1

RESERVED ON 4.4.20019

DELIVERED ON 18.4.2019

Case :- JAIL APPEAL No. - 3735 of 2013

Appellant :- Udaiveer

Respondent :- State Of U.P

Counsel for Appellant :- From Jail,Ajay Kumar Singh (A.C.)

Counsel for Respondent :- A.G.A.,

Hon'ble Sudhir Agarwal,J.

Hon'ble Saurabh Shyam Shamshery,J.

(Delivered by Hon. Saurabh Shyam Shamshery, J)

1.The accused Udaiveer has preferred the instant Jail Appeal

assailing the judgment and order dated 12.1.2007 rendered by Sessions

Judge Muzaffarnagar in Sessions Trial No 449 of 2005 (State Vs

Udaiveer) whereby the accused has been visited with the conviction for

an offence under section 302 IPC and sentenced to undergo

imprisonment for life.

2.According to the prosecution case, the incident took place on

24.1.2005 at 8 PM near flour mill of one Sushil at the Tri-junction of

which a written report was lodged by Pramod Kumar (PW-1), father of

deceased Vikas Mittal alias Vikky at Police Station Kotwali Distt

Muzaffarnagar. According to the written report, on the fateful day,

deceased had gone to call on his Maternal uncle Jai Prakash son of Sewa

Ram resident of Mohalla Krishna Puri. As soon as he arrived at the Tri

junction near the flour mill of one Sushil, a quarrel ensued between the

accused Udaiveer son of Veero Singh Toofan resident of Pinna as both

had collided with each other while crossing. It is mentioned in the

written report that the accused, who was a person of criminal propensity

having criminal antecedents, whipped out country made pistol saying

that “Sale mere Sar Se Upar Hokar Niklega” (would you cross me over

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my head) and opened fire at the deceased. On sustaining fire shot, the

deceased was initially injured. It is further mentioned that the incident

was witnessed by Jai Prakash (PW-2) son of Sewas Ram and Ankit

Kumar (PW-3) son of Dinesh Kumar, who immediately rushed to rescue

of the deceased and tried to catch hold of accused but he fled and

escaped. Jai Prakash and Ankit Kumar aforesaid took injured to District

Hospital and therefrom, injured was referred to Meerut.

3.The written report was scribed by Ankit Kumar (PW 3). On the

basis of written report as stated supra, FIR was lodged on 24.1.2005 on

being presented by PW 1 before the concerned Police Station under

section 307 IPC. In the course of treatment at Meerut Hospital, injured

succumbed to his injuries. Hence the case was altered to section 302 IPC

on the basis of report dated 25.1.2005 at 1.20 AM.

4.The investigation was undertaken initially by Jairam Kasana who

prepared inquest report, photo nash, challan nash etc. The Investigating

Officer also prepared site plan and collected blood soaked as well as

simple earth from the place of occurrence and prepared memo. Later-on,

Vinod Kumar Tivatiya SSI (PW-4) completed investigation, and

submitted charge sheet on 20.2.2005 under section 302 IPC.

5.Autopsy on the body of the deceased was conducted on 25.1.2005

by Dr Krishna Gopal Sanwaliya (PW-5), who found following ante-

mortem injuries on the person of deceased.

1. Gunshot wound of entry ½ cm x ½ cm x cavity deep 7.5 cm

below left nipple at 8 o'clock position and tattooing present around in an

area of 12 cm x 5 cm. Margines Inverted.

2. Gunshot wound of exit 1.5 cm x 1 cm x chest cavity deep over

left site back of chest 4 cm from midline at level of 8

th

thoracic

vertebra. The left 7

th

rib was fractured on frontal side. Left 8

th

rib

was fractured on back site. Left pleura lacerated on lower part and

spleen was also fractured.

As per opinion of the Doctor, the causative factor of death was

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shock and hemorrhage as a result of ante mortem injuries.

6.The case was committed to Sessions by Chief Judicial Magistrate

on 30.3.2005 for trial. On 1.7.2005 charge under section 302 IPC was

framed against the accused-appellant.

