IMPORTANT POINT
When dying declaration is not trustworthy, presence of prosecution witness at the place of occurrence is doubtful and eye witness account is not supported by medical evidence; it is not safe to convict the accused.

JUDGMENT

R.K. Agrawal, J.

1) This appeal has been filed against the judgment and order dated 03.09.2008 passed by the Division Bench of the High Court of Judicature for Rajasthan at Jaipur in Criminal Appeal No. 1071 of 2002 whereby the High Court dismissed the petition filed by the appellant herein.

2) Brief facts:

(a) On 19.03.1998, a First Information Report (FIR) being No. 136 of 1998 was filed by one Shri Ram Babu stating that when he was present in his juice shop, which is situated in his house at Ketan Darwaja, Bharatpur, Pankaj-the appellant herein, along with three other persons, visited that place and ordered 4 (four) glasses of juice. At the relevant time, Raj Kumar (since deceased), elder brother of Ram Babu, came at the shop from the house who was called inside the shop by Pankaj-the appellant herein. It is the case of the prosecution that Pankaj used to come to the abovesaid juice shop and used to consume juice without paying for the same and when this matter was informed to the uncle of the appellant-accused by Raj Kumar, he developed a grudge against him.

(b) As soon as Raj Kumar went inside the shop, Pankaj, who was present there along with three others, took out a country made pistol from his pocket and fired one bullet on Pankaj which hit him from straight side in the neck due to which he fell down on the ground and became unconscious. Immediately after the incident, all the accused persons fled away from the scene of crime. Ram Babu (PW-8), younger brother of Raj Kumar, took him to the General Hospital, Bharatpur from where he was referred to Agra for treatment.

(c) A FIR being No. 136 of 1998 got registered under Sections 452, 307 and 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) against Pankaj-the appellant-accused and other accused persons at P.S. Mathuragate, District Bharatpur at the behest of Ram Babu. Raj Kumar succumbed to his injuries on 25.03.1998. On completion of investigation, a charge sheet was filed against the accused persons under Sections 302, 452 and 34 of the IPC and under Section 3 read with Section 25 of the Arms Act, 1959 and the case was committed before the Court of Additional District and Sessions Judge, (Fast Track) No. 1, Bharatpur.

(d) Learned ADJ, by judgment and order dated 03.08.2002, acquitted all the accused persons under Section 452 of the IPC and convicted the appellant herein under Section 302 of the IPC and sentenced him to imprisonment for life. The appellant herein was further sentenced to rigorous imprisonment (RI) for 2 (two) years under Section 3 read with Section 25 of the Arms Act, 1959. The other three accused persons were convicted under Section 302 read with Section 34 of the IPC and were sentenced to imprisonment for life.

(e) Being aggrieved by the order of conviction and sentence, the appellant herein filed D.B. Criminal Appeal No. 1071 of 2002 and other accused persons filed D.B. Criminal Appeal Nos. 1070 and 1052 of 2002 before the High Court. The High Court, by its judgment and order dated 03.09.2008, dismissed the appeal filed by the appellant herein while exonerating other accused persons of all the charges.

(f) Aggrieved by the above said order, the appellant-accused has preferred this petition by way of special leave before this Court.

3) Heard Shri Rakesh Kumar Khanna, learned senior counsel for the appellant-accused and Shri Puneet Parihar, learned counsel for the respondent-State.

Rival submissions:

4) Learned senior counsel for the appellant-accused contended before this Court that there was no motive behind the killing of Raj Kumar. He further contended that it is beyond imagination that a person without any provocation, motive or instigation will straight away open the fire. Learned senior counsel further contended that the brother of the deceased – Ram Babu (PW-8) is the only witness to the alleged incident who is an interested wi