GULAB versus STATE OF UTTAR PRADESH
[2021] 9 S.C.R. 678, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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GULAB
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 81 of 2021)
DECEMBER 09, 2021
[DR. DHANANJAYA Y CHANDRACHUD,
A. S. BOPANNA AND  VIKRAM NATH, JJ.]
Penal Code, 1860 – ss.302, 34 – Exhortation to co-accused
who fired fatal shot – Common intention – Appellant convicted u/
s.302 r/w s.34 while the co-accused (since deceased) was convicted
u/s.302; sentenced to imprisonment for life – On appeal, held:
Prosecution not required to prove that there was an elaborate plan
between the accused to kill the deceased or a plan was in existence
for a long time – A common intention to commit the crime is proved
if the accused by their words or action indicate their assent to join
in the commission of the crime – Appellant reached the spot with a
lathi, along with the co-accused who had a pistol – Evidence on
record clearly establishes a common intention in pursuance of which
the appellant exhorted him to kill the deceased – Appellant’s
exhortation was crucial to the commission of the crime since it was
only after he stated that the enemy had been found, that the co-
accused fired the fatal shot – Evidence carefully evaluated by
Sessions Judge and High Court – Role of the appellant, his presence
at the spot and the nature of the exhortation have all emerged from
the consistent account of three eye-witnesses – No merit in appeal.
Penal Code, 1860 – s.34 – Ambit of – Discussed.
Criminal Law – Evidence –
Eye-witnesses – Related witnesses
– Held: Mere fact that relatives of the deceased are the only
witnesses is not sufficient to discredit their cogent testimonies.
Criminal Law – Use of firearm – Non-examination of ballistic
expert – Held: Failure to produce a report by a ballistic expert who
can testify to the fatal injuries being caused by a particular weapon
is not sufficient to impeach the credible evidence of the direct eye-
witnesses – Penal Code, 1860 – ss.302, 34 .
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Dismissing the appeal, the Court
HELD : 1. Evidence of ‘interested witnesses’
In order to substantiate its case, the prosecution relied
upon 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 on
the day of the incident, at about 5 pm, he had proceeded to ‘M’s’
house, where the deceased was working to inform him about the
illness of his daughter. PW-1 was informed by ‘M’s’ brother that
the deceased had gone towards the pond where he saw the
deceased. At the same time, ‘I’ (co-accused) and the appellant
were proceeding to the spot from a Masjid. When the deceased
stood after cleaning himself, the appellant exhorted ‘I’ to kill
him, declaring him as an enemy. ‘I’ fired at ‘H’ with a 0.315 bore
pistol. The bullet hit him on his chest and he fell down and died
on the spot. PW-1 stated that the incident was witnessed by (PW-
2, a cousin of the deceased), (PW-3, a relative of the deceased)
and one ‘L’ who were threatened by the accused before they ran
away to the village. PW-1 stated that he did not immediately visit
the Police Station due to the fear of the accused and eventually
lodged his report at 9:30 pm. He also deposed that there was a
fight between the deceased and ‘I’ about five months ago in which
the deceased was accused of committing an offence under Section
307 of the IPC. During the course of his cross-examination, PW-
1 was questioned in detail about the location of the incident
and
the position of the deceased when the bullet had hit him. No
material inconsistency or contradiction has emerged from the
evidence of the eyewitness. PW-2 specifically deposed about the
proximity of his house from the pond. He furnished a cogent
reason to be present at the pond stating that he was freshening
up at the pond. During his deposition, PW-2 specifically referred
to the role and presence of the appellant being armed with the
stick and exhorting ‘I’ to kill the deceased. PW-3, in similar terms,
deposed to the place where the deceased was fired at. PW-3 stated
that he was returning home after freshening up. When he reached
the pond, he saw the appellant encouraging ‘I’ to kill the deceased,
after which ‘I’ fired at him and the bullet hit his chest. Having
carefully considered the depositions of PWs 1, 2 and 3, there is
GULAB v. STATE OF UTTAR PRADESH
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no material inconsistency regarding the nature or genesis of the
incident. All the three witnesses deposed to (i) the presence of
the deceased near the pond; (ii) the presence of the appellant
and ‘I’ at the place of occurrence; (iii) the appellant having
exhorted ‘I’ to kill the deceased; and (iv) ‘I’ shooting the
deceased, as a result of which he sustained an injury on the chest
and collapsed on the spot. The mere fact that relatives of the
deceased are the only witnesses is not sufficient to discredit their
cogent testimonies. The evidence on the record has been carefully
evaluated by the Sessions Judge as well as the High Court. There
is no basis to discredit the presence of the three eye-witnesses
and nothing has been elicited in the course of the cross-
examination to doubt their presence. The non-examination of the
daughter of the deceased who was allegedly unwell cannot be
construed to be a circumstance that is fatal to the prosecution’s
case once the ocular evidence of PWs 1, 2 and 3 is consistent
and credible. The nature of the injuries found to have been
sustained by the deceased is consistent with the account furnished
by 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.
