The Bench of Justice Sanjay Dhar while deciding an appeal against the judgment of conviction and sentence passed by the Court of 1st Additional Sessions Judge, Jammu against the Appellants emphasized the principles relating to appreciation of oral evidence of the eye-witness as well as the injured.
The Appellants, four in number, were convicted of offences under Sections 307, 324, 34 Ranbir Penal Code (RPC), additionally two of them were also convicted of offence under Section 4/25 of Arms Act. Challenging the conviction, the Senior Counsel appearing for the Appellants, contended that the basis of the prosecution is doubtful, inter-alia on the ground of inconsistency in the statements of prosecution witnesses vis-a-vis the type of weapons used at the time of occurrence and the sequence of events.
The Court relying upon the judgment of the Apex Court in “Balu Sudam Khalde and another vs. State of Maharashtra (AIR 2023 SC 1736)”enumerating the judicially evolved principles for appreciation of ocular evidence in a criminal case observed, “As has been already noted while discussing the principles for appreciation of ocular evidence in a criminal case, it is not expected from the witnesses to possess a photographic memory to recall each and every detail of an incident. It has to be borne in mind while appreciating the evidence of an eyewitness or an injured that occurrence is never anticipated and, therefore, a witness is generally overtaken by events and observations of an event differ from person to person”, thus, noting that even though there were certain contradictions in the statements of the witnesses as regards type of weapons used, as also the sequence of events, having regard to the insignificant nature of the contradictions, their testimony cannot be disbelieved.
The Court further observed that one thing which is clear from the statements of the injured and eyewitness is that they have proved the presence of all the accused on the site of occurrence at the relevant time and that there is not even a suggestion from the defence to these witnesses that the accused were not present on spot at the relevant time. Further, it held that it is also proved from the statements of these witnesses that both the injured were attacked by the accused and they received injuries which statements are corroborated by the medical evidence on record.
While brushing aside the further contention of the Appellants about non-recovery of weapons by the prosecution, the Court while relying upon “State through the Inspector of Police vs. Laly @ Manikandan and another (AIR 2022 SC 5034)” observed that recovery of the weapon used in the commission of the offence is not a sine quo non to convict the accused if there is direct evidence in the form of eyewitness and even in the absence of recovery of weapon of offence, the accused can be convicted.
The Court, while disposing of the Appeal, although upheld the conviction under Section 307/323/34 RPC, however, modified the sentence, inter-alia, by declaring that the substantive sentence of imprisonment of the appellants in proof of offence under Section 307 RPC is reduced from seven years to three years, and the period of custody undergone by the appellants during investigation, trial and pendency of the appeal shall be set off against the substantive sentence. This was done since the appellants had faced trial before the trial court for about seven years and the instant appeal was pending before the High Court for about 19 years.
