REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2114 of 2009
Rampal Singh … Appellant
Versus
State of UP … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The present appeal is directed against the judgment of a Division
Bench of the High Court of Judicature at Allahabad dated 15th May, 2007.
Vide the impugned judgment, the High Court affirmed the judgment of
conviction and order of sentence passed by the VIII Additional Sessions
Judge, Mainpuri awarding life imprisonment to the appellant Rampal Singh
for an offence punishable under Section 302 of the Indian Penal Code, 1860
(for short ‘the Code’).
2. Necessary facts, eschewing unnecessary details, can be stated at the
very outset.
3. According to the prosecution, one Jograj Singh and Chhatar Singh were
uterine brothers. Anurag Singh, Rajesh Singh and Amar Singh were sons of
Jograj Singh. Ram Kumar Singh (deceased) was the son of Rajesh Singh.
Rampal Singh (the appellant) and Ram Saran Singh (DW1) are the grand sons
of Chhatar Singh. Rampal Singh and the deceased both were serving in the
Army as Lans Naik. Two months prior to the date of incident, the deceased
had come to his village on leave from Agra where he was posted. He erected
a Ladauri on his vacant land. After expiry of the term of leave, he went
back to join his duty. Rampal Singh had also come on leave. He had broken
the Ladauri constructed by the deceased and started throwing garbage on the
vacant land. Five days prior to the date of occurrence, the deceased had
again come to his village on leave. Upon expiry of the term of his leave
on 13th February, 1978, he was returning to Agra on his duty. Meanwhile,
Amar Singh, uncle of the deceased came to his house with another person of
village Dhaniapur and they all were chatting. Rampal Singh, the appellant,
also reached there. The deceased enquired from him about the reason for
demolishing his Ladauri and throwing garbage on his land. Some altercation
took place between them. They even grappled with each other. The deceased
threw the appellant on the ground. Ram Saran also reached the spot and he,
along with Amar Singh, separated the appellant and the deceased. Ram
Saran, who was examined in the Court as DW1 also started talking to the
deceased who was standing alongside a pillar on his verandah. The
appellant went to his house and climbed on the roof of Muneshwar armed with
a rifle and from there he asked his brother Ram Saran to keep away as he
wanted to shoot the deceased. Consequently, the deceased remarked as to
whether the appellant had the courage to shoot him. On this, the appellant
shot at the deceased with his rifle and ran away. Ram Saran and others
helped the injured and called a village compounder who filled the injury
with dough (Aata). The deceased then was carried to Bewar and from there
he was brought to Military Hospital in Fatehgarh where he got admitted at
9.00 p.m. on the same day.
4. In the hospital, he was examined by Major Dr. Laxmi Jhingaran, PW3,
who prepared the medical report. She found the bullet wound in the right
side in the abdomen of the deceased and prepared an injury report (Exhibit
Ka-2). Upon inquiry, the deceased told her that the appellant had shot at
him at 2.00 p.m. Resultantly, she prepared a report and sent it to the
Station Officer, Kotwali Fatehgarh (Exhibit Ka-3) for taking necessary
action. On receiving this information, Ram Sharwan Upadhyaya, PW4, SI of
Kotwali Fatehgarh proceeded to the Military Hospital. He made inquiry from
the deceased who told him that the appellant had fired at him with his
rifle with the intention to kill him. In furtherance to this, PW4 made a
report (Exhibit Ka-6) to the Station Officer giving result of his inquiry
and asked him that a case under Section 307 of the Code needs to be
registered. Upon this basis, the First Information Report (FIR) (Exhibit
Ka-7) was prepared at 11.55 p.m. on that day by Constable Shiv Karan Singh
who also registered the case as G.D. No.14 (Exhibit Ka-8).
5. On 13th February, 1978 itself, the deceased had made a dying
declaration which was recorded by Lieutenant Colonel Basu (Exhibit Ka-4)
wherein he stated that he had been shot at by the appellant with rifle at
about 2.00 p.m. on 13th February 1978, when he was coming out of his house.
Subsequently, on account of the said injury, the deceased developed
infection and died on 17th February, 1978 at 7.00 a.m. An information was
sent vide Exhibit Ka-5 to the Station Officer, Kotwali District Fatehgarh
by Lieutenant Colonel Officer Commanding N. Basu to arrange for post mortem
examination of the deceased in the district hospital. Upon receipt of the
information, the body of the deceased was taken from the mortuary of the
Military Hospital and sent for post mortem. Dr. A.K. Rastogi, PW2,
conducted the post mortem on the body of the deceased and submitted his
report vide Exhibit Ka-1. He had found the gun shot wound and was of the
opinion that the deceased died due to shock and toxemia as a result of ante-
mortem injuries.
