RAKESH AND ANOTHER versus STATE OF U.P. AND ANOTHER on 6 July 2021

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SUPREME COURT REPORTS

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RAKESH AND ANOTHER

v.

STATE OF U.P. AND ANOTHER

(Criminal Appeal No. 556 of 2021)

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JULY 06, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Penal Code, 1860: s.302 r/w s.34 – Previous enmity betweenCthe complainant party and accused – Gun shot and knife blows onthe victim deceased resulting in his death – Conviction under s.302r/w s.34 by courts below – On appeal, held: For convicting anaccused, recovery of the weapon used in commission of offence isnot a sine qua non – PW1 & PW2 were reliable and trustworthy eye-Dwitnesses to the incident and they specifically stated that A1 firedfrom the gun and the deceased sustained injury – The injury by thegun was established and proved from the medical evidence and thedeposition of PW5-doctor – Merely because the ballistic report showsthat the bullet recovered does not match with the gun recovered, itis not possible to reject the credible and reliable deposition of eye-Ewitnesses PW1 & PW2 – Prosecution was successful in proving themotive – There was a prior long-time enmity between the deceasedand the accused-A1 – Even the deceased was also facing trial forthe offence under s.307 IPC at the instance of A1 – The defencefailed to prove any circumstances by which it can be said that theyFwere falsely implicated in the case – Trial court and High Courtrightly convicted the accused for the offence punishable under s.302r/w s.34 – So far as A1 is concerned, there is a direct evidenceagainst him using the gun and shooting the deceased – Therefore,even he can be convicted for the offence punishable under s.302IPC, without the aid of s.34 IPC.G

Dismissing the appeal, the Court

HELD: 1. The entire depositions of PW1 & PW2 and eventhe cross-examination of these two witnessess showed that PW1& PW2 were trustworthy and reliable witnesses. Their presence H

at the time of incident with the deceased was established andproved by the prosecution. The presence of PW1 and even PW2at the time of incident is natural. PW1 is the son of the deceasedwho accompanied the deceased to attend the court. Similarly, PW2also was required to attend the court and, therefore, he reachedthe court and thereafter he saw the incident. Both the witnesseswere fully and thoroughly cross-examined. There may be someminor contradictions, however, minor contradictions which do notgo to the root of the matter and/or such contradictions arenot material contradictions, the evidence of such witnesses cannotbe brushed aside and/or disbelieved. [Para 9][882-G-H;883-A-B]

1.2 PW1 also explained the giving of the ‘Sick Note’ onbehalf of the deceased when such a question was asked in thecross-examination. PW1 categorically stated that when theyreached, the matter was already adjourned as the Presiding Officerwas on inspection and was not available in the court. By the timethey reached, the matter was already adjourned. As at the timewhen the matter was adjourned the deceased and PW1 could notreach the court, the advocate gave the sick note and prayed forexemption. The matter came to be adjourned and thereafter PW1and the deceased reached the court. From the entire evidenceon record, it is established and proved that the deceased andPW1 went to the court, thereafter the matter was adjourned andthereafter while returning just 15 to 20 minutes away from thecourt, the incident had taken place. The place of incident wasestablished and proved by the prosecution. [Para 9][883-C-F]

2. When a specific question was asked to PW2 that in thestatement before the police, he stated that he reachedsubsequently, PW2 has specifically denied the same and he hascategorically stated that no such statement was given by him tothepolice and he does not know how such a statement was recordedin his statement. No question has been asked by the defence totheperson/IO who recorded the statement of PW2. Consideringthen entire deposition as a whole, the prosecution was successfulin proving the presence of PW1 & PW2 at the time and place ofincident. They are found to be trustworthy and reliable.[Para 10][883-G-H; 884-A]

