On 1st March 2021, the Supreme Court of India in the case of Dhirendra Singh v. State of Jharkhand comprising of Justice Dr. Dhananjaya Y. Chandrachud stated that the Merely because the weapon is not seized cannot be a ground to acquit the accused when his presence and his active participation and using firearm by him has been established and proved.
Factual Background of the Case
Birendra Singh fired from firearm upon Nirmal Mehto, which hit him and he fell down. Pandit also assaulted Nirmal Mehta by firearm from behind and he again fired firearm injuring the informant also. The case was registered against the accused for the offences punishable under Sections 302/307/34 IPC and Section 27 of the Arms Act. On the basis of the Fardbeyan given by the informant, the FIR was registered. The investigation was subsequently taken up by the CBI and upon investigation the CBI submitted the 3 charge-sheet against the apprehended accused Birendra Singh, showing the appellant and others to be absconders.
That Birendra Singh came to be tried in a separate sessions’ trial and he came to be convicted and sentenced for the offences under Sections 302/34 IPC. Subsequently, he died during the pendency of his appeal in the High Court. After a period of 13 to 15 years, the appellant and one another surrendered/were arrested. Therefore, a supplementary charge-sheet was filed against the appellant and one another. As the case was triable by the learned Court of Session, the case was committed to the learned Sessions Court. The appellant and one another came to be tried by the learned Sessions Court for the offences under Sections 302/34 IPC and Section 27 of the Arms Act, as they pleaded not guilty.
Trial Court
The Trial Court convicted the accused for the offences punishable under Section 302 r/w Section 34 IPC and Section 27 of the Arms Act and sentenced him to undergo life imprisonment.
High court
The appellant preferred an appeal before the High Court and the High Court has dismissed the said appeal.
SUPREME COURT
Appellant Submissions
The Appellant in its submissions vehemently submitted before the Court that,
- there are material contradictions in the depositions of P.W.7, P.W.8 and P.W.27 with respect to the role attributed to the appellant and/or the overt act by the appellant–accused.
- it is not proved beyond doubt that the appellant-accused was responsible for the death of Nirmal Mehto and/or he fired on the deceased and/or on the informant.
- there were five eye-witnesses. However, the prosecution examined only three eye-witnesses.
- In the FIR there is no allegation of assault on the appellant and as such the presence of the appellant at the place of incident is absolutely doubtful.
- no recovery/seizure of any firearm from the appellant
- in view of the vital contradictions in the evidence of the eye-witnesses, the appellant is entitled at least to the benefit of doubt.
Respondent Submissions
The present appeal is opposed by Shri Arunabh Chowdhury, AAG for the State of Jharkhand. He submitted that:
- there are no material contradictions in the depositions of P.W.7, P.W.8 and P.W.27 so far as the presence of the appellant-accused and his active participation in the commission of the offence.
- appellant absconded for 13 to 15 years after the date of the incident and the depositions and the evidence were recorded after 15 years and therefore as rightly observed by the High Court there are bound to be some variations and/or contradictions.
- such minor contradiction/contradictions shall not be to the benefit of the accused.
- Accused has been convicted with the aid of Section 34 IPC and his presence and participation has been established and proved, no error has committed by the High Court in confirming the conviction of the accused.
Court Observation and Analysis
The Court in its observation stated that the,
“When the presence of the appellant-accused at the time of incident and his active participation has been established and proved, it cannot be said that both, the learned Trial Court as well as the High Court, have committed any error in convicting the appellant-accused under Section 302 read with Section 34 IPC.”
“The use of firearm by the appellant-accused has also been established and proved. Merely because the weapon is not seized cannot be a ground to acquit the accused when his presence and his active participation and using firearm by him has been established and proved. We are of the opinion that both, the learned Trial Court and the High Court, have rightly convicted the appellant-accused for 9 the offences punishable under Section 302 read with Section 34 IPC. No interference of this Court is called for”
Court Judgment
The Court dismissed the appeal.
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