GULAB versus STATE OF UTTAR PRADESH

[2021] 9 S.C.R. 678

[2021] 9 S.C.R.

GULAB

STATE OF UTTAR PRADESH

(Criminal Appeal No. 81 of 2021)

BDECEMBER 09, 2021

[DR. DHANANJAYA Y CHANDRACHUD,A. S. BOPANNA AND VIKRAM NATH, JJ.]

Penal Code, 1860 – ss.302, 34 – Exhortation to co-accusedwho fired fatal shot – Common intention – Appellant convicted u/Cs.302 r/w s.34 while the co-accused (since deceased) was convictedu/s.302; sentenced to imprisonment for life – On appeal, held:Prosecution not required to prove that there was an elaborate planbetween the accused to kill the deceased or plan was in existencefor long time – common intention to commit the crime is provedDif the accused by their words or action indicate their assent to joinin the commission of the crime – Appellant reached the spot with alathi, along with the co-accused who had pistol – Evidence onrecord clearly establishes common intention in pursuance of whichthe appellant exhorted him to kill the deceased – Appellant’sexhortation was crucial to the commission of the crime since it wasEonly after he stated that the enemy had been found, that the co-accused fired the fatal shot – Evidence carefully evaluated bySessions Judge and High Court – Role of the appellant, his presenceat the spot and the nature of the exhortation have all emerged fromthe consistent account of three eye-witnesses – No merit in appeal.

FPenal Code, 1860 – s.34 – Ambit of – Discussed.

Criminal Law – Evidence – Eye-witnesses – Related witnesses– Held: Mere fact that relatives of the deceased are the onlywitnesses is not sufficient to discredit their cogent testimonies.

Criminal Law – Use of firearm – Non-examination of ballisticGexpert – Held: Failure to produce report by ballistic expert whocan testify to the fatal injuries being caused by particular weaponis not sufficient to impeach the credible evidence of the direct eye-witnesses – Penal Code, 1860 – ss.302, 34 .

Dismissing the appeal, the Court

HELD : 1. Evidence of ‘interested witnesses’

In order to substantiate its case, the prosecution reliedupon the evidence of three eye-witnesses, PW-1, PW-2 and PW-3. PW-1, who is the brother of the deceased (‘H’), stated that onthe day of the incident, at about 5 pm, he had proceeded to ‘M’s’house, where the deceased was working to inform him about theillness of his daughter. PW-1 was informed by ‘M’s’ brother thatthe deceased had gone towards the pond where he saw thedeceased. At the same time, ‘I’ (co-accused) and the appellantwere proceeding to the spot from Masjid. When the deceasedstood after cleaning himself, the appellant exhorted ‘I’ to killhim, declaring him as an enemy. ‘I’ fired at ‘H’ with 0.315 borepistol. The bullet hit him on his chest and he fell down and diedon the spot. PW-1 stated that the incident was witnessed by (PW-2, cousin of the deceased), (PW-3, relative of the deceased)and one ‘L’ who were threatened by the accused before they ranaway to the village. PW-1 stated that he did not immediately visitthe Police Station due to the fear of the accused and eventuallylodged his report at 9:30 pm. He also deposed that there was afight between the deceased and ‘I’ about five months ago in whichthe deceased was accused of committing an offence under Section307 of the IPC. During the course of his cross-examination, PW-1 was questioned in detail about the location of the incident andthe position of the deceased when the bullet had hit him. Nomaterial inconsistency or contradiction has emerged from theevidence of the eyewitness. PW-2 specifically deposed about theproximity of his house from the pond. He furnished cogentreason to be present at the pond stating that he was fresheningup at the pond. During his deposition, PW-2 specifically referredto the role and presence of the appellant being armed with thestick and exhorting ‘I’ to kill the deceased. PW-3, in similar terms,deposed to the place where the deceased was fired at. PW-3 statedthat he was returning home after freshening up. When he reachedthe pond, he saw the appellant encouraging ‘I’ to kill the deceased,after which ‘I’ fired at him and the bullet hit his chest. Havingcarefully considered the depositions of PWs 1, 2 and 3, there is

Ano material inconsistency regarding the nature or genesis of theincident. All the three witnesses deposed to (i) the presence ofthe deceased near the pond; (ii) the presence of the appellantand ‘I’ at the place of occurrence; (iii) the appellant havingexhorted ‘I’ to kill the deceased; and (iv) ‘I’ shooting thedeceased, as result of which he sustained an injury on the chestBand collapsed on the spot. The mere fact that relatives of thedeceased are the only witnesses is not sufficient to discredit theircogent testimonies. The evidence on the record has been carefullyevaluated by the Sessions Judge as well as the High Court. Thereis no basis to discredit the presence of the three eye-witnessesCand nothing has been elicited in the course of the cross-examination to doubt their presence. The non-examination of thedaughter of the deceased who was allegedly unwell cannot beconstrued to be circumstance that is fatal to the prosecution’scase once the ocular evidence of PWs 1, 2 and 3 is consistentand credible. The nature of the injuries found to have beenDsustained by the deceased is consistent with the account furnishedby the eyewitnesses. [Paras 14-16][689-G-H; 690-A-H;692-A-B]

