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 coaccused 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 eyewitnesses – 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 relied upon the evidence of three eye-witnesses, PW-1, PW-2 and PW3. 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 (PW2, 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, PW1 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 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 crossexamination 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.
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 premediated 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] 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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