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Thursday, April 30, 2015

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.


                       IN THE  SUPREME COURT OF INDIA
                     CRIMINAL APPEAL NO. 2180  OF  2009
HARI  SHANKERS                                     ...APPELLANT
 STATE  OF  UTTAR  PRADESH                         ...RESPONDENT
Pinaki Chandra Ghose,  J.
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.

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 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.

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

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  Kunwar  Singh  (PW5  -
first  investigating  officer)  and  S.I.  Rangnath  Shukla  (PW6  -  second
investigating officer). However, the defence did not produce any witness.

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 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.

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  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.

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  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.


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 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

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.

We have heard the learned  counsel  appearing  for  both  the  parties.  The
appellant has raised following grounds in the appeal:
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.
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
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 witnesses  could  have  been
There has been no recovery of the weapons which have been  alleged  to  have
been used by the accused.
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  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.

(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
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

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 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

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
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

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.

(Pinaki Chandra  Ghose)

(R.K. Agrawal)
New Delhi;
April 28, 2015.

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