Non – Recovery of Weapons cannot be a Ground to Discard the Evidence of Injured Eye Witnesses: Supreme Court

The Supreme Court ruled that the non – recovery of weapons cannot be a ground to discard the evidence of injured eye witnesses. 


The appellants along with eight others stood the trial before the Court of Additional Sessions Judge Rampur in Uttar Pradesh for offences under Sections 302/149, 307/149, 147 and 148 of the Indian Penal Code. 

As per judgment all of them were convicted under Section 302/149, IPC. Further, it was found that offence u/S 307/149 was not made out against them, but offences under Sections 324/149 and 323/149 were made out. 

Consequently, they were also convicted under those Sections. In addition, seven of the accused persons including the appellants were convicted under Section 148, IPC and the three others were convicted under Section 147, IPC. For the conviction under Section 302, IPC they were sentenced to undergo imprisonment for life. 

For the convictions under the other Sections, they were handed down different terms of imprisonment and all the sentences were directed to be run concurrently. 

They jointly filed an appeal before the High Court of Judicature at Allahabad. During its pendency seven of them died and consequently, qua them the Appeal was dismissed as abated.


The division bench of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia said that the effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts is bound to be different from the effect and impact of reduction of the number of accused/convicts on account of acquittal.

The court said that an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed.

“The mere fact that seven out of the ten convicts died, either during the pendency of Criminal Appeal before the High Court or during the pendency of this appeal, could not be a reason, by that itself, to canvass non applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly”, the bench added. 

It was observed that there can be no doubt with respect to the position that in order to make culpable homicide as murder the act by which death is caused should fall not only under any one or more of clauses firstly to fourthly under Section 300, IPC but they should also not fall under any of the five exceptions to Section 300, IPC

The court further observed that the appellant contended that the conviction under Sections 302/149 is liable to be altered to one under 304/149 it is a fact that he had failed to bring it within any of the five exceptions to Section 300, IPC. 

“When that be so, there is absolutely no question of considering the contentions that the offence of culpable homicide falls either under 304 (Part I) or 304 (Part II)”, the court held.

The bench held that the High Court was justified in dismissing the appeal filed by the appellant herein, confirming the conviction and sentences passed against him. 

Case title: Gurmail Singh & Anr v/s State of Uttar Pradesh & Anr.

Citation: CRIMINAL APPEAL NO. 965 OF 2018

Click here to read the Order/Judgment

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