2. Failure to recover the weapon and examine a ballistic
expert
The deceased had sustained a gun-shot injury with a point
of entry and exit. The non-recovery of the
weapon of offences
would therefore not discredit the case of the prosecution which
has relied on the eyewitness accounts of PWs 1, 2 and 3. The
present case is not one where despite the recovery of a firearm,
or of the cartridge, the prosecution had failed to produce a report
of the ballistic expert. Therefore, the failure to produce a report
by a ballistic expert who can testify to the fatal injuries being
caused by a particular weapon is not sufficient to impeach
the 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.
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Gurucharan Singh v. State of Punjab (1963) 3 SCR
585; State of Punjab v. Jugraj Singh (2002) 3 SCC
234: [2002] 1 SCR 998 – relied on.
3.1 Common intention under Section 34 of the IPC
Emphasizing the fundamental principles underlying Section
34, Supreme Court in Virendra Singh v. State of Madhya Pradesh
held that:
(i) Section 34 does not create a distinct offence, but is a
principle of constructive liability; (ii) In order to incur a joint
liability for an offence there must be a pre-arranged and pre-
mediated concert between the accused persons for doing the act
actually done; (iii) There may not be a long interval between the
act and the pre-meditation and the plan may be formed suddenly.
In order for Section 34 to apply, it is not necessary that the
prosecution must prove an act was done by a particular person;
and (iv) The provision is intended to cover cases where a number
of persons act together and on the facts of the case, it is not
possible for the prosecution to prove who actually committed
the crime. [Para 24][697-B-F]
Virendra Singh v. State of Madhya Pradesh (2010) 8
SCC 407 : [2010] 9 SCR 772 – relied on.
3.2 The evidence on the record clearly establishes a
common intention in pursuance of which the appellant exhorted
‘I’ to kill the deceased. The prosecution is not required to prove
that there was an elaborate plan between the accused to kill the
deceased or a plan was in existence for a long time. A common
intention to commit the crime is
proved if the accused by their
words or action indicate their assent to join in the commission of
the crime. The appellant reached the spot with a lathi, along with
‘I’ who had a pistol. The appellant’s exhortation was crucial to
the commission of the crime since it was only after he made the
statement that the enemy has been found, that ‘I’ fired the fatal
shot. The role of the appellant, his presence at the spot and the
nature of the exhortation have all emerged from the consistent
account of the three eye-witnesses. [Para 27][699-D-F]
GULAB v. STATE OF UTTAR PRADESH
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Pandurang, Tukia and Bhillia v. The State of Hyderabad
[1955] SCR 1 1083; Chhota Ahirwar v. State of Madhya
Pradesh (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.
Case Law Reference
[1995] 2 SCR 1190
distinguished
Para 17
[2002] 1 SCR 998
relied on
Para 19
[2010] 9 SCR 772
relied on
Para 23
[2020] 3 SCR 776
relied on
Para 25
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.81 of 2021.
From the Judgment and Order dated 19.06.2020 of the High Court
of 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. Manvi
Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered:
DR. DHANANJAYA Y CHANDRACHUD, J.
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Introduction ........................................................... 3
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Submissions ...........................................................10
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Analysis ................................................................13
C.1 Evidence of ‘interested witnesses’ .............................13
C.2 Failure to recover the weapon and examine a ballistic
expert ............................................................................16
C.2 Common intention under Section 34 of the IPC........... 20
D
Conclusion ........................................................... 25
A  Introduction
1. This
appeal arises from a judgment and order dated 19 June
2020 of the Division Bench of the High Court of Judicature at Allahabad
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in Criminal Appeal No 2172 of 1991. The appeal before the High Court
arose from a judgment and order dated 13 November 1991 of the
Sessions Judge Banda in Sessions Trial No266 of 1990 (State Govt v.
Idrish and Gulab). Idrish was convicted of an offence punishable under
Section 302 of the Indian Penal Code 18601. Gulab, who has moved this
appeal, stands convicted under Section 302 read with Section 34 of the
IPC and has been sentenced to imprisonment for life. Idrish died during
the pendency of the appeal.
