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REPORTABLE

IN THE  SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2180  OF  2009

HARI  SHANKERS       ...APPELLANT

:VERSUS:

STATE  OF  UTTAR  PRADESH       ...RESPONDENT

JUDGMENT

Pinaki Chandra Ghose,  J.

1. This criminal appeal arises from the final order and judgment dated

20.07.2007 of the Allahabad High Court in Criminal Appeal No.2511 of

1985.  By  the  impugned  judgment  the  High  Court  while  allowing  the

appeal  qua  three  accused  persons  and  acquitting  them,  confirmed  the

conviction of the present appellant. The Additional Sessions Judge, after

trial,   had convicted the four accused persons,  namely,   Hari  Shanker,

Vijay  Shanker,   Man  Mohan  and  Ram  Bharosey  for  the  offences

punishable under Section 302 read with Section 34 of the Indian Penal

Code, 1860 (‘IPC’ for short) and sentenced them to rigorous imprisonment

for life.

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FACTS

2. The case of the prosecution as per the complaint is that on 28.09.1983

at about 6:30 am,  Shiv Shanker (the deceased) along with Uma Shanker

(PW2)  and  Ram Asrey  had gone  to  the  pond  near  Village  Bhijauli,  to

attend  nature's  call.  When  they  were  returning  home  after  easing

themselves,  four accused persons, namely Hari Shanker,  Vijay Shanker,

Man Mohan and Ram Bharosey confronted them and threatened to kill

Shiv Shanker.  Hari Shanker was carrying a licensed pistol while the other

three  were  carrying  country-made  pistols.  Hari  Shanker,  who  is  the

appellant in the present case, fired first shot from his pistol which hit Shiv

Shanker on his right hand's  wrist.  Shiv Shanker tried to run away but

Ram Bharosey caught hold of him by his waist. Vijay Shanker asked Ram

Bharosey  to  release  him  and  as  soon  as  Ram  Bharosey  released  the

deceased, Vijay Shanker shot at the deceased and he fell down. Thereafter,

the Ram Bharosey and Man Mohan also fired at the deceased.  On hearing

the sound of fire shots the complainant Amar Nath Mishra, father of the

deceased,  Girija  Shanker,  brother  of  the  deceased  and  one  Ram Ratan

Yadav rushed to the place of occurrence. They saw the accused persons

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running away from the place of occurrence and shouting “we have taken

the revenge”. The complainant noticed that Shiv Shanker had died due to

the  gun shot  injuries.  Thereafter,  Uma Shankar  and Ram Ashrey gave

details of  the incident  to the Complainant,  father of the deceased, who

thereafter went to the police station and lodged the report.  

3. The motive as alleged in the present case is that about one year prior

to the incident, there was a dacoity at the house of the Vijay Shanker in

which  Kripa  Shanker,  brother  of  Vijay  Shanker  was  killed  and  Shiv

Shanker,  Amar  Nath  Mishra  and  three  other  persons  were  arrayed  as

accused persons in that incident and trial was pending against them. It is

alleged that the appellant Hari Shanker along with other accused persons,

committed murder of Shiv Shanker to take revenge of the earlier incident

of dacoity and murder.  

EVIDENCE

4. During  the  trial,  the  prosecution  produced  Amar  Nath  Mishra

(PW1), Uma Shanker (PW2), Dr. D.N. Giri (PW3 - who proved the post

mortem report),  Head Constable  Vidya Sagar Mishra (PW4),  S.I.  Surya

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Kunwar Singh (PW5 - first investigating officer) and S.I. Rangnath Shukla

(PW6  -  second  investigating  officer).  However,  the  defence  did  not

produce any witness.

5. PW1,  who  is  the  father  of  the  deceased,  agreed  that  he  did  not

witness the incident but saw the accused persons running away with the

weapons  while the deceased lay on the ground with wounds and injuries.

It  has  come  out  on  record  that  he  had  reached  the  police  station  for

lodging FIR at around 8:30 am on the day of the incident, but the FIR was

registered at 11:45 am. To this, PW1 has explained that he had gone to the

police station with a written FIR but the police made him wait for 3 hours

before registering the FIR. Also, there is  a GD Entry No. 17 in the General

Diary of the concerned Police Station at 8:55 am according to which the

complainant along with the Village Pradhan and other villagers had come

to the police station and informed that at  around 6:00-6:30 am, his son

Shiv Shanker had been murdered by Hari  Shanker and Ram Bharosey.

