LexGULAB versus STATE OF UTTAR PRADESH
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A B C D E F G H 678 SUPREME COURT REPORTS [2021] 9 S.C.R. [2021] 9 S.C.R. 678 678 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 . A B C D E F G H 679 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 A B C D E F G H 680 SUPREME COURT REPORTS [2021] 9 S.C.R. no material inconsistency regarding the nature or genesis of the incident. All the three witness
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