PANKAJ versus STATE OF RAJASTHAN

Citation: [2016] 5 S.C.R. 816 · Decided: 09-09-2016 · Supreme Court of India · Bench: V. GOPALA GOWDA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2016] 5 S.C.R. 816 
PANKAJ 
v. -
STATE OF RAJASTHAN 
(Criminal Appeal No. 2135 of2009) 
SEPTEMBER 09, 2016 
[V. GOPALA GOWDA AND R.K. AGRAWAL, JJ.] 
Penal Code, 1860: s.302 r/w s.34 - Murder - Allegation that 
appellant along with other three accused fired bullet at victim-
deceased which hit him in the n_eck due to which deceased fell down 
and became unconscious - Deceased was rushed to hospital where 
he succumbed to injuries after few days - Trial court convicted all 
the accused u/s.302 - High Court upheld conviction of appellant 
while acquitted other accused - On appeal, Held: Sole eye-witness 
(PW-8) stated that he took the deceased to the hospital and the 
blood was oozing from his body - However, during investigation 
blood stained clothes were not seized by the investigation officer -
This made his presence highly suspicious - Testimony of sole witness 
was at variance with the medical evidence - There were several 
infirmities in the dying declaration - There was variance in the 
statements of PW-6 and PW-8 with regard to the distance between 
the deceased and the appellant-accused - The contradiction, i.e., 
the distance of fire,- is material and such an important aspect cannot 
be ignored - There is no material to connect that the gunshot injury 
suffered by the deceased was due to the shot fired from the firearm 
of the appellant-accused - Though the bullet was recovered but the 
same was not connected with the weapon -
Moreover, the 
prosecution was~not able to prove the motive clearly - Appellant 
entitled to benefit of doubt - Conviction set aside. 
Criminal law: Use of weapon - Held: In a case where death 
is due to injuries or wounds'caused by a lethal weapon, it is always 
the duty of the prosecution to prpve by expert evidence that it was 
likely or at least possible for the lfl}uries to have been caused with 
the weapon with which and in the manner in which they are alleged 
to have been caused. 
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PANKAJ v. STATE OF RAJASTHAN 
Allowing the appeal, the Court 
HELD: 1 The prosecution case was that after the alleged 
incident, the deceased was taken to the General Hospital, 
Bharatpur wherefrom he was transferred to Agra for further 
treatment. His dying declaration was allegedly recorded at 10:45 
p.m. on that day at Agra by the then SDM. PW-6 who first 
examined the body of the deceased at the General Hospital 
categorically stated in his statement that the victim-deceased was 
unconscious when he was brought to the hospital at 12:45 p.m. 
It is very hard to believe that the deceased who was unconscious 
in the noon, regained consciousness in front of SDM that too in 
the absence of certificate of the duty doctor that the patient is fit 
to make a statement. In view of such infirmities in the dying 
declaration, the High Court rightly discarded the same. [Para 7] 
[822-D-FJ 
2. At the time of the alleged incident, PW-8, the brother of 
the deceased was present at the spot. He was the sole eye-
witness to the incident. In his statement, he very specifically 
stated that the appellant fired a shot at his brother in front ofhiin 
and fled away from the crime scene along with others. As per the 
prosecution, the case rested upon the sole testimony of PW-8, 
which got corroboration from the statement of PW-5, who was 
present at the relevant time in a nearby shop. PW-5, in his 
statement stated that as soon as he heard the sound of a bullet, 
he came out of the shop and noticed that the appellant was having 
revolver in his hand and was fleeing away at the relevant time 
along with three others. But it is also pertinent to note that PW-
5 was a resident of village Debra situated at a distance of 12-13 
kms. (approx.) from Bharatpur where incident took place. In his 
statement, he also stated that he came to Bharatpur in order to 
inquire about a locker in the name of his father in the Bank. DW-
2 was examined from the other side who deposed that in the year 
1997-1998 no locker was operated in the name of the father of 
PW-5. In this view of the matter, it is suspicious .and hard to 
believe that he visited the place of the incident at a distance of 
about 12-13 kms. (approx.) just for hair cut. [Para 8] [822-G-H; 
823-A-C] 
3. PW-8, in his statement deposed that both the deceased 
and the appellant-accused were sitting in front of each other. 
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SUPREME COURT REPORTS 
[2016) 5 S.C.R. 
There was a distance of about o

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