Recovery of weapon used in offence is not 'must' for conviction: Supreme Court

New Delhi: Upholding the conviction of a murder accused, the Supreme Court on Tuesday observed that recovery of the weapon used in commission of offence is not an essential condition for convicting an accused.

The counsel for accused had argued that as per the ballistic reports, 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.

A bench comprising Justices D.Y. Chandrachud and M.R. Shah observed 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.

"For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non," said the bench.

The top court order came in a case, where the accused were convicted under Section 302 of the IPC for having killed Bhishampal Singh in an incident which happened on January 28, 2006. According to the prosecution, Rakesh used a country-made pistol and caused injuries on the deceased, and it was also alleged that Suresh and Anish assaulted Singh with their respective knives. The trial court sentenced all accused to life imprisonment. The High Court dismissed their appeal and upheld their conviction.

The top court noted that eyewitnesses in the case were reliable and trustworthy, and they specifically stated 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.. Injury no 1 is by gun shot. Therefore, it is not possible to reject the credible ocular evidence of eye witnesses who witnessed the shooting," it said.

The bench added: "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 (eyewitnesses)."

"There may be some minor contradictions, however, as held 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."

The top court said both the courts below have rightly convicted Rakesh for the offence punishable under Section 302 IPC and other accused - Suresh and Anish -- for the offence punishable under 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," it said.