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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 718 OF 2003

Deomuni Sharma …. Appellant

Versus

State of Jharkhand …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The  appellant  herein  challenges  his  conviction  for  offence  under  

Section 307 read with Sections 149, 147 and 148 of the Indian Penal Code  

as also under Section 27 of the Arms Act as affirmed by the High Court.  

Initially, the appellant along with four others, was charged for the offences  

under Sections 147 and 148 as also under Section 302 read with Section  

149, IPC.   

2. By a confused judgment, the original accused No. 2-Ram Pravesh  

Sharma, accused No. 3-Bijay Sharma, and accused No. 4-Ajay Sharma  

were convicted for offences under Section 302 read with Sections 149, 147  

and 148 IPC and Section 27 of the Arms Act by Trial Court.  Deomuni  

Sharma, who was accused No. 1, along with one Bimal Kumar-accused  

No.5, was found guilty of offence under Section 307 read with Sections

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149,  147 and 148 as also under Section 27 of  the Arms Act  and was  

sentenced to undergo rigorous imprisonment for 10 years for the offence  

under Section 307 and 7 years for the offence under Section 27, Arms Act.  

3. In  appeal  before  the  High  Court,  original  accused  No.2-Ram  

Pravesh Sharma was acquitted on the basis of his plea of alibi.  Accused  

No. 3-Bijay Sharma and accused No. 4-Ajay Sharma were convicted under  

Section 304 Part  I,  IPC.  They were,  however,  acquitted under Section  

302,  IPC.   They  were  sentenced  to  undergo  seven  years’  rigorous  

imprisonment.   The sentence of Bimal Kumar for offence under Section  

307 was also reduced to seven years.  The sentence under Section 27,  

Arms Act was reduced to three years.  No separate order seems to have  

been  passed  in  respect  of  the  present  appellant  Deomuni  Sharma,  

accused No.1.  

4. In short, though accused No. 1 Deomuni Sharma was not convicted  

for  offence  under  Section  302  read  with  Section  149  and  was  only  

convicted for offence under Section 307 along with accused No.5 Bimal  

Kumar,  the  High  Court  treated  as  if  he  was  actually  convicted  for  the  

offence of section 302 and modified his non-existant conviction to Section  

304 Part I, IPC and reduced his sentence to seven years.  In short, the  

High Court did not even bother to realize that Deomuni Sharma was only  

convicted for offence in respect of Section 307 read with Section 149, IPC  

and not under Section 302, IPC.

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5. Again, the Sessions Judge though held in para 37 of its judgment  

that the prosecution had proved its case beyond shadow of reasonable  

doubts,  chose  to  convict  only  Ajay  Sharma,  Bijay  Sharma  and  Ram  

Pravesh  Sharma  and  did  not  convict  Deomuni  Sharma,  the  present  

appellant, of the offence under Section 302 with which he was charged but  

convicted him of the offence under Section 307/149, 147 and 148, IPC.  

The Trial  Court  had not  expressed anything  about  the acquittal  of  this  

appellant Deomuni Sharma of the offence under Section 302/149, IPC.  In  

result,  the  present  situation  is  that  the  present  appellant  who  was  not  

convicted for offence under Section 302 read with Section 149, IPC and  

was convicted only for the offence under Section 307 read with Section  

149, IPC along with Sections 147 and 148, IPC faced ten years’ sentence  

for offence under Section 307, IPC and seven years’ imprisonment for the  

offence  under  Section  27  of  the  Arms  Act  which  sentence  was  never  

bothered to be considered by the High Court under the wrong impression  

that he was convicted for offence under Section 302 and had exceeded the  

right of private defence.  We are constrained to observe that the whole  

attitude has been extremely casual both on the part of the Sessions Judge  

as well as the High Court, resulting in such colossal confusion.

6. Ordinarily,  we  would  have  remanded  the  matter  back  but  

considering that the appellant is 75 years old, it will be futile to send back  

the matter all over again and, therefore, we are proceeding to decide this  

appeal which now presumably is only against the conviction for offence

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under Section 307 read with Sections 149, 147 and 148 IPC and Section  

27 of the Arms Act.

7. Learned counsel appearing for the appellant has addressed us on  

the basis of these confused findings.

8. The prosecution case was that this appellant and the other accused  

resided at village Mauza Hirapur in there own common house. Plot No. 97,  

Khata no. 17 is appurtenant to this house.  There was litigation going on  

between  the  complainants  and  the  accused  persons  in  respect  of  the  

possession and ownership of this plot No. 97.  On 12.11.1994 at about 7  

a.m. in the morning the accused persons started brick construction on the  

disputed land and thereby started changing the nature of that land.  On  

getting this information, one Harihar Singh and his uncle Janardan Singh  

@ Chhedi Singh went there and obstructed the accused on the ground that  

they were violating an injunction order of the Court.  The accused persons  

allegedly  started abusing them.   The present  appellant  Deomuni  Singh  

threatened to kill them.  Some others like Sushil Kumar Singh, his cousin  

brother Manoj Singh, his grandfather Ram Govind Singh, Shankar Singh,  

Nandji Yadav, Mahanth Yadav also came to the spot and tried to pacify the  

matter  but  the  accused did  not  stop,  instead  they  all  went  inside  their  

