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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 50 of 2020 (Arising out of SLP(Crl) No 4638 of 2018)

Sankath Prasad                   .... Appellant(s)        

Versus

State of Uttar Pradesh                  ....Respondent(s)

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from a judgment and order of a Division Bench of

the High Court of Judicature at Allahabad dated 5 September 2017.  The

High Court, by its decision, dismissed Criminal Appeal No 2546 of 1987

filed by the appellant in order to challenge his conviction of  an offence

under Section 302 of the Indian Penal Code 18601 by the IIIrd Additional

Sessions Judge, Fathepur in Sessions Trial No 59 of 1986.  The appellant

was sentenced to imprisonment for life.

3 The incident in question is alleged to have taken place at 8.45 am on

25  August  1985.   Gaya  Prasad  (PW 1),  who  is  the  complainant,  was

returning home after answering a call  of nature.  When he reached the

disputed plot while passing through the Chak road, he noticed that Durga

Prasad, the brother of the appellant, was getting a mound dug with the

1 IPC

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help of two labourers, one of whom was Ram Nath (PW 2).  When the

complainant objected, Durga Prasad is alleged to have stated that he was

not committing any wrong.  At that point, the appellant intervened in the

altercation and there was an exchange of words.  The appellant rushed to

his house and returned with a country made pistol.  While he was aiming a

shot at the complainant Gaya Prasad (PW 1), Uma Shanker, the son of the

complainant,  caught  hold  of  the  appellant  from behind.   The  appellant

managed  to  free  himself  and  shot  Uma  Shanker  who  fell  down  as  a

consequence of a fire arm injury.  Uma Shanker succumbed to his injuries.

4 The  eye-witness  account  of  the  occurrence  was  based  on  the

depositions of the complainant Gaya Prasad (PW 1) and Ram Nath (PW

2).  Both these witnesses deposed about the incident.  Both the Sessions

Court and, in appeal, the High Court have relied upon the evidence of PWs

1 and  2.   Taking  cognizance  of  the  fact  that  PW 1  is  a  father  of  the

deceased, the High Court, on a careful evaluation of his testimony, found

no reason to discredit his account.  The High Court held that the presence

of PW 1 was natural, having regard to the time and place of the incident.

Moreover, PW 1 did not implicate Durga Prasad in the crime despite his

presence which was an indicator of the fact that he had given a truthful

account of the actual incident.  The ocular evidence was supported by the

medical evidence and by the evidence of the doctor (PW 4) who opined

that the ante-mortem injury could have been caused by a gun.  The post

mortem report indicated one fire arm injury, in the following terms:

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“One fire arm wound of entry 1” x 1” x chest cavity deep on the sternum  3”  from  the  right  nipple  at  3  o’clock  position.   The margins were inverted and lacerated.  There was blackening and tattooing around the wound.  The direction of the injury was from front to back.

He found one pellet from inside the dead body of Uma Shankar.”

On  this  state  of  evidence,  the  nature  of  the  incident  has  been  duly

established.  The presence of the appellant and the role of the appellant in

the incident has emerged from the evidence on record.   

5 While entertaining the Special Leave Petition on 18 May 2018, this

Court noted the submission of the appellant that even if the entire evidence

is to be accepted to be correct, the present case may fall under Section

304 IPC.  In pursuance of the notice issued by this Court, the State of Uttar

Pradesh has entered appearance and a counter affidavit has been filed.

6 The facts, as they have emerged from the record, indicate that the

incident had taken place on the spur of the moment and was a fall out of

an  altercation  over  the  excavation  of  a  mound  by  the  brother  of  the

appellant.  This was objected to by the complainant Gaya Prasad (PW 1).

The altercation resulted in the appellant going into his house and bringing

out a country made pistol.  The son of the complainant – deceased Uma

Shanker  intervened  in  the  course  of  the  altercation  and  was  fired  at,

resulting in a single fire arm injury leading to his death.

7 Having regard to the circumstances of the case, we are of the view

that the conviction under Section 302 of the IPC should be converted to

one under Section 304 Part I.  We accordingly hold the appellant guilty of

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an  offence  under  Section  304  Part  I  of  the  IPC and  sentence  him to

imprisonment for a term of ten years.

8 The appeal is allowed in the above terms.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Hrishikesh Roy]

 New Delhi;  January 10, 2020

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Revised ITEM NO.22               COURT NO.8               SECTION II

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)  No(s).4638/2018

(Arising out of impugned final judgment and order dated  05-09-2017 in CRLA No. 2546/1987 passed by the High Court of Judicature at Allahabad in Criminal Appeal No 2546 of 1987)

SANKATH PRASAD                                     Petitioner(s)

                               VERSUS

STATE OF UTTAR PRADESH                         Respondent(s)

Date : 10-01-2020 This petition was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HRISHIKESH ROY

For Petitioner(s) Mr. Nirmal Kumar Ambastha, AOR Ms. Ashmita Bisarya, Adv.

                   For Respondent(s) Mr. Vishnu Shankar Jain, AOR

Ms. Shreyase Agrawal, Adv.                      

UPON hearing the counsel the Court made the following                               O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed

reportable judgment.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)

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ITEM NO.22               COURT NO.8               SECTION II

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)  No(s).4638/2018

(Arising out of impugned final judgment and order dated  05-09-2017 in CRLA No. 2546/1987 passed by the High Court of Judicature at Allahabad in Criminal Appeal No 2546 of 1987)

SANKATH PRASAD                                     Petitioner(s)

                               VERSUS

STATE OF UTTAR PRADESH                         Respondent(s)

Date : 10-01-2020 This petition was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HRISHIKESH ROY

For Petitioner(s) Mr. Nirmal Kumar Ambastha, AOR Ms. Ashmita Bisarya, Adv.

                   For Respondent(s) Mr. Vishnu Shankar Jain, AOR

Shreyas Agrawal, Adv.                      

UPON hearing the counsel the Court made the following                               O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed

reportable judgment.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)