LexHARI SHANKERS versus STATE OF UTTAR PRADESH
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[2015] 5 S.C.R. 228
· HARi SHANKERS
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 2180of2009)
April 28, 2015
[PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
Penal Code, 1860- s. 302 rw 34 - Murder-Allegation
that appellant along with other persons committed murder of
the deceased to take revenge of the earlier incident of dacoity
and murder - Conviction of four persons uls. 302 rw s. 34,
D however, acquittal of three by the High Court giving them
benefit of doubt while conviction of the appellant upheld -
Conviction of the appellant on the basis of the statement pf
eye witness-PW2 and its corroboration - On appeal, held:
Since the acquittal of all co-accused became final, the
E conviction of the appellant u/s. 34 is not sustainable - As
regards the individual role of the appellant, there is sufficient
ocular evidence that appellant had fired the first shot which
landed on the wrist of the deceased which is corroborated by
the medical evidence - Contradiction between FIR and the
F GO entry was not in relation to the role of the appellant -
Delay in recording statement of PW2, non-recovery of the
weapon used for crime as also no independent witness
brought forth by prosecution, cannot be a ground for acquittal
G - Thus, the role attributed to the appellant proved that he
caused gunshot injury on the wrist of the deceased but the
same could not have caused his death - Conviction altered
to one uls. 326 and sentenced to 10 yrs rigorous
imprisonment.
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HARi SHANKERS v. STATE OF UTTAR PRADESH
229
Harshadsingh Pehelvansingh Thakore v. State of
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Gujarat, 1976 (4) SCC 640; Brathi alias Sukhdev Singh
v. State of Punjab, (1991) 1SCC519-distinguished.
Krishna Govind Patil v. State of Maharashtra 1964 (1)
SCR 678; Baul and Anr. v. State of Uttar Pradesh 1968
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(2) SCR 450; Maina Singh v. State of Rajasthan 1976
(2) SCC 827; Subran alias Subramanian & Ors. v. State
of Kera/a 1993 (3) SCC 32; Noor alias Nooruddin v.
State of Karnataka 2007 (12) SCC 84- referred to.
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Case Law Reference
1976 (4) sec 640
distinguished.
Para 12
(1991) 1 sec 519
distinguished.
Para 12
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1964 (1) SCR 678
referred to.
Para 12
1968 (2) SCR 450
referred to.
Para 12
1976 (2) sec 827
referred to.
Para 12
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1993 (3) sec 32
referred to.
Para 12
2001 (12) sec 84
referred to.
Para 12
CRIMINAL APPELLATE JURISDICTION : Criminal F
Appeal No. 2180 of2009
From the Judgment and Order dated 20.07.2007 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
2511 of 1985
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Dr. J. N. Dubey,Anurag Dubey, Meenesh Dubey,Anu
Dubey, S. R. Seti a for the Appellant.
Ratnakar Dash, Ardhendumauli Kumar Prasad for the H
230
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A Respondent.
The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J, 1. This criminal
8 appeal arises from the final order and judgment dated
20.07.2007 of the Allahabad High Court in Criminal Appeal
No.2511 of 1985. By the impugned judgment the High Court
while allowing the appeal qua three accused persons and
acquitting them, confirmed the conviction of the present
c appellant. The Additional Sessions Judge, after trial, had
convicted the four accused persons, namely, Hari Shanker,
Vijay Shanker, Man Mohan and Ram Bharosey for the offences
punishable under Section 302 read with Section 34 of the Indian
Penal Code, 1860 ('IPC' for short) and sentenced them to
D rigorous imprisonment for life.
FACTS
2. The case of the prosecution as per the complaint is
E that on 28.09.1983 at about 6:30 am, Shiv Shanker (the
deceased) along with Uma Shanker (PW2) and Ram Asrey
had gone to the pond near Village Bhijauli, to attend nature's
call. When they were returning home after easing themselves,
four accused persons, namely Hari Shanker, Vijay Shanker,
F Man Mohan and Ram Bharosey confronted them and
threatened to kill Shiv Shanker. Hari Shanker was carrying a
licensed pistol while the other three were carrying country-
made pistols. Hari Shanker, who is the appellant in the present
case, fired first shot from his pistol which hit Shiv Shanker on
G his right hand's wrist. Shiv Shanker tried to run away but Ram
Bharosey caught hold of him by his waist. Vijay Shanker asked
Ram Bharosey to release him and as soon as Ram Bharosey
released the deceased, Vijay Shanker shot at the deceased
H and he fell down. Thereafter, the Ram Bharosey and Man
HARi SHANKERS v. STATE OF UTTAR PRADESH
231
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