2. On 22 November 1989, Shabbir (PW1) submitted a written
report to Police Station Mathaundh, District Banda at 10.30 pm as a
consequence of which Crime Case No 78 of 1989 was registered under
Sections 302 and 34 of IPC against Idrish and the appellant. The written
report stated that PW-1’s brother Hanifa, who was about 26 years old,
was working at the place of Majeed. After work, Hanifa had proceeded
to a pond nearby to wash up. PW-1 went to call Hanifa at about 5.00 pm
since Hanifa’s daughter had taken ill. Idrish who was armed with a
0.315 bore country-made pistol and the appellant who was armed with a
lathi came from the side of the Idgaah. The appellant is alleged to have
exhorted Idrish stating that the “enemy has been found”,as a consequence
of which Idrish fired at Hanifa. The bullet is alleged to have hit the chest
of Hanifa due to which he collapsed and died. Idrish and the appellant
are alleged to have fled towards the village. The written
report  narrated
that about 5 months prior to the incident, Hanifa and Idrish had been
involved in a fight and Hanifa was arraigned as an accused in the criminal
case. This is alleged to be the motive for his murder. PW-1 stated that
the FIR was not lodged earlier due to the fear of the accused and that
the written report was lodged after the villagers had arrived. The written
report was scribed on 22 November 1989 by one Shabbir Khan at the
behest of PW-1. The distance between the place of occurrence and the
Police 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 to
right 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,
1 “IPC”
GULAB v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Tattooing, blackening and charring present around the wound in
the 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 inferior
angle of left scapula and 3 cm lateral to middle on septum heart
and lung perforated. Free and clotted blood about 1 litre present
in pleural cavity.”
The cause of death was opined to be shock and haemorrhage as
a result of ante mortem gunshot injury.
4. After the completion of the investigation, the charge sheet was
submitted on 16 December 1989. The charges were framed by the Trial
Judge on 4 March 1991. Idrish was charged for an offence punishable
under Section 302 while the appellant was charged under Sections 302
and 34 of the IPC.
5. The prosecution examined threeeyewitnesses to prove its case:
(1) PW-1 Shabbir, the elder brother of the deceased; (2) PW-2 Saddu, a
cousin of the deceased; and (3) PW-3 Iddu, a relative of the deceased.
On 13 November 1991, the Sessions Judge, Banda convicted Idrish of
an offence punishable under Section 302 and the appellant of an offence
punishable under Sections 302 and 34 of the IPC. They were sentenced
to imprisonment for life. The judgment of the Sessions Judge was
impugned in the appeal being Criminal Appeal No2172/1991. Idrish died
during the pendency of the appeal.
6. The following submissions were urged before the High Court
in support of the appeal:
(i)
There was an unexplained delay of about five and a half
hours in lodging the FIR which indicates that the alleged
eyewitnesses were not present at the scene of occurrence;
(ii)
PWs 1, 2 and 3, the alleged eyewitnesses, were relatives
of the deceased and their testimony is liable to be discarded
due to contradictions in regard to their presence and the
role of the appellant;
(iii)
The alleged motive was against Idrish and the appellant
has been falsely implicated since no overt act has been
assigned to him;
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(iv)
The appellant has been assigned the role of exhortation
which is a weak type of evidence;
(v)
The daughter of the deceased was not examined during the
trial or even during the investigation which would indicate
that the reason for the presence of PW-1 at the spot could
not be substantiated; and
(vi)
The appellant deserves the benefit of doubt having regard
to 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 the
deceased as his daughter was unwell;
(ii)
The accused did not challenge the proximity of the pond
from the house of PW-1;
(iii)
PW-1 deposed at the trial that he had been informed by the
brother of one Majeed that the deceased had proceeded to
the pond. PW-1 was confronted with the absence of such a
disclosure in his previous statement during the investigation;
(iv)
Not much credence can be attached to the contradiction
because PW-1 had informed PW-6, the IO, during the
investigation that he had proceeded to the pond after
gathering information about the whereabouts of the
deceased. The logical inference was that PW-1 first
proceeded to the place of Majeed where the deceased
worked to inform him about the illness of his daughter. But
in the meanwhile, having come to know that the deceased
had already left for the pond as was his daily routine, PW-
1 went to the pond. Thus, the presence of PW-1 was
established at the scene;
(v)
PWs 2 and 3 had their houses near the pond
and had gone
to relieve themselves near the pond. While returning, they
saw the appellant who was armed with a lathi exhorting
Idrish who was armed with a 0.315 bore country-made pistol
to eliminate the deceased, while the latter was on his upward
climb near the pond;
(vi)
Though the witnesses may be related to the deceased, that
is not sufficient cause to discard their testimonies once their
GULAB v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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presence at the scene of occurrence was established and
they were found to be credible;
(vii)
PWs 2 and 3 had their houses nearby and it was not
unnatural for them to proceed to the pond to answer a call
of nature;
(viii) All the three eyewitnesses were ad idem in regard to the
mode and manner in which the incident had taken place
and the role of the appellant in exhorting Idrish. The
presence of the witnesses was duly established as was the
distance from which they witnessed the occurrence;
(ix)
There was no major discrepancy in the nature of
exhortation,the substance of which was that the deceased
was an enemy who had to be eliminated;
(x)
There was a previous enmity of the appellant with the
deceased. Further, the appellant was the nephew of Idrish;
(xi)
To attract a conviction with the aid of Section 34 of the
IPC, the presence of the appellant with Idrish armed with a
lathi and the role attributed to him of exhorting Idrish to
commit the murder was sufficient;
(xii)
The delay of five and a half hours in lodging the FIR was
attributable to the witnesses fearing the accused, which is
believable in a rural scenario. The police station was also
situated at a distance of 11 kilometres. The occurrence had
taken place at about 5.30 pm on a November evening at
dusk and PW-1 proceeded to lodge the report at 10.30 pm
only after the villagers had assembled. Hence, the delay
was satisfactorily explained; and
(xiii) As
regards the non-examination of the daughter of the
deceased, the IO (PW-6) stated that although he had not
physically inquired the girl regarding her illness, he had made
inquiries that confirmed that she was ill. The testimony of
the IO had not been challenged.
