REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 556 OF 2021

Rakesh and another…Appellants

Versus

State of U.P. and another…Respondents

J U D G M E N T

============

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand 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.

2. 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 country made 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.

3. 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.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand 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.

5. Shri Rishi Malhotra, learned Amicus Curiae has appeared on behalf of the appellants and Shri Vinod Diwakar, learned Additional Advocate General has appeared on behalf of the State of Uttar Pradesh and Shri Arjun Dewan, learned Advocate has appeared on behalf of the original complainant.

5.1 Shri Rishi Malhotra, learned Amicus has vehemently submitted that both, the learned trial Court as well as the High Court have committed a grave error in convicting the accused, relying upon the depositions of PW1 and PW2.

5.2 It is vehemently submitted that so far as PW2 is concerned, his presence on the spot at the time of the incident is absolutely doubtful. It is submitted that even according to him he came subsequent to the occurrence of the incident. It is submitted that as such he has specifically admitted in the cross-examination that when they had reached the court at 10:30 a.m., the next date of hearing was given as the Presiding Officer was not there. It is submitted that he was also confronted about the fact that he had come to the spot only after receiving the information about the incident. It is submitted thatPW2 has specifically admitted that he reached the court before the deceased and PW1 at 10:00 a.m. and had moved an application for exemption from appearance of the accused in that case. According to the learned counsel appearing on behalf of the appellants, he also admitted that on 29.01.2006 he alone came to the court and did not have a word with the deceased on the morning of 28.01.2006. It is submitted therefore no reliance could have been placed upon the deposition of PW2.

5.3 It is further submitted by the learned Amicus that as such and it is an admitted position that there was an enmity and prior disputes between the accused and the deceased and even PW1. It is submitted that the deceased was facing criminal trial under Section 307 of the IPC on the allegation of murder attempt on A1 – Rakesh. It is submitted therefore there are all possibility of falsely implicating the A1 – Rakesh.

5.4 It is further submitted that so far as the other accused – A2 &A3, namely, Suresh and Anish are concerned, from the ocular evidence as well as medical evidence, it is clear that they caused injuries on the deceased after the deceased died, i.e., on the dead body. It is submitted therefore that when they inflicted injuries on the dead body, i.e., after the deceased died by gun shot, they cannot be convicted for the offence punishable under Section 302 as by the time the accused A2 & A3 have alleged to have caused injuries, the deceased had died. It is submitted that even PW1 in his cross-examination has admitted that the moment deceased received gun shot injury he fell down and died.

5.5 It is further submitted that even according to PW1 and even PW2 the matter was already adjourned and even the ‘Sick Note’ was given on behalf of the deceased. It is submitted therefore when the ‘Sick Note’ was given and the matter was already adjourned, there was no reason for the deceased and PW1 to come to court. It is submitted that it is very much doubtful that the deceased and PW1 reached the court and/or went to the court room.

5.6 It is further submitted by the learned Amicus appearing on behalf of the appellants that even there are material contradictions insofar as use of weapon by A2 & A3 are concerned. It is submitted that what was recovered was ‘knife’ and PW2 has categorically stated that the deceased was assaulted by ‘dagger’ and not by ‘knife’.

5.7 It is submitted that there is a difference between ‘dagger’ and ‘knife’. It is submitted that even Dr. Santosh Kumar – PW5 has specifically admitted that injuries nos. 2 to 8 (incised injuries) cannot be caused stabbing by knife. It is submitted that the doctor has specifically admitted in the cross-examination that incised injuries nos. 2 to 8 are not mentioned clean-cut and it was difficult to state that the alleged weapon was not sharp on both the sides.

5.8 It is further submitted that it has also come in evidence that as per the ballistic report bullet did not match with the alleged pistol used by the accused – Rakesh.

5.9 It is submitted that the appellants are in custody since January, 2006 and have already undergone more than 15 years of sentence.

5. 10 Making the above submissions, it is prayed to allow the present appeal and quash and set aside the conviction and sentence imposed by the learned trial Court, confirmed by the High Court.

6. Shri Vinod Diwakar, learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh has vehemently submitted that in the facts and circumstances of the case, no error has been committed by the learned trial Court convicting the accused,relying upon the depositions of PW1 & PW2.

6.1 It is submitted that both, PW1 & PW2 are trustworthy and reliable witnesses. It is submitted that their presence at the time of incident has been established and proved by the prosecution by examining PW1 & PW2. It is submitted that both, PW1 & PW2 have been fully and thoroughly cross-examined and considering the entire evidence/deposition of PW1 & PW2, their presence at the time of incident has been established and proved. It is submitted that on each and every aspect on which the learned counsel appearing on behalf of the accused – defence has made submissions, PW1 andPW2 were cross-examined. It is submitted that thereafter on appreciation of entire evidence on record, the learned trial Court has convicted the accused and the same has been rightly confirmed by the High Court.

6.2 It is submitted that in the present case the motive has been established and proved. It is submitted that the defence has failed to establish and prove that they were falsely implicated in the case.

6.3 It is further submitted by the learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh that as such nothing is on record and/or there is no evidence on record to even suggest that A2 & A3 caused injuries on the deceased by the time he died. It is submitted that the aforesaid defence is not borne out at all either from the deposition of PW1, PW2 or even PW5.

6.4 It is submitted that as such the prosecution has fully established and proved that on 28.01.2006 the deceased, PW1 & PW2 attended the court. It is submitted that, however, the court was not available on that date as the learned Presiding Officer was on inspection and therefore before they reached, the matter was adjourned. It is submitted that ‘Sick Note’ on behalf of the deceased has already been explained by PW1 in his deposition.

6.5 It is further submitted that in the present case even recovery of weapon/weapons used by the accused has been established and proved.

6.6 It is further submitted that even the accused did not lead any evidence to prove that they were not present on the spot at the time of incident and that they were present else where.

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