Mohd. Rojali v. State of Assam (2019) 19 SCC 567 –relied on.E2. Failure to recover the weapon and examine ballisticexpert

The deceased had sustained gun-shot injury with pointof entry and exit. The non-recovery of the weapon of offencesFwould therefore not discredit the case of the prosecution whichhas relied on the eyewitness accounts of PWs 1, 2 and 3. Thepresent case is not one where despite the recovery of firearm,or of the cartridge, the prosecution had failed to produce reportof the ballistic expert. Therefore, the failure to produce reportby ballistic expert who can testify to the fatal injuries beingGcaused by particular weapon is not sufficient to impeachthe credible evidence of the direct eye-witnesses. [Paras 17,20][692-C-D; 695-B-C]

Sukhwant Singh v. State of Punjab (1995) 3 SCC: [1995]2 SCR 1190 – distinguished.H

Gurucharan Singh v. State of Punjab (1963) 3 SCR585; State of Punjab v. Jugraj Singh (2002) 3 SCC234: [2002] 1 SCR 998 – relied on.

3.1 Common intention under Section 34 of the IPC

Emphasizing the fundamental principles underlying Section34, Supreme Court in Virendra Singh v. State of Madhya Pradeshheld that:

(i) Section 34 does not create distinct offence, but is aprinciple of constructive liability; (ii) In order to incur jointliability for an offence there must be pre-arranged and pre-mediated concert between the accused persons for doing the actactually done; (iii) There may not be long interval between theact and the pre-meditation and the plan may be formed suddenly.In order for Section 34 to apply, it is not necessary that theprosecution must prove an act was done by particular person;and (iv) The provision is intended to cover cases where numberof persons act together and on the facts of the case, it is notpossible for the prosecution to prove who actually committedthe crime. [Para 24][697-B-F]

Virendra Singh v. State of Madhya Pradesh (2010) 8SCC 407 : [2010] 9 SCR 772 – relied on.

3.2 The evidence on the record clearly establishes acommon intention in pursuance of which the appellant exhorted‘I’ to kill the deceased. The prosecution is not required to provethat there was an elaborate plan between the accused to kill thedeceased or plan was in existence for long time. commonintention to commit the crime is proved if the accused by theirwords or action indicate their assent to join in the commission ofthe crime. The appellant reached the spot with lathi, along with‘I’ who had pistol. The appellant’s exhortation was crucial tothe commission of the crime since it was only after he made thestatement that the enemy has been found, that ‘I’ fired the fatalshot. The role of the appellant, his presence at the spot and thenature of the exhortation have all emerged from the consistentaccount of the three eye-witnesses. [Para 27][699-D-F]

APandurang, Tukia and Bhillia v. The State of Hyderabad[1955] SCR 1 1083; Chhota Ahirwar v. State of MadhyaPradesh (2020) 4 SCC 126 : [2020] 3 SCR 776;Dhanpal v. State (NCT of Delhi) (2020) 5 SCC 705;Sandeep v. State of Haryana 2021 SCC Online SC 642

– relied on.B

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.81 of 2021.

From the Judgment and Order dated 19.06.2020 of the High CourtDof Judicature at Allahabad in Criminal Appeal No.2172 of 1991.

S. Mahendran, Adv. for the Appellant.

Vinod Diwakar, AAG, B. N. Dubey, Ms. Ruchira Goel, Ms. ManviSharma, Advs. for the Respondent.

EThe Judgment of the Court was delivered:

DR. DHANANJAYA Y CHANDRACHUD, J.

AIntroduction ........................................................... 3BSubmissions ...........................................................10FCAnalysis ................................................................13

C.1 Evidence of ‘interested witnesses’ .............................13

C.2 Failure to recover the weapon and examine ballisticexpert ............................................................................16GC.2 Common intention under Section 34 of the IPC........... 20DConclusion ........................................................... 25

Introduction

1. This appeal arises from judgment and order dated 19 JuneH2020 of the Division Bench of the High Court of Judicature at Allahabad

in Criminal Appeal No 2172 of 1991. The appeal before the High Courtarose from judgment and order dated 13 November 1991 of theSessions Judge Banda in Sessions Trial No266 of 1990 (State Govt v.Idrish and Gulab). Idrish was convicted of an offence punishable underSection 302 of the Indian Penal Code 1860[1]. Gulab, who has moved thisappeal, stands convicted under Section 302 read with Section 34 of theIPC and has been sentenced to imprisonment for life. Idrish died duringthe pendency of the appeal.

