NDLI: Subash Shiv Shankar Vs. State of U.p.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Joint attack by accused
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Penal Code (45 of 1860)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Indian Penal Code, 1860-Sections 34 and 302-Joint attack by accused-Some accused acquitted for want of acceptable proof of identity-Other accused cannot escape conviction when participation in attack established by prosecution. Criminal Trial-Identification Parade--Delay in holding of-First Information Report and statements of wltnesses- Absence of descriptive particulars of accused-Conviction-Whether vitiated.The prosecution alleged that there was a dispute between the appellant in Appeal No. 287 of 1978 and the deceased in regard to payment of repair charges for a machine part and that three or four days later this appellant alongwith others attacked the deceased when he was accompanied by P.W. 1 and P.W. 2. It was further alleged that while the appellant in Appeal No. 288 of 1978 caught hold of the deceased, the appellant in the first appeal and two others repeatedly stabbed him with knives and caused several injuries. P. W. 2 was also injured when he tried to intercede. The deceased and P. W. 2 were taken to hospital where the deceased was pronounced dead. P. W. 1 presented a complaint at the Police Station. The appellant in the first appeal absconded and surrendered before the court later. On questioning, he named the assailants, who were arrested on different dates. Test identification parades were held for two accused persons wherein the appellant in the second appeal was identified by three witnesses, but the other accused was Identified by only of them. In the subsequent identification parade held for another accused, none of the witnesses was able to identify him. All the accused were tried and the two appellants and another accused were convicted under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 Indian Penal Code for having committed murder of the deceased and caused hurt with a knife to P. W. 2 and were awarded imprisonment for life and three years' rigorous imprisonment respectively, the sentences to run concurrently. The fourth accused who was not identified by any one of the witnesses at the identification parade and whose name was not mentioned in the First Information Report, was acquitted. The High Court in appeal confirmed the conviction of the two appellants but acquitted the third accused on the ground that he had been identified by only P.W. 2 and not by other witnesses.In the appeal to this Court, it was submitted on behalf of the appellant in Criminal Appeal No. 287 of 1978 that the prosecution evidence suffers from numerous infirmities and as such, the trial court and the High Court ought not to have convicted him, that in any case the benefit of doubt given to the two of the other accused ought to have been given to him, that there was an attempt to cover up the delay in making the report, that the motive put forward for the occurrence was of a flimsy nature and it was unbelievable that for non-payment of c repair charges the deceased would have been attacked alongwith his companions, that P.W. 1 did not have proper eye sight, that P.W. 3 was a chance witness and that C. W. 1 failed to support the prosecution case, and that even though P.W. 2 was an injured witness, there was no guarantee that his evidence is truthful. It was further urged that the appellant could be convicted only for an offence under Section 324 Indian Penal Code for the injury caused to the deceased as well as P. W. 2, that as the sub-stratum of the prosecution fails, the entire case had to fail and that when the other accused persons were acquitted, the appellant alone cannot be convicted under Section 302 read with Section 34 I.P.C., in the absence of evidence that he caused any of the fatal injurieson the deceased.It was submitted on behalf of the appellant in Criminal Appeal No. 288 of 1978 that neither his name nor any of his characteristics were / mentioned in the First Information Report by any of the eye witnesses, that he was falsely implicated, that there was no motive for him to murder the deceased, that one of the prosecution witnesses had altogether denied his presence, that there was delay in his arrest and holding of the identification parade and he was exposed to the identifying witnesses by not covering his distinctive features, that the prosecution had failed to prove beyond reasonable doubt his participation in the commission of the occurrence and that when the other accused, one of whose name figured in the First Information Report, were acquitted by giving the benefit of doubt, he should also have been given the same benefit of doubt.
Judge	Hon'ble Mr. Justice S. Natarajan
Neutral Citation	1987 INSC 110
Petitioner	Subash Shiv Shankar
Respondent	State Of U.p.
SCR	[1987] 2 S.C.R. 962
Judgement Date	1987-04-14
Case Number	287

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