Non-Recovery Of Weapon Of Offence Would Not Impeach Prosecution Case Which Relies On Credible Direct Evidence: Supreme Court

A bench comprising Justices DY Chandrachud, AS. Bopanna and Vikram Nath dismissed an appeal filed by an accused challenging the order of Allahabad High Court affirming his conviction under Section 302 read with Section 34 of the Indian Penal Code ("IPC") and sentence of life imprisonment.

Factual Background

The deceased and one Idrish (accused who died during the pendency of appeal before High Court) were alleged to have been involved in a fight. The complainant, the brother of the deceased claimed that on the fateful day, a bitter Idrish had fired at the deceased, after the Appellant exhorted Idrish saying "enemy has been found". Allegedly, the deceased succumbed to the injury caused by the bullet that had hit his chest. The complainant, who was an eyewitness to the incident, was on his way to call the deceased because his daughter was unwell. Upon autopsy, the cause of death was opined to be shock and haemorrhage from the gunshot injury. At the trial, the prosecution examined three witnesses, including the complainant, who were all related to the deceased. The Sessions Judge, Banda convicted Idrish under Section 302 and the Appellant under Sections 302 and 34, sentencing both to imprisonment for life. An appeal was filed by both the accused. Idrish died during the pendency of the appeal. The High Court dismissed the appeal against the Appellant.

Contentions raised by the Appellant

Mr. S Mahendran (nominated by Supreme Court Legal Services Committee) appearing on behalf of the Appellant argued that the daughter of the deceased not being examined casts doubt on the reason for the complainant's presence at the purported scene of the crime. The delay in filing FIR was also questioned by the Appellant. Another submission made was with respect to the credibility of the three witnesses, considering the contradiction in their depositions and the fact that all were related to the deceased. The Appellant had further averred that there was no material on record to establish common intention. Moreover, the weapon of offence remained unrecovered.

Contentions raised by the State

Mr. Diwakar, Additional Advocate General along with Ms. Ruchira Goel, appearing on behalf of the State of Uttar Pradesh submitted that the case is made out of direct evidence and non-examination of two witnesses would not take away the credibility of the testimonies of the other witnesses. It was further argued that there was no substantial delay in lodging the detailed FIR, given the time and the distance between the place of occurrence and the police station. The State also argued that the depositions were cogent and consistent.

Observations made by the Supreme Court

Evidence of 'interested witnesses'

The Court reiterated the well-settled law that the mere fact that all the three witnesses in the case were related to the deceased is no reason to discredit their otherwise coherent testimony. Citing Mohd. Rojali v. State of Assam (2019) 19 SCC 567, the Court drew a distinction between "interested" witness and "related" witnesses. Finding no basis to discredit the presence of the eye-witnesses, the Court noted that the non examination of the daughter of the deceased would not be crucial in the facts of the case.

Failure to recover the weapon and examine a ballistic expert

The Court observed it was evident from the point of entry and exit that it was a gun injury. In view of the same, it stated, the non-recovery of the weapon of offence would not affect the creditworthiness of the case of the prosecution, which is based on the cogent accounts of eye-witnesses. Placing reliance on Gurucharan Singh v. State of Punjab (1963) 3 SCR 585, State of Punjab v. Jugraj Singh (2002) 3 SCC 234, the Court held that failure to produce evidence of a ballistic expert would be no reason to doubt the testimonies of the credible eye-witnesses.

"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."

Common intention under Section 34 of the IPC

Referring to the trite law in Pandurang, Tukia and Bhillia v. State of Hyderabad 195 SCR (1) 1083, Virendra Singh v. State of Madhya Pradesh (2010) 8 SCC 407 and Chhota Ahirwar v. State of Madhya Pradesh (2020) 4 SCC 126, the Court culled out the ingredients of Section 34. The Court cited Dhanpal v. State (NCT of Delhi) to point out that in that case, even when the exhortation had been described by witnesses in non-identical terms; all witnesses were related and FIR was delayed, the Supreme Court refused to exonerate the accused. Relying on Sandeep v. State of Haryana 2021 SCC OnLine SC 642, the Court upheld the conviction of the Appellant under Section 34 for common intention stating -

"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 the statement that the enemy has been found, that Idrish fired the fatal shot."

[Case Title: Gulab v. State of Uttar Pradesh, Criminal Appeal No. 81 of 2021]

Citation : LL 2021 SC 724

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