2. On 22 November 1989, Shabbir (PW1) submitted writtenreport to Police Station Mathaundh, District Banda at 10.30 pm as aconsequence of which Crime Case No 78 of 1989 was registered underSections 302 and 34 of IPC against Idrish and the appellant. The writtenreport stated that PW-1’s brother Hanifa, who was about 26 years old,was working at the place of Majeed. After work, Hanifa had proceededto pond nearby to wash up. PW-1 went to call Hanifa at about 5.00 pmsince Hanifa’s daughter had taken ill. Idrish who was armed with a0.315 bore country-made pistol and the appellant who was armed with alathi came from the side of the Idgaah. The appellant is alleged to haveexhorted Idrish stating that the “enemy has been found”,as consequenceof which Idrish fired at Hanifa. The bullet is alleged to have hit the chestof Hanifa due to which he collapsed and died. Idrish and the appellantare alleged to have fled towards the village. The written report narratedthat about 5 months prior to the incident, Hanifa and Idrish had beeninvolved in fight and Hanifa was arraigned as an accused in the criminalcase. This is alleged to be the motive for his murder. PW-1 stated thatthe FIR was not lodged earlier due to the fear of the accused and thatthe written report was lodged after the villagers had arrived. The writtenreport was scribed on 22 November 1989 by one Shabbir Khan at thebehest of PW-1. The distance between the place of occurrence and thePolice Station is 11 kilometres.

3. The autopsy was conducted by PW-5 on 23 November 1989.The following injuries were noted:

“i. Abrasion 1 cm x 1cm on the right temporal region 1 cmouter toright eye.

ii. GS wound on Entry 0.8 x 0.8 cm on the front of left side chest,7 cm below to left nipple at 7 ‘O’ clock position. Margins Inverted,

ATattooing, blackening and charring present around the wound inthe area of 13 cm x9 cm.

iii. GS wound of Exit 1cm x 1cm on the back of left side chest,communicating to Injury No 2, 10 cm below and medial to inferiorangle of left scapula and 3 cm lateral to middle on septum heartBand lung perforated. Free and clotted blood about 1 litre presentin pleural cavity.”

The cause of death was opined to be shock and haemorrhage asa result of ante mortem gunshot injury.

4. After the completion of the investigation, the charge sheet wasCsubmitted on 16 December 1989. The charges were framed by the TrialJudge on 4 March 1991. Idrish was charged for an offence punishableunder Section 302 while the appellant was charged under Sections 302and 34 of the IPC.

5. The prosecution examined threeeyewitnesses to prove its case:D(1) PW-1 Shabbir, the elder brother of the deceased; (2) PW-2 Saddu, acousin of the deceased; and (3) PW-3 Iddu, relative of the deceased.On 13 November 1991, the Sessions Judge, Banda convicted Idrish ofan offence punishable under Section 302 and the appellant of an offencepunishable under Sections 302 and 34 of the IPC. They were sentencedEto imprisonment for life. The judgment of the Sessions Judge wasimpugned in the appeal being Criminal Appeal No2172/1991. Idrish diedduring the pendency of the appeal.

6. The following submissions were urged before the High Courtin support of the appeal:F(i)There was an unexplained delay of about five and halfhours in lodging the FIR which indicates that the allegedeyewitnesses were not present at the scene of occurrence;

(ii)PWs 1, 2 and 3, the alleged eyewitnesses, were relativesof the deceased and their testimony is liable to be discardedGdue to contradictions in regard to their presence and therole of the appellant;

(iii)The alleged motive was against Idrish and the appellanthas been falsely implicated since no overt act has beenassigned to him;

(iv)The appellant has been assigned the role of exhortationAwhich is weak type of evidence;

(v)The daughter of the deceased was not examined during thetrial or even during the investigation which would indicatethat the reason for the presence of PW-1 at the spot couldnot be substantiated; and

(vi)The appellant deserves the benefit of doubt having regardto the “ornamental” role assigned to him.

7. The High Court held that:

(i)PW-1 is stated to have proceeded to the pond to call thedeceased as his daughter was unwell;

(ii)The accused did not challenge the proximity of the pondfrom the house of PW-1;

(iii)PW-1 deposed at the trial that he had been informed by thebrother of one Majeed that the deceased had proceeded tothe pond. PW-1 was confronted with the absence of such adisclosure in his previous statement during the investigation;

(iv)Not much credence can be attached to the contradictionbecause PW-1 had informed PW-6, the IO, during theinvestigation that he had proceeded to the pond aftergathering information about the whereabouts of thedeceased. The logical inference was that PW-1 firstproceeded to the place of Majeed where the deceasedworked to inform him about the illness of his daughter. Butin the meanwhile, having come to know that the deceasedhad already left for the pond as was his daily routine, PW-1 went to the pond. Thus, the presence of PW-1 wasestablished at the scene;

(v)PWs 2 and 3 had their houses near the pond and had goneto relieve themselves near the pond. While returning, theysaw the appellant who was armed with lathi exhortingIdrish who was armed with 0.315 bore country-made pistolto eliminate the deceased, while the latter was on his upwardclimb near the pond;

(vi)Though the witnesses may be related to the deceased, thatis not sufficient cause to discard their testimonies once their

Apresence at the scene of occurrence was established andthey were found to be credible;

(vii)PWs 2 and 3 had their houses nearby and it was notunnatural for them to proceed to the pond to answer callof nature;