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A3. So far as the submission on behalf of the accused that asper the ballistic report the bullet found does not match with thefirearm/gun recovered and, therefore, the use of gun as allegedis doubtful and, therefore, benefit of doubt must be given to theaccused is concerned, the aforesaid cannot be accepted. At themost, it can be said that the gun recovered by the police from theBaccused may not have been used for killing and therefore therecovery of the actual weapon used for killing can be ignored andit is to be treated as if there is no recovery at all. For convictingan accused recovery of the weapon used in commission of offenceis not a sine qua non. PW1 & PW2 are reliable and trustworthyCeye-witnesses to the incident and they have specifically statedthat A1 fired from the gun and the deceased sustained injury.The injury by the gun has been established and proved from themedical evidence and the deposition of PW5-doctor. Injury no.1is by gun shot. Therefore, it is not possible to reject the credibleocular evidence of PW1 & PW2- eye-witnesses who witnessedDthe shooting. It has no bearing on credibility of deposition of PW1& PW2 that A1 shot deceased with a gun, particularly as it iscorroborated by bullet in the body and also stands corroboratedby the testimony of PW2 & PW5. Therefore, merely because theballistic report shows that the bullet recovered does not matchEwith the gun recovered, it is not possible to reject the credibleand reliable deposition of eye-witnesses PW1 & PW2.[Para 11][884-B-E]

4. The prosecution has been successful in proving themotive. There was a prior long-time enmity between the deceasedFand the accused-A1. Even the deceased was also facing trial forthe offence under Section 307 IPC at the instance of A1. Thedefence has failed to prove any circumstances by which it can besaid that they are falsely implicated in the case. The trial Courtand the High Court have rightly convicted the accused for theoffence punishable under Section 302 r/w 34 of the IPC. So far asGA1 is concerned, there is a direct evidence against him using thegun and shooting the deceased. Therefore, even he can beconvicted for the offence punishable under Section 302 IPC,without the aid of Section 34 IPC. [Paras 14, 15][885-F-H]

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.556 of 2021

From the Judgment and Order dated 10.09.2018 of the High Courtof Judicature at Allahabad in Crl. Appeal No. 2811 of 2008.

Rishi Malhotra, Adv. for the appellants.

Vinod Diwakar, AAG, Shashank Shekhar Singh, Arjun Dewan,Ms. Varisha Sharma, Akshay, Prakash Ranjan Nayak, Advs. for therespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 10.09.2018 passed by the High Court of Judicature atAllahabad in Criminal Appeal No. 2811 of 2008, by which the High Courthas dismissed the said appeal preferred by the appellants – originalaccused challenging their conviction for the offence punishable underSection 302 r/w 34 of the IPC, passed by the learned Additional District& Sessions Judge, Fast Track Court No.2, Hathras (hereinafter referredto as the learned “trial Court”), the original accused nos. 1 & 3 havepreferred the present appeal.

2. That both the appellants herein along with one another accused– Suresh were tried by the learned trial Court for the offences punishableunder Section 302 r/w 34 of the IPC for having killed one BhishampalSingh in an incident which happened on 28.01.2006. The role attributedto A1 – Rakesh was that he used countrymade pistol and caused injurieson the deceased. It was alleged that so far as Suresh and Anish – A2 &A3 are concerned, they assaulted the deceased with their respectiveknives. That after the full-fledged trial, the learned trial Court held allthe accused guilty for the offence punishable under Section 302 r/w 34of the IPC and sentenced all of them to undergo life imprisonment. Theaccused were also convicted for the offences punishable under Sections4/25 of the Arms Act for which a separate sentence was also imposedby the learned trial Court. While convicting the accused, the learned trialCourt heavily relied upon the depositions of PW1 and PW2 – eyewitnesses and also the medical evidence and the deposition of Dr. SantoshKumar – PW5 who conducted the post-mortem on the body of thedeceased.

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A3. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the learned trial Court convictingthe accused for the offence punishable under Section 302 r/w 34 of theIPC and imposing the sentence of life imprisonment and also for theoffences under the Arms Act, all the accused preferred appeal beforethe High Court being Criminal Appeal No. 2811 of 2008. By the impugnedBjudgment and order, the High Court has dismissed the said appeal andhas confirmed the conviction of the accused for the offences underSection 302 r/w 34 of the IPC and the sentence imposed of lifeimprisonment.

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4. Feeling aggrieved and dissatisfied with the impugned judgmentCand order of the High Court, original accused no.1 -Rakesh and accusedno.3 – Anish have preferred the present appeal. It appears that originalaccused no.2 – Suresh has not preferred any appeal.

