Allahabad High Court
Girja Shankar And Another vs State on 21 July, 2026
Author: Santosh Rai
Bench: Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 782 of 1987
Girja Shankar and another
..Appellant(s)
Versus
State
..Respondent(s)
Counsel for Appellant(s) : J.s. Malviya, V.c. Katiyar, V.p.sharma, Vishesh Kumar
Counsel for Respondent(s) : A.G.A.
Court No. - 93 Reserved On 27.5.2026
Delivered On 21.7.2026
HON'BLE SANTOSH RAI, J.
1. Heard Sri Vishesh Kumar, learned counsel for the appellants; Sri Shyam Narayan Rai, learned AGA for State and perused the material on record.
2. Two accused appellants have filed the instant appeal in the year 1987, during pendency of this appeal one of accused namely, Girja Shankar Savita has already died, hence, the appeal has already been abated against him accordingly by this Court. The appeal survives only against the appellant no.2 Manni Ram.
3. The appellant is aggrieved by the judgment and order dated 11.3.1987, passed by IVth Additional Sessions Judge, Fatehpur in Criminal Sessions Trial No.268 of 1985 (State Vs. Girja Shankar Savita & Anr.), under Sections 307, 307/34 IPC, Police Station Ghazipur, District Fatehpur; whereby the appellants have been convicted and sentenced to seven years rigorous imprisonment under Sections 307, 307/34 IPC.
4. Briefly stated, the prosecution case is that on 30.1.1985, at about 8 P.M., the complainant Phool Singh (P.W.1) was present with his father Rakshpal Singh (P.W.2) at their tube-well beneath a Chhappar in village Mohammadpur P.S. Ghazipur, District Fatehpur. The two appellants reached the spot and were identified by the complainant party in the light of the moon. On being questioned by Rakshpal Singh as to their presence, the appellants exhorted that they would not leave the complainant party alive. The appellant Manni Ram thereupon opened fire from his country-made pistol upon Rakshpal Singh, causing him firearm injuries on the right cheek, neck, right upper arm and back of chest, while the appellant Girja Shankar Savita opened fire from his licensed gun towards the complainant Phool Singh, who escaped unhurt by concealing himself in a drain adjoining the tube-well. On an alarm being raised, both appellants fled towards the village and were seen and identified while fleeing, armed respectively with a pistol and a gun, by Ram Pyare (P.W.3) and one Hanuman. The complainant thereafter arranged a bullock-cart, brought his injured father to his house, scribed the written report Ext.Ka-1 himself, and lodged the same at Outpost Shah at about 10 P.M. the same night, the distance being three kilometres.
5. The investigation started, and statements of witnesses were recorded. After investigation, a charge sheet was filed under Sections 307, 307/34 IPC. The Magistrate took cognizance of the case and committed it to the court of Sessions, where it was registered as Sessions Trial No.268 of 1985 (State of U.P. vs. Girja Shankar Savita & Anr.), under Section 307, 307/34 IPC. Charges were framed against the accused persons. They denied the charges and demanded trial.
6. The prosecution has produced Phool Singh PW-1, Rakshpal Singh PW-2, Ram Pyare PW-3, Dr. L.V.P.B. Singh PW-4, S.I. Vijai Shankar Tiwari PW-5, Constable Ram Autar PW-6 and proved material exhibits Ex.Ka.1 Tehrir, Ex.Ka.2 Recovery memo of blood stained kurta, Ex.Ka.3 Injury report, Ex.Ka.4 site plan, Ex.Ka.5 G.D. entry, Ex.Ka.6 charge-sheet, Ex.Ka.7 chik report, Ex.Ka.8 G.D. entry, Ex.Ka.9 Letter as documentary evidence in support of its case. Laxmi Sagar DW-1 and Ram Swaroop DW-2 have been examined on behalf of defence.
