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"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 718 OF 2003
Deomuni Sharma .... Appellant
Versus
State of Jharkhand .... Respondent
JUDGMENT
V.S. SIRPURKAR, J.
1. The appellant herein challenges his conviction for offence under
Section 307 read with Sections 149, 147 and 148 of the Indian Penal Code
as also under Section 27 of the Arms Act as affirmed by the High Court.
Initially, the appellant along with four others, was charged for the offences
under Sections 147 and 148 as also under Section 302 read with Section
149, IPC.
2. By a confused judgment, the original accused No. 2-Ram Pravesh
Sharma, accused No. 3-Bijay Sharma, and accused No. 4-Ajay Sharma
were convicted for offences under Section 302 read with Sections 149, 147
and 148 IPC and Section 27 of the Arms Act by Trial Court. Deomuni
Sharma, who was accused No. 1, along with one Bimal Kumar-accused
No.5, was found guilty of offence under Section 307 read with Sections
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149, 147 and 148 as also under Section 27 of the Arms Act and was
sentenced to undergo rigorous imprisonment for 10 years for the offence
under Section 307 and 7 years for the offence under Section 27, Arms Act.
3. In appeal before the High Court, original accused No.2-Ram
Pravesh Sharma was acquitted on the basis of his plea of alibi. Accused
No. 3-Bijay Sharma and accused No. 4-Ajay Sharma were convicted under
Section 304 Part I, IPC. They were, however, acquitted under Section
302, IPC. They were sentenced to undergo seven years’ rigorous
imprisonment. The sentence of Bimal Kumar for offence under Section
307 was also reduced to seven years. The sentence under Section 27,
Arms Act was reduced to three years. No separate order seems to have
been passed in respect of the present appellant Deomuni Sharma,
accused No.1.
4. In short, though accused No. 1 Deomuni Sharma was not convicted
for offence under Section 302 read with Section 149 and was only
convicted for offence under Section 307 along with accused No.5 Bimal
Kumar, the High Court treated as if he was actually convicted for the
offence of section 302 and modified his non-existant conviction to Section
304 Part I, IPC and reduced his sentence to seven years. In short, the
High Court did not even bother to realize that Deomuni Sharma was only
convicted for offence in respect of Section 307 read with Section 149, IPC
and not under Section 302, IPC.
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5. Again, the Sessions Judge though held in para 37 of its judgment
that the prosecution had proved its case beyond shadow of reasonable
doubts, chose to convict only Ajay Sharma, Bijay Sharma and Ram
Pravesh Sharma and did not convict Deomuni Sharma, the present
appellant, of the offence under Section 302 with which he was charged but
convicted him of the offence under Section 307/149, 147 and 148, IPC.
The Trial Court had not expressed anything about the acquittal of this
appellant Deomuni Sharma of the offence under Section 302/149, IPC. In
result, the present situation is that the present appellant who was not
convicted for offence under Section 302 read with Section 149, IPC and
was convicted only for the offence under Section 307 read with Section
149, IPC along with Sections 147 and 148, IPC faced ten years’ sentence
for offence under Section 307, IPC and seven years’ imprisonment for the
offence under Section 27 of the Arms Act which sentence was never
bothered to be considered by the High Court under the wrong impression
that he was convicted for offence under Section 302 and had exceeded the
right of private defence. We are constrained to observe that the whole
attitude has been extremely casual both on the part of the Sessions Judge
as well as the High Court, resulting in such colossal confusion.
6. Ordinarily, we would have remanded the matter back but
considering that the appellant is 75 years old, it will be futile to send back
the matter all over again and, therefore, we are proceeding to decide this
appeal which now presumably is only against the conviction for offence
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under Section 307 read with Sections 149, 147 and 148 IPC and Section
27 of the Arms Act.
7. Learned counsel appearing for the appellant has addressed us on
the basis of these confused findings.