house  and came back  armed with  fire  arms.   While  the  accused Ajay  

Sharma and Bijay Sharma and the present  appellant  Deomuni  Sharma  

were  armed  with  rifles,  Bimal  Kumar  and  Ram Pravesh  Sharma  were

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armed with pistols.  The appellant fired in the air.  However, Ajay Sharma  

and Bijay Sharma fired at Harihar Sharma and Sushil Sharma.  They both  

died  on  the  spot.   It  was  alleged  that  Ram  Pravesh  Sharma  fired  at  

Janardan Singh @ Chhedi  Singh and Bimal  Kumar had fired at  Manoj  

Singh.  The said Janardan Singh later on died in the hospital while Manoj  

Singh was injured.  It was on this basis that all the accused persons came  

to be proceeded against before the Sessions Judge.  Admittedly only two  

accused  persons  were  arrested  on  the  spot  while  others  including  the  

present  appellant  were  arrested  later  on.   Fire  arms were  seized from  

them.  The accused persons claimed the right of private defence saying  

that the aforementioned plot No. 97 was owned by them and was in their  

possession and that the accused persons had tried to disturb the situation.  

They pointed out that there was no injunction order against them of any  

nature.  They also urged that the complainant party which was more in  

number had tried to molest the lady folk of their house and also tried to  

remove their  ornaments.   They also pointed out  that as many as three  

accused persons were injured in the attack and, therefore, they had to use  

the fire arms to defend themselves.

9. The Trial Court did not accept this plea.  The Trial Court held that  

there was no right of private defence in favour of the accused persons and  

that the accused persons had committed the offence of murder.  However,  

as has been stated earlier, it convicted only three accused persons for the  

offence of murder and the remaining two including the present appellant

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were convicted for the offence under Section 307/149, 147, 148, IPC and  

Section 27 of the Arms Act on the ground that they had, in furtherance of  

their common object, injured Manoj Singh.   

10. In the appeal, however, the High Court came to the conclusion that it  

could not be said that the accused party had no right to private defence at  

all.  The High Court categorically gave the finding that the aforementioned  

plot No. 97 was very much in the possession of the accused party and  

further due to the injuries suffered by the accused they had the right of  

private defence.  It was also found that the prosecution had not brought  

any evidence of an injunction against the accused.  However, according to  

the High Court,  the accused persons had exceeded the right  of  private  

defence.   Therefore,  their  conviction was  liable  to be altered to that  of  

offence under Section 304 Part I, IPC.  On that count, they were awarded  

punishment of seven years as has already been pointed out.  The High  

Court got confused about the present appellant and never realized that he  

was never convicted for the offence under Section 302 by the Sessions  

Judge.  However, the High Court proceeded to dismiss the appeal filed by  

the  present  appellant.   Therefore,  we  are  now  left  to  consider  as  to  

whether the High Court was right in dismissing the appeal of the present  

appellant against his conviction for offence under Section 307 read with  

Sections 149, 147 and 148, IPC and Section 27 of the Arms Act.

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11. At the outset, it must be noted that the allegation against the present  

appellant is not for firing at the complainants. It was feebly suggested by  

the prosecution witnesses that  he had fired in the air  and exhorted the  

other accused persons to attack the complainant party.

12. About that role the High Court has given the following finding at the  

end of para 7 of its judgment:

“When I look to the postmortem report of Harihar Singh  and Sushil Singh, I find that bullet injury was found on their  chest.  It means that the intention was to end their lives but as  the PW himself says that there was also firing in air by  Deomuni  Sharma,  which  indicates  that  earlier  the  intention of Deomuni  Sharma was to scatter  and scare  away the aggressors, but even after firing the aggressor  did  not  scatter  then  they  took  aim  on  their  chest.   Apparently, this aiming at the chest itself appears to be in  excess of the right of private defence.  Purpose of repelling  could have been served by aiming least vital  parts.  Thus I  have no hesitation in holding that in exercise of their right of  private defence the alleged occurrence had taken place but  the appellants exceeded their right of private defence.”

(emphasis supplied)

13. In fact, on this finding itself the appellant, who was accused No.1  

should have been absolved of the guilt.  If apparently accused No.1 had  

fired only in the air with an idea to scare away the aggressors so that they  

should  scatter  then  he  has  obviously  committed  no  offence.   It  was  

nobody’s case that he had fired at the two dead persons. The finding of  

both Courts is clear that only accused Nos. 3 and 4 had fired. The High  

Court dismissed the appeal of appellant Deomuni Sharma on the wrong  

impression that even he was convicted of the offence under Section 302,  

IPC substantively or with the aid of Section 149, IPC, one look at the Trial

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Court’s judgment suggests that he was not so convicted.  The Trial Court  

convicted him only of offence under Section 307 read with Section 149,  

IPC.  Therefore,  the very basis of  the High Court judgment against the  

appellant is knocked down.  The other appellants who were convicted for  

the offence under Section 304 Part I, IPC have not filed any appeal nor  

has  the  prosecution  come  up  in  appeal  against  this  finding  and  the  

consequent  conviction  for  offence  under  Section  304  Part  I,  IPC.  