“Charge

I, S.N.H.Zaidi, Sessions Judge, Muzaffarnagar do

hereby charge you Udaivir as follows:

That you on or about 24.1.2005 at about 8 P.M. At

the Trvium near the flour mill of Sushil in Mohalla Krishna

Puri , within P.S.Kotwali, District Muzaffarnagar,

committed murder by causing the death of Vikas Mittal

alias Vikki and thereby committed an offence punishable u/

s 302 of the I.P.C and within the cognizance of this Court.

And I hereby direct that you be tried by this Court on

the said charge.”

The accused abjured the guilt and claimed to be tried.

7.In this case, in order to bring the guilt home to the accused, the

prosecution examined Pramod Kumar as PW-1, Jai Prakash as PW-2,

Ankit Kumar as PW-3 , SSI Vinod Kumar Tavetiya as PW4, Dr Krishan

Gopal Sanwaliya PW-5 and constable Raj Kumar Sharma as PW-6. The

defence also examined one Charan Singh as D.W-1. The prosecution

also exhibited documents and material objects.

8.PW-1 Pramod Kumar, who is the father of deceased was

examined on 4.1.2006. To begin with, he reiterated the incident as

mentioned in the First Information Report. He deposed that the report

was scribed by Ankit Kumar (PW-3) on his dictation and the said written

report was submitted by him alone at the Police Station. The witness

was subjected to gruelling cross examination. In the cross examination,

he deposed that the report was scribed by Ankit Kumar PW-3 on his

dictation and that the distance between the place of his residence and

house of accused was less than ½ Km.

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9.PW-2 is Jai Prakash was examined on 4.1.2006, 2.2.2006 and

lastly on 6.2.2006. This witness corroborated the version as contained in

First Information Report and specifically stated that he was ocular

witness of the incident and had witnessed the entire incident alongwith

Anikit Kumar (PW-3). He specifically deposed that on the day of

occurrence, between 7.30 pm and 8 pm, he had gone to collect flour

from flour mill and on arriving near the flour mill, he saw accused Udai

Veer and deceased Vikky involved in exchanging hot words. He heard

accused saying that “Tum Hamare Sar Pal Nikal Kar Jaoge” and

thereafter, he saw accused whipping out country made pistol and firing

at the deceased. He rushed and tried to catch hold of the accused but he

fled away. He also deposed that he saw incident in the electricity light.

After the incident, Ankit kumar went to give information of incident to

the family of deceased and after arrival of father of deceased at the place

of occurrence, deceased who was then injured was rushed to hospital. At

hospital, Doctor attending on the injured referred deceased for treatment

to Meerut looking to his worsening serious condition.

10.The witness was also subjected to gruelling cross examination and

deposed in the cross examination that at the time of occurrence, the area

was lit with electricity light and a tube light was glowing. He also

deposed that he heard the conversation between accused and deceased.

He also deposed that accused was domiciled of the same same Mohalla

and he was the person of criminal propensity, having criminal

antecedents.

11. P.W.3 is Ankit Kumar, who was examined on 21.8.2006. He also

corroborated the version as contained in the written report. He

specifically deposed the fact that he saw accused and deceased involved

in exchange of hot words and heard their conversation in which accused

was saying “Sale Mere Sar Par Pe Rakhkar Utrega” followed by hurling

of abuses. The accused then whipped out country made pistol from his

trouser and fired at the deceased, which hit deceased in chest. After

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being hit by fire, deceased slumped down. He also deposed that after

firing at the deceased, the accused fled away from the scene . He also

deposed that he had not accompanied the father of deceased to Police

Station for lodging of First Information Report.

12.P.W-4 Vinod Kumar Tevatiya, who was then posted as SSI

Kotwali Distt Muzaffarnagar, deposed that the case was registered under

section 307 IPC in his presence and investigation of the case was

entrusted to SI Jai Raj Kasana. The case was altered to section 302 IPC

on 25.1.2005 at 1.20 am. He deposed that SI Jai Ram Kasana was posted

at PS Kotwali Muzaffarnagar and proved Ex Ka 2 to Ka 8 prepared by

S.I. Jai Ram Kasana. He also deposed that on 27.1.2005, investigation

was entrusted to him and he recorded statement of accused from Jail on

3.2.2005. He also recorded the statements of SI Jai Ram Kasana and

two constables on 13.2.2005, who had carted away the body for post

mortem. After concluding investigation, he submitted charge sheet on

20.2.2005 under section 302 IPC. This witness was also cross examined.