B(viii) All the three eyewitnesses were ad idem in regard to themode and manner in which the incident had taken placeand the role of the appellant in exhorting Idrish. Thepresence of the witnesses was duly established as was thedistance from which they witnessed the occurrence;

(ix)There was no major discrepancy in the nature ofexhortation,the substance of which was that the deceasedwas an enemy who had to be eliminated;

(x)There was previous enmity of the appellant with thedeceased. Further, the appellant was the nephew of Idrish;

(xi)To attract conviction with the aid of Section 34 of theIPC, the presence of the appellant with Idrish armed with alathi and the role attributed to him of exhorting Idrish tocommit the murder was sufficient;

(xii)The delay of five and half hours in lodging the FIR wasEattributable to the witnesses fearing the accused, which isbelievable in rural scenario. The police station was alsosituated at distance of 11 kilometres. The occurrence hadtaken place at about 5.30 pm on November evening atdusk and PW-1 proceeded to lodge the report at 10.30 pmFonly after the villagers had assembled. Hence, the delaywas satisfactorily explained; and

(xiii) As regards the non-examination of the daughter of thedeceased, the IO (PW-6) stated that although he had notphysically inquired the girl regarding her illness, he had madeGinquiries that confirmed that she was ill. The testimony ofthe IO had not been challenged.

On the above grounds, the High Court dismissed the appeal andconfirmed the judgment of the trial Judge.

8. Leave was granted on 25 January 2021. On 26 February 2021,Hthe Court was apprised that the Advocate-on-Record who had entered

GULAB v. STATE OF UTTAR PRADESH

an appearance on behalf of the appellant had died on 20 February 2021.Hence short adjournment was sought to enable the appellant to engageanother Advocate-on-Record since notice had been issued on theapplication for bail. On 15 March 2021, this Court noted that noappearance had been entered on behalf of the appellant. Accordingly,the Supreme Court Legal Services Committee (SCLSC) was directedto engage panel Counsel to appear on behalf of the appellant. In themeantime,the proceedings were adjourned by period of four weeks toenable the appellant to make arrangements for being represented by aCounsel of his choice. On 12 April 2021, Mr S Mahendran, who wasappointed by the SCLSC sought and was granted an adjournment tocontact the appellant who was lodged in jail so as to ascertain the wishesof the appellant. On 26 July 2021, this Court noted that the office reportdated 23 July 2021 indicated that the appellant would engage Counselthrough his relatives and did not wish to be represented by amicus curiae.Notice was directed to be issued to the appellant through theSuperintendent of District Jail Banda intimating him that he would be atliberty to engage Counsel of his choice within period of eight weeks.The Standing Counsel for the State of Uttar Pradesh was directed tocause copy of the notice to be served on the appellant through theSuperintendent of District Jail Banda. On 6 October 2021, the Counselappointed by the SCLSC stated that though the appellant had expressedhis desire to engage his own counsel, he had not made any arrangements.The learned Counsel was therefore permitted to contact the appellantthrough video conferencing at the concerned jail. The Superintendent ofthe jail was directed to facilitate the video conferencing meeting betweenMr S Mahendran and the appellant. On 17November 2021, the hearingof the proceeding was adjourned. Despite sufficient opportunities havingbeen granted to the appellant since 26 February 2021, no Counsel hasbeen engaged by him and has appeared. We have accordingly heard MrS Mahendran, the Counsel nominated by the SCLSC. We may note forclarity of the record that Mr S Mahendran has argued the case in athorough and painstaking manner. During the course of the hearing, hehas ably formulated his submissions and taken the Court through therelevant part of the evidentiary record.

Submissions

9. We have heard Mr S Mahendran, Counsel nominated by theSCLSC for the appellant and Mr Diwakar, Additional Advocate General

A(AAG) with Ms Ruchira Goel, learned Counsel for the State of UttarPradesh.

10. Mr S Mahendran, learned Counsel appearing on behalf of theappellant submits that:

(i)PW-1 deposed that he was present at the scene ofBoccurrence since the daughter of the deceased was ill andhe was proceeding to the place of work of the deceased toinform him of the illness;

(ii)The daughter of the deceased was not examined at thetrial, which casts doubt on the reason for the purportedCpresence of PW-1;

(iii)PW-1 has been planted as witness, which is evident fromthe fact that the FIR which was lodged by him was nearlyfive and half hours after the incident;

(iv)PW-1 is the younger brother of the deceased while PW-2Dand PW-3 are related to him.All three witnesses beinginterested, their testimony has to be scrutinized with caution;

(v)There are material inconsistencies in the depositions of thethree purported eyewitnesses in regard to the position ofthe deceased when he was shot. PW-1, in his deposition,Eindicated that the deceased was standing. PW2 indicatedthat he was shot while he was sitting, while PW3 statedthat the deceased was climbing from the pond;

(vi)The High Court accepted that there was variation in thestatement of the witnesses in regard to the nature of theFexhortation given to Idrish by the appellant, but at the sametime it relied on the evidence of PW-1, PW-2 and PW-3;