On the above grounds, the High Court dismissed the appeal and
confirmed the judgment of the trial Judge.
8. Leave was granted on 25 January 2021. On 26 February 2021,
the Court was apprised that the Advocate-on-Record who had entered
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an appearance on behalf of the appellant had died on 20 February 2021.
Hence a short adjournment was sought to enable the appellant to engage
another Advocate-on-Record since notice had been issued on the
application for bail. On 15 March 2021, this Court noted that no
appearance had been entered on behalf of the appellant. Accordingly,
the Supreme Court Legal Services Committee (SCLSC) was directed
to engage a panel Counsel to appear on behalf of the appellant. In the
meantime,the proceedings were adjourned by a period of four weeks to
enable the appellant to make arrangements for being represented by a
Counsel of his choice. On 12 April 2021, Mr S Mahendran, who was
appointed by the SCLSC sought and was granted an adjournment to
contact the appellant who was lodged in jail so as to ascertain the wishes
of the appellant. On 26 July 2021, this Court noted that the office report
dated 23 July 2021 indicated that the appellant would engage a Counsel
through his relatives and did not wish to be represented by amicus curiae.
Notice was directed to be issued to the appellant through the
Superintendent of District Jail Banda intimating him that he would be at
liberty to engage a Counsel of his choice within a period of eight weeks.
The Standing Counsel for the State of Uttar Pradesh was directed to
cause a copy of the notice to be served on the appellant through the
Superintendent of District Jail Banda. On 6 October 2021, the Counsel
appointed by the SCLSC
stated that though the appellant had expressed
his desire to engage his own counsel, he had not made any arrangements.
The learned Counsel was therefore permitted to contact the appellant
through video conferencing at the concerned jail. The Superintendent of
the jail was directed to facilitate the video conferencing meeting between
Mr S Mahendran and the appellant. On 17November 2021, the hearing
of the proceeding was adjourned. Despite sufficient opportunities having
been granted to the appellant since 26 February 2021, no Counsel has
been engaged by him and has appeared. We have accordingly heard Mr
S Mahendran, the Counsel nominated by the SCLSC. We may note for
clarity of the record that Mr S Mahendran has argued the case in a
thorough and painstaking manner. During the course of the hearing, he
has ably formulated his submissions and taken the Court through the
relevant part of the evidentiary record.
B Submissions
9. We have heard Mr S Mahendran, Counsel nominated by the
SCLSC for the appellant and Mr Diwakar, Additional Advocate General
GULAB v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(AAG) with Ms Ruchira Goel, learned Counsel for the State of Uttar
Pradesh.
10. Mr S Mahendran, learned Counsel appearing on behalf of the
appellant submits that:
(i)
PW-1 deposed that he was present at the scene of
occurrence since the daughter of the deceased was ill and
he was proceeding to the place of work of the deceased to
inform him of the illness;
(ii)
The daughter of the deceased was not examined at the
trial, which casts doubt on the reason for the purported
presence of PW-1;
(iii)
PW-1 has been planted as a witness, which is evident from
the fact that the FIR which was lodged by him was nearly
five and a half hours after the incident;
(iv)
PW-1 is the younger brother of the deceased while PW-2
and PW-3 are related to him.All three witnesses being
interested, their testimony has to be scrutinized with caution;
(v)
There are material inconsistencies in the depositions of the
three purported eyewitnesses in regard to the position of
the deceased when he was shot. PW-1, in his deposition,
indicated that the deceased was standing. PW2 indicated
that he was shot while he was sitting, while PW3 stated
that the deceased was climbing from the pond;
(vi)
The High Court accepted that there was a variation in the
statement of the witnesses in regard to the nature of the
exhortation given to Idrish by the appellant, but at the same
time 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 there
was prior enmity between the deceased and Idrish because
of which false implication cannot be ruled out;
(viii) The appellant has been convicted under Section 34 of the
IPC but the material on record does not establish a case of
common intent; and
(ix)
Though there was a gunshot injury, no recovery of the
weapon has been made.
