REPORTABLE                    IN THE SUPREME COURT OF  INDIA

          CRIMINAL APPELLATE JURISDICTION   

   CRIMINAL APPEAL NO. 1331     OF 2008

ZAHOOR & ORS. ..  APPELLANT(S)

vs.

STATE OF U.P. ..  RESPONDENT(S)

O R D E R

In this appeal for the reasons mentioned hereunder,  

no detailed facts are necessary.

Suffice  it  to  say  that  the  appellants  before  us  

Zahoor,  Subrati  and  Babu  were  brought  to  trial  for  an  

offence punishable under Section 302 of the IPC for having  

committed the murder of Mahipal Singh @ Puttan on the 18th  

May, 1979.  The Trial court convicted them under Section  

302 of the IPC and sentenced them to life imprisonment. The  

High  Court  has  by  the  impugned  judgment  held  that  the  

appellants were liable to conviction under Section 304 (I)  

of the IPC read with Section 34 as the matter related to a  

sudden  quarrel without premeditation and that a  fine of  

Rs.5000/- would meet the ends of justice..  The matter is  

before us after the grant of special leave at the instance  

of the accused.

-2-

We have heard the learned counsel for the parties  

and  find  no  reason  to  interfere  with  the  conviction  

recorded by the High Court in so far as the appellant-Babu  

is concerned.  However, in the light of the fact that the  

other  two  appellants  i.e.  Zahoor  and  Subrati  have  been  

brought in with the aid of Section 34 of the IPC, their  

conviction  and  sentence  cannot  be  maintained  as   the  

vicarious liability under  Section 34 cannot be fastened  

as   Section  34  deals  with  common  intention  which  pre-

supposes some piror planning or pre-concept of minds even  

during the incident.  Moreover, we find that Zahoor and  

Subrati had not caused any injury to the deceased or to  

anybody else and the only allegation against them that they  

had  exhorted  their  co-accused  to  shoot  at  the  deceased  

Puttan. In other words no overt act has been attributed to  

them.  

We also see from the record that the appellant-Babu  

was  of   tender  age  on  the  date  of  the  incident.   The  

incident happened in the year 1979 which would now make him  

about 60 years of age as of now.  We quite appreciate that  

one man has been shot dead but in the overall picture we  

feel that the ends of justice would be met if the sentence  

is reduced from 10 to 5 years under Section 304 Part-I of

the IPC.  The appeal against Zahoor and Subrati is allowed  

in toto but insofar as the appellant-Babu is concerned, the  

appeal is dismissed with the reduction in the sentence.  

-3-

In  the meantime, we direct that the appellants-

Zahoor and Subrati,  who are in custody, shall be released  

forthwith  if  not  required  in  connection  with  any  other  

case. The appellant-Babu be released on the completion of  

his sentence of 5 years.

The appeal is disposed of accordingly.

                     .................J.          (HARJIT SINGH BEDI)

     .................J.

                                 (CHANDRAMAULI KR. PRASAD) New Delhi,

    April 26, 2011.