Yogesh @ Sonu vs The State

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 2024 INSC 305 CRIMINAL APPEAL NO. 871/2022

YOGESH @ SONU THARU APPELLANT(s)

VERSUS

THE STATE RESPONDENT(s) WITH

CRIMINAL APPEAL NO. 872/2022

WRIT PETITION (Crl.) No. 321/2022

J U D G M E N T

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 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 Signature Not Verified

of occurrence. He went to the kitchen to bring the match box for Digitally signed by RADHA SHARMA Date: 2024.04.16 10:57:49 IST Reason:

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.

The PW-31 informed PW-20 over phone, who, in turn, informed

the police. PW-6 who is the constable along with PW-32 went to the

scene of the occurrence, secured the body and sent it to the

hospital and thereafter took it for postmortem. A statement was

recorded from PW-19 which formed the basis of the First Information

Report. The postmortem report indicates that the deceased was

intoxicated. The aforesaid report is also in tune with the

statement of PW-19 who deposed that he along with the deceased and

the accused took liquor at the place of occurrence.

Before the Trial Court, almost all the eye witnesses turned

hostile except PW-19. The Trial Court accepted the evidence of PW-

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.

Learned Senior Counsel appearing for appellant No.1 and

learned senior counsel appearing for appellant No.2 submitted that

the presence of PW-19 is highly doubtful. The conduct of PW-19 was

unnatural. PW-19 did not make an attempt to interfere with the

fight and his conduct in leaving to the kitchen after the first

shot was fired cannot be accepted. PW-19 also did not inform PW-20

nor any complaint has been made to the police immediately. In any

case, this is a case which comes under Section 304 Part I IPC as

2 admittedly even as per the case of the prosecution, all of them

were called to the party and were under the influence of alcohol.

There is no premeditation involved as the occurrence has happened

at the spur of the moment. Insofar as A2 is concerned, there is

absolutely no material to implicate him under Section 34 of the IPC

as he did not shoot the deceased nor he prompted A1 to do so.

Merely because he was present, the offence alleged cannot be

attributed against him.

Learned senior counsel appearing for the respondent-State

submitted that the CDR record was rightly taken into consideration

by both the Courts to probablise the presence of PW-19. The

presence of PW-19 is also substantiated by the evidence of PW-32

and PW-33 as the evidence of PW-19 being the sole witness was taken

into consideration and appreciated by both the Courts and in the

absence of any perversity there is no need to interfere with the

judgment rendered by the High Court. Incidentally, it is submitted

that considering the fact that gun was used and the accused ran

away from the place of occurrence, the conviction was rightly

rendered under Section 302 IPC by treating it as murder.

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

3 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.

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.

Thus considering the above, we have no hesitation in holding

that it is a case which would come under Section 299 of IPC and

therefore, A1 has committed an offence of culpable homicide not

amounting to murder. We have been informed that A1 has been

married and having a sixteen years old daughter and his father is

bedridden. A1 has already undergone a period of eight years and ten

months of actual incarceration, with remission he has undergone

about ten years and two months.

Considering the facts of the case, particularly, the fact that

4 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.

The conviction rendered by both the Courts for the offences

punishable under Section 302 IPC stands modified to Section 304

Part 1 IPC and the sentence stands modified to the one already

undergone. The conviction and sentence passed under Section 27 of

the Arms Act is upheld. Both the sentences being concurrent, A1

shall be released.

The appeal filed by A1 i.e. Crl. A. No.872/2022 is allowed in

part. The appeal filed by A2 i.e. Crl. No.871/2022 is allowed,

setting aside the conviction and sentence rendered by the High

Court and the Trial Court.

The appellants are directed to be released forthwith, if not

involved in any other case and are not required in any other case.

Writ Petition (Crl.) No.321/2022 stands closed, leaving the

question of law open.

Pending application(s), if any, shall stand disposed of.

.. . . . . . . . . ,J [ M.M. SUNDRESH ]

. . . . . . . . . .,J [ S.V.N. BHATTI ] NEW DELHI;

APRIL 4, 2024

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