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11. On the other hand, Mr Diwakar, learned AAG appearing on
behalf of the State of Uttar Pradesh submitted that:
(i)
The case rests on direct evidence and the non-examination
of two witnesses is irrelevant, once the ocular evidence of
PW-1, PW-2 and PW-3 who are credible eyewitnesses is
accepted;
(ii)
The incident took place at 5.30 pm, while the FIR was lodged
at 10.30 pm on the basis of the written report. The police
station was admittedly situated at a distance of 11 kilometres
from the place of occurrence. There is no delay in lodging
the FIR;
(iii)
The FIR contains a detailed account of the nature of the
incident and spells out the role which is attributed to the
appellant;
(iv)
PW-1, PW-2 and PW-3 are all consistent in their depositions
with respect to the nature of exhortation by the appellant.
During the course of cross-examination, no question was
put to PW-1 to dispute his presence at the scene of
occurrence nor was any question raised regarding the non-
examination of the daughter of the deceased and Majeed
who is alleged to have informed PW-1 of the whereabouts
of the deceased; and
(v)
In the course of the statement under Section 313 of the
Code of Criminal Procedure 19732, the prior enmity with
the deceased was specifically drawn to the attention of the
accused.
12. On these grounds, it has been urged on behalf of the State
that the finding of guilt which was arrived at by the Sessions Judge has
been correctly affirmed by the High Court,
warranting no interference
in appeal.
13. The rival submissions will now be analysed.
C Analysis
C.1  Evidence of ‘interested witnesses’
14. In order to substantiate its case, the prosecution relied upon
the evidence of three eye-witnesses, PW-1 Shabbir, PW-2 Saddu and
2 “CrPC”
GULAB v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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PW-3 Iddu. PW-1, who is the brother of the deceased, stated that on the
day 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 his
daughter. PW-1 was informed by Majeed’s brother – Ahmed that the
deceased had gone towards the pond where he saw the deceased. At
the same time, Idrish and the appellant were proceeding to the spot from
a Masjid. When the deceased stood after cleaning himself, the appellant
exhorted Idrish to kill him, declaring him as an enemy. Idrish fired at
Hanifa with a 0.315 bore pistol.The bullet hit him on his chest and he fell
down and died on the spot. PW-1 stated that the incident was witnessed
by Saddu (PW-2), Iddu (PW-3) and Lallu who were threatened by the
accused before they ran away to the village. PW-1 stated that he did not
immediately visit the Police Station due to the fear of the accused and
eventually lodged his report at 9:30 pm. He also deposed that there was
a fight between the deceased and Idrish about five months ago in which
the deceased was accused of committing an offence under Section 307
of the IPC.
15. During the course of his cross-examination, PW-1 was
questioned in detail about the location of the incident and the position of
the deceased when the bullet had hit him. No material inconsistency or
contradiction has emerged from the evidence of the eyewitness. PW-2
– Saddu specifically deposed
about the proximity of his house from the
pond. He furnished a cogent reason to be present at the pond stating
that he was freshening up at the pond. During his deposition, PW-
2specifically referred to the role and presence of the appellant being
armed with the stick and exhorting Idrish to kill the deceased. PW-3Iddu
has, in similar terms, deposed to the place where the deceased was fired
at. PW-3 stated that he was returning home after freshening up. When
he reached the pond, he saw the appellant encouraging Idrish to kill the
deceased, after which Idrish fired at him and the bullet hit his chest.
Having carefully considered the depositions of PWs 1, 2 and 3, there is
no material inconsistency regarding the nature or genesis of the incident.
All the three witnesses have deposed to (i) the presence of the deceased
near the pond; (ii) the presence of the appellant and Idrish at the place
of occurrence; (iii) the appellant having exhorted Idrish to kill the
deceased; and (iv) Idrishshooting the deceased, as a result of whichhe
sustained 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 the
only witnesses is not sufficient to discredit their cogent testimonies.
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Recently, a two-judge Bench of this Court in Mohd. Rojali v. State of
Assam,3 reiterated the distinction between “interested” and “related”
witnesses. It was held that the mere fact that the witnesses are related
to the deceased does not impugn the credibility of their evidence if it is
otherwise credible and cogent. Speaking for this Court, Justice M M
Shantanagoudar held:
“13. As regards the contention that all the eyewitnesses are close
relatives of the deceased, it is by now well-settled that a related
witness cannot be said to be an “interested” witness merely by
virtue of being a relative of the victim. This Court has elucidated
the difference between “interested” and “related” witnesses in a
plethora of cases, stating that a witness may be called interested
only when he or she derives some benefit from the result of a
litigation, which in the context of a criminal case would mean that
the witness has a direct or indirect interest in seeing the accused
punished due to prior enmity or other reasons, and thus has a
motive to falsely implicate the accused [internal citations omitted].
…….
14. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence on
the scene of the offence would be natural. The evidence of such
a witness cannot automatically be discarded by labelling the witness
as interested. Indeed, one of the earliest statements with respect
to interested witnesses in criminal cases
was made by this Court
in Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab,
1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ 1465] , wherein
this Court observed: (AIR p. 366, para 26)
“26. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relative would be the last to screen the real
culprit and falsely implicate an innocent person.”
15. In case of a related witness, the Court may not treat his or her
testimony as inherently tainted, and needs to ensure only that the
evidence is inherently reliable, probable, cogent and consistent....”
3 (2019) 19 SCC 567
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16. The evidence on the record has been carefully evaluated by
the Sessions Judge as well as the High Court. There is no basis to discredit
the presence of the three eye-witnesses and nothing has been elicited in
the course of the cross-examination to doubt their presence. The non-
examination of the daughter of the deceased who was allegedly unwell
cannot be construed to be a circumstance that is fatal to the prosecution’s
case once the ocular evidence of PWs 1, 2 and 3 is consistent and
credible. The nature of the injuries found to have been sustained by the
deceased is consistent with the account furnished by the eyewitnesses.
C.2  Failure to recover the weapon and examine a ballistic
expert
17. The deceased had sustained a gun-shot injury with a point of
entry and exit. The non-recovery of the weapon of offences would
therefore not discredit the case of the prosecution which has relied on
the eyewitness accounts of PWs 1, 2 and 3. In Sukhwant Singh v.
State of Punjab4, Dr AS Anand (as the learned Chief Justice then was)
speaking for a two-judge Bench held:
“21. There is yet another infirmity in this case. We find that
whereas an empty [sic] had been recovered by PW 6, ASI
Raghubir Singh from the spot and a pistol along with some
cartridges were seized from the possession of the appellant at the
time of his arrest, yet the prosecution, for reasons best known to
it, did not send the recovered empty [sic] and the
seized pistol to
the ballistic expert for examination and expert opinion. Comparison
could have provided link evidence between the crime and the
accused. This again is an omission on the part of the prosecution
for which no explanation has been furnished either in the trial
court or before us. It hardly needs to be emphasised that in
cases where injuries are caused by firearms, the opinion of
the ballistic expert is of a considerable importance where
both the firearm and the crime cartridge are recovered
during the investigation to connect an accused with the
crime. Failure to produce the expert opinion before the
trial court in such cases affects the creditworthiness of the
prosecution case to a great extent.”
(emphasis supplied)
4 (1995) 3 SCC 367
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The above extract which has been relied upon by the learned
Counsel for the appellant emphasises that in a case where injury has
been caused by a firearm, the opinion of the ballistic expert is of
considerable importance where both the firearm and the crime cartridge
had been recovered during the investigation. Failure to produce the expert
opinion in such a case affects the creditworthiness of the prosecution
case.
18. However, a three-judge Bench of this Court, in Gurucharan
Singh v. State of Punjab5, has analysed the precedents of this Court
and held that examination of a ballistic expert is not an inflexible rule in
every case involving use of a lethal weapon. Speaking through Justice P
B Gajendragadkar (as the learned Chief Justice then was), this Court
held:
“41. It has, however, been argued that in every case where an
accused person is charged with having committed the offence of
murder by a lethal weapon, it is the duty of the prosecution to
prove by expert evidence that it was likely or at least possible for
the injuries to have been caused with the weapon with which, and
in the manner in which, they have been alleged to have been
caused; and in support of this proposition, reliance has been placed
on the decision of this Court in Mohinder Singh v. State [(1950)
SCR 821]. In that case, this Court has held that where the
prosecution case was that the accused shot the deceased with a
gun, but it appeared likely that the injuries on the deceased
were
inflicted by a rifle and there was no evidence of a duly qualified
expert to prove that the injuries were caused by a gun, and the
nature of the injuries was also such that the shots must have been
fired by more than one person and not by one person only, and
there was no evidence to show that another person also shot, and
the oral evidence was such which was not disinterested, the failure
to examine an expert would be a serious infirmity in the prosecution
case. It would be noticed that these observations were made
in a case where the prosecution evidence suffered from
serious infirmities and in determining the effect of these
observations, it would not be fair or reasonable to forget
the facts in respect of which they came to be made. These
observations do not purport to lay down an inflexible Rule
5 (1963) 3 SCR 585
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that in every case where an accused person is charged with
murder caused by a lethal weapon, the prosecution case
can succeed in proving the charge only if an expert is
examined. It is possible to imagine cases where the direct
evidence is of such an unimpeachable character and the
nature of the injuries disclosed by post-mortem notes is so
clearly consistent with the direct evidence that the
examination of a ballistic expert may not be regarded as
essential. Where the direct evidence is not satisfactory or
disinterested or where the injuries are alleged to have been
caused with a gun and they prima facie appear to have been
inflicted by a rifle, undoubtedly the apparent inconsistency
can be cured or the oral evidence can be corroborated by
leading the evidence of a ballistic expert. In what cases the
examination of a ballistic expert is essential for the proof
of the prosecution case, must naturally depend upon the
circumstances of each case. Therefore, we do not think that
Mr Purushottam is right in contending as a general proposition
that in every case where a firearm is alleged to have been used
by an accused person, in addition to the direct evidence, prosecution
must lead the evidence of a ballistic expert, however good the
direct evidence may be and though on the record there may be no
reason to doubt the said direct evidence.”