(vii)The evidence of PW-1, PW-2 and PW-3 indicates that therewas prior enmity between the deceased and Idrish becauseof which false implication cannot be ruled out;G

(viii) The appellant has been convicted under Section 34 of theIPC but the material on record does not establish case ofcommon intent; and

(ix)Though there was gunshot injury, no recovery of theweapon has been made.H

11. On the other hand, Mr Diwakar, learned AAG appearing onbehalf of the State of Uttar Pradesh submitted that:

(i)The case rests on direct evidence and the non-examinationof two witnesses is irrelevant, once the ocular evidence ofPW-1, PW-2 and PW-3 who are credible eyewitnesses isaccepted;

(ii)The incident took place at 5.30 pm, while the FIR was lodgedat 10.30 pm on the basis of the written report. The policestation was admittedly situated at distance of 11 kilometresfrom the place of occurrence. There is no delay in lodgingthe FIR;

(iii)The FIR contains detailed account of the nature of theincident and spells out the role which is attributed to theappellant;

(iv)PW-1, PW-2 and PW-3 are all consistent in their depositionswith respect to the nature of exhortation by the appellant.During the course of cross-examination, no question wasput to PW-1 to dispute his presence at the scene ofoccurrence nor was any question raised regarding the non-examination of the daughter of the deceased and Majeedwho is alleged to have informed PW-1 of the whereaboutsof the deceased; and

(v)In the course of the statement under Section 313 of theCode of Criminal Procedure 1973[2], the prior enmity withthe deceased was specifically drawn to the attention of theaccused.

12. On these grounds, it has been urged on behalf of the Statethat the finding of guilt which was arrived at by the Sessions Judge hasbeen correctly affirmed by the High Court, warranting no interferencein appeal.

13. The rival submissions will now be analysed.

Analysis

C.1 Evidence of ‘interested witnesses’

14. In order to substantiate its case, the prosecution relied uponthe evidence of three eye-witnesses, PW-1 Shabbir, PW-2 Saddu and

2 “CrPC”

APW-3 Iddu. PW-1, who is the brother of the deceased, stated that on theday of the incident, at about 5 pm, he had proceeded to Majeed’s house,where the deceasedwas working to inform him about the illness of hisdaughter. PW-1 was informed by Majeed’s brother – Ahmed that thedeceased had gone towards the pond where he saw the deceased. Atthe same time, Idrish and the appellant were proceeding to the spot fromBa Masjid. When the deceased stood after cleaning himself, the appellantexhorted Idrish to kill him, declaring him as an enemy. Idrish fired atHanifa with 0.315 bore pistol.The bullet hit him on his chest and he felldown and died on the spot. PW-1 stated that the incident was witnessedby Saddu (PW-2), Iddu (PW-3) and Lallu who were threatened by theCaccused before they ran away to the village. PW-1 stated that he did notimmediately visit the Police Station due to the fear of the accused andeventually lodged his report at 9:30 pm. He also deposed that there wasa fight between the deceased and Idrish about five months ago in whichthe deceased was accused of committing an offence under Section 307of the IPC.D15. During the course of his cross-examination, PW-1 wasquestioned in detail about the location of the incident and the position ofthe deceased when the bullet had hit him. No material inconsistency orcontradiction has emerged from the evidence of the eyewitness. PW-2– Saddu specifically deposed about the proximity of his house from theEpond. He furnished cogent reason to be present at the pond statingthat he was freshening up at the pond. During his deposition, PW-2specifically referred to the role and presence of the appellant beingarmed with the stick and exhorting Idrish to kill the deceased. PW-3Idduhas, in similar terms, deposed to the place where the deceased was fired

Fat. PW-3 stated that he was returning home after freshening up. Whenhe reached the pond, he saw the appellant encouraging Idrish to kill thedeceased, after which Idrish fired at him and the bullet hit his chest.Having carefully considered the depositions of PWs 1, 2 and 3, there isno material inconsistency regarding the nature or genesis of the incident.

All the three witnesses have deposed to (i) the presence of the deceasedGnear the pond; (ii) the presence of the appellant and Idrish at the placeof occurrence; (iii) the appellant having exhorted Idrish to kill thedeceased; and (iv) Idrishshooting the deceased, as result of whichhesustained an injury on the chest and collapsed on the spot. It is well-settled in law that the mere fact that relatives of the deceased are theHonly witnesses is not sufficient to discredit their cogent testimonies.

Recently, two-judge Bench of this Court in Mohd. Rojali v. State ofAssam,[3] reiterated the distinction between “interested” and “related”witnesses. It was held that the mere fact that the witnesses are relatedto the deceased does not impugn the credibility of their evidence if it isotherwise credible and cogent. Speaking for this Court, Justice M MShantanagoudar held:

“13. As regards the contention that all the eyewitnesses are closerelatives of the deceased, it is by now well-settled that relatedwitness cannot be said to be an “interested” witness merely byvirtue of being relative of the victim. This Court has elucidatedthe difference between “interested” and “related” witnesses in aplethora of cases, stating that witness may be called interestedonly when he or she derives some benefit from the result of alitigation, which in the context of criminal case would mean thatthe witness has direct or indirect interest in seeing the accusedpunished due to prior enmity or other reasons, and thus has amotive to falsely implicate the accused [internal citations omitted].

