Recovery of weapons of assault is not the sine qua non for convicting the accused since the four eye-witnesses versions corroborated

Appeal

Appeal against the judgment confirming conviction under section 302 IPC

1. The appellants are aggrieved by the judgment dated 09.05.2019 passed by the Division Bench of the Jharkhand High Court in Criminal Appeal No.533 of 1996. By that judgment, the conviction of the appellants by the Sessions Court in Sessions Case No.342 of 1986 under Section 302 read with Section 34 of the Indian Penal Code has been upheld.

Facts

Assault due to two goats grazed crops of accused which lead to murder case

2. The case of the prosecution in brief is that as per the informant-Chetan Mandal on 15.08.1985 at about 03.30 P.M, while he was cutting grass at his courtyard, he heard shouts raised by his brother Bulaki Mandal. On coming out of his house and approaching the passage outside, he saw Shiv Prasad Mandal and Dindayal Mandal having garasas in their hands, Anirudh Mandal having a sword in his hand, who were all entering the courtyard of his brother’s house. After raising slogans, they started assaulting him. The informant further saw that his brother Bulaki and nephew Hriday were being dragged out of the house and taken near the house of Jahazi in the passage by the aforesaid persons. He also saw Ghanshyam Mandal who was having a pistol and Gupti in his hand; Bijay Mandal having a farsa alongwith Sanjay Mandal having a bhala and Manoj Mandal having an axe in his hand. With these weapons, the aforesaid persons assaulted the informant’s brother and nephew, due to which both of them fell on the ground. The assault continued till the victims died on the spot. According to the informant, the occurrence was witnessed by various villagers. After the assault, the assailants fled away. He further stated that on the same day at about 06.00 A.M, two goats of Shiv Parsad Mandal had grazed the crops of Bulaki Mandal, due to which an altercation had taken place between them. At that time, Shiv Prasad Mandal had given threats of dire consequences to Bulaki Mandal. On the basis of such information, the case was registered on 15.08.1985. On completion of the investigation, the charge sheet was filed and the case was committed for trial.

Appellants denied charges and trial court after evidence has sentenced the accused under section 302 r/w 34 IPC

3. The appellants denied the charges and were accordingly tried. The prosecution examined eight witnesses in support of the charges while the accused examined three witnesses in their defence. At the conclusion of the trial, the learned Judge of the Sessions Court came to the conclusion that it was the accused who were guilty of having committed the murder of Bulaki Mandal and Hriday Mandal. On being found guilty, they were convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with 34 of the Penal Code.

High Court dismissed the appeal and confirmed the conviction

The appellants preferred an appeal challenging their conviction. The High Court on a re-consideration of the entire evidence held that the occurrence had been duly proved by the four eye-witnesses examined by the prosecution. The motive behind the attack had been established. The High Court, therefore, upheld the conviction of the appellants and dismissed the appeal. Being aggrieved, the appellants have filed the present appeal.

Analysis

Four eye-witnesses version is consistent and acknowledging the presence of each other at the spot of the incident

6. We have heard the learned counsel for the parties at length and with their assistance, we have also gone through the records of the case. We have also perused the evidence on record. On giving due consideration to the material on record, we find the version of the four eye-witnesses to be consistent and also acknowledging the presence of each other at the spot of the incident. The manner in which the appellants assaulted Bulaki Mandal and Hriday Mandal has been clearly indicated. These witnesses were cross-examined but nothing contrary to the prosecution case has been elicited from them. Minor inconsistencies therein does not weaken the prosecution case. The Sessions Court and thereafter the High Court have appreciated this ocular evidence and we find no reason to take a different view of the matter.

Recovery of weapons of assault is not the sine qua non for convicting an accused

7. It was urged on behalf of the appellants that in the absence of recovery of any weapons of assault, the prosecution had failed to establish the guilt of the appellants. It is true that the Investigating Officer failed to bring on record any material indicating recovery of the weapons of assault that were described by the eye-witnesses. However, this aspect cannot enable the appellants to seek any benefit in the light of the fact that the version of the eye-witnesses as regards the assault has been found to be reliable. It may be observed that recovery of the weapons of assault is not the sine qua non for convicting an accused as the entire evidence on record is required to be taken into consideration. In this regard, we may refer to the decision in Rakesh and anr. Vs. State of U.P. and anr.. In paragraph 11, it has been observed as under:

“11. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the fire arm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. 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. PW1 & PW2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A1-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, PW5. Injury no.1 is by gun shot. Therefore, it is not possible to reject the credible ocular evidence of PW1 & PW2 – eye witnesses who witnessed the shooting. 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, 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.”

8. We may also refer to a recent decision in Om Pal and Ors. Vs. State of U.P. (now State of Uttarakhand)9. In paragraphs 49 and 50 thereof, it has been observed as under:

“………………….”

From the aforesaid, it is clear that the absence of recovery of the weapons of assault would not weaken the case of the prosecution in the presence of other evidence on record that is found reliable.

