Holding

The appellant’s convictions under IPC sections 307 r.w. 149, 147, 148 and under Arms Act section 27 are not maintainable; he is acquitted.

Summary

Deomuni Sharma was convicted by the trial court and the Jharkhand High Court for attempting murder under IPC section 307 read with sections 149, 147 and 148, and for an offence under section 27 of the Arms Act. The Supreme Court examined whether his act of firing a licensed rifle in the air, allegedly to scare aggressors, could be attributed to an unlawful assembly and thus sustain the convictions. It held that no unlawful assembly existed as the appellant did not fire at anyone and his act was not part of a common object, rendering section 149 inapplicable and consequently the conviction under section 307 r.w. untenable. The Court also found that firing in the air with a licensed gun did not contravene sections 5 or 7 of the Arms Act, so the conviction under section 27 was unsustainable. Accordingly, the appellant was acquitted of all charges and the convictions were set aside.

Issues considered

Whether the appellant's act of firing in the air can be attributed to an unlawful assembly under IPC section 149.
Whether a conviction under IPC section 307 read with sections 149, 147 and 148 is maintainable in the present facts.
Whether the conviction under section 27 of the Arms Act is justified when the firearm was licensed and used to fire in the air.
Whether the right of private defence justifies the appellant's conduct.

Legislation cited

Arms Act, 1959s. 27, s. 5, s. 7
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 304 Part I, s. 307

Subjects

private defenceunlawful assemblyIPC 307Arms Act 27convictionacquittallicensed firearmcriminal appeal

Judgment

.... ..._
(2009] 9 S.C.R. 587

DEOMUNI SHARMA A
v.
STATE OF JHARKHAND
(Criminal Appeal No. 718 of 2003)

MAY 26, 2009
B
[V.S. SIRPURKAR AND R.M. LODHA, JJ.]

Penal Code, 1860: s. 307 r. w. ss. 149, 147, 148 - Arms
Act,, 1959 - ss.27, 5 and 7 - Conviction by trial court -
Affirmed by High Court inspite of arriving at a categorical c
finding that appellant fired in the air only with an idea to scare
away the aggressors and in pursuance of right of private
defence of property and life and that the accused 3 fired,
resulting in death of 2 and injuries to others - On appeal, held:
The act of appeilant showed that he was not a member of D
unlawful assembly - Finding regarding s. 149 must fail -
Conviction u/s. 307 not maintainable as the act was
committed individually by accused 3 by firing - Conviction
uls. 27 of Arms Act would also be of no consequence - For
inviting conviction uls. 27, it has to be proved that the fire arm E
).

, was used in contravention of s. 5 ors. 7 - s. 7 was not attracted
as it was a licenced gun - Act on part of the accused in firing
in the air to scare the aggressor would also not come within
the mischief of s.5(1).

The trial court convicted appellant under s.307 r ~w. F
s.149 IPC along with ss.147 and 148 and s.27 of Arms
Act. He was not convicted u/s.302 with which he was
charged. The other accused were convicted uls.302 r.w.
ss.149, 147 and 148 IPC and s.27 of Arms Act by the trial
Court. The High Court held that the other accused G
persons exceeded the right of private defence and
altered .conviction to that of offence u/s. 304 Part 1 IPC,
however affirmed the conviction of appellant under s.307

587 H
A
588 SUPREME COURT REPORTS [2009) 9 S.C.R.

r. w. ss.149, 147, 148 and s.27 of Arms Act. High Court
-
gave finding that the appellant only fired in the air with
an intention to scare away the aggressors so that they
scatter. The finding of courts below was that only
accused nos.3 and 4 had fired. Hence the appeal.
B
Allowing the appeal, the Court

HELD: 1. It was nowhere stated in the judgments of
courts below nor was it the case of any prosecution
witness that the appellant had fired. It was only the
C accused no. 3 who had fired. Again, even the finding
regarding the unlawful assembly cannot be sustained
insofar as the appellant was concerned. Seeing the mob,
the appellant and the other accused persons entered in
the house and came back with the fire arms and even
D then the appellant fired in the air which according to the
High Court was only for the purpos4;! of scaring away tile
aggressors and to scatter them. Till that momerit at least
the appellant was not a member of unlawful assembly nor
can the assembly itself be termed as unlawful assembly
E with a definite common object. If ultimately the High Court
came 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
F 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 was committed
G individually by accused no.3 alone by firing at the injured.
· It is also apparent that the offence under Section 304 Part
I was committed by accused Nos. 3 and 4, individually
and substantially by themselves alone~ It was not in
pursuance of any object of the unlawful assembly

