Swaran Singh vs State Of Punjab on 26 April, 2000
12. Learned counsel for the appellants assailed the
conviction of the appellants and submitted that prosecution case of
Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 15
attack on the deceased on the platform abutting his office is untrue as
according to learned counsel the incident has occurred elsewhere,
possibly near the shop of Md. Rafique which is at a distance of 255 ft.
on the eastern side from the office as one empty cell was found by the
Investigating Officer there or in front of the scrap shop of the deceased
as stated by the informant in the fardbeyan or near the temple, electric
pole, which is near the scrap shop of the deceased at a distance of 100 ft.
east from the office of the deceased where mark of firing was found and
one pellet was extracted from the wall of the temple premises, evidence
of shot having hit the electric pole was also found by the 1st
Investigating Officer during inspection of Place of Occurrence in the
night of occurrence itself. In this connection, it is further pointed out
with reference to the evidence of the eye witnesses including the
informant that accused persons 10 in number resorted to indiscriminate
firing at the office of the deceased from a close range of about 8-10 ft.
vide evidence of P.W. 1 Shahnawaz Khan paragraphs 23, 24 and 29,
P.W. 2 Md. Shahzada Khan paragraphs 8, 9 and 15, P.W. 3 Md. Sahid
Khan, P.W. 3 paragraphs 1, 20, P.W. 4 informant Zahid Khan paragraph
26, yet deceased suffered only one shot and the informant suffered
grazing injury on his right thumb and no objective evidence of firing
like the bullet mark on the wall of the office, bullets, pellets, wads were
recovered by the Investigating Officer from the place of occurrence i.e.
Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 16
the platform or the road in front of the office of the deceased. In this
connection, learned counsel also referred to the evidence of P.W. 7 first
I.O. Sri P.K. Bagh paragraphs 7, 15 and 21, P.W. 8 second I.O. Sri A.K.
Dubey paragraph 16, 23. Learned counsel with reference to the
judgment of the Supreme Court in the case of State of Punjab Vs.
Pritam Singh and others, AIR 1977 Supreme Court 2005,
paragraph 7, Swaran Singh Vs. State of Punjab, AIR 2000 Supreme
Court 2017, paragraph 25, Bijoy Singh and another Vs. State of
Bihar, AIR 2002 Supreme Court 1949 at page 1954 and Suresh
Chaudhary Vs. State of Bihar, (2003) 4 Supreme Court Cases 128,
paragraph 11 submitted that failure of the prosecution to notice,
recover and produce the objective evidence of firing from the place of
occurrence is indicative of the fact that the place of occurrence is
elsewhere and not the one asserted by the prosecution. Learned counsel
with reference to the judgment of the Supreme Court in the case of
Hasan Ahmad Mai Isha and others etc. Vs. State of Gujarat, AIR
1980 SC 437 submitted that the prosecution story that 10 persons fired
indiscriminately at the deceased and his five companions including
informant from their firearms from a close distance of 8-10 ft., yet
deceased suffered one firearm injury and the informant suffered grazing
injury in his right thumb, other prosecution witnesses standing in close
vicinity did not suffer any injury, is wholly unworthy of belief.
Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 17