Supreme Court of India
Hari Shankar Shukla vs State Of U.P on 5 April, 2017Author: …………………..J.

Bench: N.V. Ramana, Prafulla C. Pant




|HARI SHANKAR SHUKLA |Appellant(s) |


|STATE OF U.P. |Respondent(s) |


(Arising out of S.L.P.(Crl.) No.2869 of 2017)
(CRL.M.P. NO. 932 of 2008)
(for permission to file SLP)






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
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 .

New Delhi,
April 05, 2017


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