Contradiction between the ballistic report and the credible ocular testimonial evidence of a witness cannot be the basis of rejecting the evidence of a witness.

Rakesh and another V State of UP and another

Criminal Appeal No. 556 of 2021, decided on 06^th  July 2021

Judges – Dr. D Y Chandrachud, J.,M. R. Shah,

FACTS – Present appeal is filed by the appellants for challenging their conviction for the offence punishable under Section 302 r/w 34 of the Indian Penal Code  imposing the sentence of life imprisonment and also for the offences under the Section 4/25 of Arms Act, passed by the learned Additional District & Sessions Judge, Fast Track Court (Trial Court) and consequently confirmed by the High Court  while dismissing the appeal. The accused no.1  & accused no.3  have preferred the present appeal but  accused no.2  has not preferred any appeal. In the present appeal it is claimed by the appellants that they felt aggrieved and dissatisfied with the judgment and order of conviction and sentence passed.

The role attributed to the accused no 1 was that he used countrymade pistol and caused injuries on the deceased. It was alleged that so far as other accused are concerned, they assaulted the deceased with their respective knives. As per the ballistic report the bullet found does not match with the fire arm/gun recovered by the accused no. 1. Two witnesses saw them while assaulting the victim.

ISSUES:

1. Can a contradiction between the ballistic report and the credible evidence of a witness be the basis of rejecting the ocular testimonial evidence of a witness?
2. Is recovery of the weapon used in commission of crime for convicting an accused a sine qua non?

HELD

The Supreme Court, considering both the issues together, dismissed the appeal stating that 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 and held that 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. Further, submission made on behalf of accused for doubting the recovery of fire arm/ gun 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. It is perused by the bench through the deposition that PW1 and PW2 are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A1 fired from the gun and deceased sustained injury that has been established and proven by the medical evidence of PW5. Therefore, it is not possible to reject the credible ocular evidence.

In the present case the prosecution has been successful in proving the motive of all the accused. The defence has failed to prove any circumstances by which it can be implicated that they are falsely framed in the case. 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.

CASES REFERRED

Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195

Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127

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