He denied allegation that investigation conducted by him was spurious

and he had filed charge sheet against the accused on trumped up charges.

13.PW-5 is Dr Krishna Gopal Sawliya, who was then posted at Distt

Hospital Muzaffarnagar. He deposed that on 25.1.2005, he conducted

autopsy on the body of the deceased Vikas alias Vikky aged about 22

years son of Pramod Kumar (PW-1), resident of 92 Qaziyan PS Kotwali

at 1.10 PM. Ante mortem injuries found on the person of deceased are

already enumerated above. He opined that the cause of death was due to

shock and hemorrhage. The duration was ½ day. He deposed that the

cloths which deceased was wearing, sealed and handed over to Police

personnel. During cross examination, he deposed that interregnum

between death and post mortem was six hours; deceased died due to fire

arm injuries; which was on the left side of deceased and not on right

side, and, on account of some aberration, he might have mentioned that

the injury sustained was on right side.

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14.PW-6 is Raj Kumar Sharma, who was then posted at PS Kotwali

Distt Muzaffarnagar. He deposed that he had registered First Information

Report on the basis of written report submitted by Pramod Kumar (PW-

1). During cross examination, he stated that the complainant had come

to him alone. The complainant (PW-1) was not accompanied with

anyone. He denied the suggestion that case was anti-timed or anti-dated.

15.The statement of accused was recorded under section 313 Cr.P.C

in which his case was that of denial and false implication in addition to

the defence that the accused had enmity with one Satendra, who was the

brother of the Pradhan. In the year 2002, he had an altercation with

Satendra. One person namely Sonu, who was allied to Satendra was

murdered and that murder was falsely foisted on him. Further, defence

is that he was admitted to bail after efflux of two and half year. Since he

had no one to prosecute his case, verdict of conviction was given in that

case. Against conviction, he had filed appeal in which he was admitted

to bail. After his release on bail, he was again falsely nominated as an

accused in the instant case just after 10 days of his release at the behest

of aforesaid Satendra in the murder of witness Mahesh and Vikas alias

Vikky. He also stated that he was cited to be native of Peena, while the

fact remains, he was not a native of Peena. He denied knowledge about

who murdered the deceased Vikas. He also stated that all the witnesses

had deposed against him on account of enmity

16.The defence has examined DW-1 Charan Singh. He deposed that

between 7.30 and 8 PM, he was coming from the lane in question. He

heard someone weeping. When he neared the injured person, preparation

was being made to take the injured to Doctor. The persons present there

were saying that the injured was fired at by Peenawala. Thereafter,

electricity was restored. He denied knowledge, who fired at the

deceased. He stated that Udaiveer was not involved. He also deposed

that Udaiveer was involved in another murder case prior to it and

Udairveer was not present there. During cross examination, he stated

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that he was related to Udaiveer as his uncle (Tau). He was called from

his house by the mother of Udaiveer. He stated that Vikas was not fired

at or murdered in his presence. When he reached the place of

occurrence, Vikas was about to be taken to hospital. He could not tell the

name of the person, who was saying that Vikas was fired at by

Pinnewala.

17.The learned Trial Court by order dated 12.1.2007, after giving

anxious consideration to the entire materials on record, converged to the

conclusion that on the basis of the evidence, it was proved to the hilt that

accused Udaiveer committed murder of Vikas alias Vikky intentionally

on 24.1.2005 at about 7.30 to 8.00 PM, thereby he committed an offence

under section 302 IPC, for which he is liable to be convicted. After

hearing on the issue of sentence, learned Trial Court sentenced accused

to undergo life imprisonment by an order of even date.

