Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. The learned Sessions Judge after appreciating the D evidence found that the motive was not properly explained by the prosecution since the trial of an earlier incident of dacoity and murder of Kripa Shanker, in which the deceased and the present complainant were accused, was pending. So it was not probable that pending the trial, the accused would take the E revenge. However, the learned Session Judge held that lack of motive is of no consequence in this case as there is direct evidence of PW2. The learned Sessions Judge found that merely because the relations between the accused and PW2 F were inimical, the testimony of PW2 cannot be discarded. Further, the learned Sessions Judge accepted the explanation for delay in recording the statement of PW2 by the Police that PW2 was out of station and thus, not available to give the statement. He also found that the GD entry No.17 of 28-09- 1983 was not proved by the author himself and thus was not considered as 'good evidence'. Thus, the learned Sessions Judge accepted the complainant's version that he had reached the police station at around 8.30 am but was kept waiting by the police there for three hours before the FIR was registered. A On these findings, the learned Sessions Judge found all the four accused guilty of the offence under Section 302 read with Section 34 of IPC. IMPUGNED JUDGMENT (HIGH COURT)
8. The High Court analysed the evidence and relied on the GD entry No. 17 of 28-09-1983 wherein the complainant had named only appellant Hari Shanker and Ram Bharosey. This statement further supported by the fact that only two c gunshot wounds were found on the body of the deceased, shows that there were two persons only. However, the High Court noted that the second gunshot wound as per PW2 was struck by Vijay Shanker and not by Ram Bharosey. Relying on these circumstances, the High Court acquitted Vijay Shanker, D Man Mohan and Ram Bharosey, giving them the benefit of doubt. But at the same time it found that the evidence against the present appellant Hari Shanker was clinching as the gunshot fired by him hit the wrist of the deceased, as has been categorically stated by PW2 and also corroborated by medical E evidence. Thus, the High Court maintained the conviction and sentence of the present appellant under Section 302 read with Section 34 of IPC.
9. This appeal has been preferred by Hari Shanker F against the impugned judgment of the High Court upholding his conviction. The State has not filed any appeal against the acquittal of the other three accused. Therefore, we will limit ourselves to the conviction of the appellant only. SUBMISSIONS
10. We have heard the learned counsel appearing for both the parties. The appellant has raised following grounds in the appeal: HARi (i) The High Court found contradiction in the FIR and the GD Entry No.17 and disbelieved material evidence of the prosecution, yet it upheld conviction of the appellant. (ii) The statement of PW2 cannot be relied on as his testimony was recorded 23 days after the incident. The prosecution has failed to give proper explanation for this delay as no proof of PW2 being out of station or date of his leaving the village and date of returning have been brought on record. c Including PW2 as a witness, clearly seems to be an afterthought as he would have supported the case of prosecution due to enmity against the appellant. (iii) No independent witness was brought forward by the prosecution. E,ven though Ram Asrey is allegedly another eye witness, he is not examined. Similarly Girija Shanker and Ram Ratan Yadav, who came running along with the complainant Amar Nath, were not examined although they were material witnesses in the ·present case. Moreover, the incident allegedly occurred near Harijan Basti from where other independent witnesses could have been produced. (iv) There has been no recovery of the weapons which have been alleged to have been used by the accused. (v) That when all other co-accused have been acquitted, the conviction of the appellant under Section 302 read with Section 34 of IPC, is unsustainable as there seems to be nobody to share the common intention with the appellant. Further, even as per the case of the prosecution, the alleged gunshot fired by the appellant hit only the right hand wrist of the deceased and he could not have died due to that injury.
11. The appellant also relied on the following judicial precedents: (a) Krishna Govind Patil v. State of Maharashtra, c 1964 (1) SCR 678 – In this case out of four accused persons convicted under Section 302 read with Section 34, three were acquitted by the High Court giving them benefit of doubt while the conviction of one acccused was maintained. This Court found it to be a mutually destructive finding and held that the appellant could not have been convicted with the aid of Section 34 without anybody else to share intention with. (b) Baul and Anr. v. State of Uttar Pradesh, 1968 (2) SCR 450 – In this case three accused persons were convicted under Section 302 read with Section 34 by the Trial Court. On appeal, the High Court acquitted one person, altered the conviction of other to Section 325 and Section 109 and for third accused, his conviction was altered to Section 302 simplicitor. This Court found that where the common intention has not been proved, each injury must be proved and attributed to the particular accused.
