PANNEY @ PRATAP NARAIN SHUKLA & ANR.versusSTATE OF U.P.

                         [2010] 3 S.C.R. 594

A        PANNEY @ PRATAP NARAIN SHUKLA & ANR.
                                       v.
                           STATE OF U.P.
                 (Criminal Appeal No. 304 of 2006)

                         DECEMBER 9, 2009.
B
        [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

        Penal Code, 1860:
C        s. 302 - Death of victim caused by bomb, firing a pistol
    and cutting his neck - Out of four accused, one absconding
    - Conviction by trial court of two of the accused - Death
    sentence awarded - Death reference declined by High Court
    and appeal of accused also dismissed - HELD: The bomb
    used, being a country made one, with uncertain content and
D performance, the possibility of sustaining injuries by
    witnesses who were standing at a distance of 4-5 steps away
  · from the site of explosion, would be rather remote - Evidence
    of Investigating Office that splinters had been picked up from
    within a radius ofabout 4 feet from the site of explosion, also
E indicates that no damage could be expected beyond that
    distance - In a case of injuries by bomb, incised wounds are
    clearly possible - Time of death as stated by prosecution is
    supported by medical evidence - Two courts below having
    found the accused guilty, there is no reason to interfere with
F the findings of fact recorded - Medical jurisprudence -
    Constitution of India, 1950 - Article 136.
         Modi's Medical Jurisprudence and Toxicology 741 -
    referred to.
G       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 304 of 2006.
        From the Judgment & Order dated 26.10.2005 of the High
    .Judgment received on 31.3.2010
H                                     594
  PANNEY @ PRATAP NARAIN SHUKLA & ANR. v.                   595
              STATE OF U.P.
Court of Judicature at Allahabad in Crl. Appeal No. 6628 of        A
2004.
     Ajay Veers Singh, B.S. Jain, S.N. Shukla, Nitin Jain, Mohd,
lrshad Hanif for the Appellants.
   Prashant Chaudhary, S.K. Dwivedi, Garvesh Kabra, Shrish         B
Kumar Misra for the Respondent.
     The following Order of the Court was delivered
                           ORDER
     This appeal arises out of the following facts:                c
     About a month before the incident Shivdhari, son of (Ram
Awadh Yadav) PW.1, the first informant, had purchased some
land from Rudra Narain Shukla. The execution of the sale
annoyed the accused appellants as they too were interested         0
in the land.

      At about 7.00 p.m. on 7th November, 2003, Shivdhari had
 gone to the house of Shyam Kunwar of village Bhedi and on
 exhortation of the accused Harihar Shukla, & Panney @ Pratap
 Narain Shukla hurled a bomb on Shivdhari which fell on his        E
 abdomen and exploded, whereas Channey@ Prabhu Narain
 Shukla thereafter fired from a country made pistol of 12 bore
 on the abdomen of Shivdhari and Vishwajit, the absconding
accused, cut his neck with a Gandasi. Shivdhari died
immediately on the spot. On hearing the sound of the explosion     F
Ram Awadh Yadav and his sons Ramdhari, Tilakdhari and
Dalsingar rushed to the spot, flashed a torch and saw the
accused running away. Ram Awadh Yadav thereafter rushed
to the police station at a distance of one furlong and lodged
the report. Pursuant to the report, the S.H.O. Chandra Bali        G
Yadav (PW.5), reached the place of incident, made the
necessary inquiries, picked up the spent cartridges and also
recovered the splinters of the bomb which had been hurled at
the deceased. He also recorded the statements of some of the
witnesses under Section 161 of the Cr.P.C. but not of Tilakdhari   H
    596      SUPREME COURT REPORTS                  [2010] 3 S.C.R.

A whose statement was recorded after a gap of 8 days.

        On the completion of the investigation, the accused Harihar
  Shukla, Panney and Channey were charged for an offence
  punishable under Sec.302 of the IPC and as they pleaded not
  guilty, they were brought to trial. The trial Court in the course of
8
  its judgment dated 10th December, 2004 acquitted Harihar
  Shukla on the ground that he had not participated in the murder
  and awarded a sentence of death to the other two accused. The
  matter was then referred to the High Court for confirmation of
  the death sentence, whereas the accused also filed an appeal
C challenging their conviction. The murder reference was declined
  and the appeal too was dismissed.

