Challenge against the conviction under sections 302 r/w 34 IPC
Criminal Appeal No. 872/2022 is filed by accused No.1 Pradeep Dabas while Criminal Appeal No.871/2022 has been filed by accused No.2 Yogesh @ Sonu Tharu. In both these appeals, the appellants have challenged the judgment of the High Court in confirming the conviction and sentence imposed against them for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”) along with Sections 25 and 27 of the Arms Act, 1959.
The fire shot incident during the party
The case of the prosecution in a nutshell is that both the appellants and the deceased were called for a party hosted in celebration of the birthday of PW-24. There was an altercation between A2 and the deceased, pursuant to which A1 took the gun and fired at the deceased. The shot aimed at the deceased was missed. PW-19 who is the relative of deceased was also present at the place of occurrence. He went to the kitchen to bring the match box for the purpose of lighting the cigarette. At that point of time, as 1 witnessed by him, A1 after handing over the gun to A2 while asking him to shoot the deceased, took it back and shot the deceased. It was a single shot which resulted in the homicidal death of the deceased
Conviction by Trial court which is confirmed by the High Court
Before the Trial Court, almost all the eye witnesses turned hostile except PW-19. The Trial Court accepted the evidence of PW[1]19 along with that of PW-20 despite he not being eye witness and coupled with recovery made, rendered the conviction. The High Court, in turn, confirmed the conviction and sentence rendered by the Trial Court.
A2 refused to shoot deceased and hence vicarious liability under section 34 does not apply to him
We shall first deal with the case of A2. Insofar as he is concerned, if we take the case of prosecution as such, there cannot be any punishment that can be imposed for murdering the deceased. What happened was a fight between A2 and the deceased. That does not mean that A2 played a role in instigating A1 to commit the offence. Even as per the evidence of PW-19, it was A1 who handed over the gun to A2 asking him to have a better aim and shoot the deceased which he did not do. Thereafter A1 took the gun back and shot the deceased. In such view of the matter, we are not inclined to apply the principle of vicarious liability by bringing in the rigour of Section 34 as against A2. We find that both the Courts have committed an error in not taking into consideration the proper application of Section 34 of the IPC.
Though accused made an attempt to shoot the deceased the weapon (Fire arm) was not brought for the purpose of committing an offence in the liquor party
As discussed above, the evidence available would show that there was only a quarrel. All the parties assembled at the place of occurrence for the purpose of celebrating the birthday of PW-24. This fact is not in dispute. It is only while consuming liquor, a quarrel happened suddenly between the deceased and A2. The reason for A1 to shoot the deceased was the said quarrel. Though it is stated that A1 had made an attempt to shoot the deceased. The very said fact alone cannot be a ground to bring it under the rigour of Section 300 IPC. The weapon was not brought for the purpose of committing an offence. A1 was carrying the weapon without any intention or objective to commit an offence. To put it differently, but for the quarrel between A2 and the deceased the occurrence would not have happened.
Modified sentence to homicide not amounting to murder
Considering the facts of the case, particularly, the fact that A1 was a young man and the occurrence was not a premeditated one, we are inclined to modify the sentence to the one undergone already.
Party
YOGESH @ SONU THARU APPELLANT(s) VERSUS THE STATE RESPONDENT(s) CRIMINAL APPEAL NO. 871/2022 WITH CRIMINAL APPEAL NO. 872/2022 WRIT PETITION (Crl.) No. 321/2022 – 2024 INSC 305 – APRIL 4, 2024
https://main.sci.gov.in/supremecourt/2019/19133/19133_2019_14_114_52075_Judgement_04-Apr-2024.pdf