H
DEOMUNI SHARMA v. STATE OF JHARKHAND 589

because there was no unlawful assembly at all. A
Therefore, the appellant cannot be even booked for
offence under Section 307 read with Section 149, IPC. He
must, therefore, be acquitted of that offence. [Para 15]
[596-G-H; 597 -A]
B
2. 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 proved that
he also suffered some injuries, though superficial, his use
of gun only for that purpose cannot be covered under c
Section 27 of the Arms Act either. 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 also specifically found that
the accused persons possessed the plot No. 97 and that D
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 E
. Act would be of no consequence. There was no
i 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. F
Under such circumstances, there was no breach of
Section 5 of. the Arms Act. Again, it was 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. For inviting conviction under Section 27 of the G
Arms Act, it has to be proved that the fire arm was 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,
an act on the part of the accused in firing in the air to H
590 SUPREME COURT REPORTS [2009] 9 S.C.R. ~ ....

A scare the aggressors would not 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. [Para 16 and 17] [597-B-H; 598-A]

CRIMINAL APPELLATE JURISDICTION : Civil Appeal No.
B
718 of 2003.
-+·
From the Judgment & Order dated 19.9.2002 of the
Jharkhand High Court of Judicature at Ranchi in Criminal
Appeal No. 122 of 1996 (Rr
c
S. Chandra Shekhar and Manoj Kumar for the Appellants.

Manish Kumar Saran for the Respondents.

The Judgment of the Court was delivered by
D
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.
E 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
F 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
G Sections 149, 147 and 148 as also under Section 27 of the
Arms Act and was sentenced to undergo rigorous
imprisonment for 1O years for the offence under Section 307
and 7 years for the offence under Section 27, Arms Act.

H
4
.... DEOMUNI SHARMA v. STATE OF JHARKHAND 591
[V.S. SIRPURKAR, J.]
3. In appeal before the High Court, original accused No.2- A
Ram Pi:avesh 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 B
-t- 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. c
4. In short, though accused No. 1 Deomµni 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 D
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. E
• -t
- 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 F
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
:,,,. G
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
H
.>
592 SUPREME COURT REPORTS [2009] 9 S.C.R. ~

A 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
B 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
c 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 under Section 307-read-with
Sections 149, 147 a11d 148 IPC and Section 27 of the Arms
D 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
E
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.
F 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 J._

G 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
H ,.
-'\, OEOMUNI SHARMA v. STATE OF JHARKHAND 593
[V.S. SIRPURKAR, J.]

to the spot and tried to pacify the matter but the accused did A
not stop, instead they all went inside their house and came back
I 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
armed with pistols. The appellant fired in the air. However, Ajay B
-t- 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 c
injured. It was on this basis that all the accused persons came
to be proceeded against before the Sessions Judge.
Aamittedly 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
D
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
E
the complainant party which was more in number had tried to
j..
molest the lady folk of their house and also tried to remove their
1 ·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.
F
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 accused1persons had committed
.t the offence of murder. However, as has been stated earlier, it
convicted only three accused persons for the offence of murder G
.....
and the remaining two including the present appellant were
convicted for the offence under Section 307/149, 147, 148, /PC
and Section 27 of the Arms Act on the ground that they had, in
furtherance of their common object, injured Manoj Singh.
H
594 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
B 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
c 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 .*.
D
proceeded to dismiss the appe?! 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
E
Act.
~

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
F 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:
G "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
H
DEOMUNI SHARMA v. STATE OF JHARKHAND 595
.- [V.S. SIRPURKAR, J.]
-"
the intention of Deomuni Sharma was to scatter and scare A
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 cf
repelling could have been served by aiming least vital B
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)
c
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 D
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 E
offence under Section 302, IPC substantively or with the aid of
Section 149, IPC, one look at the Trial 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 F
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
G
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 cil_s_o not specifically referred to by the High -Court is
.- per sei~correct as the appellant was never convicted for the
offence under Section 302, IPC and even that find!ng of the
,. H
596 SUPREME COURT REPORTS [2009] 9 S.C.R.
-,
,_
A 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.
B
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
c 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 came back with the fire arms and even then the appellant
fired in the air which according to the High Court was only for
D the purpose of scaring away the aggressors and to scatter
them. Till that moment at least the appellant cannot be a
,l
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
E 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 t
F and 148, IPC. Once that result Is achieved, there is no question
L
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
G
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
H
DEOMUNI SHARMA v. STATE OF JHARKHAND 597
[V.S. SIRPURKAR, J.]
~

offence. A
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 proved that he also suffered
B
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
c
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 D
~ 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 E
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 F
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.
A G
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
H
598 SUPREME COURT REPORTS [2009] 9 S.C.R.
~'

A 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
8
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.

C O.G. Appeal allowed.

I
)

..,
'