The main legal point established in the judgment is the application of the principle of transfer of malice under Section 301 of the Indian Penal Code in attributing intention and liability in cases of unintended harm caused to a different victim.

S.P. Garg, J.

1. Anil Taneja (A-1) and Madan Lal (A-2) challenge their conviction in case FIR No. 256/1998 registered at PS Moti Nagar in Sessions Case No. 112/1998. By a judgment dated 17th July, 2000 passed by learned Additional Sessions Judgment, they were held guilty under Sections 304 and 323 IPC respectively. A-1, in addition, was convicted under Section 27 Arms Act. By an order dated 19.07.2000, A-1 was awarded various prison terms with fine while A-2 was released on probation. The prosecution case emerged out of the record is as under:-

2. On 26.06.1998 at about 12.30 a.m. at shop No. 26-27, Subzi Market, Moti Nagar, an altercation ensued among the appellants and Munna for allowing Shyam Sunder to gamble at their shop. In the said quarrel, A-2 injured Munna by inflicting a danda blow on his head and on his exhortation, A-1 fired shots from the licenced revolver at Munna with an intention to murder him but the target missed and it hit Guruswamy standing nearby and caused his death. During the course of investigation, A-1 and A-2 were arrested. Post-mortem examination of the body was conducted. The crime weapons i.e. revolver and danda were recovered. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was submitted against both the appellants for committing offences under Section 302/307/34 IPC. By an order dated 18.02.1999 they were charged for committing offences under Section 304/323 IPC. A-1 was also charged under Section 27 Arms. Act. The prosecution relied on the evidence of 20 witnesses. In their 313 statements, the appellants denied their complicity in the crime and claimed that they were victims at the hands of PW-3 (Jagdish Lal), who was running a gambling den in the area and encouraged Shyam Sunder to gamble there. When they objected to him (PW-3 Jagdish Lal) for spoiling their close relation, he got annoyed and on 26.06.1998, they were way-laid and assaulted by him and his companions when they were returning after closing their shop. They also attempted to rob their revolver and in the scuffle, firing took place. They were taken to the hospital in injured condition but the police did not lodge their complaint. After considering all these, as well as the submissions of the parties, the Trial Court by the impugned judgment held A-1 perpetrator of the crime under Section 304 Part I IPC and 27 Arms Act whereas A-2 was held guilty only under Section 323 IPC. There is no challenge by the State against A-2’s acquittal under Section 304 IPC.

3. I have heard the learned counsel for the parties and have examined the record. Shri K.B.Andley, learned senior counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell in grave error in convicting the appellants for the offence which was never intended to be committed by them. The appellants had no animosity with Guruswami to cause his death by firing at him. The occurrence was accidental in nature. The injuries sustained by the appellants on their bodies were not explained. It is relevant to note that PW-4 (Munna) did not opt to support the prosecution and completely turned hostile. PW-3 (Jagdish Lal) and PW-5 (Subhash) are unreliable witnesses as they were running the gambling den and had prior animosity with the appellants. He adopted alternative argument to take lenient view and release A-1 for the period already spent by him in custody. The submissions made on behalf of the appellants were strongly resisted on behalf of the State by learned Additional Public Prosecutor who urged that the Trial Court had held that nothing had been elucidated by the defence from the evidence of PW-3 (Jagdish) and PW-5 (Subhash) which could cause the evidence of the said witnesses to be disbelieved. The impugned judgment is based on proper and fair appraisal of the evidence and needs no interference.

4. Homicidal death of Guruswami who succumbed to th