ZAHOOR & ORS.versusSTATE OF U.P.

                    [2011] !5 S.C.R. 881

                     ZAHOOR & ORS.                            A
                            v.
                      STATE OF U.P.
           (Criminal Appeal No. 1331 of 2008)
                     APRIL 26, 2011
                                                              B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]             -
                                                     '-·

      Penal Code, 1860 _- s. 304 (I) read with s. · 34 - De'ath
due to gunshots - Three accused - Conviction -u/s. 302 and C
sentence of life imprisonment by the trial court- However, the
High Court modified the conviction to one uls. 304 (/) · read
with s. 34 on the ground that the matter related to a sudden
qliarrel without pre-meditation - On appeal held: As_ regards
two of the accused no overt act has been attributed to them - D
They did not cause any injury to the deceased or to anybody
else and the only allegation against _them is that they had
exhorted their co-accused to shoot at the deceased - Thus,
their conviction is set aside - Conviction of the third accused
uls 304(Part-1) does not calf for interference - However, he E
was of tender age on the date of the incident and at present
he is 60 years of age - In the interest of justice, his sentence
is, reduced from 10 to 5 years - Sentence/Sentencing.
    CRIMINAL APP_ELLATE JURISDICTION : Criminal Appeal
No. 1331 Of 2008. .                                           F

    From the Judgment & Order dated 08.10.2007 of the High
Court of Allahabad in Criminal Appeal No. 2630 of 1982.

    J.P. Sharma, Naresh Bakshi for the Appellants.
                                                              G
      R.K. Gupta, Pradeep Misra, Suraj Singh, Sandeep Singh
for the Respondent.

    The following order of the Court was delivered
                             881                              H
     882      SUPREME COURT REPORTS                  [2011) 5 S.C.R.


A                                 ORDER

          In this appeal for the reasons mentioned hereunder, no
     detailed facts are necessary.

          Suffice it to say that the appellants before us Zahoor,
·B   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
C    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
D    leave at the instance of the accused.

          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,
E    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
F    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.
G
          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
H
           ZAHOOR & ORS. v. STATE OF U.P.                   883


has been shot dead but in the overall picture we feel that the     A
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.                                         B
            I

     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.
                                                                   c
       The appeal is disposed of accordingly.

N.J.                                      Appeal disposed of.