The Delhi High Court has held that merely non-joining of any public witness at the time of recovery of weapons does not raise doubt as to the truthfulness of the testimony of a police witness on the same point or discard their evidence
While hearing an appeal pending before it challenging the order of conviction of the appellants by the Sessions Court under Section 302/34 Indian Penal Code (IPC) , the bench comprising of Justice Hima Kohli and Justice Manoj Kumar Ohri, held that the case was fit for moderation of the conviction from one under Section 302 of the IPC to one under Section 304 Part II of the IPC.
The appellants had been convicted for the murder of one Chandu who had tried to molest the sister of Shyam, one of the appellants in the instant case. The Court held that the nature of injuries that the deceased suffered, the weapons used and the circumstances of the case suggested that the appellants did not come prepared with the intention to kill the deceased and it was only on seeing the deceased misbehave with their sister that they were overcome with fury.
"Once the names of the accused were recorded in the rukka and subsequently in the FIR, on the basis of the statement made by PW-2, irrespective of the said witness having turned hostile, the appellants cannot be heard to state that the prosecution has tried to incriminate them or has planted the recoveries to frame them falsely."
Though one of the public witnesses had turned hostile, the Court held that once the names of the accused had been noted in the rukka, made within two hours of the incident, the appellants cannot be heard to state that the prosecution has tried to incriminate them or has planted the recoveries to frame them falsely.
The Court pointed out that even besides the hostile witness, there were other public witnesses and held that there is no good reason for the Court to disbelieve the recoveries made the police merely because they were police officers.
Referring to a number of cases the court held that mere non joining of any public witness at the time of recovering the weapons of offence is not enough reason to doubt the truthfulness of the testimony of the police witnesses.
Partly allowing the appeal, the Court reduced the sentences of the appellants to rigorous imprisonment for seven years.
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