7. In brief the grounds of appeal are that the conviction of the appellants is against the weight of evidence on record and is bad in law. The sentence awarded in view of the fact no offence under Section 307, 307/34 IPC is made out and sentence is too severe. The trial court failed to appraise the evidence in its true perspective and thus erred in recording the conviction of the appellants only on the basis of prosecution story.
8. I have heard learned counsel for the appellants and the learned AGA for the State at length, and have carefully perused the entire record of the trial court, including the judgment under appeal, the depositions of the witnesses, the site plan Ex.Ka.4, the injury report Ex.Ka.3, and the other exhibited documents.
9. Learned counsel for the appellants has assailed the impugned judgment principally on the following grounds that the identification of the appellants at night, in moonlight alone and at a distance, was inherently unsafe, and the possibility of mistaken identification could not be ruled out, the Investigating Officer, upon visiting the spot on the day following the occurrence, found no blood at the place of occurrence, which is fatal to the prosecution version of the place of assault, there existed long-standing political rivalry between the parties arising out of the election to the office of Gram Pradhan, rendering the case one of false implication born out of enmity, the injuries found on the person of Rakshpal Singh, being described in the medical evidence as devoid of any blackening or tattooing, do not, without more, establish an intention on the part of the appellants to cause death, and that mere infliction of firearm injury does not ipso facto attract Section 307 IPC, and no specific and distinct overt act attributable individually to the appellant Girja Shankar Savita has been brought home, and his conviction with the aid of Section 34 IPC, resting on a bare inference of common intention from mere presence, is unsustainable in law.
10. Per contra, learned AGA has supported the impugned judgment and submitted that the trial court has, upon a correct and painstaking appreciation of the direct testimony of the injured himself, duly corroborated in material particulars by an independent eye-witness and further corroborated by contemporaneous medical evidence and the site plan, rightly returned a finding of guilt against both appellants; that the promptitude of the FIR, lodged within two hours at a distance of three kilometers, forecloses any real possibility of embellishment or deliberation; and that the distinct role of each appellant actual firing by Manni Ram, and the sharing of common intention by Girja Shankar, who arrived armed together with his co-accused, joined in the exhortation to kill, and fled the scene together with him stands amply established on the record.
11. The following points arise for determination in this appeal:-
(a) Whether the identification of the appellants and the manner of occurrence, as deposed to by P.W.1 and P.W.2, is safe, reliable, and duly corroborated by independent witnesses and medical evidence?
(b) Whether the absence of blood at the spot, noticed by the Investigating Officer a day after the occurrence, is sufficient to discredit the place and manner of occurrence as set up by the prosecution?
(c) Whether the prosecution has established the specific and distinct role of each of the two appellants, and whether the ingredients of Section 307 IPC, simpliciter and read with Section 34 IPC, stand independently established qua each appellant?
(d) Whether the sentence of seven years’ rigorous imprisonment awarded to each appellant calls for interference?
12. P.W.1 Phool Singh and P.W.2 Rakshpal Singh, being the complainant and the injured respectively, are natural witnesses, being present at their own tube-well at the material time. Both have deposed consistently that they identified the appellants, who belong to the same village and were previously known to them, in the light of the moon; P.W.1 has stated that he had a talk with the accused, and P.W.2 has stated that he saw the accused from a distance of about ten paces. The occurrence is shown to have taken place on Magh Sudi Naumi, and there is no serious challenge to the finding recorded by the trial court that there was sufficient moonlight to enable identification. Given the admitted prior enmity and acquaintance between the parties, the possibility of mistaken identity is remote. This version stands independently corroborated by P.W.3 Ram Pyare, who deposed that on hearing the sound of fire and the alarm, he ran towards the tube-well and, when about a hundred paces away, saw and identified the appellants Girja Shankar carrying a gun and Manni Ram a country-made pistol, fleeing towards the village in the same moonlight. The consistency between the ocular account of the injured and that of an independent witness, coupled with the promptitude of the FIR lodged the same night without any opportunity for deliberation or consultation, satisfies us that the trial court’s assessment of the identification and the ocular version as truthful and reliable does not suffer from infirmity warranting interference.
13. It is true that the Investigating Officer, who visited the spot only on the day following the occurrence, did not find any blood there. However, this circumstance has to be weighed against the totality of evidence. The place of occurrence, namely the tube-well of the complainant, has not been seriously disputed by the defence; the site plan Ex.Ka.4 confirms the presence of bricks and wood at the spot, consistent with the deposition of P.W.2 that he sustained a contusion by falling upon bricks and wood after being fired upon. Absence of blood, noticed after a lapse of about twenty-four hours during which the spot lay exposed and unsecured, is equally consistent with blood having dried, been absorbed into the earth, or disturbed by the movement of villagers and cattle overnight, and cannot by itself dislodge the otherwise cogent and mutually corroborative testimony of three witnesses regarding the place and manner of occurrence. This Court find no reason to take a view different from that of the trial court on this aspect.
14. This being the principal controversy in the appeal, it requires closer examination. The injury report Ex.Ka.3, proved by Dr. L.V.P.B. Singh (P.W.4), discloses three sets of injuries on the person of Rakshpal Singh: (i) a contusion, 6 cm x 7 cm, on the right dorsum of the hand, opined to be caused by a blunt object, consistent with the injured’s own explanation of having fallen upon bricks and wood; (ii) six firearm wounds of entry on the back of the right upper arm and a further six firearm wounds of entry on the right side of the back of the chest, within an area of about 30 cm x 35 cm; and (iii) two firearm wounds of entry on the front of the neck and five firearm wounds of entry on the right side of the face. All the firearm injuries were found to be fresh and were opined by the Medical Officer to be possible by a single shot fired from the front upon a person who was looking towards, and thereafter turned, his neck, an opinion which, as the trial court has rightly observed, dovetails precisely with the prosecution version and the site plan showing the relative positions of the injured and the assailant at the time of firing.
15. This Court may note that the injury report records no blackening and no tattooing around any of the firearm wounds. Rather than assisting the appellants, this feature of the medical evidence in fact reinforces the prosecution case, since absence of blackening and tattooing is ordinarily indicative of the shot having been fired from a distance beyond close range a circumstance entirely consistent with the ocular account of P.W.1 and P.W.2 that the appellants had fired from within the courtyard of the tube-well, at a short but not point-blank distance, immediately after the exhortation to kill. The medical evidence, far from being neutral, thus lends independent scientific corroboration to the eye-witness account of the manner of firing.
16. It is further significant that the firearm injuries are distributed over two distinct anatomical regions of the body, the back of the right upper arm and back of the chest on the one hand, and the front of the neck and right side of the face on the other, the latter set being unquestionably upon a vital part of the body. Six wounds of entry each on the chest and the upper arm, together with seven wounds of entry on the neck and face taken together, by any reckoning constitute an injury of a serious and dangerous character, sufficient to have caused death but for timely medical intervention and the somewhat fortuitous distribution of the pellets, and are entirely consistent with a firearm discharge aimed at the upper body of a person seated and thereafter turning to face his assailant.
17. As regards the distinct role of each appellant, the consistent and unshaken testimony of P.W.1, P.W.2 and P.W.3 attributes the actual firing upon Rakshpal Singh solely and specifically to the appellant Manni Ram, who is shown to have used a country-made pistol, while the appellant Girja Shankar Savita is shown to have arrived at the spot together with Manni Ram, armed with a gun, to have joined in the exhortation preceding the firing that the complainant party would not be left alive, and to have fled the scene together with his co-accused immediately thereafter, both being seen and identified together, and with their respective weapons, by the independent witness P.W.3. It is true that the prosecution failed to bring home the separate and independent charge that Girja Shankar himself fired upon Phool Singh, for want of recovery of pellets or any mark of firing on the walls of the Nali, and the trial court, rightly and with due regard to the standard of proof, acquitted him of that specific allegation. That acquittal, however, has no bearing upon, and does not in any manner dilute, his conviction under Section 307/34 IPC in relation to the assault upon Rakshpal Singh, since liability under Section 34 IPC is constructive and attaches to Girja Shankar (dead) for the criminal act of his co-accused Manni Ram on the strength of their common intention, established here by (i) their arrival together, at night, armed with weapons, at the tube-well which the complainant party alone was known to guard; (ii) the joint exhortation to kill, uttered before any shot was fired; (iii) the admitted and undisputed prior enmity flowing from the Gram Pradhan election, in which Rakshpal Singh’s success and Girja Shankar’s suspension from the office of Pradhan, coupled with a pending criminal complaint between the parties, furnished a clear and proximate motive; and (iv) their flight together from the spot immediately after the firing. Common intention, being a state of mind, rarely admits of direct proof and is ordinarily, and in this case properly, inferred from such conduct, presence, and antecedent circumstances taken cumulatively. This Court finds no infirmity in the trial court’s conclusion that the appellant Girja Shankar Savita shared the common intention to commit the murder of Rakshpal Singh even though the fatal shot was fired by his co-accused.
18. It is by now well settled that a conviction under Section 307 IPC does not depend upon the injury actually caused being sufficient, in the ordinary course of nature, to cause death; what is essential is that the accused should have had the intention or knowledge necessary for the commission of murder, coupled with an overt act done towards that end, irrespective of the eventual result of that act. It is not essential for the offence under Section 307 that a bodily injury capable of causing death should actually have been inflicted; the intention or knowledge of the accused is to be gathered from the facts and circumstances of the case, including the nature of the weapon used and the manner and severity of the assault. In State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554, where it was held that non-conviction under Section 307 IPC does not follow as a matter of course merely because a simple injury was inflicted, and that the court must examine whether the act, irrespective of its actual result, was done with the requisite intention or knowledge and under the circumstances mentioned in the Section.
19. It has equally been clarified that injury on a vital part of the body is not an indispensable ingredient of Section 307 IPC; any injury caused with the intention or knowledge that it might cause death is sufficient to attract the Section, the location of the injury being only one of several circumstances relevant to the inference of intention. However, as in the present case, the injuries are in fact found upon a vital part here, the front of the neck and the face, that circumstance, taken with the weapon used, the exhortation preceding the assault, and the established motive, furnishes strong and independent corroboration of the intention to kill; it reinforces, rather than substitutes for, the other indicia of mens rea.
20. That the seriousness of the injury actually caused is not, by itself, the determinative test has been reaffirmed in the recent decisions of the Supreme Court. In S.K. Khaja v. State of Maharashtra, 2023 LiveLaw (SC) 715, it was held that merely because the injuries sustained by the complainant were simple in nature, that would not absolve the accused of conviction under Section 307 IPC, since what is important is the intention coupled with the overt act committed. In Sivamani v. State of Madras, 2023 SCC OnLine SC 1581, the Supreme Court, while examining the sustainability of a conviction under Section 307 I.P.C., that it is the intention or knowledge and the circumstances of the assault, and not the gravity of the resultant injury alone, that determine the applicability of the Section.
It is well settled that to sustain a conviction under Section 307 I.P.C., it is not essential that the injury inflicted should be one that is, in the ordinary course of nature, sufficient to cause death; the Court is required to examine whether the act, irrespective of its result, was done with the intention or knowledge, and under the circumstances, mentioned in that Section. It is equally well settled that an injury need not necessarily be on a vital part of the body for Section 307 I.P.C. to apply, if the requisite intention or knowledge is otherwise established. At the same time, the intention to cause death cannot be presumed as a matter of course; it has to be gathered from the totality of circumstances, the nature of the weapon used, the part of the body chosen for assault, the number and severity of the blows or shots, the conduct of the accused before and after the incident, and the background in which the incident took place. Where the assault arises out of a sudden quarrel, only 10 cm a single injury is caused, that too on a non-vital part, without repeated or aimed blows, and the medical evidence does not indicate the injury to be dangerous to life, courts have consistently held that the offence falls short of Section 307 I.P.C. and is more appropriately one under Section 324 I.P.C. The intention of the accused must be gathered from the totality of the circumstances. This includes the nature of the weapon used, the circumstances of the attack, and the conduct of the accused. While the absence of a life- threatening injury does not automatically negate a Section 307 charge, the nature of the injury is a vital factor in determining whether the accused actually intended to cause death. If the injuries are only “simple” in nature and there is no evidence of repeated or severe blows, it may suggest that the necessary intent for murder was absent. In this specific case, the Court observed that: there were no allegations of repeated or severe blows. The injuries sustained by the victims were minor/simple in nature. Consequently, the conviction under Section 307 IPC was found to be unsustainable, and the charge was modified to the lesser offences of Sections 323 (voluntarily causing hurt) and 324 (voluntarily causing hurt by dangerous weapons) of the IPC. And this principle is applicable in this case at hand, even to firearm injury on back of injured, where the wound, though caused by a country-made pistol, was single, superficial in the sense of not endangering life, and inflicted in the course of a sudden altercation rather than a premeditated design to kill.
21. Recently, in Shoyeb Raja v. State of Madhya Pradesh, 2024 SCC OnLine SC 2624, the Supreme Court held in para 11.3 to 11.4 as under:-
11.3 Hari Mohan Mandal v. State of Jharkhand5 holds that the nature or extent of injury suffered, are irrelevant factors for the conviction under this section, so long as the injury is inflicted with animus. It has been held:
10. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt. (Emphasis supplied)
11.4 The principle governing the application of Section 34 has been captured thus in Chhota Ahirwar v. State of M.P.6:
24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri) 301]. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.
22. Thus, the minor nature of injuries is not sufficient reason to decline to sustain a charge under Section 307 IPC, since the question of intention to kill, or knowledge that death may be caused, is essentially a question of fact to be determined on the circumstances of each case.
23. This Court is conscious that the Supreme Court has, with equal emphasis, cautioned against a mechanical application of Section 307 IPC in every case of a serious injury, holding that the prosecution must independently establish intention or knowledge and cannot rest merely on the gravity of the injury. In Roshan Lal v. State of Haryana, (2026) SCC OnLine SC 921, the Supreme Court held in para 31 and 32 as under:-
31. The words such intention found in Section 307 IPC, refer to the intention referred to in Section 300 IPC. It means : (i) intention to cause death; (ii) intention to cause such bodily injury, which the offender knows is likely to cause death; (iii) intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death.
The essential ingredient of the offence of attempt to murder is the intention to cause death. Such intention exists prior to the actual attempt and must be established independently of the act itself or the actus reus. Once the requisite intention to commit murder is proved, the eventual outcome of the attempt becomes irrelevant, unless the attempt culminates in death, in which case the offence would fall within Section 300 IPC. In the absence of proof of intention, a conviction under this provision cannot be sustained.
32. Intention, however, can be inferred from surrounding circumstances, such as the type of weapon employed, the words spoken by the accused at the time of the incident, the motive behind the act, the parts of the body targeted, the nature and extent of the injuries inflicted, as well as the force and manner in which the blows were delivered.
24. The present case, however, stands on a materially different footing from that line of decisions. Here, intention to kill is not sought to be inferred from the injury alone; it is independently and additionally established by (i) an explicit exhortation to kill, uttered by the appellants before any shot was fired; (ii) the use of firearms, discharged from a distance sufficient to leave no blackening or tattooing yet close enough to cause thirteen wounds of entry in aggregate, including multiple wounds upon the neck and face; (iii) a clear and admitted motive rooted in a bitter and continuing dispute over the office of Gram Pradhan; and (iv) the coordinated arrival, exhortation, and flight of both appellants together. On this cumulative and mutually reinforcing body of circumstances, the ingredients of Section 307 IPC, read with Section 34 IPC as against the appellant Manni Ram stand fully and independently established, and the case does not fall within the class of cases where conviction rests on the seriousness of injury alone.
25. One aspect requires notice. It has been pointed out that the trial court, while sentencing the appellant,did not impose any sentence of fine. Section 307 IPC renders an offender “liable to fine” in addition toimprisonment; the imposition of fine under this provision is a mandatory concomitant of the sentence ofimprisonment. Where the IPC provision prescribes punishment in the form:shall bepunished with imprisonment and shall also be liable to fine, orwithimprisonment and fine, the trial court is expected to impose fine also. Failure toimpose fine amounts to an error in sentencing.The absence of fine, under section 307 IPC therefore, by itself constitute an infirmity in the sentence asrecorded. It may further be noted that neither the State nor the complainant has preferred any appeal orrevision under Section 377 Cr.P.C. seeking enhancement of the sentence by imposition of a fine. In anappeal preferred solely by the convict under Section 374 Cr.P.C., this Court, exercising jurisdiction underSection 386 Cr.P.C., cannot enhance the sentence to the appellant’s prejudice in the absence of a cross-appeal or notice for enhancement. No order is, therefore, called for on this count, and the sentence asawarded by the trial court is maintained in its entirety.
26. It is settled that a sentence of rigorous imprisonment exceeding ten years cannot ordinarily be awarded under the first part of Section 307 IPC unless the sentence of imprisonment for life is imposed. The sentence of seven years’ rigorous imprisonment awarded to each appellant is well within the permissible range and cannot be said to be excessive, having regard to the number and location of the firearm wounds, the established motive, and the premeditated manner in which the appellants arrived armed at the tube-well of the complainant at night. No case for interference with the sentence is made out.
27. For the reasons aforestated, this Court finds no merit in this appeal. The findings of fact recorded by the learned trial court rest on a correct, careful and detailed appreciation of the ocular testimony of the injured and the independent eye-witness, duly corroborated by contemporaneous medical evidence and the site plan, and disclose no illegality, perversity, or non-consideration of material evidence such as would warrant interference by this Court sitting in appeal. The specific and distinct role of each appellant stands separately and independently corroborated by the ocular account, the medical evidence, and the attendant circumstances of motive, conduct and flight.
28. The appeal is accordingly dismissed. The judgment and order dated 11.3.1987 passed by IVth Additional Sessions Judge, Fatehpur in Criminal Sessions Trial No.268 of 1985 (State Vs. Girja Shankar Savita & Anr.), under Sections 307, 307/34 IPC, Police Station Ghazipur, District Fatehpur, convicting the appellant Manni Ram under Section 307 I.P.C. and the sentencing him to undergo rigorous imprisonment for seven years, is hereby confirmed.
29. The appellant, who is stated to be on bail, shall surrender before the trial court within two weeks from today to serve out the remainder of the sentence.
30. If the appellant fails to surrender within stipulated period as above, learned trial court is directed to take immediate legal steps adopting coercive measures including issuance of non bailable warrant to take the appellant into custody for execution of sentence in accordance with law.
31. The appellant shall be entitled to benefit under Section 428 Cr.P.C.
32. Let trial court record along with copy of this judgment be transmitted forthwith to the court concerned for information and necessary compliance.
33. The trial court is directed to submit its compliance report within two months from the date of receipt of this order. Further more, the registry is also directed to place the compliance report on record.
34. The Registrar (Compliance) is also directed to serve a copy of this order within two days by FAX/e-mail to the concerned court through District & Sessions Judge, Fatehpur for compliance.
(Santosh Rai,J.)
July 21, 2026/RA
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