14. In criminal cases, it is often the case that the offence iswitnessed by close relative of the victim, whose presence onthe scene of the offence would be natural. The evidence of sucha witness cannot automatically be discarded by labelling the witnessas interested. Indeed, one of the earliest statements with respectto interested witnesses in criminal cases was made by this Courtin Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab,1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ 1465] , whereinthis Court observed: (AIR p. 366, para 26)

“26. witness is normally to be considered independent unlesshe or she springs from sources which are likely to be taintedand that usually means unless the witness has cause, such asenmity against the accused, to wish to implicate him falsely.Ordinarily close relative would be the last to screen the realculprit and falsely implicate an innocent person.”

15. In case of related witness, the Court may not treat his or hertestimony as inherently tainted, and needs to ensure only that theevidence is inherently reliable,probable, cogent and consistent....”

A16. The evidence on the record has been carefully evaluated bythe Sessions Judge as well as the High Court. There is no basis to discreditthe presence of the three eye-witnesses and nothing has been elicited inthe course of the cross-examination to doubt their presence. The non-examination of the daughter of the deceased who was allegedly unwellcannot be construed to be circumstance that is fatal to the prosecution’sBcase once the ocular evidence of PWs 1, 2 and 3 is consistent andcredible. The nature of the injuries found to have been sustained by thedeceased is consistent with the account furnished by the eyewitnesses.

C.2 Failure to recover the weapon and examine ballisticexpertC

17. The deceased had sustained gun-shot injury with point ofentry and exit. The non-recovery of the weapon of offences wouldtherefore not discredit the case of the prosecution which has relied onthe eyewitness accounts of PWs 1, 2 and 3. In Sukhwant Singh v.State of Punjab[4], Dr AS Anand (as the learned Chief Justice then was)Dspeaking for two-judge Bench held:

“21. There is yet another infirmity in this case. We find thatwhereas an empty [sic] had been recovered by PW 6, ASIRaghubir Singh from the spot and pistol along with somecartridges were seized from the possession of the appellant at theEtime of his arrest, yet the prosecution, for reasons best known toit, did not send the recovered empty [sic] and the seized pistol tothe ballistic expert for examination and expert opinion. Comparisoncould have provided link evidence between the crime and theaccused. This again is an omission on the part of the prosecutionfor which no explanation has been furnished either in the trialFcourt or before us. It hardly needs to be emphasised that incases where injuries are caused by firearms, the opinion ofthe ballistic expert is of considerable importance whereboth the firearm and the crime cartridge are recoveredduring the investigation to connect an accused with theGcrime. Failure to produce the expert opinion before thetrial court in such cases affects the creditworthiness of theprosecution case to great extent.”

(emphasis supplied)

GULAB v. STATE OF UTTAR PRADESH

The above extract which has been relied upon by the learnedCounsel for the appellant emphasises that in case where injury hasbeen caused by firearm, the opinion of the ballistic expert is ofconsiderable importance where boththe firearm and the crime cartridgehad been recovered during the investigation. Failure to produce the expertopinion in such case affects the creditworthiness of the prosecutioncase.

18. However, three-judge Bench of this Court, in GurucharanSingh v. State of Punjab[5], has analysed the precedents of this Courtand held that examination of ballistic expert is not an inflexible rule inevery case involving use of lethal weapon. Speaking through Justice PB Gajendragadkar (as the learned Chief Justice then was), this Courtheld:

“41. It has, however, been argued that in every case where anaccused person is charged with having committed the offence ofmurder by lethal weapon, it is the duty of the prosecution toprove by expert evidence that it was likely or at least possible forthe injuries to have been caused with the weapon with which, andin the manner in which, they have been alleged to have beencaused; and in support of this proposition, reliance has been placedon the decision of this Court in Mohinder Singh v. State [(1950)SCR 821]. In that case, this Court has held that where theprosecution case was that the accused shot the deceased with agun, but it appeared likely that the injuries on the deceased wereinflicted by rifle and there was no evidence of duly qualifiedexpert to prove that the injuries were caused by gun, and thenature of the injuries was also such that the shots must have beenfired by more than one person and not by one person only, andthere was no evidence to show that another person also shot, andthe oral evidence was such which was not disinterested, the failureto examine an expert would be serious infirmity in the prosecutioncase. It would be noticed that these observations were madein case where the prosecution evidence suffered fromserious infirmities and in determining the effect of theseobservations, it would not be fair or reasonable to forgetthe facts in respect of which they came to be made. Theseobservations do not purport to lay down an inflexible Rule

Athat in every case where an accused person is charged withmurder caused by lethal weapon, the prosecution casecan succeed in proving the charge only if an expert isexamined. It is possible to imagine cases where the directevidence is of such an unimpeachable character and thenature of the injuries disclosed by post-mortem notes is soBclearly consistent with the direct evidence that theexamination of ballistic expert may not be regarded asessential. Where the direct evidence is not satisfactory ordisinterested or where the injuries are alleged to have beencaused with gun and they prima facie appear to have beenCinflicted by rifle, undoubtedly the apparent inconsistencycan be cured or the oral evidence can be corroborated byleading the evidence of ballistic expert. In what cases theexamination of ballistic expert is essential for the proofof the prosecution case, must naturally depend upon thecircumstances of each case. Therefore, we do not think thatDMr Purushottam is right in contending as general propositionthat in every case where firearm is alleged to have been usedby an accused person, in addition to the direct evidence, prosecutionmust lead the evidence of ballistic expert, however good thedirect evidence may be and though on the record there may be noEreason to doubt the said direct evidence.”

