LexDEOMUNI SHARMA versus STATE OF JHARKHAND
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. ..._ (2009] 9 S.C.R. 587 DEOMUNI SHARMA A v. STATE OF JHARKHAND (Criminal Appeal No. 718 of 2003) MAY 26, 2009 B [V.S. SIRPURKAR AND R.M. LODHA, JJ.] Penal Code, 1860: s. 307 r. w. ss. 149, 147, 148 - Arms Act,, 1959 - ss.27, 5 and 7 - Conviction by trial court - Affirmed by High Court inspite of arriving at a categorical c finding that appellant fired in the air only with an idea to scare away the aggressors and in pursuance of right of private defence of property and life and that the accused 3 fired, resulting in death of 2 and injuries to others - On appeal, held: The act of appeilant showed that he was not a member of D unlawful assembly - Finding regarding s. 149 must fail - Conviction u/s. 307 not maintainable as the act was committed individually by accused 3 by firing - Conviction uls. 27 of Arms Act would also be of no consequence - For inviting conviction uls. 27, it has to be proved that the fire arm E ). was used in contravention of s. 5 ors. 7 - s. 7 was not attracted , as it was a licenced gun - Act on part of the accused in firing in the air to scare the aggressor would also not come within the mischief of s.5(1). The trial court convicted appellant under s.307 r ~w. F s.149 IPC along with ss.147 and 148 and s.27 of Arms Act. He was not convicted u/s.302 with which he was charged. The other accused were convicted uls.302 r.w. ss.149, 147 and 148 IPC and s.27 of Arms Act by the trial Court. The High Court held that the other accused G persons exceeded the right of private defence and altered .conviction to that of offence u/s. 304 Part 1 IPC, however affirmed the conviction of appellant under s.307 587 H 588 SUPREME COURT REPORTS [2009) 9 S.C.R. A r. w. ss.149, 147, 148 and s.27 of Arms Act. High Court gave finding that the appellant only fired in the air with an intention to scare away the aggressors so that they scatter. The finding of courts below was that only B accused nos.3 and 4 had fired. Hence the appeal. Allowing the appeal, the Court HELD: 1. It was nowhere stated in the judgments of courts below nor was it the case of any prosecution witness that the appellant had fired. It was only the C accused no. 3 who had fired. Again, even the finding regarding the unlawful assembly cannot be sustained insofar as the appellant was concerned. Seeing the mob, the appellant and the other accused persons entered in the house and came back with the fire arms and even D then the appellant fired in the air which according to the High Court was only for the purpos4;! of scaring away tile aggressors and to scatter them. Till that momerit at least the appellant was not a member of unlawful assembly nor can the assembly itself be termed as unlawful assembly E with a definite common object. If ultimately the High Court came 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 F 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 was committed G individually by accused no.3 alone by firing at the injured. · It is also apparent that the offence under Section 304 Part I was committed by accused Nos. 3 and 4, individually and substantially by themselves alone~ It was not in pursuance of any object of the unlawful assembly H - DEOMUNI SHARMA v. STATE OF JHARKHAND 589 because there was no unlawful assembly at all. A Therefore, the appellant cannot be even booked for offence under Section 307 read with Section 149, IPC. He must, therefore, be acquitted of that offence. [Para 15] [596-G-H; 597 -A] 2. Once it is a clear cut finding by the High Court that B 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 proved that he also suffered some injuries, though superficial, his use c of gun only for that purpose cannot be covered under Section 27 of the Arms Act either. 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 also specifically
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