Therefore, this finding has become final.  Reading the finding as it is, along  

with the finding given in para 9, it is clear that the appellant’s conviction  

which  is  also  not  specifically  referred  to  by  the  High  Court  is  per  se  

incorrect  as  the  appellant  was  never  convicted  for  the  offence  under  

Section 302, IPC and even that finding of the Sessions Judge was never  

challenged by the prosecution.

14. That  leaves  us  with  the  unanswered  question  regarding  the  

conviction under Section 307 read with Sections 149, 147 and 148, IPC as  

also his conviction for offence under Section 27 of the Arms Act.

15. We have very carefully seen the judgments of the Courts below.  It is  

nowhere  stated  nor  is  it  the  case  of  any  prosecution  witness  that  the  

appellant had fired at  Manoj Singh.  It  was only Bimal Kumar who had  

fired.  Again, even the finding regarding the unlawful assembly cannot be  

sustained insofar as the present appellant is concerned.  Seeing the mob,  

the appellant  and the other accused persons entered in the house and

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came back with the fire arms and even then the appellant fired in the air  

which according to the High Court  was only for the purpose of  scaring  

away the aggressors and to scatter them.  Till that moment at least the  

appellant cannot be a member of unlawful assembly nor can the assembly  

itself be termed as unlawful assembly with a definite common object.  If  

ultimately the High Court has come to a conclusion that the other accused  

persons fired in pursuance of their right of private defence, then this act of  

theirs could not be said to be that attributable to an unlawful assembly.  In  

the wake of the High Court’s judgment the finding regarding Section 149,  

IPC must fail and with it the conviction for offence under Sections 147 and  

148, IPC.  Once that result is achieved, there is no question of convicting  

the appellant for the offence under Section 307, IPC which apparently has  

been  committed  individually  by  Bimal  Kumar  alone  by  firing  at  Manoj  

Singh.  It is also apparent that the offence under Section 304 Part I was  

committed  by  accused  Nos.  3  and  4,  Ajay  Sharma  and  Bijay  Sharma  

individually and substantially by themselves alone.  It was not in pursuance  

of  any object  of  the unlawful  assembly because there was no unlawful  

assembly at all.  Therefore, the present appellant cannot be even booked  

for  offence  under  Section  307  read  with  Section  149,  IPC.   He  must,  

therefore, be acquitted of that offence.

16. Once it is a clear cut finding by the High Court that the appellant  

fired in  the air  only  with  an idea to scare away  the aggressors and in  

pursuance of right of private defence of his property and life and once it is

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proved that he also suffered some injuries, though superficial, his use of  

gun only for that purpose cannot be covered under Section 27 of the Arms  

Act either.  In fact, we are doubtful about the prosecution version that he  

fired the gun in the air and exhorted the other accused to attack.  This case  

of the prosecution has been found to be incorrect by the High Court as  

there is a specific finding recorded by the High Court that even if he has  

fired in the air, it was with an idea to scare away the aggressors.  The High  

Court has also specifically found that the accused persons had possessed  

the  aforementioned plot  No.  97 and that  there  was  no injunction order  

passed against them nor was any such injunction order either produced  

before the Court or proved.  If that was so, then the action of the appellant  

would  not  have the colour  of  criminality  and hence even his  conviction  

under Section 27 of the Arms Act would be of no consequence.  There is  

no discussion regarding Section 27, Arms Act either in the judgment of the  

Trial Court or the High Court.  No evidence is discussed as to how the user  

of the fire arm can come within the mischief of Section 5 of the Arms Act.  

No such material was produced before us nor were we addressed on the  

issue  by  the  learned  counsel  for  the  prosecution.   Under  such  

circumstances, we are not in a position to endorse the breach of Section 5  

of  the Arms Act.   Again,  it  is  not  the case of  the prosecution that  this  

appellant did not have the licence for the rifle that he is alleged to have  

used by firing in the air.  

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17. For inviting conviction under Section 27 of the Arms Act, it has to be  

proved that the fire arm has been used in contravention of Section 5 or  

Section 7 of the Arms Act.   Since it  was a licensed gun, there was no  

question of Section 7 coming in.  Insofar as Section 5 is concerned, we do  

not think that an act on the part of the accused in firing in the air to scare  

the aggressors would come within the mischief of Section 5(1) of the Arms  

Act.  Therefore, the appellant is liable to be acquitted even of the offence  

under Section 27 of the Arms Act.

18. In result,  the conviction of  the appellant  as recorded by the Trial  

Court and as wrongly confirmed by the High Court is bad in law and the  

accused  is  entitled  for  acquittal.   He  is  accordingly  acquitted.   The  

judgments of both the Courts below are set aside.

………………………………..J. [V.S. SIRPURKAR]

………………………………..J. [R.M.LODHA]

New Delhi; May 26, 2009

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