ASHOKSINH JAYENDRASINH versus STATE OF GUJARAT

Citation: [2019] 7 S.C.R. 309 · Decided: 07-05-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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ASHOKSINH JAYENDRASINH
v.
STATE OF GUJARAT
(Criminal Appeal No. 1123 of 2010)
MAY 7, 2019
[R. BANUMATHI AND S. ABDUL NAZEER, JJ.]
Penal Code, 1860  – s. 302 r/w. s. 34, s.307 r/w. s. 34  –
Prosecution case was that accused persons including appellant-
accused no. 1 ploughed the disputed road for which a civil suit was
pending between complainant and the accused persons – When
complainant and his family objected accused from carrying out
ploughing activities, they were abused  – Thereafter, complainant
and his family went back to their houses – In the meantime, accused
persons armed with guns and stick went to their houses and accused
Nos. 1 & 2 fired three gun shots which hit victim-deceased (wife of
PW-5), PW-6 and PW-7 – Wife of PW-5 died on spot – FIR was
registered – Upon consideration of the evidence of injured eye-
witnesses (PWs 6 and 7), recovery of weapons and other evidence
on record, the trial court convicted appellant-accused No.1 and
accused No. 2 u/s. 302 r/w. s. 34 IPC, u/s. 307 r/w. 34 IPC, u/s.
25(c) of the Arms Act and u/s. 3(1) (x) of SC and ST (Prevention of
Atrocities) Act, 1989 – High Court acquitted accused No. 2, however,
affirmed the conviction of the appellant-accused No.1 u/s. 302, 307
r/w. s. 34 IPC and u/s. 25 (c) of the Arms Act – On appeal, held: The
occurrence was in the agricultural field of the complainant where it
was dark – In absence of any evidence as to the light aspect, the
possibility of identifying the accused in the darkness of the
agricultural field becomes doubtful – There were contradictions in
the case of prosecution as to who fired those gun shots – Further,
PW-1 doctor did not state in his report that the injury was caused
either by bullet or by pellets and also did not state whether wounds
were caused by rifle or by gun – The witness to the panchnama (Ex.
P-79)  for recovery of weapons from accused Nos. 1 & 2 had turned
hostile and there was no independent source to corroborate the
recovery of the weapons  – Therefore, the guilt of the accused was
not proved beyond reasonable doubt – Impugned Judgment of the
   [2019] 7 S.C.R. 309
309
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
High Court affirming the conviction of the appellant-accused No.
1 set aside.
Allowing the appeal, the Court
HELD : 1. The occurrence was of 23.11.1997 at 09:00 PM
in the agricultural field of complainant (PW-3), where it was dark.
The panchnama of the scene of occurrence (Ex.P-73) shows no
indication of the electric light either in the animal shed situated
behind the house of complainant or that there is any electric pole
anywhere in the vicinity or that there is a light on the well which
is supplying water. Case of prosecution is that appellant and six
other co-accused surrounded the complainant party and there
were three gunshots fired. The injured witness (PW-6) in his cross-
examination has admitted that he had not stated anything about
the burning light either in the animal shed or anywhere in the
vicinity. In the absence of any evidence as to the light aspect, the
possibility of identifying the accused in the darkness of the
agricultural field of the complainant, particularly at 09:00 PM
becomes doubtful. It is also to be pointed out that there is no
evidence as to whether there was moonlight on 23.11.1997 and
complainant has also not stated that he has identified the appellant
or other co-accused with the help of moonlight. In the absence of
evidence as to the availability of sufficient light, the identification
of the accused and the overt act attributed to the appellant
becomes doubtful. [Para 10] [315-E-H]
2. PW-1-doctor opined that cause of death was due to
rapturing of trachea, oesophagus and difficulty in breathing. In
post-mortem certificate-Ex.P-52, PW-1 has not stated that the
injury was caused either by bullet or by pellets. PW-1 has also
admitted that he has not seen the recovered articles i.e. the
recovered rifle and the double barrel gun. In the absence of
definite evidence as to which of the fire arm caused the fatal injury,
the same cannot be attributed to the appellant from whom rifle
was recovered. [Para 12] [316-F-G]
3. Case of prosecution is that as per disclosure statement
of accused Nos.1 and 2, a rifle was recovered from the house of
accused No.1 which has a single barrel. Similarly, as pointed out
earlier in post-mortem certificate (Ex.P-52), a double barrel gun
was also recovered from the house of accused No.2.  It is merely
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