8. The prosecution case was that this appellant and the other accused
resided at village Mauza Hirapur in there own common house. Plot No. 97,
Khata no. 17 is appurtenant to this house. There was litigation going on
between the complainants and the accused persons in respect of the
possession and ownership of this plot No. 97. On 12.11.1994 at about 7
a.m. in the morning the accused persons started brick construction on the
disputed land and thereby started changing the nature of that land. On
getting this information, one Harihar Singh and his uncle Janardan Singh
@ Chhedi Singh went there and obstructed the accused on the ground that
they were violating an injunction order of the Court. The accused persons
allegedly started abusing them. The present appellant Deomuni Singh
threatened to kill them. Some others like Sushil Kumar Singh, his cousin
brother Manoj Singh, his grandfather Ram Govind Singh, Shankar Singh,
Nandji Yadav, Mahanth Yadav also came to the spot and tried to pacify the
matter but the accused did not stop, instead they all went inside their
house and came back armed with fire arms. While the accused Ajay
Sharma and Bijay Sharma and the present appellant Deomuni Sharma
were armed with rifles, Bimal Kumar and Ram Pravesh Sharma were
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armed with pistols. The appellant fired in the air. However, Ajay Sharma
and Bijay Sharma fired at Harihar Sharma and Sushil Sharma. They both
died on the spot. It was alleged that Ram Pravesh Sharma fired at
Janardan Singh @ Chhedi Singh and Bimal Kumar had fired at Manoj
Singh. The said Janardan Singh later on died in the hospital while Manoj
Singh was injured. It was on this basis that all the accused persons came
to be proceeded against before the Sessions Judge. Admittedly only two
accused persons were arrested on the spot while others including the
present appellant were arrested later on. Fire arms were seized from
them. The accused persons claimed the right of private defence saying
that the aforementioned plot No. 97 was owned by them and was in their
possession and that the accused persons had tried to disturb the situation.
They pointed out that there was no injunction order against them of any
nature. They also urged that the complainant party which was more in
number had tried to molest the lady folk of their house and also tried to
remove their ornaments. They also pointed out that as many as three
accused persons were injured in the attack and, therefore, they had to use
the fire arms to defend themselves.
9. The Trial Court did not accept this plea. The Trial Court held that
there was no right of private defence in favour of the accused persons and
that the accused persons had committed the offence of murder. However,
as has been stated earlier, it convicted only three accused persons for the
offence of murder and the remaining two including the present appellant
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were convicted for the offence under Section 307/149, 147, 148, IPC and
Section 27 of the Arms Act on the ground that they had, in furtherance of
their common object, injured Manoj Singh.
10. In the appeal, however, the High Court came to the conclusion that it
could not be said that the accused party had no right to private defence at
all. The High Court categorically gave the finding that the aforementioned
plot No. 97 was very much in the possession of the accused party and
further due to the injuries suffered by the accused they had the right of
private defence. It was also found that the prosecution had not brought
any evidence of an injunction against the accused. However, according to
the High Court, the accused persons had exceeded the right of private
defence. Therefore, their conviction was liable to be altered to that of
offence under Section 304 Part I, IPC. On that count, they were awarded
punishment of seven years as has already been pointed out. The High
Court got confused about the present appellant and never realized that he
was never convicted for the offence under Section 302 by the Sessions
Judge. However, the High Court proceeded to dismiss the appeal filed by
the present appellant. Therefore, we are now left to consider as to
whether the High Court was right in dismissing the appeal of the present
appellant against his conviction for offence under Section 307 read with
Sections 149, 147 and 148, IPC and Section 27 of the Arms Act.
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11. At the outset, it must be noted that the allegation against the present
appellant is not for firing at the complainants. It was feebly suggested by
the prosecution witnesses that he had fired in the air and exhorted the
other accused persons to attack the complainant party.
12. About that role the High Court has given the following finding at the
end of para 7 of its judgment:
“When I look to the postmortem report of Harihar Singh
and Sushil Singh, I find that bullet injury was found on their
chest. It means that the intention was to end their lives but as
the PW himself says that there was also firing in air by
Deomuni Sharma, which indicates that earlier the
intention of Deomuni Sharma was to scatter and scare
away the aggressors, but even after firing the aggressor
did not scatter then they took aim on their chest.
Apparently, this aiming at the chest itself appears to be in
excess of the right of private defence. Purpose of repelling
could have been served by aiming least vital parts. Thus I
have no hesitation in holding that in exercise of their right of
private defence the alleged occurrence had taken place but
the appellants exceeded their right of private defence.”
(emphasis supplied)
13. In fact, on this finding itself the appellant, who was accused No.1
should have been absolved of the guilt. If apparently accused No.1 had
fired only in the air with an idea to scare away the aggressors so that they
should scatter then he has obviously committed no offence. It was
nobody’s case that he had fired at the two dead persons. The finding of
both Courts is clear that only accused Nos. 3 and 4 had fired. The High
Court dismissed the appeal of appellant Deomuni Sharma on the wrong
impression that even he was convicted of the offence under Section 302,
IPC substantively or with the aid of Section 149, IPC, one look at the Trial
8Court’s judgment suggests that he was not so convicted. The Trial Court
convicted him only of offence under Section 307 read with Section 149,
IPC. Therefore, the very basis of the High Court judgment against the
appellant is knocked down. The other appellants who were convicted for
the offence under Section 304 Part I, IPC have not filed any appeal nor
has the prosecution come up in appeal against this finding and the
consequent conviction for offence under Section 304 Part I, IPC.
