# Panney @ Pratap Narain Shukla and another v. State of U.P

- **Citation:** (2005) 3 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-26
- **Case number:** Criminal Appeal No. 6628 of 2004
- **Bench:** Imtiyaz Murtaza, Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/panney-pratap-narain-shukla-and-another-v-state-of-u-p-40526
- **Pages:** 10

## Headnote

Code-Section
302-Death
sentence-sentence of imprisonment for
life is now a rule-but capital sentence an
exception-obligatory for court to record
Special
reason-upholding
the
Constitutional validity death sentence
still awardable-in rarest of rare casepresent case genesis of dispute-was the
land-deceased was done to death in
every brutal manner-injury by fire, bomb
blast-thereafter cutting the neck by
gandasi-considering the reasoning given
by Session Judge-this case does not fall
within the category of 'rarest of rare
case'.

Held: Para 27, 28

Under the old code of criminal Procedure
ample discretion was given to the courts
to pass death sentence as a general
proposition and the alternative sentence
of
life
term could
be
awarded in
exceptional circumstances, that too after
advancing special reasons for making
this departure from the general rule. The
new Code of 1973 has entirely reversed
the rule. A sentence for imprisonment
3 All] Panney @ Pratap Narain Shukla and another V. State of U.P.
973
for life is now the rule and capital
sentence is an exception. It has also
been made obligatory on the courts to
record special reasons if ultimately death
sentence
is
to
be
awarded.
A
Constitutional Bench of the Supreme
Court in the case of Bachan Singh Vs.
State of Punjab A.I.R. 1980 898 while
upholding the constitutional validity of
the death sentence voiced that as a legal
principle
death
sentence
is
still
awardable but only in rarest of rare
cases when the alternative option of
lesser
sentence
is
unquestionably
foreclosed.
The
Sessions
Judge
sentenced the appellants to death on the
ground that the genesis of the dispute
was the land which the deceased had
purchased
from
one
Rudra
Narain
Shukla, in the name of his son. It is
further held that the deceased was done
to death in a very brutal manner by
causing injuries by fire, bomb blast and
thereafter cutting the neck by Gandasi.
We have considered the reasoning given
by the sessions judge for awarding death
sentence.

Considering
the
aggravating
and
mitigating circumstances we are of the
opinion
that
in
the
facts
and
circumstances of the case, this case does
not fall within the category of ''rarest of
rare case' and it can not be said that
imposition of lesser sentence of life term
altogether foreclosed.
Case law discussed:
2004 (1) SCC-414
AIR 1980 SC-898

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
order restraining the disposal of the
present writ petition, this Court deems it
fit and proper to decide the present writ
petition on the merits of the contention
raised before the Court itself.

68. Accordingly, the writ petitions
are allowed. It is held that the judgment of
the Hon'ble Supreme Court in the case of
Azeez Basha still holds good even
subsequent
to
the
Aligarh
Muslim
University Amendment Act, 1981(Act
No. 62 of 1981). Aligarh Muslim
University is not a minority institution
within the meaning of Article 30 of the
Constitution of India. Therefore, the
University cannot provide any reservation
in respect of the students belonging to a
particular
religious
community.
The
resolution of the Academic Council dated
15th January, 2005, the decision of the
Executive Council dated 19th February,
2005 as also the approval granted thereto
under letter of the Union of India dated
25th February, 2005 are hereby quashed.
The admissions granted in pursuance of
the aforesaid reservation stand cancelled.
The
Aligarh
Muslim
University
is
directed to conduct a fresh entrance
examination in respect of the 50% seats of
the Post Graduate Medical Courses,
preferably within one month from the date
a certified copy of this order is filed
before the Vice Chancellor of the
University,
without
making
any
reservation on the basis of religion.

Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.10.2005

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE AMAR SARAN, J.

Criminal Appeal No. 6628 of 2004

Panney @ Pratap Narain Shukla and
another

 ...Appellants
Versus
State of U.P.

 ...Respondent

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri B.K. Tripathi

Counsel for the Opposite Party:
Sri R.K. Singh
A.G.A.

