Tags Conviction

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1159 of 2007, Judgment Date: Apr 06, 2017

                                                           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 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   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 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 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 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.

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 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  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 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