It is quite pertinent to mention right at the outset that the Supreme Court just recently on July 6, 2021 in a latest, learned, laudable and landmark judgment titled Rakesh vs State of UP in Criminal Appeal No. 556 of 2021 in exercise of its criminal appellate jurisdiction has observed while upholding the conviction of the murder accused that for convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. It also must be apprised here that the Bench of Apex Court comprising of Justice Dr DY Chandrachud and Justice MR Shah have laid down in no uncertain terms that 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. Very rightly so!

To start with, Justice MR Shah who has authored this notable judgment for himself and Justice Dr DY Chandrachud sets the ball rolling by first and foremost observing in para 1 that:
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 learned Additional District & Sessions Judge, Fast Track Court No.2, Hathras (hereinafter referred to as the learned trial Court), the original accused nos. 1 & 3 have preferred the present appeal.

While elaborating on the facts of the case, the Bench then envisages in para 2 that:
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.

As it turned out, the Bench then discloses in para 3 that:
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 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.

Needless to say, the Bench then states in para 4 that:
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.

Simply put, after hearing both the parties, the Bench then points out in para 8 that:
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 particularly the depositions of PW1, PW2 and PW5. We have also considered the injuries found on the dead body of the deceased.

Be it noted, the Bench then enunciates in para 9 that:
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.

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.

On the face of it, the Bench then brings out in para 10 that:
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 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.

Most significantly, it cannot be glossed over that the Bench then concedes in para 11 that:
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 eyewitnesses to the incident and they have specifically stated that A1-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.

To put things in perspective, the Bench then specifies in para 12 that:
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 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.

Of course, it is of immense significance to note that the Bench then mentions in para 13 that:
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 & 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.

In hindsight, the Bench then makes it a point to state in para 14 that:
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.

Finally and as a corollary, the Bench then holds in para 15 that:
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 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.

In conclusion, the sum and substance of this brief, brilliant and balanced judgment by a two Jude Bench of the Apex Court comprising of Justice Dr DY Chandrachud and Justice MR Shah is that as pointed in para 11 that:
For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. 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. All the courts must always bear this in mind while ruling in similar such cases! This notable judgment also makes it absolutely clear that minor contradictions do not matter which do not go to the root of the matter and are therefore not material contradictions and therefore the evidence of such witnesses cannot be brushed aside and/or disbelieved. There can be just no denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh