Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2024 INSC 305
CRIMINAL APPEAL NO. 871/2022
YOGESH @ SONU THARU APPELLANT(s)
VERSUS
THE STATE RESPONDENT(s)
WITH
CRIMINAL APPEAL NO. 872/2022
WRIT PETITION (Crl.) No. 321/2022
J U D G M E N T
Criminal Appeal No. 872/2022 is filed by accused No.1 Pradeep
Dabas while Criminal Appeal No.871/2022 has been filed by accused
No.2 Yogesh @ Sonu Tharu. In both these appeals, the appellants
have challenged the judgment of the High Court in confirming the
conviction and sentence imposed against them for the offences
punishable under Section 302 read with Section 34 of the Indian
Penal Code (for short “IPC”) along with Sections 25 and 27 of the
Arms Act, 1959.
The case of the prosecution in a nutshell is that both the
appellants and the deceased were called for a party hosted in
celebration of the birthday of PW-24. There was an altercation
between A2 and the deceased, pursuant to which A1 took the gun and
fired at the deceased. The shot aimed at the deceased was missed.
PW-19 who is the relative of deceased was also present at the place
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2024.04.16
10:57:49 IST
Reason:
of occurrence. He went to the kitchen to bring the match box for
the purpose of lighting the cigarette. At that point of time, as
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witnessed by him, A1 after handing over the gun to A2 while asking
him to shoot the deceased, took it back and shot the deceased. It
was a single shot which resulted in the homicidal death of the
deceased.
The PW-31 informed PW-20 over phone, who, in turn, informed
the police. PW-6 who is the constable along with PW-32 went to the
scene of the occurrence, secured the body and sent it to the
hospital and thereafter took it for postmortem. A statement was
recorded from PW-19 which formed the basis of the First Information
Report. The postmortem report indicates that the deceased was
intoxicated. The aforesaid report is also in tune with the
statement of PW-19 who deposed that he along with the deceased and
the accused took liquor at the place of occurrence.
Before the Trial Court, almost all the eye witnesses turned
hostile except PW-19. The Trial Court accepted the evidence of PW-
19 along with that of PW-20 despite he not being eye witness and
coupled with recovery made, rendered the conviction. The High
Court, in turn, confirmed the conviction and sentence rendered by
the Trial Court.
Learned Senior Counsel appearing for appellant No.1 and
learned senior counsel appearing for appellant No.2 submitted that
the presence of PW-19 is highly doubtful. The conduct of PW-19 was
unnatural. PW-19 did not make an attempt to interfere with the
fight and his conduct in leaving to the kitchen after the first
shot was fired cannot be accepted. PW-19 also did not inform PW-20
nor any complaint has been made to the police immediately. In any
case, this is a case which comes under Section 304 Part I IPC as
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admittedly even as per the case of the prosecution, all of them
were called to the party and were under the influence of alcohol.
There is no premeditation involved as the occurrence has happened
at the spur of the moment. Insofar as A2 is concerned, there is
absolutely no material to implicate him under Section 34 of the IPC
as he did not shoot the deceased nor he prompted A1 to do so.
Merely because he was present, the offence alleged cannot be
attributed against him.
Learned senior counsel appearing for the respondent-State
submitted that the CDR record was rightly taken into consideration
by both the Courts to probablise the presence of PW-19. The
presence of PW-19 is also substantiated by the evidence of PW-32
and PW-33 as the evidence of PW-19 being the sole witness was taken
into consideration and appreciated by both the Courts and in the
absence of any perversity there is no need to interfere with the
judgment rendered by the High Court. Incidentally, it is submitted
that considering the fact that gun was used and the accused ran
away from the place of occurrence, the conviction was rightly
rendered under Section 302 IPC by treating it as murder.
We shall first deal with the case of A2. Insofar as he is
concerned, if we take the case of prosecution as such, there cannot
be any punishment that can be imposed for murdering the deceased.
What happened was a fight between A2 and the deceased. That does
not mean that A2 played a role in instigating A1 to commit the
offence. Even as per the evidence of PW-19, it was A1 who handed
over the gun to A2 asking him to have a better aim and shoot the
deceased which he did not do. Thereafter A1 took the gun back and
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shot the deceased. In such view of the matter, we are not inclined
to apply the principle of vicarious liability by bringing in the
rigour of Section 34 as against A2. We find that both the Courts
have committed an error in not taking into consideration the proper
application of Section 34 of the IPC.
As discussed above, the evidence available would show that
there was only a quarrel. All the parties assembled at the place
of occurrence for the purpose of celebrating the birthday of PW-24.
This fact is not in dispute. It is only while consuming liquor, a
quarrel happened suddenly between the deceased and A2. The reason
for A1 to shoot the deceased was the said quarrel. Though it is
stated that A1 had made an attempt to shoot the deceased. The very
said fact alone cannot be a ground to bring it under the rigour of
Section 300 IPC. The weapon was not brought for the purpose of
committing an offence. A1 was carrying the weapon without any
intention or objective to commit an offence. To put it differently,
but for the quarrel between A2 and the deceased the occurrence
would not have happened.
Thus considering the above, we have no hesitation in holding
that it is a case which would come under Section 299 of IPC and
therefore, A1 has committed an offence of culpable homicide not
amounting to murder. We have been informed that A1 has been
married and having a sixteen years old daughter and his father is
bedridden. A1 has already undergone a period of eight years and ten
months of actual incarceration, with remission he has undergone
about ten years and two months.
Considering the facts of the case, particularly, the fact that
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A1 was a young man and the occurrence was not a premeditated one,
we are inclined to modify the sentence to the one undergone
already.
The conviction rendered by both the Courts for the offences
punishable under Section 302 IPC stands modified to Section 304
Part 1 IPC and the sentence stands modified to the one already
undergone. The conviction and sentence passed under Section 27 of
the Arms Act is upheld. Both the sentences being concurrent, A1
shall be released.
The appeal filed by A1 i.e. Crl. A. No.872/2022 is allowed in
part. The appeal filed by A2 i.e. Crl. No.871/2022 is allowed,
setting aside the conviction and sentence rendered by the High
Court and the Trial Court.
The appellants are directed to be released forthwith, if not
involved in any other case and are not required in any other case.
Writ Petition (Crl.) No.321/2022 stands closed, leaving the
question of law open.
Pending application(s), if any, shall stand disposed of.
.. . . . . . . . . ,J
[ M.M. SUNDRESH ]
. . . . . . . . . .,J
[ S.V.N. BHATTI ]
NEW DELHI;
APRIL 4, 2024
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