5. Shri Rishi Malhotra, learned Amicus Curiae has appeared onbehalf of the appellants and Shri Vinod Diwakar, learned AdditionalDAdvocate General has appeared on behalf of the State of Uttar Pradeshand Shri Arjun Dewan, learned Advocate has appeared on behalf of theoriginal complainant.

5.1 Shri Rishi Malhotra, learned Amicus has vehemently submittedthat both, the learned trial Court as well as the High Court have committedEa grave error in convicting the accused, relying upon the depositions ofPW1 and PW2.

5.2 It is vehemently submitted that so far as PW2 is concerned,his presence on the spot at the time of the incident is absolutely doubtful.It is submitted that even according to him he came subsequent to theFoccurrence of the incident. It is submitted that as such he has specificallyadmitted in the cross-examination that when they had reached the courtat 10:30 a.m., the next date of hearing was given as the Presiding Officerwas not there. It is submitted that he was also confronted about the factthat he had come to the spot only after receiving the information aboutGthe incident. It is submitted that PW2 has specifically admitted that hereached the court before the deceased and PW1 at 10:00 a.m. and hadmoved an application for exemption from appearance of the accused inthat case. According to the learned counsel appearing on behalf of theappellants, he also admitted that on 29.01.2006 he alone came to thecourt and did not have a word with the deceased on the morning ofH

28.01.2006. It is submitted therefore no reliance could have been placedupon the deposition of PW2.

5.3 It is further submitted by the learned Amicus that as such andit is an admitted position that there was an enmity and prior disputesbetween the accused and the deceased and even PW1. It is submittedthat the deceased was facing criminal trial under Section 307 of the IPCon the allegation of murder attempt on A1 – Rakesh. It is submittedtherefore there are all possibility of falsely implicating the A1 – Rakesh.

5.4 It is further submitted that so far as the other accused – A2 &A3, namely, Suresh and Anish are concerned, from the ocular evidenceas well as medical evidence, it is clear that they caused injuries on thedeceased after the deceased died, i.e., on the dead body. It is submittedtherefore that when they inflicted injuries on the dead body, i.e., afterthe deceased died by gun shot, they cannot be convicted for the offencepunishable under Section 302 as by the time the accused A2 & A3 havealleged to have caused injuries, the deceased had died. It is submittedthat even PW1 in his cross-examination has admitted that the momentdeceased received gun shot injury he fell down and died.

5.5 It is further submitted that even according to PW1 and evenPW2 the matter was already adjourned and even the ‘Sick Note’ wasgiven on behalf of the deceased. It is submitted therefore when the‘Sick Note’ was given and the matter was already adjourned, there wasno reason for the deceased and PW1 to come to court. It is submittedthat it is very much doubtful that the deceased and PW1 reached thecourt and/or went to the court room.

5.6 It is further submitted by the learned Amicus appearing onbehalf of the appellants that even there are material contradictions insofaras use of weapon by A2 & A3 are concerned. It is submitted that whatwas recovered was ‘knife’ and PW2 has categorically stated that thedeceased was assaulted by ‘dagger’ and not by ‘knife’.

5.7 It is submitted that there is a difference between ‘dagger’ and‘knife’. It is submitted that even Dr. Santosh Kumar – PW5 hasspecifically admitted that injuries nos. 2 to 8 (incised injuries) cannot becaused stabbing by knife. It is submitted that the doctor has specificallyadmitted in the cross-examination that incised injuries nos. 2 to 8 are notmentioned clean-cut and it was difficult to state that the alleged weaponwas not sharp on both the sides.

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A5.8 It is further submitted that it has also come in evidence that asper the ballistic report bullet did not match with the alleged pistol used bythe accused – Rakesh.

5.9 It is submitted that the appellants are in custody since January,2006 and have already undergone more than 15 years of sentence.

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5.10 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the conviction and sentence imposed bythe learned trial Court, confirmed by the High Court.

6. Shri Vinod Diwakar, learned Additional Advocate GeneralCappearing on behalf of the State of Uttar Pradesh has vehementlysubmitted that in the facts and circumstances of the case, no error hasbeen committed by the learned trial Court convicting the accused, relyingupon the depositions of PW1 & PW2.

