HARI SHANKER ETC versus STATE OF U.P. ETC.

Citation: [1996] SUPP. 2 S.C.R. 348 · Decided: 06-05-1996 · Supreme Court of India · Bench: FAIZAN UDDIN · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
HAR! SHANKER ETC. 
v. 
STATE OF U.P. ETC. 
MAY 6, 1996 
[FAIZAN UDDIN AND SUJATA V. MANOHAR, JJ.] 
Oiminal Law : 
Penal Code, 1860: Sections 34 and 302/34. 
Common intention-Sharing of--Exhonation by accused-Allegation 
of-Not found in FIR or statement made under S. 161 Cr PC-Mere fact that 
co-accused fired gun which belonged to accused for which he had valid 
licence would not lead to only inference that accused lent it out to co-accused 
for pu'Pose of killing deceased-Acquittal of accused by High Coun-ffeld: 
D no interference called for. 
E 
F 
Fire ann injury-Mark of blackening-Would be found in case gun was 
fired from close range of about 3 feet-Presence of wad of cork-Indicated 
shot was fired from distance of about 2 yards-Held : having regard to length 
of barrel of 12 bore gun the ocular version that gun was fired from a distance 
of about 4 to 5 paces away, not inconsistent with medical evidence. 
Fireann injwy--Gun was fired from behind when deceased was push-
ing motor cyc/e---Wound of entrance was upwards towards left lower 
chest-Held : testimony of eye-witnesses was consistent with medical 
evidence--f'lea of accused that while he was pushing motor cycle gun went 
off accidently not acceptable. 
The appellant and respondent in the respective appeals, were con-
victed under Section 302 and Section 302/34, India Penal Code, 1860 
respectively and sentenced to undergo life imprisonment by the Session 
G Judge. They had tiled separate appeals in the High Court against their 
respective conviction and sentence. The High Court dismissed the appeal• 
filed by the appellant-accused and allowed the appeal filed by the respon-
dent- accused and acquitted him. Aggrieved by the High Court's judgment 
the appellant and the son of the deceased preferred the present appeals. 
H 
According to the prosecution, the wife of deceased had leased her 
348 
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HAR! SHANKER v. STATE 
349 
land to respondent-accused for purposes of manufacture of bricks. The A 
wife had issued notice tu the respondent-accused demanding the arrears 
of rent. The brother-in-law of PW 1 had died but the deceased could not 
join the funeral for want of information. The deceased, therefore, went 
to the house of the father of the brother-in-law alongwith PW 4 for 
condolence. The respondent-accused and appellant-accused also reached B 
there when the respondent-accused raised dispute with the deceased 
against the notice served on him. During the heated exchange the 
deceased told the respondent-accused that he would not permit him to 
manufacture bricks unless the arrears of rent were paid. The respon-
dent-accused went away saying that he would see how he could not permit C 
the brick kiln to work. On the same day when PW 3 arrived at the house, 
the deceased accompanied by PW 4 got up to go back home. The 
deceased kicked his Motor Cycle to start but it did not start. He and 
PW 4 pushed the Motor Cycle with a view to starting it. Meanwhile, the 
appellant-accused with a single barrel gun and the respondent-accused D 
came running from behind. The respondent caught hold of the Motor 
Cycle from behind and commanded the appellant to lire at the deceased 
and kill him. At this the appellant tired a gun shot on the. back of the 
deceased and the appellant and respondent immediately vanished from 
the place of occurrence and while going away the appellant threw down E 
the spent cartidge and loaded the gun again. The incident was seen by 
PW 1, PW 3 and PW 4 who were present at the time and place of 
occurrence. PW 1 took the deceased to the Hospital where he died soon 
thereafter. A First Information Report was lodged and a post-mortem 
was held. 
In the appeal before this Court, it was contended that d1ere was 
absence of motive on the part of the appellant-accused; that there was no 
consistency in the medical evidence and the occular version of PWs 1, 3 
F 
and 4; that according to the post-mortem report the direction of the 
entrance wound was upward towards the heart which was not possible to G 
be caused if the appellant-accused had tired the gun in a standing posture; 
that this was possible only when the appellant-accused was pushing the 
Motor Cycle in a bending position while the gun went off; and that the 
respondent-accused shared the common intention to commit the murder 
of the deceased since he had exhorted the appellant-accused to lire at the H 
350 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A 
deceased. 
Dis

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