REPORTABLE

                  IN THE SUPREME COURT OF  INDIA            CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NOS. 304   OF 2006

PANNEY @ PRATAP NARAIN SHUKLA & ANR. ..  APPELLANT(S)

vs.

STATE OF U.P. ..  RESPONDENT(S)

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  

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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  

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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  

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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  

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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,  

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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.