Recovery Of Weapon Used In Commission Of Offence Is Not A Sine Qua Non For Conviction: Supreme Court

For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non, the Supreme Court observed while upholding a conviction of a murder accused.

The bench comprising Justices DY Chandrachud and MR Shah observed 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.

In this case, the accused were convicted under Section 302 r/w 34 of the IPC for having killed one Bhishampal Singh in an incident which happened on 28.01.2006. In appeal, one of the contention raised on behalf of the accused was 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.

"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- 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.", the Court said rejecting this contention.

The court also added that the entire evidence should be considered 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, it said. The bench, while upholding the conviction said:

"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"

Case: Rakesh vs. State of UP [CrA 556 OF 2021]
Coram: Justices DY Chandrachud and MR Shah
Citation: LL 2021 SC 282

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