A three-Judge Bench of the Supreme Court comprising of Dr. Dhananjaya Y Chandrachud J., A.S. Bopanna J. and Vikram Nath J. have held that in a case where firearm or cartridge has not been recovered, 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.

The Trial Court had convicted one, Idrish under Section 302 IPC while one, Gulab was convicted under Section 302 read with Section 34 IPC. He was sentenced to imprisonment for life. Idrish died during the pendency of the appeal. The High Court dismissed the appeal against the judgment of the Trial Court. Hence, an appeal was preferred before the Supreme Court by Gulab.

Mr. S. Mahendran, Counsel nominated by SCLSC, represented the appellant while Mr. Diwakar, AAG with Ms. Ruchira Goel advanced submissions on behalf of the State of Uttar Pradesh.

Factual Matrix: -

As per the written report of PW-1, one, Hanifa, who was the brother of PW-1, had proceeded to a pond after work to wash up. PW-1 went to call Hanifa since his daughter had taken ill. Idrish, who was armed with a country-made pistol along with the appellant/Gulab, reached there from the side of Idgaah. The appellant/Gulab was alleged to have exhorted Idrish stating "enemy has been found". Idrish fired at Hanifa. As a result, Hanifa died. The cause of death was opined to be shock and hemorrhage as a result of ante mortem gunshot injury.

The Court examined the evidence on record and noted that during cross-examination of PW-1, he was questioned in detail about the location of the incident and as to where the deceased was positioned when the bullet had hit him. The Court noted that no material inconsistency or contradiction had emerged from the evidence of the eyewitnesses.

The Court noted that it was well-settled that merely because the relatives of the deceased were the only witnesses – the same is not sufficient to discredit their cogent testimonies. The Court relied on Mohd. Rojali v. State of Assam, (2019) 19 SCC 567 wherein it was reiterated that there was a difference between "interested" and "related" witnesses. The Court noted that mere fact that witnesses are related to the deceased does not impugn the credibility of their evidence, the same being credible and cogent otherwise. The Court noted that in the instant case, there was no basis to discredit the presence of the eyewitnesses, and nothing was elicited during the cross-examination in order to doubt their presence.

The Court noted that as the deceased had sustained a gun-shot injury with a point of entry and exit, the fact that the weapon was not recovered would not discredit the case of the prosecution. The Court relied upon Gurucharan Singh v. State of Punjab, (1983) 3 SCR 585 wherein it was held that examination of a ballistic expert is not an inflexible rule in cases involving use of a lethal weapon.

The Court held that the failure to produce a report by a ballistic expert, who could testify to the fatal injuries, is not sufficient to impeach the credible evidence of the direct eyewitnesses.

The Court, then, proceeded to deal with the issue concerning common intention under Section 34 of the IPC. The Court relied upon the principles summarized in Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407 and observed as follows:-

"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."

The Court noted that the evidence on record clearly demonstrated a common intention in pursuance of which, Gulab, i.e., the appellant had exhorted Idrish to kill the deceased. The Court also observed that the prosecution was not required to prove that there existed an elaborate plan between the accused to kill the deceased or there was a plan that was in existence for a long time.

According to the Court, a common intention to commit the crime is proved when the accused, by his words or action indicates his assent to join in the act of commission of the crime. The Court noted that Gulab had reached the spot in question with a lathi along with Idrish who had a pistol.

The Court noted that Gulab's exhortation was critical to the crime being committed as it was only when he made the statement that enemy had been found, that Idrish had fired the bullet. The Court noted that the role of Gulab, coupled with his presence at the spot and nature of exhortation, had all emerged from the accounts given by the eyewitnesses which were consistent.

With respect to failure to recover weapon, the Court held that in view of clear gun shot injury and eye witness accounts, non recover of weapon is not fatal. With respect to the prosecution not examining a ballistic expert, the Court held that, "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".

Hence, the Court dismissed the appeal.

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