(emphasis supplied)
19. Similarly, a two-judge Bench of this Court in State of
Punjab
v. Jugraj Singh6 had noticed that surrounding circumstances in the
prosecution case are sufficient to prove a death caused by a lethal
weapon, without a ballistic examination of the recovered weapon. The
Court, speaking through Justice R P Sethi, had noted:
“18. In the instant case the investigating officer has categorically
stated that guns seized were not in a working condition and he, in
his discretion, found that no purpose would be served by sending
the same to the ballistic expert for his opinion. No further question
was put to the investigating officer in cross-examination to find
out whether despite the guns being defective the fire pin was in
order or not. In the presence of convincing evidence of two
6 (2002) 3 SCC 234
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eyewitnesses and other attending circumstances we do not find
that the non-examination of the expert in this case has, in any
way, affected the creditworthiness of the version put forth by the
eyewitnesses.”
20. The present case is not one where despite the recovery of a
firearm, or of the cartridge, the prosecution had failed to producea report
of the ballistic expert. Therefore, the failure to produce a report by a
ballistic expert who can testify to the fatal injuries being caused by a
particular weapon is not sufficient to impeach the credible evidence of
the 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 common
intention.—When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him
alone.”
22. The well-established principle underlying the above provisions
emerges from the decision of Justice Vivian Bose in Pandurang, Tukia
and Bhillia v. The State of Hyderabad7 where it was held:
“33. Now in the case of Section 34 we think it is well established
that a common intention presupposes prior concert. It requires a
pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been
done in furtherance of the common intention of them all: Mahbub
Shah v. King Emperor
[72 IA 148 at 153 and 154]. Accordingly
there must have been a prior meeting of minds. Several persons
can simultaneously attack a man and each can have the same
intention, namely the intention to kill, and each can individually
inflict a separate fatal blow and yet none would have the common
intention required by the section because there was no prior meeting
of minds to form a pre-arranged plan. In a case like that, each
would be individually liable for whatever injury he caused but none
could be vicariously convicted for the act of any of the others;
and if the prosecution cannot prove that his separate blow was a
7 1955 SCR (1) 1083
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fatal one he cannot be convicted of the murder however clearly
an intention to kill could be proved in his case: Barendra Kumar
Ghosh v. King-Emperor [72 IA 148 at 153 and 154] and Mahbub
Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say
in the latter case, “the partition which divides their bounds is often
very thin: nevertheless, the distinction is real and substantial, and
if overlooked will result in miscarriage of justice”.
34. The plan need not be elaborate, nor is a long interval of
time required. It could arise and be formed suddenly, as
for example when one man calls on bystanders to help him
kill a given individual and they, either by their words or
their acts, indicate their assent to him and join him in the
assault. There is then the necessary meeting of the minds.
There is a pre-arranged plan however hastily formed and
rudely conceived. But pre-arrangement there must be and
premeditated concert. It is not enough, as in the latter Privy Council
case, to have the same intention independently of each other, e.g.,
the intention to rescue another and, if necessary, to kill those who
oppose.”
(emphasis supplied)
23. In Virendra Singh v. State of Madhya Pradesh8, Justice
Dalveer Bhandari, speaking for a two-judge Bench explained the ambit
of the words “in furtherance of the common intention of all”:
“15. Ordinarily, a person is responsible for his own act. A person
can also be vicariously
responsible for the acts of others if he had
the common intention to commit the offence. The words “common
intention” imply a prearranged plan and acting in concert pursuant
to the plan. It must be proved that the criminal act was done in
concert pursuant to the prearranged plan. Common intention comes
into force prior to the commission of the act in point of time, which
need not be a long gap. Under this section a preconcert in the
sense of a distinct previous plan is not necessary to be proved.
The common intention to bring about a particular result may well
develop on the spot as between a number of persons, with
reference to the facts of the case and circumstances of the
situation. Though common intention may develop on the spot, it
must, however, be anterior in point of time to the commission of
8 (2010) 8 SCC 407
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the crime showing a prearranged plan and prior concert. The
common intention may develop in course of the fight but there
must be clear and unimpeachable evidence to justify that inference.
This has been clearly laid down by this Court in Amrik
Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ
465] .”
