Once Court Believes Ocular Testimony Of Eyewitness, Failure To Seize Weapon Used For Commission Of Offence Recedes To Background: Apex Court

The Bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih held, “Once a Court believes ocular testimony of an eyewitness, whose evidence is of sterling quality, the failure to seize the fire arms used for committing the offence recedes to the background…Therefore, we find no error in the view taken by both the Courts that the guilt of the appellant was established beyond a reasonable doubt.”

AOR Devrut appeared for the Petitioner whereas AAG Ravindra Raizada appeared for the Respondent.

The appellant, along with other accused, was convicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’) and was sentenced to undergo life imprisonment. The judgment of the Sessions Court was confirmed by the High Court. After the present Appeal was filed, a contention was raised by the appellant that on the date of the commission of the offence, he was a juvenile in conflict with the law. On the basis of the said contention, by an order dated August 24, 2022, a report of the Juvenile Justice Board was called by the Court. After making an inquiry, the Juvenile Justice Board came to a conclusion that on July 6, 1994, which is the date of the incident, the age of the appellant was 18 years 10 months and 27 days.

The Counsel for the Appellant submitted that the investigation took 12 years and the charge sheet was filed 12 years after the date of the incident. He added that though the case of the prosecution was that the appellant used a firearm and the deceased, who is the brother of PW-1 and PW-1 received bullet injuries, there was no recovery of any weapon. He submitted that within a few minutes after the incident, the body of the deceased disappeared and was found after a gap of two days. He pointed out that the body of the deceased was found at some other place in the water. He further submitted that there were no blood marks found at the scene of the offence. He, therefore, submitted that the prosecution has failed to bring home the guilt of the appellant.

The Court observed, “After having carefully perused the examination-in-chief and the cross-examination of the PW-1, we find that not a single material contradiction or omission is brought on record. In the cross-examination, PW-1 reiterated that even his deceased brother flashed the torch after seeing the accused and he recognised the accused in the torch light. He also reiterated that he knew all the accused before the incident… According to us, the evidence of PW-1 is of sterling quality as it has not shaken in the cross-examination at all.”

The Court raised the question of whether the evidence of PW-1 should be disbelieved on the ground that the dead body of the deceased was found two days after the incident at some other place.

“In absence of dispute about the identity of the dead body, only on the ground that there was a delay in finding the dead body, the evidence of PW-1 cannot be brushed aside…The evidence of PW-3 (Dr. K.N. Saxena), the Medical Officer who carried out the post mortem, makes it clear that there were fire arm entry wounds on the body of the deceased and there were exit wounds also. Even the injuries on the person of PW-1 have been established by examining a doctor. Only because gun powder was not found on the injuries of PW-1, his testimony cannot be discarded. Moreover, the firing took place from a long distance and, therefore, there was no question of finding traces of gun powder”, the Court observed.

The Court also noted that the age of the Appellant on the date of the commission of the offence was 18 years 10 months and 27 days. Therefore, considering the complete and actual incarceration for a period of more than 14 years, the Court said that the case deserved consideration for the grant of permanent remission under Section 432(1) of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’) or under Section 473(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’).

“Moreover, this is a case where investigation took 12 years. Considering the fact that the appellant had just became adult on the date of the incident, his case for permanent remission deserves sympathetic consideration in terms of the applicable policy of the State Government”, the Court said.

Accordingly, the Court dismissed the appeal and directed the State Government to take an appropriate decision on the proposal to grant permanent remission to the appellant as expeditiously as possible.

Cause Title: Master Arakh v. The State Of Uttar Pradesh

Appearances:

Appellant: AOR Devrut, Advocates Harshita Sharma, Swati Sinha, Charu Sangwan, Devesh Kumar Agnihotri, Nitin Jain, Dr. Pabitra Pal Choudhary.

Respondent: AAG Ravindra Raizada, AOR Adarsh Upadhyay and Advocate Pallavi Kumari.

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