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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

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granted.

2.Delay condoned.

3.Leave granted.

4.The present cases arise out of a death that was

caused on 11

th

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

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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

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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

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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

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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.

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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 20

th

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

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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

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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

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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