Therefore, this finding has become final. Reading the finding as it is, along
with the finding given in para 9, it is clear that the appellant’s conviction
which is also not specifically referred to by the High Court is per se
incorrect as the appellant was never convicted for the offence under
Section 302, IPC and even that finding of the Sessions Judge was never
challenged by the prosecution.
14. That leaves us with the unanswered question regarding the
conviction under Section 307 read with Sections 149, 147 and 148, IPC as
also his conviction for offence under Section 27 of the Arms Act.
15. We have very carefully seen the judgments of the Courts below. It is
nowhere stated nor is it the case of any prosecution witness that the
appellant had fired at Manoj Singh. It was only Bimal Kumar who had
fired. Again, even the finding regarding the unlawful assembly cannot be
sustained insofar as the present appellant is concerned. Seeing the mob,
the appellant and the other accused persons entered in the house and
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came back with the fire arms and even then the appellant fired in the air
which according to the High Court was only for the purpose of scaring
away the aggressors and to scatter them. Till that moment at least the
appellant cannot be a member of unlawful assembly nor can the assembly
itself be termed as unlawful assembly with a definite common object. If
ultimately the High Court has come to a conclusion that the other accused
persons fired in pursuance of their right of private defence, then this act of
theirs could not be said to be that attributable to an unlawful assembly. In
the wake of the High Court’s judgment the finding regarding Section 149,
IPC must fail and with it the conviction for offence under Sections 147 and
148, IPC. Once that result is achieved, there is no question of convicting
the appellant for the offence under Section 307, IPC which apparently has
been committed individually by Bimal Kumar alone by firing at Manoj
Singh. It is also apparent that the offence under Section 304 Part I was
committed by accused Nos. 3 and 4, Ajay Sharma and Bijay Sharma
individually and substantially by themselves alone. It was not in pursuance
of any object of the unlawful assembly because there was no unlawful
assembly at all. Therefore, the present appellant cannot be even booked
for offence under Section 307 read with Section 149, IPC. He must,
therefore, be acquitted of that offence.
16. Once it is a clear cut finding by the High Court that the appellant
fired in the air only with an idea to scare away the aggressors and in
pursuance of right of private defence of his property and life and once it is
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proved that he also suffered some injuries, though superficial, his use of
gun only for that purpose cannot be covered under Section 27 of the Arms
Act either. In fact, we are doubtful about the prosecution version that he
fired the gun in the air and exhorted the other accused to attack. This case
of the prosecution has been found to be incorrect by the High Court as
there is a specific finding recorded by the High Court that even if he has
fired in the air, it was with an idea to scare away the aggressors. The High
Court has also specifically found that the accused persons had possessed
the aforementioned plot No. 97 and that there was no injunction order
passed against them nor was any such injunction order either produced
before the Court or proved. If that was so, then the action of the appellant
would not have the colour of criminality and hence even his conviction
under Section 27 of the Arms Act would be of no consequence. There is
no discussion regarding Section 27, Arms Act either in the judgment of the
Trial Court or the High Court. No evidence is discussed as to how the user
of the fire arm can come within the mischief of Section 5 of the Arms Act.
No such material was produced before us nor were we addressed on the
issue by the learned counsel for the prosecution. Under such
circumstances, we are not in a position to endorse the breach of Section 5
of the Arms Act. Again, it is not the case of the prosecution that this
appellant did not have the licence for the rifle that he is alleged to have
used by firing in the air.
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17. For inviting conviction under Section 27 of the Arms Act, it has to be
proved that the fire arm has been used in contravention of Section 5 or
Section 7 of the Arms Act. Since it was a licensed gun, there was no
question of Section 7 coming in. Insofar as Section 5 is concerned, we do
not think that an act on the part of the accused in firing in the air to scare
the aggressors would come within the mischief of Section 5(1) of the Arms
Act. Therefore, the appellant is liable to be acquitted even of the offence
under Section 27 of the Arms Act.
18. In result, the conviction of the appellant as recorded by the Trial
Court and as wrongly confirmed by the High Court is bad in law and the
accused is entitled for acquittal. He is accordingly acquitted. The
judgments of both the Courts below are set aside.
………………………………..J.
[V.S. SIRPURKAR]
………………………………..J.
[R.M.LODHA]
New Delhi;
May 26, 2009
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