6.1 It is submitted that both, PW1 & PW2 are trustworthy andDreliable witnesses. It is submitted that their presence at the time of incidenthas been established and proved by the prosecution by examining PW1& PW2. It is submitted that both, PW1 & PW2 have been fully andthoroughly cross-examined and considering the entire evidence/depositionof PW1 & PW2, their presence at the time of incident has been establishedEand proved. It is submitted that on each and every aspect on which thelearned counsel appearing on behalf of the accused – defence has madesubmissions, PW1 and PW2 were cross-examined. It is submitted thatthereafter on appreciation of entire evidence on record, the learned trialCourt has convicted the accused and the same has been rightly confirmedby the High Court.F

6.2 It is submitted that in the present case the motive has beenestablished and proved. It is submitted that the defence has failed toestablish and prove that they were falsely implicated in the case.

6.3 It is further submitted by the learned Additional AdvocateGGeneral appearing on behalf of the State of Uttar Pradesh that as suchnothing is on record and/or there is no evidence on record to even suggestthat A2 & A3 caused injuries on the deceased by the time he died. It issubmitted that the aforesaid defence is not borne out at all either fromthe deposition of PW1, PW2 or even PW5.

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6.4 It is submitted that as such the prosecution has fully establishedand proved that on 28.01.2006 the deceased, PW1 & PW2 attended thecourt. It is submitted that, however, the court was not available on thatdate as the learned Presiding Officer was on inspection and thereforebefore they reached, the matter was adjourned. It is submitted that ‘SickNote’ on behalf of the deceased has already been explained by PW1 inhis deposition.

6.5 It is further submitted that in the present case even recoveryof weapon/weapons used by the accused has been established andproved.

6.6 It is further submitted that even the accused did not lead anyevidence to prove that they were not present on the spot at the time ofincident and that they were present elsewhere.

7. Shri Arjun Dewan, learned Advocate appearing on behalf ofthe original complainant has adopted the submissions made by the learnedAdditional Advocate General appearing on behalf of the State of UttarPradesh. In addition, it is vehemently submitted by the learned counselappearing on behalf of the complainant that the evidence of PW1 &PW2 is credible. It is submitted that their presence at the time of incidenthas been established and proved. It is submitted that PW2 has consistentlystated that he saw the accused herein on a motorcycle going towardsthe deceased victim and he witnessed the accused no.1 – Rakesh shootingthe deceased victim and accused no.2 – Suresh assaulting the deceasedwith a knife. It is submitted that there might be some minor contradictionsbut as held by this Court in the case of Yogesh Singh v. MahabeerSingh, (2017) 11 SCC 195 and Prabhu Dayal v. State of Rajasthan,(2018) 8 SCC 127, that minor discrepancies should not be given undueimportance that don’t go to the root of the matter.

7.1 Now so far as the submission on behalf of the accused that asper the ballistic report the bullet found did not match with the gunrecovered, it is submitted that as held by this Court in the case ofHimanshu Mohan Rai v. State of U.P., (2017) 4 SCC 161, in a casewhere the ballistic report is contrary to the evidence of the witnesses,but the statements of the witnesses have inspired the confidence of theCourt and have been held to be credible and reliable, then such acontradiction between the ballistic report and the credible evidence of awitness cannot be the basis of rejecting the evidence of a witness. It is AB

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Asubmitted that at the most the recovery of the weapon/gun may not bebelieved, but when PW1 & PW2 have specifically stated that it was theA1 who fired and caused injury on the deceased which is fully supportedby the medical evidence – injury no.1 and in fact there was a gun shotinjury on the deceased and therefore on the aforesaid aspect, PW1 &PW2 are fully supported by the medical evidence, the aforesaid cannotBbe a ground to acquit the accused.

7.2 It is submitted that there is a recovery of knife at the instanceof A1, which was used by A2 for commission of the offence. It issubmitted that as such no question with respect to knife recovered cancause injury nos. 2 to 8 was put to Dr. Santosh Kumar – PW5.C

7.3 It is further submitted that even in the recovery memo whichwas immediately taken during the course of investigation had thesignatures of PW1. It is submitted therefore the presence of PW1 hasalready been established and proved.

