Rakesh vs The State Of Uttar Pradesh on 6 July, 2021


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Supreme Court of India

Rakesh vs The State Of Uttar Pradesh on 6 July, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                              REPORTABLE
                                   IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL APPEAL NO. 556 OF 2021


          Rakesh and another                                       …Appellants
                                              Versus


          State of U.P. and another                                …Respondents




                                              JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 10.09.2018 passed by the High Court of Judicature at

Allahabad in Criminal Appeal No. 2811 of 2008, by which the High

Court has dismissed the said 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
Signature Not Verified

learned Additional District & Sessions Judge, Fast Track Court No.2,
Digitally signed by
Chetan Kumar
Date: 2021.07.06
18:53:19 IST
Reason:

1
Hathras (hereinafter referred to as the learned “trial Court”), the

original accused nos. 1 & 3 have preferred 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

punishable under Section 302 r/w 34 of the IPC for having killed one

Bhishampal Singh in an incident which happened on 28.01.2006. The

role attributed to A1 – Rakesh was that he used countrymade pistol

and caused injuries on the deceased. It was alleged that so far as

Suresh and Anish – A2 & A3 are concerned, they assaulted the

deceased with their respective knives. That after the full-fledged trial,

the learned trial Court held all the accused guilty for the offence

punishable under Section 302 r/w 34 of the IPC and sentenced all of

them to undergo life imprisonment. The accused were also convicted

for the offences punishable under Sections 4/25 of the Arms Act for

which a separate sentence was also imposed by the learned trial

Court. While convicting the accused, the learned trial Court heavily

relied upon the depositions of PW1 and PW2 – eye witnesses and

also the medical evidence and the deposition of Dr. Santosh Kumar –

PW5 who conducted the post-mortem on the body of the deceased.

3. Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence passed by the learned trial Court convicting

the accused for the offence punishable under Section 302 r/w 34 of

2
the IPC and imposing the sentence of life imprisonment and also for

the offences under the Arms Act, all the accused preferred appeal

before the High Court being Criminal Appeal No. 2811 of 2008. By the

impugned judgment and order, the High Court has dismissed the said

appeal and has confirmed the conviction of the accused for the

offences under Section 302 r/w 34 of the IPC and the sentence

imposed of life imprisonment.

4. Feeling aggrieved and dissatisfied with the impugned judgment

and order of the High Court, original accused no.1 -Rakesh and

accused no.3 – Anish have preferred the present appeal. It appears

that original accused no.2 – Suresh has not preferred any appeal.

5. Shri Rishi Malhotra, learned Amicus Curiae has appeared on

behalf of the appellants and Shri Vinod Diwakar, learned Additional

Advocate General has appeared on behalf of the State of Uttar

Pradesh and Shri Arjun Dewan, learned Advocate has appeared on

behalf of the original complainant.

5.1 Shri Rishi Malhotra, learned Amicus has vehemently

submitted that both, the learned trial Court as well as the High Court

have committed a grave error in convicting the accused, relying upon

the depositions of PW1 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

3
doubtful. It is submitted that even according to him he came

subsequent to the occurrence of the incident. It is submitted that as

such he has specifically admitted in the cross-examination that when

they had reached the court at 10:30 a.m., the next date of hearing was

given as the Presiding Officer was not there. It is submitted that he

was also confronted about the fact that he had come to the spot only

after receiving the information about the incident. It is submitted that

PW2 has specifically admitted that he reached the court before the

deceased and PW1 at 10:00 a.m. and had moved an application for

exemption from appearance of the accused in that case. According to

the learned counsel appearing on behalf of the appellants, he also

admitted that on 29.01.2006 he alone came to the court and did not

have a word with the deceased on the morning of 28.01.2006. It is

submitted therefore no reliance could have been placed upon the

deposition of PW2.

5.3 It is further submitted by the learned Amicus that as such and

it is an admitted position that there was an enmity and prior disputes

between the accused and the deceased and even PW1. It is

submitted that the deceased was facing criminal trial under Section

307 of the IPC on the allegation of murder attempt on A1 – Rakesh. It

is submitted therefore there are all possibility of falsely implicating the

A1 – Rakesh.

4
5.4 It is further submitted that so far as the other accused – A2 &

A3, namely, Suresh and Anish are concerned, from the ocular

evidence as well as medical evidence, it is clear that they caused

injuries on the deceased after the deceased died, i.e., on the dead

body. It is submitted therefore that when they inflicted injuries on the

dead body, i.e., after the deceased died by gun shot, they cannot be

convicted for the offence punishable under Section 302 as by the time

the accused A2 & A3 have alleged to have caused injuries, the

deceased had died. It is submitted that even PW1 in his cross-

examination has admitted that the moment deceased received gun

shot injury he fell down and died.

5.5 It is further submitted that even according to PW1 and even

PW2 the matter was already adjourned and even the ‘Sick Note’ was

given on behalf of the deceased. It is submitted therefore when the

‘Sick Note’ was given and the matter was already adjourned, there

was no reason for the deceased and PW1 to come to court. It is

submitted that it is very much doubtful that the deceased and PW1

reached the court and/or went to the court room.

