LexHUSNA AND ORS. versus STATE OF PUNJAB
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A HUSNA AND ORS. v. STATE OF PUNJAB JANUARY 23, 1996 B (DR. AS. ANAND AND G.T. NANAVATI, JJ.] Code of Criminal Procedure, 1973 : S.162'-Statements to police-Admissibility of-Accused not named in C F.J.R.-Supplementary statement of complainant naming accused recorded during investigation-Held, is hit by s.162 and cannot be relied upon as a part of F.I.R. Indian Penal Code, 1860 : D Ss.302, 302134, 44(}-Accused committing house trespass-One of In- truders shot dead son of complainant:-Accused not named in F.I.R. but complainant named them in a supplementary statement recorded by police dwing investigation-Trial Court convicting the accused who fired the shot, under Ss.302, 449 !PC and 25 Anns Act-Other accused convicted under Ss.302/34-Conviction and sentence of fonner upheld but that of latter set E aside giving him benefit of doubt-Trial Court should not have relied upon supplementary statement as a part of F.LR. as the same was hit by S.162 Cr.P.C. Anns Act, 1959 : F S.25-Evidence of investigating officer regarding recove1y of pistol from accused remained unchallenged in cross-examination-Also supported by recovery memos-Conviction and sentence awarded by trial court upheld. Accused "H" "R" and "J" were tried by the Special Court for offence G punishable under Ss.302/34 and 449 I.P.C. and s.25 of the Arms Act. The prosecution case was that at about 9 P.M. on 28.4.1984 two persons with their faces muffied and. armed with pistols committed criminal trespass into the house of PW. 1, who raised an alarm and snatched away the p!stol from one of the intruders. Meanwhile the son of PW. 1 joined him and in the scuffie the face of one of the intruders get unmuffied. At the exhortation H of accused 'R', accused 'H' shot dead the son of PW. I. Therenpon both the 856 I I_ HUSNAv. STATE 857 assailants rushed out of the house where accused 'J' armed with a pistol A was waiting. All the three then ran away. PW. 1 accompanied by the Sar- panch of the Village went to the police station and lodged the report on the basis of which the F.I.R. was recorded and investigation commenced. Since names of assailants were not disclosed in the F.I.R., during the investiga- tion a supplementary statement of PW. 1 was recorded in which he named the accused. The report of the ballistic expert indicated that the empty recovered from the spot was fired from the pistol recovered from accused 'H'. The autopsy report indicated that the deceased had died as a result of the gunshot injury. B The trial court convicted accused 'H' of the offences punishable C under ss302 and 449, !PC. and s.25 of the Arms Act. Accused 'R' was convicted under Ss302/34 and 449 !PC. Both of them were sentenced to life imprisonment. Accused 'J' was convicted and sentenced under s.25 of the Arms Act. All the three accused filed the present appeal. Allowing the appeal of accused 'R' and dismissing that of the other D two accused, this Court HELD : 1. The supplementary statement of PW. 1 recorded during the investigation, in which the appellants were named, was hit by s.162 Cr. P.C. and the trial court could not have relied upon or treated the same as a part of the F.I.R. E 2.1. The prosecution has not been able to satisfactorily establish the case against appellant 'R' beyond a reasonable doubt. No overt act has been ascribed to him during the entire occurrence. His presence at the time of occurrence has not been satisfactorily proved. All the three appellants are brothers and the possibility that appellant 'R' was named being brother or appellant 'H' cannot be ruled out. He is given benefit of doubt and is acquitted of all the charges. [860-F, H, 861-A) F -2.2. The statement of PW. 1 that appellant 'H' fired the shot at the deceased inspires confidence and receives ample corroboration from the G medical evidence as well as from the report of the ballistic expert. The ~- empties had been sent to ballistic expert much before appellant 'H' was arrested and the weapon recovered from him. [861-C) The ballistic expert opined that the empties had been fired from the weapon sent to him after arrest of appellant 'H'. The evidence on record H 858 SUPREME COURT REPORTS (1996] 1 S.C.R. ( I. A has thus brought home the charge against appellant 'ff' beyond every reasonable doubt and his conviction and sentence recorded by the trial 4 court call for no interference. [861-D] 2.3. The conviction and sentence of
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