Merely upon ballistic report about the bullet recovered does not match with the gun, credible and reliable deposition of PW1 & PW2 cannot be rejected; Supreme Court

The SC on July 6, 2021 {Rakesh and another vs. State of U.P. and another} held that having gone through the entire depositions of PW1 & PW2 and even the cross examination of the aforesaid two witnesses, it is of the firm opinion that both, PW1 & PW2 are trustworthy and reliable witnesses. It was held that there may be some minor contradictions, however, as held by the Court in catena of decisions earlier, 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.

It was also observed by the Bench, comprising of Justice M.R. Shah and Justice D.Y. Chandrachud that 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 by the prosecution 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 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. 

Therefore, the SC held that 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. It was further held that for convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. It was held that it is not possible to reject the credible ocular evidence of PW1 & PW2 – eye witnesses who witnessed the shooting. It was held that 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, it was held that 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 further held that 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. It was held that 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 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. It was held that no question has been asked by the defence to the person/IO who recorded the statement of PW2. It was held that considering the entire deposition as a whole, it is of the opinion that the prosecution has been successful in proving the presence of PW1 & PW2 at the time and place of incident. It was held that they are found to be trustworthy and reliable.

In view of the above and for the reasons stated above, the SC held that no interference of this Court is called for. It was further held that 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. Under the circumstances, the appeal failed and was accordingly dismissed by the SC.