Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 779

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
DHANANJAYA Y. CHANDRACHUD, A.S. BOPANNA, VIKRAM NATH, JJ.
Gulab – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal No. 81 of 2021
Decided on : 09-12-2021

Advocates appeared:
For the Appellant(s) :S. Mahendran, Advocate
For the Respondent(s):Ruchira Goel, Advocate

IMPORTANT POINTS
(1) Mere fact that witnesses are related to deceased does not impugn credibility of their evidence if it is otherwise credible and cogent.
(2) A common intention to commit crime is proved if accused by their words or action indicate their assent to join in commission of crime.
(3) Examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon.

Headnote:
(A) Indian Penal Code 1860 – Sections 302/34 – Murder – Common intention – Life sentence – In depositions of PWs, there is no material inconsistency regarding nature or genesis of incident – All three witnesses have deposed to presence of deceased near pond; presence of appellant and his accomplice at place of occurrence and appellant having exhorted his accomplice to kill deceased – Mere fact that relatives of deceased are only witnesses is not sufficient to discredit their cogent testimonies – There is no basis to discredit presence of three eye-witnesses and nothing has been elicited in course of cross-examination to doubt their presence – Non-examination of daughter of deceased who was allegedly unwell cannot be construed to be a circumstance that is fatal to prosecution’s case once ocular evidence of PWs is consistent and credible – Nature of injuries found to have been sustained by deceased is consistent with account furnished by eyewitnesses – Deceased had sustained a gun-shot injury with a point of entry and exit – Non-recovery of weapon of offences would not discredit the case of prosecution which has relied on eyewitness accounts of PWs – Failure to produce a report by a ballistic expert who can testify to fatal injuries being caused by a particular weapon is not sufficient to impeach credible evidence of direct eye-witnesses – Evidence on record clearly establishes a common intention in pursuance of which appellant exhorted his accomplice to kill deceased – Prosecution is not required to prove that there was an elaborate plan between accused to kill deceased or a plan was in existence for a long time – A common intention to commit crime is proved if accused by their words or action indicate their assent to join in commission of crime – Role of appellant, his presence at the spot and nature of exhortation have all emerged from consistent account of three eye-witnesses – Examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon – Appeal dismissed. (Paras 15, 16, 17, 18, 20, 27 and 28)
(B) Indian Penal Code 1860 – Section 34 – Common intention – Section 34 does not create a distinct offence, but is a principle of constructive liability – In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between accused persons for doing the act actually done – There may not be a long interval between the act and pre-meditation and plan may be formed suddenly – In order for Section 34 to apply, it is not necessary that prosecution must prove an act was done by a particular person – Provision is intended to cover cases where a number of persons act together and on facts of the case, it is not possible for prosecution to prove who actually committed crime. (Para 24)
Facts of the case:
Present appeal arises from a judgment and order dated 19 June 2020 of Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No. 2172 of 1991. The appeal before High Court arose from a judgment and order dated 13th November 1991 of Sessions Judge Banda in Sessions Trial No 266 of 1990 (State Govt v. Idrish and Gulab). Idrish was convicted of an offence punishable under Section 302 of Indian Penal Code 1860. 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 appeal.
Findings of Court:
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.
Result : Appeal dismissed.

Judgement Key Points

Key Points: - The appellant’s conviction under IPC sections 302/34 based on common intention and exhortation to kill was upheld; the evidence of three eye-witnesses, though related, was held credible and consistent regarding presence, exhortation, and the act of killing (!) (!) (!) (!) (!) . - The absence of a ballistic expert report or weapon recovery does not by itself render the eyewitness testimony unreliable or defeat conviction under Section 34; appellate court discussed governing precedents on the necessity (or not) of ballistic evidence in such cases (!) (!) (!) (!) . - Section 34 does not create a separate offense but provides vicarious liability for acts done in pursuance of common intention; existence of prior concert or on-the-spot development of common intent may suffice for conviction, with pre-arranged plan not always necessary (!) (!) (!) (!) (!) (!) (!) . - The appellant’s role as the exhorter, his presence at the scene, and the nature of the exhortation were found to establish common intention and his liability; delay in FIR and the clan/relatives status of witnesses were considered not fatal to the prosecution’s case (!) (!) (!) (!) (!) (!) (!) (!) (!) . - Higher Courts cited: Mohd. Rojali; Dalip Singh; Virendra Singh; Dhanpal v. State (NCT of Delhi); Sandeep v. State of Haryana; and others to articulate when ballistic evidence is essential versus when direct eyewitness testimony suffices (!) (!) (!) (!) (!) (!) (!) . - Conclusion: No merit in the appeal; conviction under Sections 302/34 upheld; sentences remain; guidelines on examination of ballistic evidence and common intention reiterated (!) .

Question 1?

JUDGMENT :

A. Introduction .................................................................................................... 3
B Submissions ....................................................................................................... 10
C 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 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 No 266 of 1990 (State Govt v. Idrish and Gulab). Idrish was convicted of an offence punishable under Section 302 of the Indian Penal Code 1860¹[“IPC”]. 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:

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, 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 submitte