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REPORTABLE

        IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO.1159 OF 2007

HARI SHANKAR SHUKLA Appellant(s)

       Versus

STATE OF U.P.  Respondent(s)

 W I T H

 CRIMINAL APPEAL NO.655 OF 2017   (Arising out of S.L.P.(Crl.) No.2869 of 2017)          (CRL.M.P. NO. 932 of 2008)

   (for permission to file SLP)  

SAVITRI DEVI        Petitioner        Versus

STATE OF U.P. AND OTHERS        Respondents

J U D G M E N T

R.F. NARIMAN,J.

1. Permission to file the special leave petition in Criminal  Miscellaneous  Petition  No.  932  of  2008  is

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granted. 2. Delay condoned. 3. Leave granted. 4. The present cases arise out of a death that was caused on 11th July, 1992.  The father and mother of the deceased,  both  injured  eye-witnesses  and  the  accused persons were residents of village Mamkhor.  It appears that there was a dispute between the parties regarding land.  It was alleged that the accused persons, three in number, had made an encroachment on a part of Sehan land of the injured eye-witnesses and had placed cattle troughs there.  At about 6.00 a.m., it was alleged that the accused perons were heaping earth on the southern side of the cattle troughs and were collecting bricks. The daughter of PW-4, one Kumari Bindu, informed her father about the encroachment being made by the accused persons on the Sehan land.  At this point, both PW-3 and  PW-4  came  out  of  the  house  and  questioned  the accused persons as to why they were putting soil on the land.  On this, an altercation between the two sides took place.  One of the accused, Gulab Shukla, exhorted his associates to assault PW-4.  At this point, after this incident, the story diverges.  According to one version, Hari Shankar Shukla, who is accused No.3 and

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the petitioner in the special leave petition before us, gave  a  phawra  blow,  whereas,  according  to  another version  Gulab  Shukla  gave  the  said  blow  to  the deceased.  In any case, it appears that there was a scuffle between the parties, at which point, accused No.3 went back to his house and came out with a country made pistol.  At this point, PW-1, a family member, PW-3 and PW-4 all stated that this particular accused fired one bullet from the country made pistol, which caused  the  fatal  death  of  Umesh  Shukla.   As  stated hereinabove,  PW-1,  PW-3  and  PW-4  were  eye-witesses, PW-3 and PW-4 being injured eye-witnesses.  After going into the evidence in some detail and after finding the First  Information  Report,  which  was  filed  by  PW-2 Chowkidar doubtful, the trial Court went into various contradictions  between  the  three  eye-witnesses  and arrived at a conclusion that in any case PW-1 could not be relied upon at all.  PW-3 and PW-4 were injured eye-witnesses but their version being discrepant, could not be relied upon. Finally, the trial Court concluded as follows :-

“Thus, the three witesses have given three different versions about the starting of the alleged marpit.  According to Mahendra Shukla PW-1, Gulab caught hold of Jagdish and Hari  Shankar  inflicted  phawra  blows.   As

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against  it  Savitri,  PW-3  has  stated  that Gulab inflicted Kudal blows on the head of Jagdish Narain.  However, statement of both the witnesses also contradictory on the point of situation, in which phawra blow was given. Third  witness  Jagdish  Narain,  PW-4  stated that Hari Shankar and Gulab both inflicted phawra  blows.   Not  only  this,  PW-1,  has further stated that, all the three accused were  armed  with  phawra  and  they  all  gave phawra blows hitting Jagdish Narain.  Thus the number of Phawra the persons inflicting phawra  or  Kudal  are  different  in  the statement  of  different  witnesses.   This further  makes  the  prosecution  story  highly doubtful.”

5. The trial Court went on to state that, after going through the entire evidence, the incident itself was doubtful, and also commented on the fact that there was some semi-digested food in the stomach of the deceased. The medical evidence shows that  it was 2 to 3 hours in the stomach before the deceased was fired upon, and this  showed  that  the  incident  could  not  have  taken place at 6.00 a.m. at all.  On this footing, the trial Court acquitted all the three accused before it. 6. In an appeal filed by the State, the High Court convicted the accused No.3, the SLP petitioner before us under Section 304 Part-I of the Indian Penal Code for  the  death  of  Umesh  Shukla;  Section  307  for  the unsuccessful murder attempt on Savitri Devi PW-3, who is  the  appellant  before  us  under  Section  323  and

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sentenced the accused to 10 years rigorous imprisonment under  Section  304  Part-I,  three  years  rigorous imprisonment under Section 307 and six months rigorous imprisonment  under  Section  323  together  with  fine. The other two accused, with whom we are not concerned, were sentenced under Section 323 of the Indian Penal Code for six months. 7. Shri  Amerendra  Sharan,  learned  senior  counsel appearing on behalf of the appellant, has argued before us that the trial Court's judgment is a well reasoned judgment  of  acquittal,  and  this  being  so,  the  High Court  ought  not  to  have  interfered,  as  there  was nothing perverse about the said judgment.  According to him, the High Court made a couple of serious errors. For example, X-Ray reports, which were not exhibited before the trial Court, were relied upon in order to demonstrate  that  there  were  injuries  on  the  injured eye-witnesses.  He  also  stated  that  the  various discrepancies pointed out by the trial Court were not dealt  with  by  the  High  Court  and  the  High  Court, therefore, should not have interfered with this well reasoned judgment.  In any event, according to learned senior counsel, even if we were to agree with the High Court, ultimately, the incident having taken place many