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7.4 It is further submitted that as such there are concurrent findingsof fact recorded by the learned trial Court as well as the High Court,which are on appreciation of evidence on record. It is submitted thattherefore no case is made out to interfere with the impugned judgmentand order of conviction and sentence imposed by the learned trial Court,Econfirmed by the High Court.

8. We have heard the learned counsel for the respective partiesat length. We have carefully gone through the judgment and order ofconviction and sentenced passed by the learned trial Court as well asthe impugned judgment and order passed by the High Court. We haveFalso re-appreciated the entire evidence on record, more particularly thedepositions of PW1, PW2 and PW5. We have also considered the injuriesfound on the dead body of the deceased.

9. From the judgment and order passed by the learned trial Court,it appears that while convicting the accused, the court has heavily reliedGupon the depositions of PW1, PW2 and PW5. PW1 and PW2 are statedto be the eye-witnesses to the incident. Having gone through the entiredepositions of PW1 & PW2 and even the cross-examination of theaforesaid two witnesses, we are of the firm opinion that both, PW1 &PW2 are trustworthy and reliable witnesses. Their presence at the timeof incident with the deceased has been established and proved by theH

prosecution. The presence of PW1 and even PW2 at the time of incidentis natural. PW1 is the son of the deceased who accompanied thedeceased to attend the court. Similarly, PW2 also was required to attendthe court and therefore he reached the court and thereafter he saw theincident. Both the witnesses have been fully and thoroughly cross-examined. There may be some minor contradictions, however, as heldby this Court in catena of decisions, minor contradictions which do notgo to the root of the matter and/or such contradictions are not materialcontradictions, the evidence of such witnesses cannot be brushed asideand/or disbelieved.

In the present case, both the aforesaid witnesses are thoroughlycross-examined on each and every aspect pointed out by the defence.However, they have fully supported the case of the prosecution. PW1has also explained the giving of the ‘Sick Note’ on behalf of the deceasedwhen such a question was asked in the cross-examination. PW1 hascategorically stated that when they reached, the matter was alreadyadjourned as the learned Presiding Officer was on inspection and wasnot available in the court. By the time they reached, the matter wasalready adjourned. As at the time when the matter was adjourned thedeceased and PW1 could not reach the court, the learned advocategave the sick note and prayed for exemption. The matter came to beadjourned and thereafter PW1 and the deceased reached the court.From the entire evidence on record, it is established and proved that thedeceased and PW1 went to the court, thereafter the matter was adjournedand thereafter while returning just 15 to 20 minutes away from the court,the incident had taken place. The place of incident has been establishedand proved by the prosecution.

10. Now so far as the submission on behalf of the defence thatPW2 stated that he reached the spot subsequently after he received themessage is concerned, what is required to appreciate and consider theevidence as a whole. When a specific question was asked to him that inthe statement before the police, he stated that he reached subsequently,PW2 has specifically denied the same and he has categorically statedthat no such statement was given by him to the police and he does notknow how such a statement was recorded in his statement. No questionhas been asked by the defence to the person/IO who recorded thestatement of PW2. Considering the entire deposition as a whole, we areof the opinion that the prosecution has been successful in proving the AB

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[2021] 6 S.C.R.

Apresence of PW1 & PW2 at the time and place of incident. They arefound to be trustworthy and reliable.

11. Now so far as the submission on behalf of the accused that asper the ballistic report the bullet found does not match with the fire arm/gun recovered and therefore the use of gun as alleged is doubtful andBtherefore benefit of doubt must be given to the accused is concerned,the aforesaid cannot be accepted. At the most, it can be said that thegun recovered by the police from the accused may not have been usedfor killing and therefore the recovery of the actual weapon used forkilling can be ignored and it is to be treated as if there is no recovery atCall. For convicting an accused recovery of the weapon used in commissionof offence is not a sine qua non. PW1 & PW2, as observed hereinabove,are reliable and trustworthy eye-witnesses to the incident and they havespecifically stated that A1-Rakesh fired from the gun and the deceasedsustained injury. The injury by the gun has been established and provedfrom the medical evidence and the deposition of Dr. Santosh Kumar,DPW5. Injury no.1 is by gun shot. Therefore, it is not possible to reject thecredible ocular evidence of PW1 & PW2 – eye witnesses who witnessedthe shooting. It has no bearing on credibility of deposition of PW1 &PW2 that A1 shot deceased with a gun, particularly as it is corroboratedby bullet in the body and also stands corroborated by the testimony ofEPW2 & PW5. Therefore, merely because the ballistic report shows thatthe bullet recovered does not match with the gun recovered, it is notpossible to reject the credible and reliable deposition of PW1 & PW2.