India
Penal
Code-Section
302-Death
sentence-sentence of imprisonment for
life is now a rule-but capital sentence an
exception-obligatory for court to record
Special
reason-upholding
the
Constitutional validity death sentence
still awardable-in rarest of rare casepresent case genesis of dispute-was the
land-deceased was done to death in
every brutal manner-injury by fire, bomb
blast-thereafter cutting the neck by
gandasi-considering the reasoning given
by Session Judge-this case does not fall
within the category of 'rarest of rare
case'.

Held: Para 27, 28

Under the old code of criminal Procedure
ample discretion was given to the courts
to pass death sentence as a general
proposition and the alternative sentence
of
life
term could
be
awarded in
exceptional circumstances, that too after
advancing special reasons for making
this departure from the general rule. The
new Code of 1973 has entirely reversed
the rule. A sentence for imprisonment
3 All] Panney @ Pratap Narain Shukla and another V. State of U.P.
973
for life is now the rule and capital
sentence is an exception. It has also
been made obligatory on the courts to
record special reasons if ultimately death
sentence
is
to
be
awarded.
A
Constitutional Bench of the Supreme
Court in the case of Bachan Singh Vs.
State of Punjab A.I.R. 1980 898 while
upholding the constitutional validity of
the death sentence voiced that as a legal
principle
death
sentence
is
still
awardable but only in rarest of rare
cases when the alternative option of
lesser
sentence
is
unquestionably
foreclosed.
The
Sessions
Judge
sentenced the appellants to death on the
ground that the genesis of the dispute
was the land which the deceased had
purchased
from
one
Rudra
Narain
Shukla, in the name of his son. It is
further held that the deceased was done
to death in a very brutal manner by
causing injuries by fire, bomb blast and
thereafter cutting the neck by Gandasi.
We have considered the reasoning given
by the sessions judge for awarding death
sentence.

Considering
the
aggravating
and
mitigating circumstances we are of the
opinion
that
in
the
facts
and
circumstances of the case, this case does
not fall within the category of ''rarest of
rare case' and it can not be said that
imposition of lesser sentence of life term
altogether foreclosed.
Case law discussed:
2004 (1) SCC-414
AIR 1980 SC-898

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. This appeal has been filed against
the judgment and order dated 9.12.2004
passed
by
the
Additional
Sessions
Judge/F.T.C.4 Deoria in S.T.No. 152 of
2004 whereby the appellants have been
convicted under section 302 I.P.C. and
sentenced to death and a fine of Rs.
5000/-each and in default of payment of
fine further rigorous imprisonment for
one year.

2. Briefly stated, the facts mentioned
in the first information report lodged by
Ram Awadh Yadav are that about one
month prior to the incident his son
Sheodhari got registered a sale deed of the
land from one Rudra Narain Shukla, who
was pattidar of Harihar Shukla. The
accused were annoyed due to the
execution of the sale deed and they were
inimical with them. On 7.11.2003 at about
7. p.m. Sheodhari had gone to the house
of Shyam Kunwar of the village. On the
exhortation of Harihar Shukla, Panney @
Pratap Narain Shukla hurled a bomb,
which hit Sheodhari on his abdomen and
he fell on the ground. Chhanney @
Prabhu Naain Shukla fired from a country
made pistol on the abdomen of his son
Sheodhari. One Vishwajeet s/o Ramanand
cut the neck of Sheodhari with a Gandasi
and he died on the spot. Hearing the
sound of explosion and firing, informant
Ram Awadh Yadav, his sons Ramdhari
and Tilakdhari and one Dalsingar of the
village rushed to the spot flashing their
torches and saw the accused persons
running away from the spot. The
occurrence was also witnessed by Shyam
Kunwar son of Sobaran.

3. On the basis of the written report
case crime No. 41/2003 under section 302
I.P.C. at police station Ekona, District
Deoria was registered against the accused
persons.

4. Chandra Bali Yadav, S.H.O., P.S.
Ekona commenced the investigation. He
recorded the statements of informant and
witness Ramdhari and prepared the site
plan on their pointing out. He also
recovered one empty cartridge of 12 bore.
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
The blood stained Gandasi was recovered
from the bush of Shyam Kunwar. He also
collected residue of bomb. Blood stained
earth and plain earth was also collected.
He also inspected the torches of the
witnesses. He prepared the recovery
memos, Exs. Ka. 2 to Ka. 6. Site plan of
the place of occurrence is Ex. Ka. 8. He
also prepared the inquest memo of the
dead body, which is Ex. Ka.7 and also
prepared the relevant papers for the post
mortem examination and handed over the
dead body to Ram Charittar Yadav and
Lal Chandra Yadav for the post mortem.
Harihar Shukla, Panney @ Pratap Narain,
Chhaney @ Prabhu Narain were arrested
on 8.11.2003. He recorded the statements
of Constable Ram Charittar Yadav and
Constable Lal Chandra and Ishwar Chand,
scribe of the first information report. The
statement of Tilakdhari was recorded on
15.11.2003. After the conclusion of the
investigation he submitted the charge
sheet against Harihar Shukla, Panney @
Pratap Narain Shukla and Chhaney @
Prabhu Narain Shukla, which is Ex. Ka. 8.

5. After the submission of the charge
sheet the case was committed to the Court
of Sessions. The prosecution examined
P.W.1, Ram Awadh, P.W.2, Ramdhari
Yadav,
P.W.3,
Tilakdhari,
P.W.4,
Constable Lal Chand Yadav, P.W.5, Subinspector Chandra Bali Yadav, P.W.6,
Ishwar Chand Shukla and P.W.7, Dr. S.B.
Singh who conducted the post mortem
examination of the deceased.

6. The case of the defence is of
denial and D.W.1, Upendra Nath Mishra,
Clerk in the Court of Chief Judicial
Magistrate, Deoria was examined on
behalf of the defence. Certified copy of
the charge sheet of case crime No.
189/94,
P.S.
Rudrapur
and
two
questionnaires of the Court of Judicial
Magistrate, Deoria were also filed.

The Sessions Judge after considering
the evidence on the record convicted the
appellants as aforesaid and acquitted
Harihar Shukla.

7. We have heard the learned
counsel for the appellants and the learned
A.G.A. for the State.

8. Learned counsel for the appellants
has challenged the findings of the
Sessions Judge on the ground that there is
conflict in the medical report and direct
evidence and the presence of witnesses at
the place of occurrence is doubtful. There
was no motive for the appellants to
commit the offence and the testimonies of
the
prosecution
witnesses
are
not
sufficient to hold the appellants guilty.

9. In order to appreciate the
submissions of the learned counsel for the
appellants, we have to examine the
testimony of the prosecution witnesses.

P.W.1 Ram Awadh deposed that
Harihar Shukla belongs to his village.
Rudra Narain Shukla was pattidar of
Harihar Shukla, who shifted to District
Pratapgarh and the accused had taken the
forcible possession of his land. Rudra
Narain Shukla had transferred his land
through a sale deed in the name of Suresh,
son of the deceased Sheodhari. The
execution of the sale deed had annoyed
the accused persons and they became
inimical with the deceased. On the date of
occurrence at about 7.00 p.m. Sheodhari
Yadav had gone to the house of Shyam
Kunwar. On the exhortation of Harihar
Shukla, Panney @ Pratap Narain Shukla
hurled a bomb which hit the deceased on
3 All] Panney @ Pratap Narain Shukla and another V. State of U.P.
975
his abdomen and he fell down. After that,
Chhanney @ Prabhu Narain Shukla fired
at Sheodhari with a Katta and another
accused Vishwajeet, who had absconded
and was not facing trial, cut the neck of
the
deceased
with
a
Gandasi
and
Sheodhari died on the spot. The incident
was witnessed by Ramdhari, Tilakdhari
and Dalsingar, who rushed to the spot. At
the time of incident informant was
returning from his field through Kharanja
road and witnessed the incident. At the
time of occurrence a lantern was burning
at the house of Shyam Kunwar and the
witnesses had seen the accused persons by
flashing their torches. He had lodged the
report, which was scribed by Rajaram.

10. P.W.2 Ramdhari Yadav deposed
that Rudra Narain Shukla was pattidar of
Harihar Shukla whose land was forcibly
occupied by the accused after his
migration to Pratapgarh. Rudra Narain
Shukla had sold his land to Sheodhari and
after the execution of the sale deed
Sheodhari had taken the possession of the
land and this had annoyed them and they
became inimical. On the date of incident
at about 7.00 p.m. his brother Sheodhari
had gone to the house of Shyam Kunwar
and he had gone to his field and was
returning therefrom. It is further stated
that when he reached near the place of
incident he saw that Harihar Shukla was
exhorting to kill the deceased and Panney
hurled a bomb, which struck the abdomen
of the deceased. It is further stated that
when he fell down Chhanney fired from a
country made pistol. Vishwajeet got his
neck cut by a Gandasi. The occurrence
was also witnessed by Shyam Kunwar
and his family members. Ram Awadh,
Tilakdhari and several persons of the
village also witnessed the incident.

11. P.W.3 Tilakdhari deposed that at
the time of the incident he was coming
from his field and witnessed the incident.
His father Ram Awadh and brother
Ramdhari were also with him. He stated
that Panney had hurled a bomb on the
deceased and Dhanney had fired from a
country made pistol and Vishwajeet had
cut the neck by a Gandasi. The occurrence
was witnessed in the torch light. Shyam
Kunwar and Dalsingar also witnessed the
occurrence.

12. P.W.4, Lal Chand Yadav was
posted as constable at P.S. Ekona on
8.11.2003. He had accompanied Station
House Officer to village Bhedi. He also
prepared the inquest memo, Ex.Ka.7. The
dead body was handed over to him in a
sealed condition for mortuary.

13. P.W.5, Sub-inspector Chandra
Bali Yadav deposed that he was posted at
P.S. Ekona as Station House Officer on
7.11.2003. He was the investigating
officer of the case. After conclusion of the
investigation he had submitted the charge
sheet.

14. P.W.6, Ishwar Chandra Shukla
deposed that he was posted as constable
moharrir at P.S. Ekona, District Deoria on
7.11.2003. On the basis of the report of
Ram Awadh Yadav he had prepared the
first information report which is Ex. Ka 9.
He had also prepared the G.D. Ex. Ka.10.
is the copy of the G.D.

15. P.W.7 Dr. S.B. Singh conducted
the post mortem examination of the
deceased
on
8.11.2003.
He
noted
following ante mortem injuries on the
body of the deceased:
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
1.
Incised wound 10 cm x 5 cm x
bone deep on front of neck, just
above
the
thyroid
cartilage.
Trachea, oesophagus and muscles
and all blood vessels and nerves
cut.
2.
Incised wound 5 cm x 2 cm x cavity
deep on right side front of chest, 8
cm above right nipple. Lungs
lacerated.
3.
Blast injury 15 cm x 5 cm x cavity
deep on right side of abdomen,
including lower part of right side
chest, 10 cm below right nipple.
Viscera
was
protruding
out,
blackening in and around was
present.
4.
Blast injury 7 cm x 3 cm x cavity
deep on left side of abdomen, 2 cm
left to injury No. 3. Blackening in
and around the wound was present.
5.
Blast injury 5 cm x 3 cm x cavity
deep on right side of abdomen, 5
cm below injury No. 3, blackening
in and around the wound was
present.
6.
Incised wound 4 cm x 2 cm x bone
deep on right side back of chest, 15
cm above right iliac crest.
7.
Incised wound 7 cm x 2 cm x
muscle deep on back of upper part
of right thigh.

In the opinion of doctor the cause of
death was due to shock and haemorrhage
as a result of ante mortem injuries.

16. D.W.1, Upendra Nath Mishra
deposed that according to the register of
First Information Reports, F.I.R of this
case was received in his office on
12.11.2003 and on the same day it was
placed
before
the
Chief
Judicial
Magistrate, Deoria.