6. Thereafter, the investigation of the case was entrusted to Shri Vedi
Singh, Sub-Inspector Police Station Bewar, PW6. He recorded the statement
of various witnesses, inspected the site with the help of other persons and
prepared a site plan (Exhibit Ka-17). After receiving the post mortem
report on 1st March, 1978, he further recorded the statement of other
witnesses which, amongst others, included the wife of the deceased, Smt.
Sneh Lata, PW1, and her father, Virendra Singh, PW5. On 25th July, 1978
the Investigating Officer made a request to the Military Unit at Delhi to
hand over custody of the appellant, who had surrendered there on 3rd May,
1978. The Investigating Officer also obtained leave certificate of the
appellant Exhibit Ka-19, which shows that the appellant had proceeded on 60
days leave on from 2nd January 1978 and reported on duty on 3rd May, 1978.
The appellant was handed over to the Investigating Officer, who then
produced him before the Magistrate and submitted the charge sheet (Exhibit
Ka-20). Upon committal, charge under Section 302 of the Code was framed
against the appellant for which he was tried and finally convicted, as
afore-noticed, to suffer imprisonment for life.
7. Learned counsel appearing for the appellant has not questioned before
us the correctness of the concurrent findings of the courts holding him
guilty of the said criminal offence. The only contention raised before us
is that even as per the case of the prosecution, taken at its best, the
only offence that the appellant could be said to have committed would be
that under Part II of Section 304 of the Code and not under Section 302 of
the Code. To substantiate this argument, learned counsel appearing for the
appellant has taken us through the statements of PW1, PW2, PW3 and other
circumstances besides arguing that the gun fire by the appellant was the
result of a provocation which transpired suddenly at the spot and there was
no pre-meditation on the part of the appellant to commit murder of his
brother, the deceased.
8. In response, the learned counsel appearing for the State relied upon
the findings returned by the High Court holding that once both the
appellant and the deceased were separated, there was no reason for the
appellant to climb on the roof and shoot the deceased. It clearly shows
the intent to commit murder of the deceased and it was not a result of any
sudden provocation covered under Section 304 of the Code. According to
learned counsel, the concurrent judgments do not call for any interference.
9. Having completed narration of the facts and noticed the precise
contentions raised before us in the present appeal, we may now refer to the
law on the subject. We are of the opinion that elucidative discussion on
the legal principles governing the distinction between Sections 300, 302 of
the Code on the one hand and Section 304, Part I and Part II of the Code on
the other, would be necessary to precisely answer the questions raised.
10. Sections 299 and 300 of the Code deal with the definition of
‘culpable homicide’ and ‘murder’, respectively. In terms of Section 299,
‘culpable homicide’ is described as an act of causing death (i) with the
intention of causing death or (ii) with the intention of causing such
bodily injury as is likely to cause death, or (iii) with the knowledge that
such an act is likely to cause death. As is clear from a reading of this
provision, the former part of it, emphasises on the expression ‘intention’
while the latter upon ‘knowledge’. Both these are positive mental
attitudes, however, of different degrees. The mental element in ‘culpable
homicide’, that is, the mental attitude towards the consequences of conduct
is one of intention and knowledge. Once an offence is caused in any of the
three stated manners noted-above, it would be ‘culpable homicide’. Section
300, however, deals with ‘murder’ although there is no clear definition of
‘murder’ in Section 300 of the Code. As has been repeatedly held by this
Court, ‘culpable homicide’ is the genus and ‘murder’ is its species and all
‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are not
‘murders’.
11. Another classification that emerges from this discussion is ‘culpable
homicide not amounting to murder’, punishable under Section 304 of the
Code. There is again a very fine line of distinction between the cases
falling under Section 304, Part I and Part II, which we shall shortly
discuss.
12. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and
Anr. (1976) 4 SCC 382, this Court while clarifying the distinction between
these two terms and their consequences, held as under: -
“12. In the scheme of the penal Code, ‘culpable homicide’ is
genus and ‘murder’ its species. All ‘murder’ is ‘culpable
homicide’ but not vice-versa. Speaking generally, ‘culpable
homicide not amounting to murder’. For the purpose of fixing
punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of
culpable homicide. The first is, what may be called ‘culpable
homicide of the first degree’. This is the greatest form of
culpable homicide, which is defined in Section 300 as ‘murder’.
The second may be termed as ‘culpable homicide of the second
degree’. This is punishable under the first part of Section
304. Then, there is ‘culpable homicide of the third degree’.
This is the lowest type of culpable homicide and the punishment
provided for it is, also, the lowest among the punishments
provided for the three grades. Culpable homicide of this degree
is punishable under the second part of Section 304.”
13. Section 300 of the Code proceeds with reference to Section 299 of the
Code. ‘Culpable homicide’ may or may not amount to ‘murder’, in terms of
Section 300 of the Code. When a ‘culpable homicide is murder’, the
punitive consequences shall follow in terms of Section 302 of the Code
while in other cases, that is, where an offence is ‘culpable homicide not
amounting to murder’, punishment would be dealt with under Section 304 of
the Code. Various judgments of this Court have dealt with the cases which
fall in various classes of firstly, secondly, thirdly and fourthly,
respectively, stated under Section 300 of the Code. It would not be
necessary for us to deal with that aspect of the case in any further
detail. Of course, the principles that have been stated in various
judgments like Abdul Waheed Khan @ Waheed and Others v. State of A.P.
[(2002) 7 SCC 175], Virsa Singh v. State of Punjab [AIR 1958 SC 465] and
Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad
guidelines and not cast-iron imperatives. These are the cases which would
provide precepts for the courts to exercise their judicial discretion while
considering the cases to determine as to which particular clause of Section
300 of the Code they fall in.
14. This Court has time and again deliberated upon the crucial question
of distinction between Sections 299 and 300 of the Code, i.e., ‘culpable
homicide’ and ‘murder’ respectively. In the case of Phulia Tudu & Anr. v.
State of Bihar (now Jharkhand) [AIR 2007 SC 3215], the Court noticed that
confusion is caused if courts, losing sight of the true scope and meaning
of the terms used by the legislature in these sections, allow themselves to
be drawn into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of these sections. The
Court provided the following comparative table to help in appreciating the
points of discussion between these two offences :
|“Section 299 |Section 300 |
|A person commits culpable homicide |Subject to certain exceptions |
|if the act by which the death is |culpable homicide is murder if the |
|caused is done - |act by which the death is caused is |
| |done – |
|INTENTION |
|(a) with the intention of causing |(1) with the intention of causing |
|death; or |death; or |
|(b) with the intention of causing |(2) with the intention of causing |
|such bodily injury as is likely to |such bodily injury as the offender |
|cause death; or |knows to be likely to cause the |
| |death of the person to whom the harm|
| |is caused; or |
| |(3) with the intention of causing |
| |bodily injury to any person and the |
| |bodily injury intended to be |
| |inflicted is sufficient in the |
| |ordinary course of nature to cause |
| |death; or |
|KNOWLEDGE |
|(c) with the knowledge that the act |(4) with the knowledge that the act |
|is likely to cause death. |is so imminently dangerous that it |
| |must in all probability cause death |
| |or such bodily injury as is likely |
| |to cause death, and without any |
| |excuse or incurring the risk of |
| |causing death or such injury as is |
| |mentioned above.” |
15. Section 300 of the Code states what kind of acts, when done with the
intention of causing death or bodily injury as the offender knows to be
likely to cause death or causing bodily injury to any person, which is
sufficient in the ordinary course of nature to cause death or the person
causing injury knows that it is so imminently dangerous that it must in all
probability cause death, would amount to ‘murder’. It is also ‘murder’
when such an act is committed, without any excuse for incurring the risk of
causing death or such bodily injury. The Section also prescribes the
exceptions to ‘culpable homicide amounting to murder’. The explanations
spell out the elements which need to be satisfied for application of such
exceptions, like an act done in the heat of passion and without pre-
mediation. Where the offender whilst being deprived of the power of self-
control by grave and sudden provocation causes the death of the person who
has caused the provocation or causes the death of any other person by
mistake or accident, provided such provocation was not at the behest of the
offender himself, ‘culpable homicide would not amount to murder’. This
exception itself has three limitations. All these are questions of facts
and would have to be determined in the facts and circumstances of a given
case.