12. Now so far as the submission on behalf of the defence that atthe most it can be said that A2 & A3 caused injuries on the dead body asFaccording to them they caused injuries after the gun shot fired on thedeceased and the deceased fell down and died. Therefore, it is the caseon behalf of A2 & A3 that having been caused the injuries on the deadbody, they could not have been convicted for the offence punishableunder Section 302 IPC. However, it is required to be noted that A2 &GA3 are convicted with the aid of Section 34 of the IPC. Apart from that,there is no evidence at all on record to suggest that when the deceasedsustained injuries by knives by A2 & A3 and the deceased sustainedinjuries nos. 2 to 8, by the time he was dead. Much reliance has beenplaced on the deposition of PW1 by the defence that he admitted thatafter the gun shot injury, the deceased fell down and died. However, heH

does not say that when A2 & A3 caused injuries by knives at that timethe deceased was dead. Therefore, the defence has failed to establishand prove that at the time when the deceased sustained injuries nos. 2 to8 by the knives used by A2 & A3, he was dead.

13. It is also the case on behalf of the defence that according tothe witnesses/eye-witnesses the weapon used was ‘dagger’ and not‘knife’ and what is recovered is ‘knife’ and PW2 has subsequentlyimproved his deposition that the other accused caused injuries by knives.It is the case on behalf of the defence that even the doctor in his cross-examination has stated that it is very doubtful to say that the injurieswere by sharp cutting weapon on both sides. However, it is to be notedthat the doctor answered the question which was put to him. One isrequired to consider the entire evidence as a whole with the other evidenceon record. Mere one sentence here or there and that too to the questionasked by the defence in the cross-examination cannot be consideredstand alone. Even otherwise it is to be noted that what is stated by theDoctor/Medical officer can at the most be said to be his opinion. He isnot the eye-witness to the incident. PW1 & PW2 have categoricallystated that the other accused inflicted the blows by knives. The same issupported by the medical evidence and the deposition of PW2. Injuriesnos. 2 to 8 are sufficient by the sharp cutting weapon. Injuries nos. 2 to8 are on different parts of the body which show the intention and conducton the part of the other accused A2 & A3. Therefore, they are rightlyconvicted for the offence punishable under Section 302 IPC with the aidof Section 34 IPC. Their presence and participation have been establishedand proved by the prosecution by examining PW1 & PW2 who arefound to be reliable and trustworthy witnesses.

14. In the present case, the prosecution has been successful inproving the motive. There was a prior long-time enmity between thedeceased and the accused – A1. Even the deceased was also facingtrial for the offence under Section 307 IPC at the instance of A1. Thedefence has failed to prove any circumstances by which it can be saidthat they are falsely implicated in the case.

15. In view of the above and for the reasons stated above, nointerference of this Court is called for. The learned trial Court and theHigh Court have rightly convicted the accused for the offence punishableunder Section 302 r/w 34 of the IPC.

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886SUPREME COURT REPORTS

ASo far as A1 is concerned, there is a direct evidence against himusing the gun and shooting the deceased. Therefore, even he can beconvicted for the offence punishable under Section 302 IPC, without theaid of Section 34 IPC. As observed hereinabove, both the courts belowhave rightly convicted A1 for the offence punishable under Section 302IPC and other accused – A2 & A3 for the offence punishable underBSection 302 IPC, with the aid of Section 34 IPC. Under the circumstances,the appeal fails and deserves to be dismissed and is accordingly dismissed.

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Devika Gujral

Appeal dismissed.

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