IMPORTANT POINTS
Where acquittal of all co-accused attained finality, conviction of an accused with the aid of section 34 IPC would be unsustainable.
Where case is established by ocular as well as medical evidence, lack of corroboration would not be fatal.

Judgment

Pinaki Chandra Ghose, J.

1. This criminal 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 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 rigorous imprisonment for life.

FACTS

2. The case of the prosecution as per the complaint is 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, 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 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 and he fell down. Thereafter, the Ram Bharosey and Man Mohan also fired at the deceased. On hearing the sound of fire shots the complainant Amar Nath Mishra, father of the deceased, Girija Shanker, brother of the deceased and one Ram Ratan Yadav rushed to the place of occurrence. They saw the accused persons running away from the place of occurrence and shouting “we have taken the revenge”. The complainant noticed that Shiv Shanker had died due to the gun shot injuries. Thereafter, Uma Shankar and Ram Ashrey gave details of the incident to the Complainant, father of the deceased, who thereafter went to the police station and lodged the report.

3. The motive as alleged in the present case is that about one year prior to the incident, there was a dacoity at the house of the Vijay Shanker in which Kripa Shanker, brother of Vijay Shanker was killed and Shiv Shanker, Amar Nath Mishra and three other persons were arrayed as accused persons in that incident and trial was pending against them. It is alleged that the appellant Hari Shanker along with other accused persons, committed murder of Shiv Shanker to take revenge of the earlier incident of dacoity and murder.

EVIDENCE

4. During the trial, the prosecution produced Amar Nath Mishra (PW1), Uma Shanker (PW2), Dr. D.N. Giri (PW3 -who proved the post mortem report), Head Constable Vidya Sagar Mishra (PW4), S.I. Surya Kunwar Singh (PW5 -first investigating officer) and S.I. Rangnath Shukla (PW6 -second investigating officer). However, the defence did not produce any witness.

5. PW1, who is the father of the deceased, agreed that he did not witness the incident but saw the accused persons running away with the weapons while the deceased lay on the ground with wounds and injuries. It has come out on record that he had reached the police station for lodging FIR at around 8:30 am on the day of the incident, but the FIR was registered at 11:45 am. To this, PW1 has explained that he had gone to the police station with a written FIR but the police made him wait for 3 hours before registering the FIR. Also, there is a GD Entry No. 17 in the General Diary of the concerned Police Station at 8:55 am according to which the complainant along with the Village Pradhan and other villagers had come to the police station and informed that at around 6:00-6:30 am, his son Shiv Shanker had been murdered by Hari Shanker and Ram Bharosey. This GD Entry No. 17 does not name the other two accused p