16. This Court in the case of Vineet Kumar Chauhan v. State of U.P.
(2007) 14 SCC 660 noticed that academic distinction between ‘murder’ and
‘culpable homicide not amounting to murder’ had vividly been brought out by
this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382],
where it was observed as under:
“…..that the safest way of approach to the interpretation and
application of Section 299 and 300 of the Code is to keep in
focus the key words used in various clauses of the said
sections. Minutely comparing each of the clauses of section 299
and 300 of the Code and the drawing support from the decisions
of the court in Virsa Singh v. State of Punjab and Rajwant Singh
v. State of Kerala, speaking for the court, Justice RS Sarkaria,
neatly brought out the points of distinction between the two
offences, which have been time and again reiterated. Having
done so, the court said that wherever the Court is confronted
with the question whether the offence is murder or culpable
homicide not amounting to murder, on the facts of a case, it
would be convenient for it to approach the problem in three
stages. The question to be considered at the first stage would
be that the accused has done an act by doing which he has caused
the death of another. Two, if such causal connection between
the act of the accused and the death, leads to the second stage
for considering whether that act of the accused amounts to
culpable homicide as defined in section 299. If the answer to
this question is in the negative, the offence would be culpable
homicide not amounting to murder, punishable under the First or
Second part of Section 304, depending respectively, on whether
this second or the third clause of Section 299 is applicable.
If this question is found in the positive, but the cases come
within any of the exceptions enumerated in Section 300, the
offence would still be culpable homicide not amounting to
murder, punishable under the first part of Section 304 of the
Code. It was, however, clarified that these were only broad
guidelines to facilitate the task of the court and not cast-iron
imperative.”
17. Having noticed the distinction between ‘murder’ and ‘culpable
homicide not amounting to murder’, now we are required to explain the
distinction between the application of Section 302 of the Code on the one
hand and Section 304 of the Code on the other.
18. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held
that in order to hold whether an offence would fall under Section 302 or
Section 304 Part I of the Code, the courts have to be extremely cautious in
examining whether the same falls under Section 300 of the Code which states
whether a culpable homicide is murder, or would it fall under its five
exceptions which lay down when culpable homicide is not murder. In other
words, Section 300 states both, what is murder and what is not. First
finds place in Section 300 in its four stated categories, while the second
finds detailed mention in the stated five exceptions to Section 300. The
legislature in its wisdom, thus, covered the entire gamut of culpable
homicide that ‘amounting to murder’ as well as that ‘not amounting to
murder’ in a composite manner in Section 300 of the Code. Sections 302 and
304 of the Code are primarily the punitive provisions. They declare what
punishment a person would be liable to be awarded, if he commits either of
the offences.
19. An analysis of these two Sections must be done having regard to what
is common to the offences and what is special to each one of them. The
offence of culpable homicide is thus an offence which may or may not be
murder. If it is murder, then it is culpable homicide amounting to murder,
for which punishment is prescribed in Section 302 of the Code. This Section
deals with cases not covered by that Section and it divides the offence
into two distinct classes, that is (a) those in which the death is
intentionally caused; and (b) those in which the death is caused
unintentionally but knowingly. In the former case the sentence of
imprisonment is compulsory and the maximum sentence admissible is
imprisonment for life. In the latter case, imprisonment is only optional,
and the maximum sentence only extends to imprisonment for 10 years. The
first clause of this section includes only those cases in which offence is
really ‘murder’, but mitigated by the presence of circumstances recognized
in the exceptions to section 300 of the Code, the second clause deals only
with the cases in which the accused has no intention of injuring anyone in
particular. In this regard, we may also refer to the judgment of this
Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law
of India by Dr. Hari Singh Gour, Volume 3, 2009 )
20. Thus, where the act committed is done with the clear intention to
kill the other person, it will be a murder within the meaning of Section
300 of the Code and punishable under Section 302 of the Code but where the
act is done on grave and sudden provocation which is not sought or
voluntarily provoked by the offender himself, the offence would fall under
the exceptions to Section 300 of the Code and is punishable under Section
304 of the Code. Another fine tool which would help in determining such
matters is the extent of brutality or cruelty with which such an offence is
committed.
21. An important corollary to this discussion is the marked distinction
between the provisions of Section 304 Part I and Part II of the Code.
