RAKESH AND ANOTHER versus STATE OF U.P. AND ANOTHER

Citation: [2021] 6 S.C.R. 874 · Decided: 06-07-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 6 S.C.R.
[2021] 6 S.C.R. 874
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RAKESH AND ANOTHER
v.
STATE OF U.P. AND ANOTHER
(Criminal Appeal No. 556 of 2021)
JULY 06, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
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 eye-
witnesses 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 eye-
witnesses 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
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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]
RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER
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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 a

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