Though some similarities in questions put under section 313 Cr.P.C it does not vitiates the conviction unless there is any prejudice caused to the accused

9. Much emphasis was sought to be placed by the learned Senior Advocate for the appellants as regards the examination of the appellants under Section 313 of the Code. It was submitted that all the appellants were asked similar questions without specifically putting the material adverse to them. In that regard, we have perused the examination of the appellants under Section 313 of the Code. We find that the incriminating circumstances appearing against the appellants were put to them, though in general terms. There is some similarity in the questions put to the appellants. However, such examination by itself cannot be the basis for upholding the contention of the appellants in that regard unless it is shown that prejudice was caused to them on account of such examination. In the facts of the present case, when the entire material brought by the prosecution is considered, we find that the evidence led by the eye-witnesses inspires confidence and clearly establishes the guilt of the appellants. The nature of prejudice caused to the appellants has not been indicated. In this regard, we may refer to the decision in Fainul Khan Vs. State of Jharkhand and anr.  While dealing with a similar contention raised therein, it was held as under:

“11. Section 313, Cr.P.C. incorporates the principle of audi alteram partem. It provides an opportunity to the accused for his defence by making him aware fully of the prosecution allegations against him and to answer the same in support of his innocence. The importance of the provision for a fair trial brooks no debate.

12. But equally there cannot be a generalised presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an accused, considered with anything further that the accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors. While the rights of an accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial.

13. In the facts of the present case, considering the nature of ocular evidence available of the injured witnesses P.Ws. 7 and 8 who have also been cross-examined by the appellants, and the evidence of P.W. 11, we are of the considered opinion that no prejudice has been caused to the appellants. A specific question was put to the appellants that they participated in an unlawful assembly with the common object of murdering the deceased. Further, it was also put to them that they had caused injuries to P.W. 7 and 8. Merely because no questions were put to the appellants with regard to the individual assault made by each of them, it cannot be said in the facts of the case that any prejudice has been caused to them. The questions asked being similar we consider it proper to extract it with regard to one of the appellants. The appellants did not offer any explanation or desire to lead evidence except for stating that they had been falsely implicated. Questions asked to Fainul Khan are extracted hereunder:

“Question: As has been stated by the prosecution witnesses, on 1st November, 1983 you along with other accused participated in an unlawful assembly and took part in fighting. It that true?

Answer: No. It is wrong.

Question: It has also been said that you participated in the common object of the unlawful assembly of murdering Rabbani Khan. Is that true?

Answer: It is wrong.

Question: It has also been said the during the said incident, you had also caused injuries upon Nabiul hasan Khan, Eshanul Khan, Mir Tarabul and Mir Sanif. Is this true?

Answer: No. It is wrong.

Question: Do you want to say anything in your defence?

Answer: We have been falsely implicated.”

Conclusion

Conviction confirmed

10. We, therefore, do not find any reason whatsoever to hold that the appellants have been wrongly convicted. The material on record clearly establishes their guilt and the prosecution has proved its case beyond reasonable doubt. We are, therefore, not inclined to interfere with the order of their conviction as passed by the Sessions Court and maintained by the High Court. The Criminal Appeal, thus, fails and is accordingly dismissed.

Resources

Judgments involved or cited

• Raj Kumar @ Suman vs. State (NCT of Delhi) (2023 INSC 520).
• Shambhu Choudhary vs. State of Bihar (SLP (Crl) No. 8688/2023).
• Asraf Ali vs. State of Assam (2008 INSC 840).
• Raj Kumar Singh vs. State of Rajasthan (2013 INSC 313).
• Suresh Sahu and Anr. vs. The State of Bihar (now Jharkhand) (2025 INSC 1382).

• Rakesh and Anr. vs. State of U.P. and Anr. (2021 INSC 321): Held that recovery of the weapon is not a sine qua non for conviction.
• Om Pal and Ors. vs. State of U.P. (now State of Uttarakhand) (2025 INSC 1262): Reiterated that non-recovery is not fatal if there is consistent medical and ocular evidence.
• State of Rajasthan vs. Arjun Singh & Ors.: Noted that mere non-recovery does not detract from a case where clinching direct evidence exists.
• Nankaunoo vs. State of Uttar Pradesh: Held that unimpeachable oral evidence corroborated by medical evidence outweighs the absence of the murder weapon.

• Fainul Khan vs. State of Jharkhand and Anr. (2019 INSC 1127): Established that there is no generalized presumption of prejudice due to inadequate questioning.
• Suresh Chandra Bahri vs. State of Bihar (1995 Suppl (1) SCC 80): Held that the accused must show that non-examination on a specific circumstance actually resulted in a failure of justice.
• Bejoy Chand Patra vs. State of W.B. (AIR 1952 SC 105): Affirmed that the accused must demonstrate how the examination materially prejudiced them.
• Rama Shankar Singh vs. State of W.B. (1962 Suppl (1) SCR 49): Reiterated the requirement of showing material prejudice.

Acts and Sections

Indian Penal Code (IPC)

• Section 302: Punishment for murder; the appellants were convicted and sentenced to imprisonment for life under this section.
• Section 34: Acts done by several persons in furtherance of common intention; this was applied in conjunction with Section 302 to establish the joint liability of the appellants.

Code of Criminal Procedure (CrPC)

• Section 313: Power to examine the accused; the appellants argued that the trial was vitiated because they were only asked general questions without specifically indicating the material circumstances appearing in the evidence against them.
• Section 342 (Old Code): The Court noted that this was the predecessor to the current Section 313 and cited historical precedents regarding its application.  

Party

Ghanshyam Mandal and Ors. vs. The State of Bihar (now Jharkhand)  - Criminal Appeal No. 3105 of 2025 - 2026 INSC 194 - February 25, 2026 – Hon’ble Mr. Justice J.K. Maheshwari and Hon’ble Mr. Justice Atul S. Chandurkar.