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2004(1) Supreme 876
SUPREME COURT OF INDIA
(From Allahabad High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Girija Shankar -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 1034 of 1997
Decided on 4-2-2004
Counsel for the Parties :
For the Appellant : P.K. Dey, Santanu Ghosh, Ms. Kamini Jaiswal, Advocates.
For the Respondent : Sahdev Singh, Advocate for Jitender Kumar Bhatia, Advocate.
(ii) Indian Penal Code, 1860-Section 307-Attempt to murder-It is not essential that bodily injury capable of causing death should have been inflicted-Court has to see whether the act, irrespective of its result was done with intention or knowledge and under circumstances mentioned in Section-Victim PW3 was assaulted by appellant and other accused and sustained very serious injuries-Conviction and sentence of 5 years imprisonment called for no interference. (Paras 12 to 14)
JUDGMENT
Arijit Pasayat, J.-The appellant questions his conviction for offence punishable under Section 302 read with Section 34. Section 307 read with Section 34 and Section 394 of the Indian Penal Code, 1860 (in short the IPC ).
2. Trial Court had convicted the appellant and 3 others who faced trial with him for the offences relatable to Sections 302 and 307 read with Section 34; and Section 394 IPC. Each was sentenced to undergo imprisonment for life for the first offence and for the other two offences 5 years imprisonment on each count. All the four accused persons preferred appeal before the High Court. During pendency of the appeal before the High Court two of them, namely, Iqbal Sankar and Jungli (A-3 and A-4 respectively) died and the appeal stood abated so far as they are concerned. The conviction and sentence were maintained so far as the appellant and A-1 Devi Shankar are concerned. It is pointed out that the SLP filed by A-1 Devi Shankar has been dismissed by this Court.
3. Prosecution version and the stand taken by the accused during trial are essentially as follows:
Arun Singh, H.P. Tewari (PWs 1, 3 respectively) and the deceased were coming after seeing the fair at Bhuvreshwar and were going back to their village. On the way, near the village Bhawalia at about 7.30 p.m. when the sun had set they felt the need to some Bedi and went to purchase it. The weather was cloudy and there was drizzling. They entered in village and purchased the Bedi from a shop and decided not to go further to their village, as it was dark and rain had started falling, they decided to stay at the house of Raj Bahadur Singh (PW-5), whom (PW-3) claimed to know.
4. In the meantime, the accused persons saw them and thought they are criminals. They shouted that being notorious should be beaten. The deceased and PWs 1, 3 and 5 replied that they were innocent villagers and had decided to stay in the house of PW-5 because of rain. So, saying they proceeded towards the (PW-5). After they had gone few steps, suddenly A-1 fired two shots, one of which hit the deceased and other hit PW-3. When PWs 1 and 3 and the deceased shouted, many villagers including PW-5 came there. There was exchange of hot words and A-2, A-3 and A-4 assaulted PW-3. A-3 removed gold ring and watch of the deceased. The gun of Harihar Prasad Tewari (PW-3) was snatched away by A and it was deposited next day in the police station.
5. Seven witnesses were examined to further the prosecution version. Three of them i.e. Arun Singh (PW-1), H.P. Tewari (PW-3) and R.B. Singh (PW-5) claimed to be eyewitnesses. The Trial Court found the evidence of the eyewitnesses to be credible, cogent and accordingly convicted and sentenced as noted above. The High Court did not find any infirmity in the conclusions of the Trial Court to warrant interference.
6. In support of the appeal, learned counsel for the appellant submitted that no role has been ascribed to the appellant so far as death of deceased is concerned. It is the prosecution case itself, that appellant and the two accused persons who have died during appeal before High Court assaulted only PW-3 with lathis. Devi Shankar fired shots one of which hit the deceased, and the other PW-3. So far as accusations relating to Section 394 IPC are concerned, there is no evidence that the appellant snatched gun of PW-3 or in any manner facilitated snatching. Even the snatching of the ring is attributed to somebody else. In any event, Section 34 would have no application to the case at hand.
7. Per contra, learned counsel for the State submitted that all the four accused persons questioned the propriety of the presence of the deceased and the eyewitnesses in the village in the dark and thinking that they were persons of ill-repute who had come to the village for the purpose of decoity, they were assaulted. Therefore, Section 34 was clearly applicable. Similar, was the submission respect of snatching of the gun from PW-3 which was deposited with the poli
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