This GD Entry No. 17 does not name the other two accused persons. PW2,

who  was  an  eye  witness,  has  deposed  that  he  and  Ram  Asrey  were

walking behind the deceased going back home from the pond after easing

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themselves  in  the morning.  It  is  at  that  time the four  accused persons

came, of whom present appellant Hari Shanker was armed with a licensed

pistol  while  the  other  three  carried  country-made  pistols.  He  further

deposed that appellant fired shot from his pistol at the deceased which hit

at his right hand wrist and deceased tried to run away. Ram Bharosey

caught  hold  of  him  to  stop  him  from  running.  On  Vijay  Shanker's

insistence,  Ram Bharosey released  the accused at  which Vijay  Shanker

shot  the deceased at  the abdomen from very close range.  PW2 further

deposed that he did not see whether the shots fired by other two accused

hit the deceased or not. He further explained in his deposition that he was

scared on seeing the accused carrying weapons and,  therefore,  did not

come for help of the deceased. The statement of PW2 was recorded by the

police after 23 days of the incident. However, this delay is explained by

the prosecution by giving reason that soon after the incident, PW2 had

gone out of station and was not available to give the statement.  

6. PW3  being  the  doctor  who  conducted  the  autopsy,  proved  the

post-mortem report wherein two gunshot injuries were found on the body

of the deceased;  one on the right hand wrist and other on the thoracic

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abdominal cavity. PW4 is a constable who has stated that the complainant

Amar Nath Mishra had come to the police station at 8:35 am soon after the

incident and had told that Hari Shanker and Ram Bharosey killed his son.

But allegedly, the complainant refused to lodge a complaint at that time

because  his  nephew was  taking an  advice  from an advocate  and only

thereafter, he would lodge a complaint with the police. This statement of

the complainant was sought to be proved by the GD Entry No.17 dated

28-09-1983 of the police station.

JUDGMENT OF SESSIONS JUDGE

7. The learned Sessions Judge after  appreciating the evidence found

that the motive was not properly explained by the prosecution since the

trial  of  an earlier  incident  of  dacoity and murder of  Kripa Shanker,  in

which  the  deceased  and  the  present  complainant  were  accused,  was

pending.  So it was not probable that pending the trial, the accused would

take the revenge.  However, the learned Session Judge held that lack of

motive is of no consequence in this case as there is direct evidence of PW2.

The  learned  Sessions  Judge  found  that  merely  because  the  relations

between the accused and PW2 were inimical, the testimony of PW2 cannot

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be discarded. Further, the learned Sessions Judge accepted the explanation

for delay in recording the statement of PW2 by the Police that PW2 was

out of station and thus, not available to give the statement. He also found

that  the  GD  entry  No.17  of  28-09-1983  was  not  proved  by  the  author

himself and thus was not considered as ‘good evidence’. Thus, the learned

Sessions Judge accepted the complainant's version that he had reached the

police station at around 8.30 am but was kept waiting by the police there

for  three  hours  before  the  FIR  was  registered.   On these  findings,  the

learned Sessions Judge found all  the four accused guilty of the offence

under Section 302 read with Section 34 of IPC.

IMPUGNED JUDGMENT (HIGH COURT)

8. The High Court analysed the evidence and relied on the GD entry

No. 17 of 28-09-1983 wherein the complainant had named only appellant

Hari Shanker and Ram Bharosey. This statement further supported by the

fact  that  only  two  gunshot  wounds  were  found  on  the  body  of  the

deceased,  shows that there were two persons only. However, the High

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Court noted that the second gunshot wound as per PW2 was struck by

Vijay Shanker and not by Ram Bharosey. Relying on these circumstances,

the High Court acquitted Vijay Shanker, Man Mohan and Ram Bharosey,

giving them the benefit of doubt. But at the same time it found that the

evidence against the present appellant Hari Shanker was clinching as the

gunshot  fired  by  him  hit  the  wrist  of  the  deceased,  as  has  been

categorically stated by PW2 and also corroborated by medical evidence.

