RAKESH AND ANOTHERversusSTATE OF U.P. AND ANOTHER

874                      [2021]REPORTS
               SUPREME COURT    6 S.C.R. 874               [2021] 6 S.C.R.


A                         RAKESH AND ANOTHER
                                        v.
                       STATE OF U.P. AND ANOTHER
                       (Criminal Appeal No. 556 of 2021)
B
                                 JULY 06, 2021
              [DR. DHANANJAYA Y CHANDRACHUD AND
                         M. R. SHAH, JJ.]
             Penal Code, 1860: s.302 r/w s.34 – Previous enmity between
C     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-
D     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-
E     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
F     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.
G
            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
H
                                       874
    RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                  875


at the time of incident with the deceased was established and        A
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
                                                                     B
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]                                                             C
      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    D
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
                                                                     E
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]
                                                                     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       G
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]
                                                                     H
876            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A             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 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
B
      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 are reliable and trustworthy
C     eye-witnesses to the incident and they have specifically stated
      that A1 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 PW5-doctor. 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
D
      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
E     with the gun recovered, it is not possible to reject the credible
      and reliable deposition of eye-witnesses PW1 & PW2.
      [Para 11][884-B-E]
            4. The prosecution has been successful in proving the
      motive. There was a prior long-time enmity between the deceased
F     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. The 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
G     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. [Paras 14, 15][885-F-H]

H
     RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                          877


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                    A
556 of 2021
      From the Judgment and Order dated 10.09.2018 of the High Court
of Judicature at Allahabad in Crl. Appeal No. 2811 of 2008.
      Rishi Malhotra, Adv. for the appellants.
                                                                              B
      Vinod Diwakar, AAG, Shashank Shekhar Singh, Arjun Dewan,
Ms. Varisha Sharma, Akshay, Prakash Ranjan Nayak, Advs. for the
respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                          C
       1. 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         D
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      E
– 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 &
                                                                              F
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           G
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.
                                                                              H
878             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A           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
B
      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 judgment
C     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.
             5. Shri Rishi Malhotra, learned Amicus Curiae has appeared on
      behalf of the appellants and Shri Vinod Diwakar, learned Additional
D     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
E     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
F     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
G     the incident. It is submitted that PW2 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
H
     RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                           879
                    [M. R. SHAH, J.]

28.01.2006. It is submitted therefore no reliance could have been placed       A
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       B
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      C
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            D
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          E
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   F
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                 G
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.
                                                                               H
880             SUPREME COURT REPORTS                             [2021] 6 S.C.R.


A            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.
B
             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
C     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
D     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
E     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 and PW2 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.
F
             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
G     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.
H
     RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                            881
                    [M. R. SHAH, J.]

       6.4 It is submitted that as such the prosecution has fully established   A
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
                                                                                B
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        C
evidence to prove that they were not present on the spot at the time of
incident and that they were present elsewhere.
       7. Shri Arjun Dewan, learned Advocate appearing on behalf of
the original complainant has adopted the submissions made by the learned
Additional Advocate General appearing on behalf of the State of Uttar           D
Pradesh. In addition, it is vehemently submitted by the learned counsel
appearing on behalf of the complainant that the evidence of PW1 &
PW2 is credible. It is submitted that their presence at the time of incident
has been established and proved. It is submitted that PW2 has consistently
stated that he saw the accused herein on a motorcycle going towards             E
the deceased victim and he witnessed the accused no.1 – Rakesh shooting
the deceased victim and accused no.2 – Suresh assaulting the deceased
with a knife. It is submitted that there might be some minor contradictions
but as held by this Court in the case of Yogesh Singh v. Mahabeer
Singh, (2017) 11 SCC 195 and Prabhu Dayal v. State of Rajasthan,
(2018) 8 SCC 127, that minor discrepancies should not be given undue            F
importance that don’t go to the root of the matter.
       7.1 Now so far as the submission on behalf of the accused that as
per the ballistic report the bullet found did not match with the gun
recovered, it is submitted that as held by this Court in the case of
Himanshu Mohan Rai v. State of U.P., (2017) 4 SCC 161, in a case                G
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. It is       H
882             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     submitted that at the most the recovery of the weapon/gun may not be
      believed, but when PW1 & PW2 have specifically stated that it was the
      A1 who fired and caused injury on the deceased which is fully supported
      by the medical evidence – injury no.1 and in fact there was a gun shot
      injury on the deceased and therefore on the aforesaid aspect, PW1 &
      PW2 are fully supported by the medical evidence, the aforesaid cannot
B
      be a ground to acquit the accused.
            7.2 It is submitted that there is a recovery of knife at the instance
      of A1, which was used by A2 for commission of the offence. It is
      submitted that as such no question with respect to knife recovered can
      cause injury nos. 2 to 8 was put to Dr. Santosh Kumar – PW5.
C
            7.3 It is further submitted that even in the recovery memo which
      was immediately taken during the course of investigation had the
      signatures of PW1. It is submitted therefore the presence of PW1 has
      already been established and proved.
D            7.4 It is further submitted that as such there are concurrent findings
      of fact recorded by the learned trial Court as well as the High Court,
      which are on appreciation of evidence on record. It is submitted that
      therefore no case is made out to interfere with the impugned judgment
      and order of conviction and sentence imposed by the learned trial Court,
E     confirmed by the High Court.
             8. 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
F     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.
             9. From the judgment and order passed by the learned trial Court,
      it appears that while convicting the accused, the court has heavily relied
G     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
H
    RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                          883
                   [M. R. SHAH, J.]

prosecution. The presence of PW1 and even PW2 at the time of incident        A
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
                                                                             B
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      C
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         D
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.             E
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.
                                                                             F
       10. 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         G
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
                                                                             H
884             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     presence of PW1 & PW2 at the time and place of incident. They are
      found to be trustworthy and reliable.
             11. 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
B     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
C     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 eye-witnesses 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,
D     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
E     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.
             12. 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
F     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 &
G     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
H
     RAKESH AND ANOTHER v. STATE OF U.P. AND ANOTHER                          885
                    [M. R. SHAH, J.]

does not say that when A2 & A3 caused injuries by knives at that time         A
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.
        13. It is also the case on behalf of the defence that according to
the witnesses/eye-witnesses the weapon used was ‘dagger’ and not              B
‘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        C
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       D
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     E
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.
                                                                              F
        14. 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
                                                                              G
that they are falsely implicated in the case.
       15. 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.
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886              SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A            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
B
      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.


      Devika Gujral                                               Appeal dismissed.

C




D




E




F




G




H