17. The first submission of counsel
for the appellants is that the prosecution
has relied upon 3 eyewitnesses namely
P.W. 1 Ram Awadh Yadav, P.W. 2
Ramdhari Yadav and P.W. 3 Tilakdhari.
P.W. 1 is father of the deceased and P.Ws.
2 and 3 are brothers of the deceased,
therefore, their testimonies should not be
believed. It is further submitted that the
presence of two independent witnesses
namely Dal Singar and Shyam Kunwar is
admitted but the prosecution did not
examine them.

18. We have considered the
submission of the counsel for the
appellants. It is a settled position of law
that testimony of close relatives should
not be thrown away merely on the ground
of their relationship. The court should
scrutinise their testimony with more
caution.
If
the
testimony
inspires
confidence and trustworthy the same
could be relied upon. As regards the nonexamination of other witnesses namely
Shyam Kunwar and Dal Singar is
concerned, it is a well-settled principle of
law that prosecution is not bound to
examine all the witnesses. Now a days the
villages are faction-ridden. In some cases
persons may not like to come and depose
as witnesses and in some other cases the
prosecution may carry the impression that
their evidence would not help it. In such a
case, mere non-examination would not
affect the prosecution version. But at the
same time, if the relatives or interested
witnesses are examined, the court has a
duty to analyse the evidence with deeper
scrutiny and then come to a conclusion as
to whether it has a ring of truth or there is
reason for holding that the evidence was
biased. Whenever a plea is taken that the
witness is partisan or had any hostility
towards the accused, foundation for the
3 All] Panney @ Pratap Narain Shukla and another V. State of U.P.
977
same has to be laid. If the materials show
that there is a partisan approach, the court
has to analyse the evidence with care and
caution. Additionally, the accused persons
have always the option of examining the
left-out persons as defence witnesses.

19. It is also submitted by the
counsel for the appellants that the first
information report in this case is antitimed. Learned counsel for the appellants
has drawn our attention towards the
statement of P.W. 5 Chandraoli Yadav,
investigating officer. He had deposed that
he gathered the information of the
incident that one explosion had took place
towards North in village Bhedi. He had
also visited the place of incident after
about 10 minutes of the incident. He
found that a dead body was lying at the
place of occurrence. Informant Ram
Awadh was not there but witnesses
Tilakdhari, Ramdhari and Dal Singar
were present . He was informed that Ram
Awadh had gone to lodge the report at the
police station. He returned after about 20 -
25 minutes to the police station and after
the registration of the report, he again
visited the place of occurrence. He had
collected the empty cartridges in the night
on 7.11.2003 and also collected the
remains of the explosion. It is contended
by the counsel for the appellants that
recovery memos Exts. Ka. 2 and Ka. 3
were prepared on 8.11.2003 which
contradict the statement of P.W. 5. The
statement of P.W. 1 shows that after
hearing the explosion, police did not
reach on the spot. He further deposed that
after about half an hour of the incident,
the dead body was taken to the police
station where it remained through the
night and it was dispatched for the postmortem
examination
at
8.30
A.M.
Learned counsel for the appellants has
also drawn our attention towards the
statement of P.W. 2 who admitted that
deceased was murdered about one hour
earlier to the dispatch of the dead body for
the post-mortem examination. According
to the counsel for the appellants this
shows that murder took place early in the
morning on 8.11.2003. It is also pointed
out by the counsel for the appellants that
P.W. 3 deposed that the dead body
remained throughout the night at the spot
and the investigating officer visited the
place of occurrence at 6.00 A.M. It is
vehemently
argued
that
these
contradictions in the statement of the
witnesses show that prosecution has
suppressed
the
actual time
of
the
occurrence and the same is not clear
whether the dead body remained at the
place of occurrence or kept at the police
station before dispatching for the postmortem examination. We have considered
the submission and in our opinion there is
no merit. The eye witness account with
regard
to
actual
occurrence
and
participation of the appellants is credible
and consistent and these contradictions
are minor in nature and they are bound to
occur when the witnesses are rustic
villagers. It is further submitted that the
first information report was received in
the office of Chief Judicial Magistrate,
Deoria on 12.11.2003. It is submitted that
due to delay in sending the F.I.R. to the
court concerned, possibility cannot be
ruled out that the F.I.R. was anti-timed.