(emphasis supplied)

19. Similarly, two-judge Bench of this Court in State of Punjabv. Jugraj Singh[6 ]had noticed that surrounding circumstances in theprosecution case are sufficient to prove death caused by lethalFweapon, without ballistic examination of the recovered weapon. TheCourt, speaking through Justice R P Sethi, had noted:

“18. In the instant case the investigating officer has categoricallystated that guns seized were not in working condition and he, inhis discretion, found that no purpose would be served by sendingGthe same to the ballistic expert for his opinion. No further questionwas put to the investigating officer in cross-examination to findout whether despite the guns being defective the fire pin was inorder or not. In the presence of convincing evidence of two

GULAB v. STATE OF UTTAR PRADESH

eyewitnesses and other attending circumstances we do not findthat the non-examination of the expert in this case has, in anyway, affected the creditworthiness of the version put forth by theeyewitnesses.”

20. The present case is not one where despite the recovery of afirearm, or of the cartridge, the prosecution had failed to producea reportof the ballistic expert. Therefore, the failure to produce report by aballistic expert who can testify to the fatal injuries being caused by aparticular weapon is not sufficient to impeach the credible evidence ofthe direct eye-witnesses.

C.2 Common intention under Section 34 of the IPC

21. Section 34 of the IPC provides that:

“34. Acts done by several persons in furtherance of commonintention.—When criminal act is done by several persons infurtherance of the common intention of all, each of such personsis liable for that act in the same manner as if it were done by himalone.”

22. The well-established principle underlying the above provisionsemerges from the decision of Justice Vivian Bose in Pandurang, Tukiaand Bhillia v. The State of Hyderabad[7] where it was held:

“33. Now in the case of Section 34 we think it is well establishedthat common intention presupposes prior concert. It requires apre-arranged plan because before man can be vicariouslyconvicted for the criminal act of another, the act must have beendone in furtherance of the common intention of them all: MahbubShah v. King Emperor [72 IA 148 at 153 and 154]. Accordinglythere must have been prior meeting of minds. Several personscan simultaneously attack man and each can have the sameintention, namely the intention to kill, and each can individuallyinflict separate fatal blow and yet none would have the commonintention required by the section because there was no prior meetingof minds to form pre-arranged plan. In case like that, eachwould be individually liable for whatever injury he caused but nonecould be vicariously convicted for the act of any of the others;and if the prosecution cannot prove that his separate blow was

Afatal one he cannot be convicted of the murder however clearlyan intention to kill could be proved in his case: Barendra KumarGhosh v. King-Emperor [72 IA 148 at 153 and 154] and MahbubShah v. King-Emperor [52 IA 40 at 49] . As Their Lordships sayin the latter case, “the partition which divides their bounds is oftenvery thin: nevertheless, the distinction is real and substantial, andBif overlooked will result in miscarriage of justice”.

34. The plan need not be elaborate, nor is long interval oftime required. It could arise and be formed suddenly, asfor example when one man calls on bystanders to help himkill given individual and they, either by their words orCtheir acts, indicate their assent to him and join him in theassault. There is then the necessary meeting of the minds.There is pre-arranged plan however hastily formed andrudely conceived. But pre-arrangement there must be andpremeditated concert. It is not enough, as in the latter Privy CouncilDcase, to have the same intention independently of each other, e.g.,the intention to rescue another and, if necessary, to kill those whooppose.”

(emphasis supplied)

23. In Virendra Singh v. State of Madhya Pradesh[8], JusticeEDalveer Bhandari, speaking for two-judge Bench explained the ambitof the words “in furtherance of the common intention of all”:

“15. Ordinarily, person is responsible for his own act. personcan also be vicariously responsible for the acts of others if he hadthe common intention to commit the offence. The words “commonFintention” imply prearranged plan and acting in concert pursuantto the plan. It must be proved that the criminal act was done inconcert pursuant to the prearranged plan. Common intention comesinto force prior to the commission of the act in point of time, whichneed not be long gap. Under this section preconcert in thesense of distinct previous plan is not necessary to be proved.GThe common intention to bring about particular result may welldevelop on the spot as between number of persons, withreference to the facts of the case and circumstances of thesituation. Though common intention may develop on the spot, itmust, however, be anterior in point of time to the commission of

H8 (2010) 8 SCC 407

the crime showing prearranged plan and prior concert. Thecommon intention may develop in course of the fight but theremust be clear and unimpeachable evidence to justify that inference.This has been clearly laid down by this Court in AmrikSingh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ465] .”