5.6 It is further submitted by the learned Amicus appearing on

behalf of the appellants that even there are material contradictions

insofar as use of weapon by A2 & A3 are concerned. It is submitted

5
that what was recovered was ‘knife’ and PW2 has categorically stated

that the deceased 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 has

specifically admitted that injuries nos. 2 to 8 (incised injuries) cannot

be caused stabbing by knife. It is submitted that the doctor has

specifically admitted in the cross-examination that incised injuries nos.

2 to 8 are not mentioned clean-cut and it was difficult to state that the

alleged weapon was not sharp on both the sides.

5.8 It is further submitted that it has also come in evidence that

as per the ballistic report bullet did not match with the alleged pistol

used by the 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.

5.10 Making the above submissions, it is prayed to allow the

present appeal and quash and set aside the conviction and sentence

imposed by the learned trial Court, confirmed by the High Court.

6. Shri Vinod Diwakar, learned Additional Advocate General

appearing on behalf of the State of Uttar Pradesh has vehemently

submitted that in the facts and circumstances of the case, no error has

6
been committed by the learned trial Court convicting the accused,

relying upon the depositions of PW1 & PW2.

6.1 It is submitted that both, PW1 & PW2 are trustworthy and

reliable witnesses. It is submitted that their presence at the time of

incident has been established and proved by the prosecution by

examining PW1 & PW2. It is submitted that both, PW1 & PW2 have

been fully and thoroughly cross-examined and considering the entire

evidence/deposition of PW1 & PW2, their presence at the time of

incident has been established and proved. It is submitted that on

each and every aspect on which the learned counsel appearing on

behalf of the accused – defence has made submissions, PW1 and

PW2 were cross-examined. It is submitted that thereafter on

appreciation of entire evidence on record, the learned trial Court has

convicted the accused and the same has been rightly confirmed by

the High Court.

6.2 It is submitted that in the present case the motive has been

established and proved. It is submitted that the defence has failed to

establish and prove that they were falsely implicated in the case.

6.3 It is further submitted by the learned Additional Advocate

General appearing on behalf of the State of Uttar Pradesh that as

such nothing is on record and/or there is no evidence on record to

even suggest that A2 & A3 caused injuries on the deceased by the

7
time he died. It is submitted that the aforesaid defence is not borne

out at all either from the deposition of PW1, PW2 or even PW5.

6.4 It is submitted that as such the prosecution has fully

established and proved that on 28.01.2006 the deceased, PW1 &

PW2 attended the court. It is submitted that, however, the court was

not available on that date as the learned Presiding Officer was on

inspection and therefore before they reached, the matter was

adjourned. It is submitted that ‘Sick Note’ on behalf of the deceased

has already been explained by PW1 in his deposition.

6.5 It is further submitted that in the present case even recovery

of weapon/weapons used by the accused has been established and

proved.

6.6 It is further submitted that even the accused did not lead any

evidence to prove that they were not present on the spot at the time of

incident and that they were present elsewhere.

7. Shri Arjun Dewan, learned Advocate appearing on behalf of

the original complainant has adopted the submissions made by the

learned Additional Advocate General appearing on behalf of the State

of Uttar Pradesh. In addition, it is vehemently submitted by the

learned counsel appearing on behalf of the complainant that the

evidence of PW1 & PW2 is credible. It is submitted that their

presence at the time of incident has been established and proved. It

8
is submitted that PW2 has consistently stated that he saw the accused

herein on a motorcycle going towards the deceased victim and he

witnessed the accused no.1 – Rakesh shooting the deceased victim

and accused no.2 – Suresh assaulting the deceased with a knife. It is

submitted that there might be some minor contradictions but as held

by this Court in the case of Yogesh Singh v. Mahabeer Singh, (2017)

11 SCC 195 and Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC

127, that minor discrepancies should not be given undue importance

that don’t go to the root of the matter.

7.1 Now so far as the submission on behalf of the accused that

as per the ballistic report the bullet found did not match with the gun

recovered, it is submitted that as held by this Court in the case of

Himanshu Mohan Rai v. State of U.P., (2017) 4 SCC 161, in a case

where the ballistic report is contrary to the evidence of the witnesses,

but the statements of the witnesses have inspired the confidence of

the Court and have been held to be credible and reliable, then such a

contradiction between the ballistic report and the credible evidence of

a witness cannot be the basis of rejecting the evidence of a witness. It

is submitted that at the most the recovery of the weapon/gun may not

be believed, but when PW1 & PW2 have specifically stated that it was

the A1 who fired and caused injury on the deceased which is fully

supported by the medical evidence – injury no.1 and in fact there was

9
a gun shot injury on the deceased and therefore on the aforesaid

aspect, PW1 & PW2 are fully supported by the medical evidence, the

aforesaid cannot be a ground to acquit the accused.

7.2 It is submitted that there is a recovery of knife at the instance

of A1, which was used by A2 for commission of the offence. It is

submitted that as such no question with respect to knife recovered can

cause injury nos. 2 to 8 was put to Dr. Santosh Kumar – PW5.

