Penal Code, 1860: s.302 r/w s.34 – Previous enmity between the complainant party and accused – Gun shot and knife blows on the victim deceased resulting in his death – Conviction under s.302 r/w s.34 by courts below – On appeal, held: For convicting an accused, recovery of the weapon used in commission of offence is not a sine qua non – PW1 & PW2 were reliable and trustworthy eyewitnesses to the incident and they specifically stated that A1 fired from the gun and the deceased sustained injury – The injury by the gun was established and proved from the medical evidence and the deposition of PW5-doctor – Merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of eyewitnesses PW1 & PW2 – Prosecution was 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 s.307 IPC at the instance of A1 – The defence failed to prove any circumstances by which it can be said that they were falsely implicated in the case – Trial court and High Court rightly convicted the accused for the offence punishable under s.302 r/w s.34 – So far as A1 is concerned, there is a direct evidence against him using the gun and shooting the deceased – Therefore, even he can be convicted for the offence punishable under s.302 IPC, without the aid of s.34 IPC.
Dismissing the appeal, the Court
HELD: 1. The entire depositions of PW1 & PW2 and even the cross-examination of these two witnessess showed that PW1 & PW2 were trustworthy and reliable witnesses. Their presence at the time of incident with the deceased was established and proved by the prosecution. The presence of PW1 and even PW2 at the time of incident is natural. PW1 is the son of the deceased who accompanied the deceased to attend the court. Similarly, PW2 also was required to attend the court and, therefore, he reached the court and thereafter he saw the incident. Both the witnesses were fully and thoroughly cross-examined. There may be some minor contradictions, however, 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. [Para 9][882-G-H; 883-A-B]
1.2 PW1 also explained the giving of the ‘Sick Note’ on behalf of the deceased when such a question was asked in the cross-examination. PW1 categorically stated that when they reached, the matter was already adjourned as the Presiding Officer was on inspection and was not available in the court. By the time they reached, the matter was already adjourned. As at the time when the matter was adjourned the deceased and PW1 could not reach the court, the advocate gave the sick note and prayed for exemption. The matter came to be adjourned and thereafter PW1 and the deceased reached the court. From the entire evidence on record, it is established and proved that the deceased and PW1 went to the court, thereafter the matter was adjourned and thereafter while returning just 15 to 20 minutes away from the court, the incident had taken place. The place of incident was established and proved by the prosecution. [Para 9][883-C-F]
2. When a specific question was asked to PW2 that in the statement before the police, he stated that he reached subsequently, PW2 has specifically denied the same and he has categorically stated that no such statement was given by him tothe police and he does not know how such a statement was recorded in his statement. No question has been asked by the defence to theperson/IO who recorded the statement of PW2. Considering then entire deposition as a whole, the prosecution was successful in proving the presence of PW1 & PW2 at the time and place of incident. They are found to be trustworthy and reliable. [Para 10][883-G-H; 884-A]
3. So far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and, therefore, the use of gun as alleged is doubtful and, therefore, benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW1 & PW2 are reliable and trustworthy eye-witnesses to the incident and they have specifically stated that A1 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 PW5-doctor. Injury no.1 is by gun shot. Therefore, it is not possible to reject the credible ocular evidence of PW1 & PW2- eye-witnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW1 & PW2 that A1 shot deceased with a gun, particularly as it is corroborated by 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 is not possible to reject the credible and reliable deposition of eye-witnesses PW1 & PW2. [Para 11][884-B-E]
4. 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 are falsely implicated in the case. The trial Court and the High Court have rightly convicted the accused for the offence punishable under Section 302 r/w 34 of the IPC. So far as A1 is concerned, there is a direct evidence against him using the gun and shooting the deceased. Therefore, even he can be convicted for the offence punishable under Section 302 IPC, without the aid of Section 34 IPC. [Paras 14, 15][885-F-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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