2009 Supreme(SC) 1140

2009(4) Supreme 459
SUPREME COURT OF INDIA
V.S. Sirpurkar and R.M. Lodha, JJ.
Deomuni Sharma — Appellant
versus
State of Jharkhand — Respondent
Criminal Appeal No. 718 of 2003
Decided on : 26-05-2009

IMPORTANT POINT
For inviting conviction under Section 27 of the Arms Act, it has to be proved that fire arm had been used in contravention of Section 5 or Section 7 of the Arms Act.

Headnote:Indian Penal Code, 1860 – Section 307 read with Sections 149, 147 and 148 r\w Section 27 of Arms Act – Prosecution of appellant along with four others for forming an unlawful assembly and for causing death of three persons and injury to one other by firing at them from rifles and pistols – Trial Court convicted only three accused persons for offence of murder and remaining two including appellant were convicted for offence under Section 307/149, 147, 148, IPC and Section 27 of the Arms Act on ground that they had, in furtherance of their common object, injured one M – Appeal – High Court got confused about appellant and never realized that he was never convicted for offence under Section 302 by the Sessions Judge and proceeded to dismiss appeal filed by appellant – Appeal – 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 had obviously committed no offence – It was nobody’s case that he had fired at two dead persons – The finding of both Courts was clear that only accused Nos. 3 and 4 had fired – Since Trial Court convicted appellant only of offence under Section 307 read with Section 149, IPC – Hence , the very basis of the High Court judgment against appellant was knocked down – No case of any prosecution witness that appellant had fired at M – It was only B who had fired – Again, even finding regarding unlawful assembly could not be sustained insofar as appellant was concerned – Seeing the mob, appellant and other accused persons entered in house and came back with the fire arms and even then the appellant fired in the air – Till that moment at least appellant could not be a member of unlawful assembly nor could the assembly itself be termed as unlawful assembly with a definite common object – In the wake of High Court’s judgment finding regarding Section 149,IPC must fail and with it the conviction for offence under Sections 147 and 148, IPC – Once that result was achieved, there was no question of convicting appellant for offence under Section 307, IPC which apparently had been committed individually by B alone by firing at M – Offence under Section 304 Part I being committed by accused Nos. 3 and 4, individually and substantially by themselves alone appellant could not be even booked for offence under Section 307 read with Section 149, IPC – Conviction of appellant as recorded by Trial Court and as wrongly confirmed by High Court held bad in law – Accused held entitled for acquittal. (Paras 15, 16, 18)

        Arms Act – Section 27 – For inviting conviction under Section 27 of the Arms Act, it has to be proved that fire arm had been used in contravention of Section 5 or Section 7 of the Arms Act – Instantly Since it was a licensed gun, there was no question of Section 7 coming in – Insofar as Section 5 was concerned, an act on part of accused in firing in air to scare aggressors would not come within mischief of Section 5(1) of the Arms Act – Appellant held liable to be acquitted of offence under Section 27 of the Arms Act. (Paras 17)

       Facts of the Case :

        1. Appellant herein in the instant case was prosecuted along with four others for forming an unlawful assembly and for causing death of three persons and injury to one other by firing at them from rifles and pistols. Trial Court convicted only three accused persons for offence of murder and remaining two including appellant were convicted for offence under Section 307/149, 147, 148, IPC and Section 27 of the Arms Act on ground that they had, in furtherance of their common object, injured one M. On Appeal, High Court got confused about appellant and never realized that he was never convicted for offence under Section 302 by the Sessions Judge and proceeded to dismiss appeal filed by appellant.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        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 had obviously committed no offence. It was nobody’s case that he had fired at the two dead persons. The finding of both Courts was clear that only accused Nos. 3 and 4 had fired. Since Trial Court convicted appellant only of offence under Section 307 read with Section 149, IPC. Hence, the very basis of the High Court judgment against appellant was knocked down. No case of any prosecution witness that appellant had fired at M. It was only B who had fired. Again, even finding regarding unlawful assembly could not be sustained insofar as appellant was concerned. Seeing the mob, appellant and other accused persons entered in house and came back with the fire arms and even then the appellant fired in the air. Till that moment at least appellant could not be a member of unlawful assembly nor could the assembly itself be termed as unlawful assembly with a definite common object. In the wake of High Court’s judgment finding regarding Section 149,IPC must fail and with it the conviction for offence under Sections 147 and 148, IPC. Once that result was achieved, there was no question of convicting appellant for offence under Section 307, IPC which apparently had been committed individually by B alone by firing at M. Offence under Section 304 Part I being committed by accused Nos. 3 and 4, individually and substantially by themselves alone appellant could not be even booked for offence under Section 307 read with Section 149, IPC. Conviction of appellant as recorded by Trial Court and as wrongly confirmed by High Court held bad in law. Accused was held entitled for acquittal.

       Result : Appeal allowed.