7.3 It is further submitted that even in the recovery memo which

was immediately taken during the course of investigation had the

signatures of PW1. It is submitted therefore the presence of PW1 has

already been established and proved.

7.4 It is further submitted that as such there are concurrent

findings of fact recorded by the learned trial Court as well as the High

Court, which are on appreciation of evidence on record. It is

submitted that therefore no case is made out to interfere with the

impugned judgment and order of conviction and sentence imposed by

the learned trial Court, confirmed by the High Court.

8. We have heard the learned counsel for the respective parties

at length. We have carefully gone through the judgment and order of

conviction and sentenced passed by the learned trial Court as well as

the impugned judgment and order passed by the High Court. We

have also re-appreciated the entire evidence on record, more

10
particularly the depositions of PW1, PW2 and PW5. We have also

considered the injuries found 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 relied upon the depositions of PW1, PW2 and PW5. PW1 and

PW2 are stated to be the eye-witnesses to the incident. Having gone

through the entire depositions of PW1 & PW2 and even the cross-

examination of the aforesaid two witnesses, we are of the firm opinion

that both, PW1 & PW2 are trustworthy and reliable witnesses. Their

presence at the time of incident with the deceased has been

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 have been fully and thoroughly cross-examined. There may

be some minor contradictions, however, as held by this Court in

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.

11
In the present case, both the aforesaid witnesses are

thoroughly cross-examined on each and every aspect pointed out by

the defence. However, they have fully supported the case of the

prosecution. PW1 has also explained the giving of the ‘Sick Note’ on

behalf of the deceased when such a question was asked in the cross-

examination. PW1 has categorically stated that when they reached,

the matter was already adjourned as the learned 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 learned 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 has been established and proved

by the prosecution.

10. Now so far as the submission on behalf of the defence that

PW2 stated that he reached the spot subsequently after he received

the message is concerned, what is required to appreciate and

consider the evidence as a whole. When a specific question was

12
asked to him 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 to

the police and he does not know how such a statement was recorded

in his statement. No question has been asked by the defence to the

person/IO who recorded the statement of PW2. Considering the

entire deposition as a whole, we are of the opinion that the

prosecution has been successful in proving the presence of PW1 &

PW2 at the time and place of incident. They are found to be

trustworthy and reliable.

11. Now so far as the submission on behalf of the accused that

as per 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

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, as observed hereinabove, are reliable and trustworthy eye-

witnesses to the incident and they have specifically stated that A1-

13
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

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 PW1 &

PW2.

12. Now so far as the submission on behalf of the defence that

at the most it can be said that A2 & A3 caused injuries on the dead

body as according to them they caused injuries after the gun shot fired

on the deceased and the deceased fell down and died. Therefore, it is

the case on behalf of A2 & A3 that having been caused the injuries on

the dead body, they could not have been convicted for the offence

punishable under Section 302 IPC. However, it is required to be noted

that A2 & A3 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 deceased sustained injuries by knives by A2 & A3 and the

14
deceased sustained injuries nos. 2 to 8, by the time he was dead.

Much reliance has been placed on the deposition of PW1 by the

defence that he admitted that after the gun shot injury, the deceased

fell down and died. However, he does not say that when A2 & A3

caused injuries by knives at that time the deceased was dead.

Therefore, the defence has failed to establish and prove that at the

time when the deceased sustained injuries nos. 2 to 8 by the knives

used by A2 & A3, he was dead.

13. It is 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 is recovered is ‘knife’ and PW2 has subsequently

improved 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

injuries were by sharp cutting weapon on both sides. However, it is to

be noted that the doctor answered the question which was put to him.

One is 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 defence in the cross-examination

cannot be considered stand alone. Even otherwise it is to be noted

that what is stated by the Doctor/Medical officer can at the most be

said to be his opinion. He is not the eye-witness to the incident. PW1

15
& PW2 have categorically stated that the other accused inflicted the

blows by knives. The same is supported by the medical evidence and

the deposition of PW2. Injuries nos. 2 to 8 are sufficient by the sharp

cutting weapon. Injuries nos. 2 to 8 are on different parts of the body

which show the intention and conduct on the part of the other accused

A2 & A3. Therefore, they are 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 are found to be

reliable and trustworthy witnesses.

14. 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 are falsely implicated in the case.

15. In view of the above and for the reasons stated above, no

interference of this Court is called for. The learned 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

16
can be convicted for the offence punishable under Section 302 IPC,

without the aid of Section 34 IPC. As observed hereinabove, both the

courts below have rightly convicted A1 for the offence punishable

under Section 302 IPC and other accused – A2 & A3 for the offence

punishable under Section 302 IPC, with the aid of Section 34 IPC.

Under the circumstances, the appeal fails and deserves to be

dismissed and is accordingly dismissed.

…..………………………………..J.

                               [Dr. Dhananjaya Y. Chandrachud]



New Delhi;                     …………………………………….J.
July 06, 2021.                 [M.R. Shah]




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