        This appeal by way of special leave has been filed by
    Panney and Channey, the two convicted accused.
D
          Mr. Ajay Veer Singh, the learned counsel for the appellants
    has raised several arguments during the course of hearing. He
    has first pointed out the medical evidence contradicted the
    ocular testimony inasmuch that had the bomb been hurled on
E   the deceased from a very close range as suggested the
    witnesses who had seen the incident from a distance of four or
    five feet would have suffered injuries as well and as this had
    not happened a doubt was cast on the story. He has also
    pleaded that from the medical evidence it appeared that there
    were three explosive wounds with charred and blackened
F   margins, but the splinter injuries beyond the primary wounds had
    no such markings on the dead body which again falsified the
    prosecution story and suggested the use of more than one
    bomb. He has further pointed out that no pellets had been
    recovered from the body and the use of the country made 12
G   bore pistol was thus in doubt. It has finally been submitted that
    the incident had allegedly happened at 7.00 p.m. on 7th
    November, 2003, but from the evidence of the eye-witnesses
    it appeared that it had happened in the early hours of 8th
    November, 2003, which falsified the presence of the eye
H   witnesses.
  PANNEY @ PRATAP NARAIN SHUKLA & ANR. v.                    597
              STATE OF U.P.
    The learned State counsel has, however, supported the           A
judgment of the trial Court.

      It is true, as has been contended by Ajay Veer Singh that
the bomb had exploded a short distance away from the
witnesses and in normal circumstances some injuries would
                                                                    B
have been received by them as well. We are, however, of the
opinion that the bomb used was a country made one, with
uncertain content and performance. The ocular evidence further
falsifies the argument that the bomb had exploded 4 feet away
from the witnesses. It is clear from the evidence that the eye
witnesses were standing at a distance of 4-5 steps away from        C
the site of the explosion. This would ordinarily be about 20 feet
in which case the possibility of the bomb causing any injury to
the witnesses would be rather remote. It has come in the
evidence of the Investigating Officer that splinters had been
picked up within a radius of about 4 feet from the site of the      D
explosion meaning thereby that no damage could be expected
beyond that distance more particularly as the bomb was a crude
home made one, with uncertain performance.

      Mr. Ajay Veer Singh's argument that three separate bombs      E
had been used is again falsified by the medical evidence. We
see from the post-mortem report that the explosive injuries were
on the lower chest and the abdomen in an area of about 20
cm x 8 cm. and the injuries beyond that area were caused by
stray splinters. Merely because the Doctor recorded three
                                                                    F
separate injuries would not, therefore, lead to the conclusion
that three bombs had been used.

       The learned counsel has also submitted that the incised
 injuries found on the dead body had not been explained is also
not acceptable for the reason that in Modi's Medical                G
Jurisprudence and Toxicology page 741 it has been indicated
that in a case of injuries by a bomb explosion, incised wounds
are clearly possible.

    It has been submitted by Mr. Ajay Veer Singh that the           H
    598
              --
              SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A   behaviour of the witnesses was abnormal inasmuch that they
    did not interfere at the time of the attack on Shivdhari. This
    submission is unacceptable in the light of the brutality and
    ruthlessness of the attack inasmuch that a bomb and pistol had
    been used and the neck of the deceased had also been
B   severed in this eventuality the eye witnesses would have stayed
    far away from the accused, fearing a similar fate.

         Mr. Ajay Veer Singh has also emphasized that from the
    evidence it appeared that the prosecution itself was uncertain
    about the time of the incident. He has pleaded that as per the
C   prosecution story the incident had heippened at about 7.00 p.m.
    on the 7th November 2003 but from the statement of PW.2 it
    looks as if it had happened in the early hours of the next
    morning. It is true that PW.2 had stated at one stage that the
    incident had happened in the morning a short while before the
D   police had arrived. It is, however, not clear as to whether this
    was the first visit of the Police Officer or a subsequent one as
    the police station was only one furlong away from the place of
    incident. Moreover, the story that the incident had happened in
    the early hours on 8th November, 2003, is not spelt out by the
E   medical evidence. The Doctor opined that the deceased had
    taken his last meal three hours before his death. We are of the
    opinion that if that be so and the story of the defence is to be
    believed the murder would then have been committed at about
    three or four a.m. which would be highly probable, as the last
F   meal would then have to be taken at about 1.00 a.m. The
    prosecution story is, however, consistent with the medical
    evidence in that the deceased had died at 7.00 p.m. and the
    food would have taken three or four hours before death which
    would be normal human behaviour. Moreover as two courts
G   have found against the appellants on a clear cut discussion, we
    would be hesitant to interfere with the findings of fact recorded.

           The appeal is dismissed accordingly.

    R.P.                                          Appeal dismissed.
H