Linguistic distinction between the two Parts of Section 304 is evident from
the very language of this Section. There are two apparent distinctions,
one in relation to the punishment while other is founded on the intention
of causing that act, without any intention but with the knowledge that the
act is likely to cause death. It is neither advisable nor possible to
state any straight-jacket formula that would be universally applicable to
all cases for such determination. Every case essentially must be decided
on its own merits. The Court has to perform the very delicate function of
applying the provisions of the Code to the facts of the case with a clear
demarcation as to under what category of cases, the case at hand falls and
accordingly punish the accused.
22. A Bench of this Court in the case of Mohinder Pal Jolly v. State of
Punjab [1979 AIR SC 577], stating this distinction with some clarity, held
as under :
“11. A question arises whether the appellant was guilty under
Part I of Section 304 or Part II. If the accused commits an act
while exceeding the right of private defence by which the death
is caused either with the intention of causing death or with the
intention of causing such bodily injury as was likely to cause
death then he would be guilty under Part I. On the other hand if
before the application of any of the Exceptions of Section 300
it is found that he was guilty of murder within the meaning of
clause “4thly”, then no question of such intention arises and
only the knowledge is to be fastened on him that he did indulge
in an act with the knowledge that it was likely to cause death
but without any intention to cause it or without any intention
to cause such bodily injuries as was likely to cause death.
There does not seem to be any escape from the position,
therefore, that the appellant could be convicted only under Part
II of Section 304 and not Part I.”
23. As we have already discussed, classification of an offence into
either Part of Section 304 is primarily a matter of fact. This would have
to be decided with reference to the nature of the offence, intention of the
offender, weapon used, the place and nature of the injuries, existence of
pre-meditated mind, the persons participating in the commission of the
crime and to some extent the motive for commission of the crime. The
evidence led by the parties with reference to all these circumstances
greatly helps the court in coming to a final conclusion as to under which
penal provision of the Code the accused is liable to be punished. This
can also be decided from another point of view, i.e., by applying the
‘principle of exclusion’. This principle could be applied while taking
recourse to a two-stage process of determination. Firstly, the Court may
record a preliminary finding if the accused had committed an offence
punishable under the substantive provisions of Section 302 of the Code,
that is, ‘culpable homicide amounting to murder’. Then secondly, it may
proceed to examine if the case fell in any of the exceptions detailed in
Section 300 of the Code. This would doubly ensure that the conclusion
arrived at by the court is correct on facts and sustainable in law. We are
stating such a proposition to indicate that such a determination would
better serve the ends of criminal justice delivery. This is more so
because presumption of innocence and right to fair trial are the essence of
our criminal jurisprudence and are accepted as rights of the accused.
24. Having examined the principles of law applicable to the cases like
the one in hand, now we would turn to the present case. We have already
noticed that both the accused and the deceased were related to each other.
Both were serving in the Indian Army. They had come on leave to their home
and it was when the deceased was about to return to the place of his
posting that the unfortunate incident occurred. The whole dispute was with
regard to construction of ladauri by the deceased to prevent garbage from
being thrown on his open land. However, the appellant had broken the
ladauri and thrown garbage on the vacant land of the deceased. Rather than
having a pleasant parting from their respective families and between
themselves, they raised a dispute which led to death of one of them. When
asked by the deceased as to why he had done so, the appellant entered into
a heated exchange of words. They, in fact, grappled with each other and
the deceased had thrown the appellant on the ground. It was with the
intervention of DW1, Ram Saran and Amar Singh that they were separated and
were required to maintain their cool. However, the appellant went to his
house and climbed to the roof of Muneshwar with a rifle in his hands when
others, including the deceased, were talking to each other. Before
shooting at the deceased, the appellant had asked his brother to keep away
from him. On this, the deceased provoked the appellant by asking him to
shoot if he had the courage. Upon this, the appellant fired one shot which
hit the deceased in his stomach. This version of the prosecution case is
completely established by eye-witnesses, medical evidence and the recovery
of the weapon of crime. The learned counsel appearing for the appellant
has, thus, rightly confined his submissions with regard to alteration of
the offence from that under Section 302 to the one under Section 304 Part
II of the Code.