On this reasoning the Court found that the injury of appellant accused who was convicted by High Court for murder simplicitor could not have caused the death of the deceased but only a grievous hurt. Thus, the Court altered the conviction from Section 302 to Section 325. ( c) Maina Singh v. State of Rajasthan, 1976 (2) SCC HARi 827 – In this case as well this Court found that when all other co-accused had been acquitted, the conviction of appellant could not be maintained under Section 34. His role has to be ascertained individually in such a case and his guilt would be accordingly determined. (d) Subran alias Subramanian and Ors. v. State of Kera/a, 1993 (3) SCC 32 – In this case question raised was whether the accused when not charged for a substantive offence, can he be convicted under the same? It was not a case where the appellant was convicted under Section 34 alone. Also the case was one of unlawful assembly in this case.
Thus, the controversy in this case is not same as the one at hand. ( d) Noor alias Nooruddin v. State of Karnataka, 2007 (12) SCC 84 – In this case as well, the Supreme Court found that where co accused persons are acquitted, conviction under Section 34 is not sustainable. However, if by evidence the individual role of the appellant is proved, he could be convicted for a substantive offence.
12. The learned counsel for the State has submitted following two judgments for our consideration: (a) Harshadsingh Pehelvansingh Thakore v. State of Gujarat, 1976 (4) SCC 640- This Court held that in a case where a brutal and fatal assault is made by multiple persons on the deceased with many injuries, it is not permissible to dissect the serious injuries with the non serious ones. In this case aswell, the co-accused were acquitted by Sessions Court or the High Court. This Court rejected the argument that Section 34 cannot be invoked to convict a single person. While doing so this Court noted: c c "Counsel also argued that since three out of four accused have secured acquittal the invocation of Section 34 is impermissible. The flaw in this submission is obvious. The Courts have given the benefit of the doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable." However, the difference between the cited case and the present case is that the role of the appellant accused is determined in the present case while it was a question of fact unanswered in 0 Harshadsingh Thakore's case.
(b} Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1 SCC 519 – In this case, the Court found that the principle of vicarious liability does not depend on the necessity to convict requisite number of accesed persons; a wrong and erroneous acquittal of co-accused, even though irreversible if no appeal is preferred, will not operate as a bar in recording constructive liability of the co-accused when the concerted action stands proved. However, the Court was prompt to distinguish other judicial precedent where conviction of a lone person under Section 34 is held unsustainable as in those cases, there was no finding of an erroneous acquittal of co-accused persons. REASONING AND CONCLUSION
13. In the present case, there is concurrent findings of conviction of the appellant by the Sessions Court and the High H Court on the basis of the statement of eye witness (PW2) and HARi its corroboration by the medical evidence. In view of the A submissions made by the learned coun~els for both the parties, we find that since the acquittal of all co-accused has become final, the conviction of the appellant under Section 34 becomes unsustainable. This is the established law as has been elucidated in various judicial precedents discussed above. The B two cases cited by the counsel for the State have been distinguished above already. However, in view of the authorities cited, we have to determine the individual role of the present appellant and accordingly find out if he is guilty of any offence. C In doing so, we find there is sufficient ocular evidence to the fact that the present appellant had fired the first shot which landed on the wrist of the deceased.
This fact is further corroborated by the medical evidence as per which a gunshot injury is found at the right hand wrist. The submission of the D learned counsel for the appellant that the evidence of PW2 is not acceptable as Section 161 Cr.P.C. statement was recorded very late and is not worthy enough. PW2 has given a reason that he was out of station for days after the incident. There has neither been any effective cross examination of E PW2 by the defence on this point. Further, the contradiction between FIR and the GD entry was not in relation to the role of the appellant and thus, he may not get any benefit out of it. Also, although the weapon attributed to the appellant by which he made the shot has not been recovered; this should not be fatal to the case of the prosecution. The .only contention of the appellant left to be addressed is that there was no independent witness brought forth by the prosecution. We find this alone cannot be a ground for acquittal in view of the evidence G available.
14. Thus, the role attributed to the appellant becomes proved. He made a gunshot which caused an injury on the right hand wrist of the deceased. Without doubt, this injury could A not have caused the death of the deceased, Therefore, we are of the opinion that the High Court was misplaced in maintaining the conviction of the present appellant under Section 302 of IPC. We therefore, alter the conviction of the appellant to one under Section 326 of the Indian Penal Code, B 1860. We accordingly sentence him to 10 years rigorous imprisonment under Section 326 of the Indian Penal Code. The impugned judgments passed by the High Court as also by the Sessions Court are accordingly modified qua the C appellant herein and this appeal is allowed to the above extent. Nidhi Jain Appeal partly allowed.