BODH RAJ @ BODHA AND ORS. versus STATE OF JAMMU AND KASHMIR

Citation: [2002] SUPP. 2 S.C.R. 67 · Decided: 03-09-2002 · Supreme Court of India · Bench: RUMA PAL · Disposal: Dismissed
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Judgment (excerpt)

BODH RAJ @ BODHA AND ORS. 
v. 
STATE OF JAMMU AND KASHMIR 
SEPTEMBER 3, 2002 
[RUMA PAL AND ARIJIT PASAYAT, JJ.] 
Penal Code, 1860-Section 302 read with Section 120-B-A<;cused 
af/egedly entering into conspiracy to murder one person-Trial court relying 
A 
B 
on testimony of the witnesses, recovery of weapons and motive convicting C 
three of the accused and acquitting others-High court maintaining conviction 
of the three accused but setting aside acquittal of four accused on the basis 
· of evidence leaving the other two accused-On appeal held in the facts and 
circumstances of the case order of High Court justified and no interference 
called for. 
Evidence Act, 1872: 
D 
Possibility of t11'o views on basis of evidence-View favourable lo the 
accused to be preferred-But when trial court fails to consider relevant 
materials to arrive at the view, High court is duty bound to arrive at a correct 
conclusion taking a different view-On facts High Court adopted a proper E 
approach convicting the four accused acquitted by trial court. 
Section 27-Evidence relating to recovery of weapons-Use of to fasten 
guilt on accused-Discussed. 
Last seen theory-Applicability of-Discussed. 
Code of Criminal Procedure, 197 3 : 
Section 154-FIR-Delay of one day in dispatch-Effect of-Such delay 
is not unusual when proper explanation for delay is given. 
Section 161-Witnesses-Delay in examination-Effect of-if there are 
valid reasons for delay and court accepts the same then conclusions arrived 
at not to be interfered with. 
It is alleged that accused conspired to kill one S as they had taken 
67 
F 
G 
H 
68 
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R. 
A huge loan from him and were under pressure to return the loan amount. 
On the fateful day A I aud A2 persuaded S to accompany them for selection 
of the site. PW I and 2-propeirty dealer were also picked up. On their way 
back deceased was attacked by some persons. A I and A2 remained silent 
spectators. On the contrary they left the scene of occurrence leaving behind 
B the deceased and PW I and 2. Weapons used by the accused were 
recovered pursuant to the disclosures made by them, in the presence of 
other witnesses. Prosecution witnesses identified accused persons. Different 
eye-witnesses saw the occurrence either in full or partially. Trial Court 
convicted accused Al, A2 and A6 under section 302 read with section 1208 
IPC and acquitted A3, A4, AS, A7, AS and A9. High Court upheld the 
C conviction of Al, A2 and A6. It set aside the acquittal of A3, A4, AS and 
A 7 and convicted them und1:r section 302 read with section 1208 IPC. 
However it upheld the acquittal of AS and A9. Hence the present appeals 
by the accused as well as the State. 
Appellant contended that there was no conspiracy between the 
D accused persons; that there are no independent witnesses and the so called 
identification of the witne!ises was highly improbable; that having 
discarded the evidence of PW7 courts erred in believing the evidence of 
PW8 and 9; that the weapons recovered pursuant to the disclosure made 
by the accused was highly improbable and requisite safeguard!i have not 
E been adopted while making alleged recoveries; that the examination of eye-
witnesses PWI and 2 was bel~1ted and should not have been accepted; that 
there was unexplained delay in sending the FIR; that the evidence of 
prosecution witnesses vis-a-vis accused persons was improbable; that the 
High Court should not have disturbed the findings of innocence of four 
accused persons without any plausible reasoning and that where two views 
F are possible on evidence, the one in favour of the accused was to be 
accepted. 
Respondent contended that there is no reason as to why the witnesses 
would depose falsely against A I and A2 who are known to them and there 
G is nothing irregular or illegal in the procedure adopted while effecting 
recovery pursuant to the disclosure made by the accused persons. 
Dismissing the appeal, the Court 
HELD: I. There is some evidence to establish the motive that is 
indebtedness of the accused to the deceased and also evidence of PWI and 
H 2 substantiates the accusations. Both PWI and PW2 stated that in their 
BODHRA.l@BODHA v. STATEOFJAMMUANDKASHMIR 
69 
presence deceased was attacked by four-five persons armed with weapons, A 
the deceased started running and assailants followed him and assaulted 
him. The presence of PWI and 2 at the place of occurrence is fortified as 
they were witnesses
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