SUBASH SHIV SHANKAR versus STATE OF U.P.

Citation: [1987] 2 S.C.R. 962 · Decided: 14-04-1987 · Supreme Court of India · Bench: M.M. DUTT · Disposal: Case Partly allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
SUBASH .SHIV SHANKAR 
v. 
STATE OF U.P. 
APRIL 14, 1987 
[M.M. DUTI AND S. NATARAJAN, JJ.] 
Indian Penal Code, 1860-Sections 34 and 302-Joint attack by 
accused-Some accused acquitted for want of acceptable proof of 
identity-Other accused cannot fscape conviction when participation in 
)-
c 
attack established by prosecution. 
Criminal Trial-Identification Parade--Delay in holding of-
First Information Report and statements of wltnesses=A.bsence of 
descriptive particulars of accused-Conviction-Whether vitiated, 
The prosecution alleged that there was a dispute between the 
D appellant in Appeal No. 287 of 1978 and the deceased in regard to 
payment of repair charges for a machine part and that three or four 
days later this appellant alongwith others attacked the deceased when 
he was accompanied by P.W. 1 and P.W. 2. It was further alleged that 
while the appellant in Appeal No. 288 of 1978 caught hold of the 
deceased, the appellant in the first appeal and two others repeatedly 
E stabbed him with knives and caused several injuries. P. W. 2 was also 
injured when he tried to intercede. The deceased and P. W. 2 were taken 
to hospital where the deceased was pronounced dead. P. W. 1 presented 
a complaint at the Police Station. 
y~ .. 
The appellant in the first appeal absconded and surrendered be· 
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f 
fore the court later. On questioning, he named the assailants, who were 
arrested on different dates. Test indentification parades were held for 
two accused persons wherein the appellant in the second appeal was 
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identified by three witnesses, but the other accused was Identified by 
only of them. In the subsequent identification parade held for another 
accused, none of the witnesses was able to identify him. All the accused 
G were tried and the two appellants and another accused were convicted 
under Section 302 read with Section 34 Indian Penal Code and Section 
324 read with Section 34 Indian Penal Code for having committed mur-
der of the deceased and caused hurt with a knife to P. W. 2 and were 
awarded imprisonment for life and three years' rigorous imprisonment 
respectively, the sentences to run concurrently. The fourth accused who 
H was not identified by any one of the witnesses at the identification 
962 
SUBASH v. U.P. STATE 
963 
parade and whose name was not mentioned in the First Information A 
. "-+ 
Repprt, was acquitted. The High Court in appeal confirmed the convic-
tiou pf the hyq 11ppellants but acquitted the third accused on the ground 
that he had been identified by only P.W. 2 and not by other witnesses. 
In the appeal to this Court, it was submitted on behalf of the 
appellant iu Criminal Appeal No. 287 of 1978 that the prosecution B 
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evidence suffers from numerous infirmities and as such, the trial court 
and the High Court ought not to have convicted him, that in any case 
the benefit of doubt given to the two of the other accused ought to have 
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been given to him, that there was an attempt to cover up the delay in 
making the report, that the motive put forward for the occurrence was 
of a flimsy nature and it was unbelievable that for non-payment of c 
repair charges the dece11sed would have been attacked alongwith his 
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companions, that P.W. 1 did not have proper eye sight, that P.W. 3 was 
a chance witness and that C. W. 1 failed to support the prosecution case, 
am! that even though P.W. 2 was an injured witness, there was no 
guanmtee that his evidence is truthful. It was further urged that the 
appellant could be convicted only for an offence under Section 3~4 D 
Indian Penal Code for the injury caused to the deceased as well as P. W. 
2, that as the sub-stratum of the prosecution fails, the entire case had to 
fail and that when the other accused persons were acquitted, the appel-
~y 
lant alone cannot be convicted under Section 302 read with Section 34 
I.P.C., in the absence of evidence that he caused any of the fatal injuries -
on the deceased. 
E 
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It was submitted on behalf of the appellant in Crimi.nal Appeal 
:>.-. 
No. 288 of 1978 that neither his name nor any of his characteristics were 
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mentioned in the First Information Report by any of the eye witnesses, 
th11t he was falsely implicated, that there was no motive for him to mur-
_J 
der the deceased, that one of the prosecution witnesses had altogether F 
denied his presence, that there was delay in his arrest and holding of the 
ldentilication parade and he was exposed to the identifying w

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