20. We have considered the
submissions of the counsel for the
appellants. The first information report of
the incident was registered on 7.11.2003
at 8.15 P.M. The distance of the police
station is only one furlong. The inquest
proceedings were conducted on 8.11.2003
at 8.00 A.M. In the instant case according
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to P.W. 5 special report of the incident
was sent on 7.11.2003 after lodging of the
F.I.R. by a constable. P.W. 6 Ishwar
Chand Shukla also stated that special
report was sent by Con. Udai Narain on
the same day. Post-mortem examination
was conducted on 8.11.2003 at 1.40 P.M.
The first information report was also
dispatched alongwith inquest report to the
doctor concerned for the post-mortem.
The delay in sending the F.I.R. in no way
prejudices the prosecution case.

21. The counsel for the appellants
submits that crime number is not
mentioned in the inquest report which
shows that the F.I.R. was not in existence
at the time. No substance has been found
in this contention because in the inquest
report time of occurrence and G.D. entry
number of registration of crime are
mentioned.

22. Learned counsel for the
appellants also challenged that there was
no source of light in which the witnesses
had identified the accused persons. In the
first information report no source of light
was mentioned. At the time of inquest
proceedings, light was not available. P.W.
5, investigating officer, deposed that
lantern was burning and this fact is
supported by the testimonies of 3
eyewitnesses who stated that lantern was
burning at the house of Shyam Kunwar
and the witnesses were also having
torches with them. The witnesses were
already known to the accused. They are
residents of the same village. Even known
persons can be identified in faint light.

23. The further submission of the
counsel for the appellants is that P.W. 3,
Tilakdhari, was interrogated by the
investigating officer after one week i.e.
15.11.2003. The delay in interrogation of
P.W. 3 makes the prosecution case
doubtful and suggests that P.W. 3 was
neither present on the spot nor he was
available to the investigating officer for
interrogation. The investigating officer
deposed that after lodging of the F.I.R. he
recorded the statement of informant Ram
Awadh and thereafter recorded the
statement of Ramdhari, P.W. 2. He
inspected the place of occurrence and
completed other formalities on 8.11.2003.
He arrested the accused persons on
15.11.2003 and recorded the statement of
P.W. 3, Tilakdhari. Thus, the statement of
Tilakdhari was recorded after above 8
days. The evidence of Tilakdhari cannot
be rejected simply because there was
some delay in recording 161 Cr.P.C.
statement.
The
name
of
P.W.
3,
Tilakdhari, is mentioned in the first
information report as an eye witness. He
is also witness of the recovery memos
which were prepared on 8.11.2003.
Therefore, his presence cannot be doubted
and his testimony cannot be rejected. It is
well settled principle that it is not every
delay in recording the statement, which
may be fatal. The prosecution is under
obligation to offer explanation for the
delay and if the explanation is reasonable
and plausible, testimony of the witness
cannot
be
considered
un-acceptable
because of his delayed interrogation.
Apart from this the defence must put
specific question to the investigating
officer for the delay in recording his
statement and must seek explanation from
him. In the present case no question was
asked by the defence for the delayed
recording of the statement of P.W. 3,
Tilakdhari. The Apex Court held as under
in the case of Banti v. State of M.P.
(2004) 1 SCC 414, at page 419:
3 All] Panney @ Pratap Narain Shukla and another V. State of U.P.
979
"As regards the delayed examination
of certain witnesses, this Court in several
decisions has held that unless the
investigating officer is categorically asked
as to why there was delay in examination
of the witnesses the defence cannot gain
any advantage therefrom. It cannot be laid
down as a rule of universal application
that if there is any delay in examination of
a particular witness, the prosecution
version becomes suspect. It would depend
upon several factors. If the explanation
offered for the delayed examination is
plausible and acceptable and the court
accepts the same as plausible, there is no
reason to interfere with the conclusion."

