Zahoor & Ors vs State Of U.P

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.

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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.

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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.