18.Heard Shri Ajay Kumar Singh, Advocate (Amicus Curaie) on

behalf of the appellant and also learned A.G.A. The arguments made

across the bar as well as our consideration are as under:

19.The learned counsel for Appellant submitted that Informant (PW-

1) Pramod Kumar, is not an eye witness and as per PW 1 the written

report was scribed by Ankit Kumar (PW-3). However, as per Ankit

Kumar (PW-3), he had not visited Police Station and by this reckoning,

the contents of First Information Report cannot be lapped up and further

the prosecution has suppressed the genesis of the occurrence.

20.Per contra, learned counsel for State submitted that according to

PW-1 Pramod Kumar, the written report was scribed by Ankit Kumar on

his dictation and he affixed his signatures thereon and the said written

report was given at the Police Station by PW-1, who had gone to Police

Station, unaccompanied by anyone. PW-6, constable Raj Kumar has

stated in his statement that PW-1 had come alone alongwith the written

report and contents of the same were recorded verbatim in the register.

21.Considering the submissions and perusing statements of PW 1

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and PW 6 as well as the First Information Report and the written report,

it admits of no doubt that the written report was written by Ankit PW-3

on the dictation of PW-1, Pramod Kumar. However, Ankit had not

accompanied (PW-1) Pramod Kumar to Police Station and PW-6

recorded the same verbatim in the case diary. It would thus transpire

that First Information Report was lodged by PW-1 on the basis of

information given by eye witness (PW-3) Ankit and the same was

mentioned in the Register. Therefore, the submission raised by learned

counsel for appellant aforesaid does not commend to us for acceptance.

22.Further there is nothing on record to show that the prosecution

suppressed genesis of occurrence. It is also worthy of notice that the

occurrence took place around 8 PM on 24.1.2005 and First Information

Report was lodged on 24.1.2005 at 9.05 PM. The distance from the

place of occurrence to Police Station was only 2 Km. It would thus

appear that First Information Report was lodged with promptitude,

regard also being had to the fact that PW-1 Pramod Kumar, being father

of deceased and also being anxious to save the life of injured had to

arrange for rushing injured to the hospital for immediate medical help.

23.In order to prop up the above view, we feel called to rely upon the

decision in Sheikh Hasib alias Tabarak Vs. State of Bihar

reported in 1972 (4) SCC 773 on the issue of relevancy of First

Information Report. Part of Para 4 being relevant is abstracted below.

“The legal position as to the object, value and use of first

information report is well settled. The principal object of

the first information report from the point of view of the

informant is to set the criminal law in motion and from the

point of view of the investigating authorities is to obtain

information about the alleged criminal activity so as to be

able to take suitable steps for tracing and bringing to book

the guilty party. The first information report, we may point

out, does not constitute substantive evidence though its

importance as conveying the earliest information regarding

the occurrence cannot be doubted It can, however, only be

used as a previous statement for the purpose of either

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corroborating its maker Under Section 157 of the Indian

Evidence Act or for contradicting him Under Section 145 of

that Act. It cannot be used for the purpose of corroborating

or contradicting other witnesses.” ( Emphasis supplied)

24.According to the learned counsel for appellant, presence of ocular

witnesses namely, PW-2 Jai Prakash and PW 3 Ankit at about 7.30 to 8

PM on the winter night of January at the place of occurrence is within

the realm of grave doubt and further these witnesses are related to the

deceased as PW-1 is the uncle (Maternal Uncle ) of deceased and PW-3

Ankit is the cousin of deceased and as such these witnesses cannot be

credit-worthy being interested witnesses and further, no independent

witness has been examined in the instant case. Secondly, distance

between the place of occurrence and place where witnesses were

standing was not such that the witnesses could be able to hear

conversation between the accused and deceased and further from the

place where the witnesses were standing, the place of occurrence was

not visible as they were at the corner of the road.

25.Learned counsel for the State submitted on this issue by relying

upon the site plan that from the place where witnesses were standing,

both the accused and the deceased were clearly visible and as per

statement of PW-2 Jai Prakash, distance was less than 2 meters and PW-

3 Ankit has stated that he was with PW-2 at the time of occurrence.

26.We have given our thoughtful consideration to the submissions

advanced on the issue and we have also closely looked at the site-plan.

