ZAHOOR Vs STATE OF U.P.
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-001331-001331 / 2008
Diary number: 3568 / 2008
Advocates: NARESH BAKSHI Vs
PRADEEP MISRA
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.