24. Emphasizing the fundamental principles underlying Section
34, this Court held that:
(i)
Section 34 does not create a distinct offence, but is a
principle of constructive liability;
(ii)
In order to incur a joint liability for an offence there must
be a pre-arranged and pre-mediated concert between the
accused persons for doing the act actually done;
(iii)
There may not be a long interval between the act and the
pre-meditation and the plan may be formed suddenly.In order
for Section 34 to apply, it is not necessary that the
prosecution must prove an act was done by a particular
person; and
(iv)
The provision is intended to cover cases where a number
of persons act together and on the facts of the case, it is
not possible for the prosecution to prove who actually
committed the crime.
25. These principles have been adopted and applied in another
two judge Bench decision of this Court in Chhota Ahirwar v. State of
Madhya Pradesh9. Justice Indira Banerjee speaking for the two-judge
Bench observed:
“26. To attract Section 34 of the Penal Code, no overt act is needed
on the part of the accused if they share common intention with
others in respect of
the ultimate criminal act, which may be done
by any one of the accused sharing such intention [see Asoke
Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC
660 : (2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the
judgment of the Privy Council in the famous case of Barendra
Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924
SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] , “they
also serve who stand and wait”.
9 (2020) 4 SCC 126
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27. Common intention implies acting in concert. Existence of a
prearranged plan has to be proved either from the conduct of the
accused, or from circumstances or from any incriminating facts.
It is not enough to have the same intention independently of each
other.”
26. In Dhanpal v. State (NCT of Delhi)10, the appellant had
exhorted a co-accused to kill the deceased. The exhortation was not
repeated by the eyewitnesses in identical terms. Further, it was also
alleged that there was no neutral witness since all the eyewitnesses
were related to the deceased and there was a delay in lodging the FIR.
Justice Aniruddha Bose speaking for the twojudge Bench of this Court
observed:
“8. There are sufficient materials, however, to establish that the
three appellants had returned together to the place of occurrence
and attacked the deceased victim with Dhanpal exhorting to kill
Ajay. They had grappled the victim and said Kamal inflicted multiple
injuries on him with the knife. On the basis of evidence disclosed,
the trial court and the High Court found that there was prior meeting
of minds of all the four convicts and all the three appellants had
intention common with that of Kamal. On this point, the ratio of
the judgment of this Court in Asif Khan v. State of Maharashtra
[Asif Khan v. State of Maharashtra, (2019) 5 SCC 210 : (2019) 2
SCC (Cri) 484] is relevant. In an earlier case, Rajkishore Purohit
v. State of M.P.
[Rajkishore Purohit v. State of M.P., (2017) 9
SCC 483 : (2017) 3 SCC (Cri) 749] , it has been held that to
establish common intention to cause murder, overt act or possession
of weapons by all the accused persons is not necessary. In
Richhpal Singh Meena v. Ghasi [Richhpal Singh Meena v. Ghasi,
(2014) 8 SCC 918 : (2014) 6 SCC (Cri) 424] , the ratio is that in
the event the nature of the assault is such that the target person is
likely to die from the injuries resulting therefrom, the accused
must be deemed to have known the consequences of his act.
…..
11. We find the approach of the trial court and the High Court in
appeal was proper in dealing with the discrepancies pointed out
on behalf of the appellants. The delay in registering the FIR has
10 (2020)5 SCC 705
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been explained properly and judgment of conviction cannot fail
for that reason. It is a fact that the eyewitnesses were known to
the deceased and there was no neutral witness. But for that factor
alone we cannot exonerate the appellants, particularly since the
court of first instance and the first appellate court have already
examined the evidence and given their findings in favour of
prosecution. We do not find any error in the judgment of conviction
and order of sentence so far as the appellants are concerned. All
the three appeals are dismissed.”
Recently in Sandeep v. State of Haryana11, a two-judge Bench
of this Court held that an exhortation given by an accused
immediately before a co-accused fired a shot killing the deceased
would prove his involvement in the crime beyond reasonable doubt.
Accordingly, this Court upheld the conviction of the accused under
Sections 302 and 34 of the IPC.
27. The evidence on the record clearly establishes a common
intention in pursuance of which the appellant exhorted Idrish to kill the
deceased. The prosecution is not required to prove that there was an
elaborate plan between the accused to kill the deceased or a plan was in
existence for a long time. A common intention to commit the crime is
proved if the accused by their words or action indicate their assent to
join in the commission of the crime. The appellant reached the spot with
a lathi, along with Idrish who had a pistol. The appellant’s exhortation
was
crucial to the commission of the crime since it was only after he
made thestatement that the enemy has been found, that Idrish fired the
fatal shot. The role of the appellant, his presence at the spot and the
nature of the exhortation have all emerged from the consistent account
of the three eye-witnesses.
D Conclusion
28. In the above facts and circumstances, there is no merit in the
appeal, the appeal shall accordingly stand dismissed.
29. Pending application(s), if any, shall stand disposed of.
11 2021 SCC OnLine SC 642
Divya Pandey
Appeal dismissed.
GULAB v. STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, J.]