Thus,  the  High  Court  maintained  the  conviction  and  sentence  of  the

present appellant under Section 302 read with Section 34 of IPC.  

9. This  appeal  has  been  preferred  by  Hari  Shanker  against  the

impugned  judgment  of  the  High  Court  upholding  his  conviction.  The

State  has  not  filed  any  appeal  against  the  acquittal  of  the  other  three

accused.  Therefore,  we  will  limit  ourselves  to  the  conviction  of  the

appellant only.

SUBMISSIONS

10. We have heard the learned counsel appearing for both the parties.

The appellant has raised following grounds in the appeal:

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(i) The High Court found contradiction in the FIR and the GD

Entry  No.17  and  disbelieved  material  evidence  of  the

prosecution, yet it upheld conviction of the appellant.  

(ii) The statement of PW2 cannot be relied on as his testimony was

recorded 23 days after the incident. The prosecution has failed

to give proper explanation for this delay as no proof of PW2

being out of station or date of his leaving the village and date

of returning have been brought on record. Including PW2 as a

witness,  clearly seems to be an afterthought as he would have

supported the case of prosecution due to enmity against the

appellant.

(iii) No  independent  witness  was  brought  forward  by  the

prosecution. Even though Ram Asrey is allegedly another eye

witness, he is not examined. Similarly Girija Shanker and Ram

Ratan Yadav, who came running along with the complainant

Amar Nath, were not examined although they were material

witnesses in the present case. Moreover, the incident allegedly

occurred  near  Harijan  Basti  from  where  other  independent

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witnesses could have been produced.

(iv) There has been no recovery of the weapons which have been

alleged to have been used by the accused.

(v) That  when  all  other  co-accused  have  been  acquitted,  the

conviction of the appellant under Section 302 read with Section

34 of  IPC, is unsustainable as there seems to be nobody to

share the common intention with the appellant. Further, even

as per the case of the prosecution, the alleged gunshot fired by

the appellant hit only the right hand wrist of the deceased and

he could not have died due to that injury.

11. The appellant also relied on the following judicial precedents:

(a)  Krishna Govind Patil v. State of Maharashtra, 1964 (1) SCR 678 -  In

this  case out of four accused persons convicted under Section 302 read

with  Section  34,  three  were  acquitted  by  the  High  Court  giving  them

benefit of doubt while the conviction of one acccused was maintained. This

Court  found  it  to  be  a  mutually  destructive  finding  and  held  that  the

appellant could not have been convicted with the aid of Section 34 without

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anybody else to share intention with.  

(b) Baul and Anr.  v. State of Uttar Pradesh, 1968 (2) SCR 450 - In this case

three accused persons were convicted under Section 302 read with Section

34 by the Trial Court. On appeal, the High Court acquitted one person,

altered the conviction of other to Section 325 and Section 109 and for third

accused, his conviction was altered to Section 302 simplicitor. This Court

found that where the common intention has not been proved, each injury

must be proved and attributed to the particular accused. On this reasoning

the Court found that the injury of appellant accused who was convicted by

High Court for murder simplicitor could not have caused the death of the

deceased but only a grievous hurt. Thus, the Court altered the conviction

from Section 302 to Section 325.

(c)  Maina Singh v. State of Rajasthan, 1976 (2) SCC 827 - In this case as

well this Court found that when all other co-accused had been acquitted,

the conviction of appellant could not be maintained under Section 34. His

role has to be ascertained individually in such a case and his guilt would

be accordingly determined.

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(d) Subran alias Subramanian and Ors. v. State of Kerala, 1993 (3) SCC 32

- In this case question raised was whether the accused when not charged

for a substantive offence, can he be convicted under the same? It was not a

case where the appellant was convicted under Section 34 alone. Also the

case was one of unlawful assembly in this case. Thus, the controversy in

this case is not same as the one at hand.

(d) Noor alias Nooruddin v. State of Karnataka, 2007 (12) SCC 84 - In this

case as well, the Supreme Court found that where co accused persons are

acquitted, conviction under Section 34 is not sustainable. However, if by

evidence  the  individual  role  of  the  appellant  is  proved,  he  could  be

convicted for a substantive offence.

