Discrepancies In FIR, Material Witness Not Produced & Guilt Not Proved Beyond Reasonable Doubt- SC Sets Aside Conviction

In an FIR pertaining to the year 1994, which resulted in the trial convicting and passing the order of the sentence against the Appellant Anwar@Bhurga under Sections 394 and 397 of the Indian Penal Code and Section 25 of the Arms Act, the Supreme Court recently observed that the guilt of the appellant having not been proved beyond a reasonable doubt, conviction and sentence cannot be upheld.

The Bench of Justice Abhay S. Oka and Justice Rajesh Bindal observed that "From the aforesaid material on record, the presence of the appellant at the scene of crime and recovery of pistol from him becomes highly doubtful and the guilt of the appellant having not been proved beyond reasonable doubt, conviction and sentence cannot be upheld."  

The Supreme Court found significant discrepancies in the FIR and improvement in the statement and allowed the appeal. The bench found significant discrepancies in the FIR and the evidence of the complainant Jahid (PW-4), which led the Court to set aside the conviction of the appellant.

AOR Ankur Mittal along with Advocate Zinnea Mehta and Advocate Nidhi Mittal appeared for the Appellant while AOR Dr. Monika Gusain along with Advocate Piyush Hans appeared for the Respondent state. 

The case before the Court was that the complainant, Jahid (PW-4), on his way back to the village from the market was apprehended by the appellant and 2 others who were armed with drant, knife and pistol and threatened the complainant to hand over the goods while two of them beat him and the other person equipped with a knife took off his wrist watch. 

As per the facts, during the scuffle, the complaint saw Harun Ali (PW-6) and Jain Singh (PW-5) coming on a tractor and cried for help, acting upon which both the PW-4 and PW-5 tried to catch hold of the appellant and the other two convicts. In the scuffle, one of the convicts holding drant inflicted injuries upon PW-4 and PW-5 and the other convict with the knife inflicted injuries to PW-6. In the FIR it was also stated that both the purses of PW- 6 and PW-5 were snatched by the 3 convicts. 

Their further allegation in the FIR was that upon seeing another village resident Mahinder Singh coming to interfere, the appellant along with one other convict ran away while the person with the knife was apprehended, he disclosed the details of the other 2 but later even he ran away from the spot. 

Based on the FIR, the appellant and the other 2 were apprehended. A country-made pistol was recovered from the appellant which led to an additional FIR under the Arms Act. All three were convicted for 7 years along with a fine of Rs. 2000/- under Sections 394 and 397 of the Indian Penal Code. While the appellant, in addition, was convicted under Section 25 of the Arms Act with rigorous imprisonment for 3 years along with Rs. 500/- fine under the Arms Act.

Both the sentences awarded were upheld by the High Court which led to the present appeal before the Supreme Court.

The counsel for the appellant submitted that the story of the complainant was concocted and there is no evidence or statement of use of pistol by the appellant wherein in the memo of personal search no recovery of the pistol was noted but in the recovery memo of pistol, it was noted that at the time of his arrest on personal search the pistol along with live cartridges was recovered and both the statements are contrary.

Further, the recovery of the purse is doubtful as the FIR never stated that the appellant snatched the purse. Both PW-6 and PW-5 did not support the prosecution's story and were declared hostile and serious defects and anomalies were found in the statement of PW-4.

The counsel for the respondent state argued that the entire prosecution version was supported by witnesses and merely that some witnesses are won over and turn hostile will not demolish the case of the prosecution and that no interference by this Court is required on the findings of the trial court. 

The Court in its judgment noted that "there is nothing on record either in the form of statements of the witnesses or even the medical report that the pistol was ever used". Further, the Court expressed that "it is strange to note that the appellant will continue to carry the pistol in his pocket days after the incident and will be arrested along with that". The Court also expressed the recovery of the pistol is seriously doubtful seeing the anomalies in the personal search memo and recovery memo of the pistol which they held that such two versions demolish the case of the prosecution. 

The Court further came to the finding that two witnesses PW-5 and PW-6 did not support the prosecution version and their presence at the sight becomes highly undoubtful. The court found and relied that the case of the prosecution is unreliable because the complainant improved his statement in the FIR it was stated that there were 2 persons on the tract but in the statement, it was told the tractor was being driven by the child while the 2 were sitting and that Mahinder Singh was not even produced as a witness. 

Accordingly, the appeal was allowed and the impugned judgment of the High Court was set aside.

Case Title-  Anwar@Bhurga v. State of Haryana

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