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many years ago and the appellant having served only nine months of the sentence imposed, at this point of time, even if convicted, the jail sentence should not be imposed but additional fine be imposed instead. 8. Learned counsel appearing on behalf of the State has argued  in  support  of  the  High  Court's  judgment. According  to  the  learned  counsel,  the  single  most important event is the shooting of the deceased Umesh Shukla  by  the  appellant  before  us.    On  this,  as correctly pointed out by the High Court, there is no discrepancy between PW-1 and PW-3 and PW-4, who are injured eye-witnesses in the matter.  All three state that the appellant before us, after the scuffle, went back to his house, took out a pistol, and shot one bullet,  and  it  is  to  this  bullet  that  the  deceased Umesh Shukla ultimately succumbed.  He also went into the High Court judgment in some detail, and said that some  of  the  discrepancies  pointed  out  by  the  trial Court were dealt with by the High Court and that the High Court Judgment, being well considered and the fact that the appellant before us is only convicted under Sections  304  Part-1/307/323,  this  should  not  be disturbed.

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9. We  have  also  heard  learned  counsel  appearing  on behalf of the injured eye-witness PW-3, Savitri Devi, who was the mother of the victim.  Shri Sharan raised a preliminary objection stating that she had not appealed against  the  judgment  of  the  trial  Court  dated  20th

October, 1995 and hence should not be heard at all. According to us, this being a technical objection, it is only by the 2009 amendment to Section 372 of the Criminal  Procedure  Code  that  persons  like  PW-3  have also been granted the right to appeal.  Obviously, this provision not being there in 1995, PW-3 could not , at that point of time, have filed an appeal.  We have heard learned counsel for PW-3, and he has supported what the State Counsel has argued. 10. We are in broad agreement with the judgment of the High Court for the basic reason that the High Court has specifically found that all the eye-witnesses produced by the prosecution have clearly stated that it was the appellant and the appellant alone, who opened fire from the main door of his house, and it is this bullet that hit  Umesh  Shukla  that  ultimately  caused  his  death. Here, the High Court, appears to be correct, and the very fact that all the three eye-witnesses, two of them being  injured  eye-witnesses,  have  given  the  same

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evidence,  as  to  this  vital  act  on  the  part  of  the appellant shows that the High court judgment cannot be reversed in appeal.  We may add that the trial Court judgment does not advert to this at all, but instead adverts to other discrepancies, all of which relate to the scuffle that took place between the parties, after which the pistol was fired by the appellant, on which there  is  no  discrepancy,  as  has  been  held  above. Ultimately, the High Court holds as under :-

“The  culpable  homicide  has  been defined under section 299 IPC according to which, “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as  is  likely  to  cause  death,  or  with  the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”   The  culpable  homicide  is punishable  under  Section  304  IPC.   The respondent  Hari  Shankar  Shukla  was  thus, responsible  for  culpable  homicide  of  Umesh Shukla which did not amount to murder and in doing so, the other co-accused Gulab Shukla and Budhi Shukla had no common intention, but when all the three accused persons were doing mar  peet  with  phawra  and  brick  bats  etc., they had common intention to cause injuries. In  such  circumstances,  the  accused  Hari Shankar Shukla was guilty for the offence, punishable under Section 304 Part-I of the Indian  Penal  Code  for  the  death  of  Umesh Shukla and making attempt to cause death of Smt.  Savitri  Devi  by  causing  injuries punishable under Section 307 IPC.  The other co-accused Gulab Shukla and Budhi Shukla had caused  simple  injuries  to  Jagdish  Narain Shukla  PW-4  in  furtherance  to  common intention  of  all,  therefore,  Hari  Shankar

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Shukla was also liable to be punished for the offence  punishable  under  Section  323  read with Section 34 IPC but for their simplicitor role, the co-accused Gulab Shukla and Budhi Shukla were guilty for the offence punishable under Section 323 IPC Only.”

11. We are in agreement with this finding of the High Court.  However, it needs to be added that DW-1 gave medical evidence as to the extent of injuries that were caused to the appellant himself.  Five injuries are spoken about,  the first two being serious injuries, though described as simple in nature.  The first is lacerated wounds deep in the scalp on the right side of the forehead.  The second is an incised wound, skin deep, on the left side of the forehead.  The other three injuries are contusion on the back of lip at left shoulder joints, contusion on the front of middle at left arm and abrasion on the front of middle of right leg.  All these injuries show that there was indeed a scuffle.  In fact, the statement under Section 313 of the Criminal Procedure Code made by the accused, in answer  to  the  last  question  –  “Do  you  want  to  say something?”  was that he sustained injuries. 12. We, therefore, find that this is a case where the conviction  deserves  to  be  upheld,  but  the  sentence needs to be reduced to six years and fine amounting to

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Rs.7,000/- (rupees seven thousand only). 13. We order accordingly. 14. The appeals are allowed to this limited extent only. 15. The appellant in Criminal Appeal No. 1159 of 2007 is on bail. His bail bonds shall stand cancelled.  The appellant  shall  be  taken  into  custody  forthwith  to serve out the remaining sentence.

.......................J.                                (ROHINTON FALI NARIMAN)

                          .......................J .                         (PRAFULLA C. PANT)

New Delhi, April 05, 2017