criminal Appeal No. 1475 of 2017 Page 7
    for ballistic examination and comparison. This is surprising as
    bullets were certainly recovered from the body of the deceased
    Shiv Charan and no explanation is forthcoming why these bullets
    were not sent for ballistic examination. Prosecution however relies
    on the finding in the FSL report that the hole on the shirt worn by
    Babu Singh appeared to have been caused by a copper jacketted
    bullet. In the factual matrix and the evidence established and
    proved, the aforesaid opinion on the hole in the shirt and the bullet
    is rather a weak evidence that would not be sufficient to implicate
    and corroborate the involvement the present appellant.
  9. In Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC
    367, this Court had graded witnesses into genus of wholly reliable,
    wholly unreliable, neither wholly reliable nor wholly unreliable and
    had dealt with the consequences that flow from the testimonies
    from each of these categories. In the present case, the
    testimonies of Tara Singh (PW-1) and Varun Singh (PW-4) have to
    be held to be in the second category as wholly unreliable. Even if
    we treat their testimonies as falling in the third genus where the
    Court has to treat the same with circumspection and look for
    corroboration in material particulars by reliable evidence/
    testimony, direct or circumstantial, the case of the prosecution
    would fail, for there is nothing to support and show the
    Criminal Appeal No. 1475 of 2017 Page 8
    involvement of the appellant in the crime other than the unreliable
    attribution by Tara Singh (PW-1) and Varun Singh (PW-4). The
    prosecution, therefore, has to fail as it has failed to prove that the
    evidence has a ring of truth, is cogent, credible and trustworthy so
    as to establish the charge beyond reasonable doubt.
  10. As noticed above, the charge-sheet in the present case was filed
    against present appellant Guman Singh and three others namely
    Jagdish Singh, Shyam Singh and Satvir Singh. Jagdish Singh
    was acquitted by the trial court and Shyam Singh and Satvir Singh
    have been acquitted by the impugned judgment of the Division
    Bench of the High Court.
  11. In view of the discussion, we would accept the present appeal and
    set aside the conviction of Guman Singh, who should be set free
    forthwith unless he is required to be detained in any other case in
    accordance with law.
    ………………………………..J.
    [INDIRA BANERJEE]
    ………………………………..J.
    [SANJIV KHANNA]
    NEW DELHI;
    MAY 24, 2019.
    Criminal Appeal No. 1475 of 2017 Page 9