A Division Bench of Justice Dr. DY Chandrachud and Justice MR Shah of the Supreme Court has observed in the case of Rakesh v. the State of UP that for convicting an accused recovery of the weapon used in the commission of offence is not a sine qua non. The Bench also observed that minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.
Brief Facts
Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Allahabad by which the High Court dismissed an appeal preferred by the appellants – original accused challenging their conviction for the offence punishable under Section 302 r/w 34 of the IPC, passed by the learned Additional District & Sessions Judge, Fast Track Court No.2, Hathras (hereinafter referred to as the learned “trial Court”), the original accused nos. 1 & 3 have preferred this appeal before the Hon'ble.
Case of the Appellants
It was contended that both the learned Trial Court as well as the High Court committed a grave error in convicting the accused, relying upon the depositions of eyewitnesses. So far as Prosecution Witness 2 (PW 2 for short) was concerned, his presence on the spot at the time of the incident was absolutely doubtful, therefore no reliance could have been placed upon his deposition. There was enmity and prior disputes between the accused and the deceased and even PW1 contended the Counsel. It was also submitted that the deceased was facing criminal trial u/s 307 of the IPC on the allegation of a murder attempt on A1 – Rakesh.
It was submitted therefore that there was all possibility of falsely implicating the A1 – Rakesh. It was further contended that there were material contradictions in so far as the use of weapons by A2 & A3 were concerned. It was stated that what was recovered was ‘knife’ and PW2 has categorically stated that the deceased was assaulted by ‘dagger’ and not by ‘knife.’ It was also the case that there was a difference between ‘dagger’ and ‘knife’. It was submitted that even Dr. Santosh Kumar – PW5 specifically admitted that injuries nos. 2 to 8 (incised injuries) cannot be caused by stabbing by a knife.
Case of the Respondent
It was submitted that on appreciation of entire evidence on record, the learned Trial Court convicted the accused and the same has been rightly confirmed by the High Court, hence no decision of conviction was error-free. It was submitted that both, PW1 & PW2 were trustworthy and reliable witnesses. It was further contended that their presence at the time of the incident was established and proved by the prosecution by examining PW1 & PW2.
And that in the present case the motive was established and proved. It was submitted that the defence failed to establish and prove that they were falsely implicated in the case. It was further argued that in the present case even recovery of weapon/weapons used by the accused has been established and proved. It was argued that there might be some minor contradictions but as was held by Yogesh Singh v. Mahabeer Singh and Prabhu Dayal v. State of Rajasthan that minor discrepancies should not be given undue importance that doesn’t go to the root of the matter.
Reasoning and Decision of the Court
Observations on whether the testimonies of PW1 & PW 2 were reliable and trustworthy?
Having gone through the entire depositions of PW1 & PW2 and even the cross-examination of the aforesaid two witnesses, the Court opined that both, PW1 & PW2 were trustworthy and reliable witnesses. Their presence at the time of the incident with the deceased was established and proved by the prosecution. There may be some minor contradictions, however, as held by the Supreme Court in a catena of decisions, minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.
Observations on the ballistic report the bullet
The Court observed that submission accused to the effect that as per the ballistic report the bullet found did not match with the firearm/gun recovered and therefore the use of a gun as alleged was doubtful and hence benefit of doubt must be given to the accused was concerned, the aforesaid could not be accepted. At the most, it could be said that the gun recovered by the police from the accused might not have been used for killing and therefore the recovery of the actual weapon used for killing could be ignored and it was to be treated as if there was no recovery at all.
For convicting an accused recovery of the weapon used in the commission of offence is not a sine qua non. PW1 & PW2 were reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A1- Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr. Santosh Kumar, PW5. Injury no.1 was by gunshot. Therefore, it was not possible to reject the credible ocular evidence of PW1 & PW2 – eyewitnesses who witnessed the shooting.
It has no bearing on the credibility of deposition of PW1 & PW2 that A1 shot deceased with a gun, particularly as it was corroborated by a bullet in the body and also stands corroborated by the testimony of PW2 & PW5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it was not possible to reject the credible and reliable deposition of PW1 & PW2.
Now so far as the submission on behalf of the defence that at the most it can be said that Accused No. 2 & 3 caused injuries on the dead body as according to them they caused injuries after the gunshot fired on the deceased and the deceased fell down and died. The Court found that the defence failed to establish and prove that at the time when the deceased sustained injuries nos. 2 to 8 by the knives used by Accused No.s 2 & A3, he was dead.
Observations of Knife and dagger and recovery of weapon
It was also the case on behalf of the defence that according to the witnesses/eye-witnesses the weapon used was ‘dagger’ and not ‘knife’ and what was recovered was ‘knife’ and PW2 has subsequently improved was a deposition that the other accused caused injuries by knives. It was the case on behalf of the defence that even the doctor in his cross-examination stated that it was very doubtful to say that the injuries were by sharp-cutting weapons on both sides.
However, it was to be noted, the Court stated that the doctor answered the question which was put to him. One was required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defense in the cross-examination cannot be considered stand-alone.
Even otherwise it was to be noted that what was stated by the Doctor/Medical officer can at the most be said to be his opinion. He was not the eye-witness to the incident. PW1 & PW2 have categorically stated that the other accused inflicted the blows by knives. The same was supported by the medical evidence and the deposition of PW2. Injuries nos. 2 to 8 were sufficient by the sharp cutting weapon. Injuries nos. 2 to 8 were on different parts of the body which show the intention and conduct on the part of the other accused A2 & A3.
Therefore, they were rightly convicted for the offence punishable under Section 302 IPC with the aid of Section 34 IPC. Their presence and participation have been established and proved by the prosecution by examining PW1 & PW2 who were found to be reliable and trustworthy witnesses.
In the present case, the prosecution has been successful in proving the motive. There was a prior long-time enmity between the deceased and the accused – A1. Even the deceased was also facing trial for the offence under Section 307 IPC at the instance of A1.
The defence has failed to prove any circumstances by which it can be said that they were falsely implicated in the case.
HELD
In view of the above and for the reasons stated above, the Supreme Court did not find any reason to interfere with the decision of the Courts below. The learned Trial Court and the High Court rightly convicted the accused for the offence punishable under Section 302 r/w 34 of the IPC.
Case Details
Case Name: Rakesh v. the State of UP
Case No.: Criminal Appeal No. 556 of 2021
Date of Decision: July 06, 2021
Bench: Justice Dr. DY Chandrachud and Justice MR Shah
Read Order ;
Advocate Sanjeev Sirohi
SOURCE ; www.latestlaws.com
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