In the map, the places where witnesses were standing are marked as 'C'

and 'D' which is in front of Sunil's flour mill and the places 'B' and 'D'

are marked where deceased and accused were present. From the places

marked as 'C' and 'D' places 'A' and 'B' are clearly visible and distance

between them is less than 2 meter. It leaves no manner of doubt that PW-

2 and PW-3 had witnessed the occurrence from very short distance and

also heard the conversation between accused and deceased. It does not

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appear to be improbable that PW 1 and PW-2 had gone to the Sunil's

flour mill at 8.00 PM on the date of occurrence. The evidence of PW 1

and PW 2 is consistent and completely supports the prosecution version.

27.Further evidence of PW 1 and PW 2 cannot be discarded merely

on the ground that they are related to the deceased. In this connection,

we feel called to refer to the decision in Ganpathi and another Vs

State of Tamil Nadu, reported in 2018 (5) SCC 549. Paras 14

and 15 being relevant are excerpted below.

“13.'Related' is not equivalent to 'interested'. A witness may be

called 'interested' only when he or she derives some benefit from

the result of a litigation; in the decree in a civil case, or in seeing

an accused person punished. A witness who is a natural one and is

the only possible eye witness in the circumstances of a case

cannot be said to be 'interested' [See: State of Rajasthan Vs. Smt.

Kalki and Anr. (1981) 2 SCC 752].

14. Merely because the eye-witnesses are family members their

evidence cannot per se be discarded. When there is allegation of

interestedness, the same has to be established. Mere statement that

being relatives of the deceased they are likely to falsely implicate

the accused cannot be a ground to discard the evidence which is

otherwise cogent and credible. Relationship is not a factor to

affect credibility of a witness. It is more often than not that a

relation would not conceal actual culprit and make allegations

against an innocent person. Foundation has to be laid if plea of

false implication is made [See : Maranadu and Anr. Vs. State by

Inspector of Police, Tamil Nadu (2008) 16 SCC 529]. (Emphasis

supplied)

28.Learned counsel for the Appellant further assailed the impugned

judgment and order on the premises that the ocular and medical

evidences are incongruent with each other, as PW-2 and PW-3 have not

stated the manner of assault by fire arm and about the distance from

where alleged fire was shot. He also drew attention to incongruities

between the medical report and statement of Doctor (PW-5).

29.Per contra, learned A.G.A refuted the submission and relied upon

autopsy report prepared by PW-5 Dr Krishna Gopal as well as his

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statement. He pointed out that at the gun shot wound of entry there was

tattooing present around in an area of 12 cm x 5 cm. Therefore, the

gunshot has been fired from close range which is evident from the site

plan also that shows that the maximum distance between the accused

and the deceased was eight steps.

30.We have considered rival submissions. PW-2 and PW-3, the

ocular witnesses have categorically stated in their testimonies that

accused had fired gun shot at the chest of the deceased and which is

corroborated by the medical evidence as the report of the PW-5 (Dr

Krishna Gopal Sanwaliya) mentioned the entry wound of fire arm was

7-1/2 cm below the right nipple. Therefore, we are of the considered

opinion that in the case in hand, ocular evidence has fully corroborated

the medical evidence. Presence of tattooing shows that the gun shot was

fired from close distance which fact is corroborated by the site map as

well as by ocular evidences. Accordingly, the submission of learned

counsel for the appellant does not commend to us for acceptance.

31Supreme Court in Rakesh Vs State of M.P reported in

(2011) 9 SCC 115 has ruled in para 13 as under:

“13. It is a settled legal proposition that the ocular evidence

would have primacy unless it is established that oral

evidence is totally irreconcilable with the medical evidence.

More so, the ocular testimony of a witness has a greater

evidentiary value vis-a`-vis 7 medical evidence, when

medical evidence makes the ocular testimony improbable,

that becomes a relevant factor in the process of the

evaluation of evidence. However, where the medical

evidence goes so far that it completely rules out all

possibility of the ocular evidence if proved, the ocular

evidence may be disbelieved. (Vide: State of U.P. v. Hari

Chand, (2009) 13 SCC 542; Abdul Sayeed v. State of Madhya Pradesh,

(2010) 10 SCC 259; and Bhajan Singh @ Harbhajan Singh & Ors. v.