24. Emphasizing the fundamental principles underlying Section34, this Court held that:

(i)Section 34 does not create distinct offence, but is aprinciple of constructive liability;

(ii)In order to incur joint liability for an offence there mustbe pre-arranged and pre-mediated concert between theaccused persons for doing the act actually done;

(iii)There may not be long interval between the act and thepre-meditation and the plan may be formed suddenly.In orderfor Section 34 to apply, it is not necessary that theprosecution must prove an act was done by particularperson; and

(iv)The provision is intended to cover cases where numberof persons act together and on the facts of the case, it isnot possible for the prosecution to prove who actuallyEcommitted the crime.

25. These principles have been adopted and applied in anothertwo judge Bench decision of this Court in Chhota Ahirwar v. State ofMadhya Pradesh[9]. Justice Indira Banerjee speaking for the two-judgeBench observed:

“26. To attract Section 34 of the Penal Code, no overt act is neededon the part of the accused if they share common intention withothers in respect of the ultimate criminal act, which may be doneby any one of the accused sharing such intention [see AsokeBasak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC660 : (2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from thejudgment of the Privy Council in the famous case of BarendraKumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] , “theyalso serve who stand and wait”.

9 (2020) 4 SCC 126

A27. Common intention implies acting in concert. Existence of aprearranged plan has to be proved either from the conduct of theaccused, or from circumstances or from any incriminating facts.It is not enough to have the same intention independently of eachother.”

B26. In Dhanpal v. State (NCT of Delhi)[10], the appellant hadexhorted co-accused to kill the deceased. The exhortation was notrepeated by the eyewitnesses in identical terms. Further, it was alsoalleged that there was no neutral witness since all the eyewitnesseswere related to the deceased and there was delay in lodging the FIR.Justice Aniruddha Bose speaking for the twojudge Bench of this CourtCobserved:

“8. There are sufficient materials, however, to establish that thethree appellants had returned together to the place of occurrenceand attacked the deceased victim with Dhanpal exhorting to killAjay. They had grappled the victim and said Kamal inflicted multipleDinjuries on him with the knife. On the basis of evidence disclosed,the trial court and the High Court found that there was prior meetingof minds of all the four convicts and all the three appellants hadintention common with that of Kamal. On this point, the ratio ofthe judgment of this Court in Asif Khan v. State of MaharashtraE[Asif Khan v. State of Maharashtra, (2019) 5 SCC 210 : (2019) 2SCC (Cri) 484] is relevant. In an earlier case, Rajkishore Purohitv. State of M.P. [Rajkishore Purohit v. State of M.P., (2017) 9SCC 483 : (2017) 3 SCC (Cri) 749] , it has been held that toestablish common intention to cause murder, overt act or possessionof weapons by all the accused persons is not necessary. InFRichhpal Singh Meena v. Ghasi [Richhpal Singh Meena v. Ghasi,(2014) 8 SCC 918 : (2014) 6 SCC (Cri) 424] , the ratio is that inthe event the nature of the assault is such that the target person islikely to die from the injuries resulting therefrom, the accusedmust be deemed to have known the consequences of his act.

11. We find the approach of the trial court and the High Court inappeal was proper in dealing with the discrepancies pointed outon behalf of the appellants. The delay in registering the FIR has

been explained properly and judgment of conviction cannot failfor that reason. It is fact that the eyewitnesses were known tothe deceased and there was no neutral witness. But for that factoralone we cannot exonerate the appellants, particularly since thecourt of first instance and the first appellate court have alreadyexamined the evidence and given their findings in favour ofprosecution. We do not find any error in the judgment of convictionand order of sentence so far as the appellants are concerned. Allthe three appeals are dismissed.”

Recently in Sandeep v. State of Haryana[11], two-judge Benchof this Court held that an exhortation given by an accusedimmediately before co-accused fired shot killing the deceasedwould prove his involvement in the crime beyond reasonable doubt.Accordingly, this Court upheld the conviction of the accused underSections 302 and 34 of the IPC.

27. The evidence on the record clearly establishes commonintention in pursuance of which the appellant exhorted Idrish to kill thedeceased. The prosecution is not required to prove that there was anelaborate plan between the accused to kill the deceased or plan was inexistence for long time. common intention to commit the crime isproved if the accused by their words or action indicate their assent tojoin in the commission of the crime. The appellant reached the spot witha lathi, along with Idrish who had pistol. The appellant’s exhortationwas crucial to the commission of the crime since it was only after hemade thestatement that the enemy has been found, that Idrish fired thefatal shot. The role of the appellant, his presence at the spot and thenature of the exhortation have all emerged from the consistent accountof the three eye-witnesses.

Conclusion

28. In the above facts and circumstances, there is no merit in theappeal, the appeal shall accordingly stand dismissed.

29. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeal dismissed.

11 2021 SCC OnLine SC 642