24. The last submission of the
counsel for the appellants is that ocular
account of witness is totally inconsistent
with the medical evidence. According to
the prosecution case Panney alias Pratap
Narain Shukla hurled a bomb on the
deceased and Chhanney alias Prabhu
Narain Shukla had fired from a country
made pistol and Vishwajeet cut the neck
of the deceased by Gandasa. In the postmortem examination report 4 incised
wound and 3 blast injuries were noted by
the doctor and 25 big metallic pellets of
bolt shape from the abdominal cavity of
the deceased were recovered. The doctor
did not find any firearm injury which can
be said to be of country made pistol. It is
submitted that complicity of Chhanney
alias Prabhu Narain Shukla is doubtful.
We have considered the submission and
perused the evidence on record. The blast
injuries are of a very big dimension and
injuries
caused
by
firearm
became
invisible. It would not be possible to
distinguish the firearm and blast injuries.
The manner of assault and the weapon
used is consistent with the testimony of
the witnesses. It is not necessary for the
prosecution to explain each and every
shot fired by a country made pistol. It is
the case of the prosecution that firstly a
bomb was hurled and thereafter country
made pistol was fired. The role of the
accused, manner of assault is credit
worthy and if no separate pellet was
recovered, it cannot be said that the
firearm was not used in committing the
murder of the deceased. Now a days
cartridges are used which are filled by
different metallic pieces. The possibility
cannot be ruled out that same metallic
pieces might be filled which are used in
preparation of a bomb. In such a situation
in our opinion there is no conflict in
medical and direct evidence. The role
assigned to Chhanney @ Prabhu Narain
Shukla by the witnesses is consistent,
credible and inspires full confidence.

25. The counsel for the appellants
submitted that on the basis of same
evidence one co-accused Harihar Shukla
is acquitted by the trial court and the
evidence of the witnesses with regard to
appellant should also have been rejected
by the trial court. We have considered the
submission of counsel for the appellants
and also perused the grounds for acquittal
of Harihar Shukla. The Sessions Judge
had considered the submission of the
counsel for the accused that only role of
Harihar Shukla was of exhortation and no
active role is assigned to him. He was also
not carrying any weapon. The Sessions
Judge had considered the submission and
also considered the observations of the
Apex Court and High Court and held that
the complicity of accused Harihar Shukla
becomes doubtful and prosecution has not
succeeded to prove beyond reasonable
doubt the involvement of the accused
Harihar Shukla and also held that the rule
of abundant caution would be attracted
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
and he was given benefit of doubt and
acquitted. The case of the appellants is
distinguishable from the case of Harihar
Shukla.
The
appellants
have
been
assigned specific weapons and their roles
are corroborated by the medical evidence
also. The appellants cannot be acquitted
only
because
the
evidence
of
the
witnesses was not relied against Harihar
Shukla. It is well settled by the catena of
decisions of the Apex Court that the mere
fact that out of many accused some are
acquitted is not sufficient to entitle the
rejection of the entire prosecution case. It
is further held that the court should make
every effort to disengage the truth from
the falsehood and to sift the grain from
the chaff rather than take the easy course
of rejecting the entire prosecution case.

26. Lastly, the question that arises
for serious consideration is whether
imposition of death penalty in the facts
and circumstances of the case is justified?

27. Under the old code of criminal
Procedure ample discretion was given to
the courts to pass death sentence as a
general proposition and the alternative
sentence of life term could be awarded in
exceptional circumstances, that too after
advancing special reasons for making this
departure from the general rule. The new
Code of 1973 has entirely reversed the
rule. A sentence for imprisonment for life
is now the rule and capital sentence is an
exception. It has also been made
obligatory on the courts to record special
reasons if ultimately death sentence is to
be awarded. A Constitutional Bench of
the Supreme Court in the case of Bachan
Singh Vs. State of Punjab A.I.R. 1980
898 while upholding the constitutional
validity of the death sentence voiced that
as a legal principle death sentence is still
awardable but only in rarest of rare cases
when the alternative option of lesser
sentence is unquestionably foreclosed.
The
Sessions
Judge
sentenced
the
appellants to death on the ground that the
genesis of the dispute was the land which
the deceased had purchased from one
Rudra Narain Shukla, in the name of his
son. It is further held that the deceased
was done to death in a very brutal manner
by causing injuries by fire, bomb blast
and thereafter cutting the neck by
Gandasi.
We
have
considered
the
reasoning given by the sessions judge for
awarding death sentence.