12. The  learned  counsel  for  the  State  has  submitted  following  two

judgments for our consideration:

(a)  Harshadsingh Pehelvansingh  Thakore  v.  State  of  Gujarat, 1976  (4)

SCC 640 - This Court held that in a case where a brutal and fatal assault is

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made by multiple persons on the deceased with many injuries, it is not

permissible to dissect the serious injuries with the non serious ones. In this

case as well, the co-accused were acquitted by Sessions Court or the High

Court. This Court rejected the argument that Section 34 cannot be invoked

to convict a single person. While doing so this Court noted:

“Counsel  also argued that  since three out  of  four accused have secured acquittal  the  invocation  of  Section  34  is  impermissible. The flaw in this submission is obvious. The Courts have given the benefit of the doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that  even if  some out  of  several  accused  are  acquitted  but  the participating presence of  a plurality of  assailants  is  proved,  the conjoint culpability for the crime is inescapable.”

However, the difference between the cited case and the present case is

that the role of the appellant accused is determined in the present case

while it  was a question of fact unanswered in Harshadsingh Thakore's

case.  

(b)  Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1 SCC 519 - In

this case, the Court found that the principle of vicarious liability does not

depend on the necessity to convict requisite number of accesed persons; a

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wrong and erroneous acquittal of co-accused, even though irreversible if

no appeal is preferred, will not operate as a bar in recording constructive

liability  of  the  co-accused  when  the  concerted  action  stands  proved.

However, the Court was prompt to distinguish other judicial precedent

where conviction of a lone person under Section 34 is held unsustainable

as  in  those  cases,  there  was  no  finding  of  an  erroneous  acquittal  of

co-accused persons.

REASONING AND CONCLUSION

13. In the present case, there is concurrent findings of conviction of the

appellant by the Sessions Court and the High Court on the basis of the

statement  of  eye  witness  (PW2)  and  its  corroboration  by  the  medical

evidence. In view of the submissions made by the learned counsels for

both the  parties,  we find  that  since  the  acquittal  of  all  co-accused has

become final, the conviction of the appellant under Section 34 becomes

unsustainable.  This  is  the  established  law  as  has  been  elucidated  in

various judicial precedents discussed above. The two cases cited by the

counsel for the State have been distinguished above already. However, in

view of the authorities cited, we have to determine the individual role of

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the  present  appellant  and  accordingly  find  out  if  he  is  guilty  of  any

offence. In doing so, we find there is sufficient ocular evidence to the fact

that the present  appellant had fired the first  shot which landed on the

wrist  of  the deceased.  This  fact  is  further  corroborated by the  medical

evidence as per which a gunshot injury is found at the right hand wrist.

The submission of the learned counsel for the appellant that the evidence

of PW2 is not acceptable as Section 161 Cr.P.C. statement was recorded

very late and is not worthy enough. PW2 has given a reason that he was

out  of  station  for  days  after  the  incident.  There  has  neither  been  any

effective cross examination of PW2 by the defence on this point. Further,

the contradiction between FIR and the GD entry was not in relation to the

role of the appellant and thus, he may not get any benefit out of it. Also,

although the weapon attributed to the appellant by which he made the

shot has not been recovered; this should not be fatal to the case of the

prosecution. The only contention of the appellant left to be addressed is

that there was no independent witness brought forth by the prosecution.

We find this alone cannot be a ground for acquittal in view of the evidence

available.

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14. Thus, the role attributed to the appellant becomes proved. He made

a gunshot which caused an injury on the right hand wrist of the deceased.

Without  doubt,  this  injury  could  not  have  caused  the  death  of  the

deceased,  Therefore,  we  are  of  the  opinion  that  the  High  Court   was

misplaced in maintaining the conviction of the present appellant under

Section 302 of IPC.  We therefore, alter the conviction of the appellant to

one under Section 326 of  the Indian Penal  Code,  1860. We accordingly

sentence him to 10 years rigorous imprisonment under Section 326 of the

Indian Penal Code. The impugned judgments passed by the High Court as

also  by the Sessions  Court  are  accordingly modified qua the  appellant

herein and this appeal is allowed to the above extent.  

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (R.K. Agrawal)

New Delhi; April 28, 2015.