Panney @ Pratap Narain Shukla & Anr vs State Of U.P

O R D E R

This appeal arises out of the following facts:

About a month before the incident Shivdhari, son of

(Ram Awadh Yadav) PW.1, the first informant, had purchased

some land from Rudra Narain Shukla. The execution of the

sale annoyed the accused appellants as they too were

interested in the land.

At about 7.00 p.m. on 7th November, 2003, Shivdhari

had gone to the house of Shyam Kunwar of village Bhedi and on exhortation of the accused Harihar Shukla, & Panney @

Pratap Narain Shukla hurled a bomb on Shivdhari which fell

on his abdomen and exploded, whereas Channey @ Prabhu

Narain Shukla thereafter fired from a country made pistol

of 12 bore on the abdomen of Shivdhari and Vishwajit, the

absconding accused, cut his neck with a Gandasi. Shivdhari

died immediately on the spot. On hearing the sound of the

explosion Ram Awadh Yadav and his sons Ramdhari,

Tilakdhari and Dalsingar rushed to the spot, flashed a

torch and saw the accused running away. Ram Awadh Yadav

thereafter rushed to the police station at a distance

-2-

of one furlong and lodged the report. Pursuant to the

report, the S.H.O. Chandra Bali Yadav (PW.5), reached the place of incident, made the necessary inquiries, picked up

the spent cartridges and also recovered the splinters of

the bomb which had been hurled at the deceased. He also

recorded the statements of some of the witnesses under

Section 161 of the Cr.P.C. but not of Tilakdhari whose

statement was recorded after a gap of 8 days.

On the completion of the investigation, the accused

Harihar Shukla, Panney and Channey were charged for an

offence punishable under Sec.302 of the IPC and as they

pleaded not guilty, they were brought to trial. The trial

Court in the course of its judgment dated 10th December,

2004 acquitted Harihar Shukla on the ground that he had not

participated in the murder and awarded a sentence of death

to the other two accused. The matter was then referred to

the High Court for confirmation of the death sentence,

whereas the accused also filed an appeal challenging their conviction. The murder reference was declined and the

appeal too was dismissed.

This appeal by way of special leave has been filed

by Panney and Channey, the two convicted accused.

Mr. Ajay Veer Singh, the learned counsel for the

appellants has raised several arguments during the course

of hearing. He has first pointed out the medical evidence

contradicted the ocular testimony inasmuch that had the

bomb been hurled on the deceased from a very close range as

-3-

suggested the witnesses who had seen the incident from a

distance of four or five feet would have suffered injuries

as well and as this had not happened a doubt was cast on

the story. He has also pleaded that from the medical evidence it appeared that there were three explosive wounds

with charred and blackened margins, but the splinter

injuries beyond the primary wounds had no such markings on

the dead body which again falsified the prosecution story

and suggested the use of more than one bomb. He has

further pointed out that no pellets had been recovered from

the body and the use of the country made 12 bore pistol

was thus in doubt. It has finally been submitted that the

incident had allegedly happened at 7.00 p.m. on 7th

November, 2003, but from the evidence of the eye-witnesses

it appeared that it had happened in the early hours of 8th

November, 2003, which falsified the presence of the eye

witnesses.

The learned State counsel has, however, supported

the judgment of the trial Court.

It is true, as has been contended by Ajay Veer Singh that the bomb had exploded a short distance away

from the witnesses and in normal circumstances some

injuries would have been received by them as well. We are,

however, of the opinion that the bomb used was a country

made one, with uncertain content and performance. The

ocular evidence further falsifies the argument that the

bomb had exploded 4 feet away from the witnesses. It is

-4-

clear from the evidence that the eye witnesses were

standing at a distance of 4-5 steps away from the site of

the explosion. This would ordinarily be about 20 feet in

which case the possibility of the bomb causing any injury

to the witnesses would be rather remote. It has come in

the evidence of the Investigating Officer that splinters had been picked up within a radius of about 4 feet from the

site of the explosion meaning thereby that no damage could

be expected beyond that distance more particularly as the

bomb was a crude home made one, with uncertain performance.

Mr. Ajay Veer Singh's argument that three separate

bombs had been used is again falsified by the medical

evidence. We see from the post-mortem report that the

explosive injuries were on the lower chest and the abdomen

in an area of about 20 cm x 8 cm. and the injuries beyond

that area were caused by stray splinters. Merely because

the Doctor recorded three separate injuries would not,

therefore, lead to the conclusion that three bombs had been

used.

The learned counsel has also submitted that the

incised injuries found on the dead body had not been

explained is also not acceptable for the reason that in Modi's Medical Jurisprudence and Toxicology page 741 it has

been indicated that in a case of injuries by a bomb

explosion, incised wounds are clearly possible.

It has been submitted by Mr. Ajay Veer Singh that

the behaviour of the witnesses was abnormal inasmuch that

-5-

they did not interfere at the time of the attack on

Shivdhari. This submission is unacceptable in the light of

the brutality and ruthlessness of the attack inasmuch that

a bomb and pistol had been used and the neck of the

deceased had also been severed in this eventuality the eye

witnesses would have stayed far away from the accused,

fearing a similar fate.

Mr. Ajay Veer Singh has also emphasized that from the evidence it appeared that the prosecution itself was

uncertain about the time of the incident. He has pleaded

that as per the prosecution story the incident had happened

at about 7.00 p.m. on the 7th November 2003 but from the

statement of PW.2 it looks as if it had happened in the

early hours of the next morning. It is true that PW.2 had

stated at one stage that the incident had happened in the

morning a shortwhile before the police had arrived. It is,

however, not clear as to whether this was the first visit

of the Police Officer or a subsequent one as the police

station was only one furlong away from the place of

incident. Moreover, the story that the incident had

happened in the early hours on 8th November, 2003, is not

spelt out by the medical evidence. The Doctor opined that

the deceased had taken his last meal three hours before

his death. We are of the opinion that if that be so and the story of the defence is to be believed the murder would

then have been committed at about three or four a.m. which

would be highly probable, as the last meal would then have

to be taken at about 1.00 a.m. The prosecution story is,

-6-

however, consistent with the medical evidence in that the

deceased had died at 7.00 p.m. and the food would have

taken three or four hours before death which would be

normal human behaviour. Moreover as two courts have found

against the appellants on a clear cut discussion, we would

be hesitant to interfere with the findings of fact

recorded.

The appeal is dismissed accordingly.

.................J. (HARJIT SINGH BEDI)

.................J. (J.M. PANCHAL) New Delhi, December 9, 2009.