State of Haryana , (2011) 7 SCC 421). “

32.The other limb of argument brought to bear on behalf of the

appellant is that there are material contradictions/inconsistencies among

the prosecution witnesses. However, learned Counsel has failed to show

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any material contradictions/inconsistencies barring some minor

contradiction, which are not material. In Rammi Vs State of M.P.

Reported in 1999 (8) SCC 649, Court has held in para 24 as

under:

“24.When eye-witness is examined at length it is quite

possible for him to make some discrepancies. No true

witness can possibly escape from making some discrepant

details. Perhaps an untrue witness who is well tutored can

successfully make his testimony totally non-discrepant. But

courts should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that the

court is justified in jettisoning his evidence. But too serious

a view to be adopted on mere variations falling in the

narration of an incident (either as between the evidence of

two witnesses or as between two statements of the same

witness) is an unrealistic approach for judicial scrutiny.”

33.Considering the submissions in view of the settled law, we are of

the considered view that there is no force in the above submission of

learned counsel for the appellant and hence, it falls short of

acceptability.

34.Learned counsel for appellant also points out that the statement of

accused recorded under section 313 Cr.P.C has not been considered. It is

worthy of notice here that the accused has not examined any defence

witness to corroborate his version as mentioned in the statement under

section 313 Cr.P.C. DW-1 Charan Singh has not stated anything in

support of the said statement.

35.Supreme Court in para 41 of the judgment in Raj Kumar Singh

alias Raju alias Batya Vs state of Rajasthan reported in

2013 (5) SCC 722, has held as under:

“41. In view of the above, the law on the issue can be

summarised to the effect that statement under Section 313

Cr.P.C. is recorded to meet the requirement of the principles

of natural justice as it requires that an accused may be

given an opportunity to furnish explanation of the

incriminating material which had come against him in the

13

trial. However, his statement cannot be made a basis for his

conviction. His answers to the questions put to him under

Section 313 Cr.P.C. cannot be used to fill up the gaps left

by the prosecution witnesses in their depositions. Thus, the

statement of the accused is not a substantive piece of

evidence and therefore, it can be used only for appreciating

the evidence led by the prosecution, though it cannot be a

substitute for the evidence of the prosecution. In case the

prosecution’s evidence is not found sufficient to sustain

conviction of the accused, the inculpatory part of his

statement cannot be made the sole basis of his conviction.

The statement under Section 313 Cr.P.C. is not recorded

after administering oath to the accused. Therefore, it cannot

be treated as an evidence within the meaning of Section 3

of the Evidence Act, though the accused has a right if he

chooses to be a witness, and once he makes that option, he

can be administered oath and examined as a witness in

defence as required under Section 315 Cr.P.C.

An adverse inference can be taken against the accused only

and only if the incriminating material stood fully

established and the accused is not able to furnish any

explanation for the same. However, the accused has a right

to remain silent as he cannot be forced to become witness

against himself.”

36.In view of above discussion and exposition of law aforesaid, the

submission raised by learned counsel for appellant again does not

commend to us for acceptance, having no force.

37.Learned counsel for the appellant also argued that the absence of

any motive and non recovery of weapon used in occurrence are

sufficient to throw prosecution case over board. Regard being had to the

fact that in the present matter, there are ocular witnesses which

implicitly corroborate the medical evidence and in view of the following

judgments passed by Hon'ble Supreme Court, the arguments raised are

not tenable. The first case is State of U.P. Vs Babu Ram reported

in 2000 (4) SCC 515. Para 12 of this case being relevant is quoted

below.

“12. In this context we would reiterate what this court has said

about the value of motive evidence and the consequences of

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prosecution failing to prove it, in Nathuni Yadav vs. State of

Bihar {1998 (9) SCC 238} and State of Himachal Pradesh vs. Jeet

Singh {1999 (4 SCC 370}. Following passage can be quoted from

the latter decision:

"No doubt it is a sound principle to remember that every

criminal act was done with a motive but its corollary is not

that no criminal offence would have been committed if the

prosecution has failed to prove the precise motive of the

accused to commit it. When the prosecution succeeded in

showing the possibility of some ire for the accused towards

the victim, the inability to further put on record the manner

in which such ire would have swelled up in the mind of the

offender to such a degree as to impel him to commit the

offence cannot be construed as a fatal weakness of the

prosecution. It is almost an impossibility for the

prosecution to unravel the full dimension of the mental

disposition of an offender towards the person whom he

offended."

