HARI SHANKERSversusSTATE OF UTTAR PRADESH

                          [2015] 5 S.C.R. 228


A                        · HARi SHANKERS

                                   v.
                    STATE OF UTTAR PRADESH
B                (Criminal Appeal No. 2180of2009)

                             April 28, 2015

     [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
c           Penal Code, 1860- s. 302 rw 34 - Murder-Allegation
     that appellant along with other persons committed murder of
     the deceased to take revenge of the earlier incident of dacoity
     and murder - Conviction of four persons uls. 302 rw s. 34,
D    however, acquittal of three by the High Court giving them
    benefit of doubt while conviction of the appellant upheld -
     Conviction of the appellant on the basis of the statement pf
     eye witness-PW2 and its corroboration - On appeal, held:
     Since the acquittal of all co-accused became final, the
E    conviction of the appellant u/s. 34 is not sustainable - As
    regards the individual role of the appellant, there is sufficient
    ocular evidence that appellant had fired the first shot which
    landed on the wrist of the deceased which is corroborated by
    the medical evidence - Contradiction between FIR and the
F   GO entry was not in relation to the role of the appellant -
    Delay in recording statement of PW2, non-recovery of the
    weapon used for crime as also no independent witness
    brought forth by prosecution, cannot be a ground for acquittal
G   - Thus, the role attributed to the appellant proved that he
    caused gunshot injury on the wrist of the deceased but the
    same could not have caused his death - Conviction altered
    to one uls. 326 and sentenced to 10 yrs rigorous
    imprisonment.
H
                                  228
   HARi SHANKERS v. STATE OF UTTAR PRADESH                 229


  Harshadsingh Pehelvansingh Thakore v. State of            A
  Gujarat, 1976 (4) SCC 640; Brathi alias Sukhdev Singh
  v. State of Punjab, (1991) 1SCC519-distinguished.

  Krishna Govind Patil v. State of Maharashtra 1964 (1)
  SCR 678; Baul and Anr. v. State of Uttar Pradesh 1968     B
  (2) SCR 450; Maina Singh v. State of Rajasthan 1976
  (2) SCC 827; Subran alias Subramanian & Ors. v. State
  of Kera/a 1993 (3) SCC 32; Noor alias Nooruddin v.
  State of Karnataka 2007 (12) SCC 84- referred to.
                                                            c
                   Case Law Reference

1976 (4) sec 640            distinguished.     Para 12

(1991) 1 sec 519            distinguished.     Para 12
                                                            D
1964 (1) SCR 678            referred to.       Para 12

1968 (2) SCR 450            referred to.       Para 12

1976 (2) sec 827            referred to.       Para 12      E
1993 (3) sec 32             referred to.       Para 12

2001 (12) sec 84            referred to.       Para 12

      CRIMINAL APPELLATE JURISDICTION : Criminal            F
Appeal No. 2180 of2009

      From the Judgment and Order dated 20.07.2007 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
2511 of 1985                                                 G

      Dr. J. N. Dubey,Anurag Dubey, Meenesh Dubey,Anu
Dubey, S. R. Seti a for the Appellant.

      Ratnakar Dash, Ardhendumauli Kumar Prasad for the H
230       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A Respondent.

           The Judgment of the Court was delivered by

         PINAKI CHANDRA GHOSE, J, 1. This criminal
8 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
c 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
D rigorous imprisonment for life.

           FACTS
            2. The case of the prosecution as per the complaint is
E   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,
F   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
G   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
H   and he fell down. Thereafter, the Ram Bharosey and Man
   HARi SHANKERS v. STATE OF UTTAR PRADESH                  231
          [PINAKI CHANDRA GHOSE, J.]

Mohan also. fired at the deceased. On hearing the sound of A
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 B
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 C
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 D
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 E
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 F
proved the post mortem report), Head Constable Vidya Sagar
Mishra (PW4), S.I. Surya Kunwar Singh (PW5 - first
investigciting officer) and S.I. Rangnath Shukla (PW6- second
investigating officer). However, the defence did not produce G
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 H
232        SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A 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 all' To this, PW1 has explained that he had gone to
    the police station with a written FIR but the police made him
B waitfor3 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
C 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
D 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
E shot from his pist0I 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
F 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
G 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.
H
    6.     PW3 being the doctor who conducted the autopsy,
    HARi SHANKERS v. STATE OF UTTAR PRADESH                         233
           [PINAKI CHANDRA GHOSE, J.]

proved the post-mortem report wherein two gunshot injuries A
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 B
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 C
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         D
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      E
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             F
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-          G
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.     H
234         SUPREME COURT REPORTS                [2015] 5 S.C.R.


A 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)
B
         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
c 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,
D 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
E 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
F 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.
G           SUBMISSIONS

              10. We have heard the learned counsel appearing for
      both the parties. The appellant has raised following grounds
      in the appeal:
H
 HARi SHANKERS v. STATE OF UTTAR PRADESH                         235
        [PINAKI CHANDRA GHOSE, J.]

(i)     The High Court found contradiction in the FIR and         A
         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              B
      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.              c
      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.
                                                                  D
(iii)   No independent witness was brought forward by
        the prosecution. E,ven 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              E
        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         F
        been produced.

(iv) There has been no recovery of the weapons which
      have been alleged to have been used by the
      accused.
                                                                  G
(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
                                                                  H
236         SUPREME COURT REPORTS                    [2015] 5 S.C.R.


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

        (a) Krishna Govind Patil v. State of Maharashtra,
c       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
D       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)
E       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
F       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
G
        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
H
   HARi SHANKERS v. STATE OF UTTAR PRADESH                    237
          [PINAKI CHANDRA GHOSE, J.]

  827 - In this case as well this Court found that when all    A
  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.
                                                               B
  (d) Subran alias Subramanian and Ors. v. State of
  Kera/a, 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              c
  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         D
  (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.     E

        12. The learned counsel for the State has submitted
following two judgments for our consideration:

  (a) Harshadsingh Pehelvansingh Thakore v. State              F
  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 aswell, the co-accused were      G
  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:
                                                               H
238       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A        "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
B        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."
c
    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.
0
      (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
E     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.
F     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.
G
           REASONING AND CONCLUSION

          13. In the present case, there is concurrent findings of
  conviction of the appellant by the Sessions Court and the High
H Court on the basis of the statement of eye witness (PW2) and
    HARi SHANKERS v. STATE OF UTTAR PRADESH                          239
           [PINAKI CHANDRA GHOSE, J.]

its corroboration by the medical evidence. In view of the             A
submissions made by the learned coun~els 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        B
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.    C
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        D
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             E
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           F
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              G
available.

       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 H
240           SUPREME COURT REPORTS              [2015] 5 S.C.R.


A 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,
B 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
C appellant herein and this appeal is allowed to the above extent.

      Nidhi Jain                                Appeal partly allowed.