28. Considering the aggravating and
mitigating circumstances we are of the
opinion
that
in
the
facts
and
circumstances of the case, this case does
not fall within the category of ''rarest of
rare case' and it can not be said that
imposition of lesser sentence of life term
altogether foreclosed.

29. In view of the above the appeal
is dismissed with the modification that
conviction under Section 302 I.P.C. is
upheld but sentence of death is reduced to
imprisonment for life. The appellants are
in jail. They shall be kept there to serve
out the sentence as reduced by us.

30. Reference made by learned
Sessions Judge for confirmation of death
sentence is rejected.

31. Office is directed to send a copy
of this judgment to the Chief Judicial
Magistrate, Deoria, within two weeks.

 Appeal dismissed.
---------
3 All] Paras Nath Yadav V. Sri Ramendra Tripathi and another
981
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2005

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Contempt Application No. 2642
of 2005

Paras Nath Yadav

...Applicant
Versus
Sri Ramendra Tripathi and others

 ...Opposite parties

Counsel for the Applicant:
Sri B.N.Pandey

Counsel for the Opposite Parties:

Contempt
of
Court
Act
1971-S-20Limitation
for
filing
the
contempt
application-direction issued on 11.3.99
to decide the claim within six weekscause
of
action
arase
in-May
99contempt petition filed on 23.8.2000explanation
representation
after
representation-held-after the elapsed of
statutory period of one year-cannot be
enlarged.

Held: Para 8

In my opinion, the period of one year
contemplated under Section 20 of the
Contempt of Court Act, 1971, having
expired
some
time
in
May,
2000,subsequent representations made
by the petitioner-applicant from time to
time,
as
alleged
by
the
petitioner
applicant, will not enlarge the period
mentioned in Section 20 of the Contempt
of Court Act, 1971.

(Delivered by Hon'ble S.P.Mehrotra, J.)

1. The present Contempt Petition
has
been
filed,
inter-alia,
by
the
petitioner-applicant on the ground of
alleged non-compliance of the order dated
11thMarch, 1999 (Annexure 1 to the
Affidavit accompanying the Contempt
Petition) passed by this Court in Civil
Misc. Writ Petition 7261 of 1999.

2. Relevant portion of the said order
dated 11thMarch, 1999 is quoted below:

"As the question involved is to trivial
to drag on unnecessarily before this
Court, hence after hearing the learned
counsel for the petitioner as well as the
learned Standing Counsel I dispose of this
writ petition by issuing direction to the
respondent Nos. 2 and 3 to pass
appropriate order on the application of the
petitioner within six weeks from the date
of presentation of the copy of this order."

3. From a perusal of the averments
made in paragraph 1! Of the Affidavit
accompanying the Contempt Petition and
Annexure
2
to
the
Affidavit
accompanying the Contempt Petition, it
appears that a certified copy of the said
order dated 11thMarch, 1999 was sent to
the Zila Adhikari, Basti and the Up Zila
Adhikari, Basti by Registered Post on 20th
March, 1999.

4. In view of the directions given in
the said order dated 11thMarch, 1999, the
application of the petitioner was to be
decided within six weeks of the receipt of
the said certified copy of the order dated
11th March, 1999. The said period of six
weeks evidently expired some time in
May, 1999. Consequently, cause of action
for filing Contempt Petition arose some
time in May, 1999. In the circumstances,
the Contempt Petition ought have been
filed within one year i.e. by May, 2000, in
view of the provisions of Section 20 of
the Contempt of Court Act, 1971.