38.The second case is Raja Gopal Vs Muthupandi alias

Thavakkalal and others reported in 2017 (11) SCC 120. Para

14 of this decision being relevant is quoted below.

“14. Equally, it is well established that motive does not

have to be established where there is direct evidence. Given

the brutal assault made on PW-1 by criminals, the fact that

witnesses have turned hostile can also cut both ways, as is

well known in criminal jurisprudence.'

39.The Third case is Mritunjoy Biswas Vs Pranab aslias Kuti

Biswas and another reported in 2013 (12) SCC 796.

“33. The learned counsel for the respondent has urged

before us that there has been no recovery of weapon from

the accused and hence, the prosecution case deserves to be

thrown overboard and, therefore, the judgment of acquittal

does not warrant interference.

34. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC

198 : (AIR 2002 SC 3119 : 2002 AIR SCW 3596)], this

Court has ruled that

“Undoubtedly, the identification of the body, cause of

death and recovery of weapon with which the injury

may have been inflicted on the deceased are some of

the important factors to be established by the

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prosecution in an ordinary given case to bring home

the charge of offence under Section 302 IPC. This,

however, is not an inflexible rule. It cannot be held as

a general and broad proposition of law that where

these aspects are not established, it would be fatal to

the case of the prosecution and in all cases and

eventualities, it ought to result in the acquittal of

those who may be charged with the offence of

murder”.

35. In Lakhan Sao v. State of Bihar and Another

[(2000) 9 SCC 82 : (AIR 2000 SC 2063 : 2000 AIR

SCW 1955)], it has been opined that the non-

recovery of the pistol or spent cartridge does not

detract from the case of the prosecution where the

direct evidence is acceptable.

33. In State of Rajasthan v. Arjun Singh and Others

[(2011) 9 SCC 115 : (AIR 2011 SC 3380 : 2011 AIR

SCW 5295)], this Court has expressed that:

“18........ mere non-recovery of pistol or

cartridge does not detract the case of the

prosecution where clinching and direct

evidence is acceptable. Likewise, absence of

evidence regarding recovery of used pellets,

bloodstained clothes, etc. cannot be taken or

construed as no such occurrence had taken

place”.

Thus, when there is ample unimpeachable ocular

evidence and the same has been corroborated by the

medical evidence, non-recovery of the weapon does

not affect the prosecution case.”

40.Lastly learned counsel submitted that the present case is of sudden

and grave provocation and appellant is entitled to the benefit of

Exception to section 300. However, the learned counsel has miserably

failed to show any evidence on record in this respect and in the light of

para 10 of the judgment rendered by Supreme Court in Sukh Lal

Sarkar Vs Union of India reported in 2012 (5) SCC 703, the

said submission falls short of acceptability. Para 10 of the aforesaid

decision being relevant is quoted below.

“11. Under Exception 1 of Section 300, provocation must

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be grave and sudden and must have by gravity and

suddenness deprived the appellant of the power of self-

control, and not merely to set up provocation as a defence.

It is not enough to show that the appellant was provoked

into loosing his control, must be shown that the provocation

was such as would in the circumstances have caused the

reasonable man to loose his self- control. A person could

claim the benefit of provocation has to show that the

provocation was grave and sudden that he was deprived of

power of self-control and that he caused the death of a

person while he was still in that state of mind.”

41.In view of the above, we converge to the conclusion that the court

below reached the correct conclusion in accepting the prosecution case.

Hence the present appeal is dismissed.

42.We appreciate the assistance rendered by Shri Ajay Kumar Singh,

Amicus Curaie to the Court in deciding the present appeal. Registrar

General is directed that the aforesaid Amicus Curie shall be paid a sum

of Rs 10000/- as fee for the services rendered by him within a period of

four weeks.

Order Date :- 18.4.2019

MH