25. At this stage, it would be relevant to refer to the statement of one
of the most material witnesses which will aid the Court in arriving at a
definite conclusion. Smt. Snehlata, who was examined as PW1, is the wife
of the deceased. After giving the introductory facts leading to the
incident, she stated as under :
“In the meantime, Amar Singh, my uncle-in-law (Chachiya Sasur)
came there and one man from Dhaniyapur also came there. My
husband started talking with them and by that time the accused
who is present in the court, came there. My husband told him
that why’s you have started using as your Goora in our land why
you have demolished our ladauri which was constructed by us. On
this issue, there was heated discussion in between my husband
and Rampal Singh and my husband has thrown the accused on the
ground. By that time, his son Ramsaran came there and
thereafter he and Amar Singh have separated both of them.
Ramsaran has made the accused understand and he started talking
with him. My husband got down from the thatch and stood up by
the help of pillar and he started talking with these people and
in the meantime, Rampal had left for his house. Then one of
people saw that the accused present in the court, has climbed on
the roof of Munishwar and stood towards wall which is situated
towards the southern side of my house and he further told that
our land which is vacant land, in the Munder of the wall
situated east side of the same, where he was standing, he told
to his brother go aside, I will fire bullet. On this, his
brother said that are you going mad. On this, my husband told
that have you courage to shoot at me. On this the accused said
that see his courage and saying this, the accused fired bullet
which hit my husband. On the said bullet hit, my husband fell
down and then the accused climbed down from the stairs and fled
away. Thereafter, Ramsaran etc. have helped my husband and they
called the compounder from village. The compounder had made wet
Aata and sealed/filled the wound of my husband and he advised to
immediately take him to some big hospital and thereafter, we
took my husband to Bewar. My husband said the report will be
lodged on some other day, first you take me to the Army
Hospital, Fatehgarh. On the same very day at about quarter to
nine O’clock, we had taken him to the Fatehgarh Hospital where
after four-five days, he died.”
26. From the above statement of this witness, it is clear that there was
heated exchange of words between the deceased and the appellant. The
deceased had thrown the appellant on the ground. They were separated by
Amar Singh and Ram Saran. She also admits that her husband had told the
appellant that he could shoot at him if he had the courage. It was upon
this provocation that the appellant fired the shot which hit the deceased
in his stomach and ultimately resulted in his death.
27. Another very important aspect is that it is not a case of previous
animosity. There is nothing on record to show that the relation between
the families of the deceased and the appellant was not cordial. On the
contrary, there is evidence that the relations between them were cordial,
as deposed by PW1. The dispute between the parties arose with a specific
reference to the ladauri. It is clear that the appellant had not committed
the crime with any pre-meditation. There was no intention on his part to
kill. The entire incident happened within a very short span of time. The
deceased and the appellant had had an altercation and the appellant was
thrown on the ground by the deceased, his own relation. It was in that
state of anger that the appellant went to his house, took out the rifle and
from a distance, i.e., from the roof of Muneshwar, he shot at the deceased.
But before shooting, he expressed his intention to shoot by warning his
brother to keep away. He actually fired in response to the challenge that
was thrown at him by the deceased. It is true that there was knowledge on
the part of the appellant that if he used the rifle and shot at the
deceased, the possibility of the deceased being killed could not be ruled
out. He was a person from the armed forces and was fully aware of
consequences of use of fire arms. But this is not necessarily conclusive
of the fact that there was intention on the part of the appellant to kill
his brother, the deceased. The intention probably was to merely cause
bodily injury. However, the Court cannot overlook the fact that the
appellant had the knowledge that such injury could result in death of the
deceased. He only fired one shot at the deceased and ran away. That shot
was aimed at the lower part of the body, i.e. the stomach of the deceased.
As per the statement of PW2, Dr. A.K. Rastogi, there was a stitched wound
obliquely placed on the right iliac tossa which shows the part of the body
the appellant aimed at.
28. This evidence, examined in its entirety, shows that without any pre-
meditation, the appellant committed the offence. The same, however, was
done with the intent to cause a bodily injury which could result in death
of the deceased.
29. In the case of Vineet Kumar Chauhan v. State of Uttar Pradesh
(supra), the Court noticed that concededly there was no enmity between the
parties and there was no allegation of the prosecution that before the
occurrence, the appellant had pre-meditated the crime of murder. Faced
with the hostile attitude from the family of the deceased over the cable
connection, a sudden quarrel took place between the appellant and the son
of the deceased. On account of heat of passion, the appellant went home,
took out his father’s revolver and started firing indiscriminately and
unfortunately one of the bullets hit the deceased on the chin.
Appreciating these circumstances, the Court concluded :
“Thus, in our opinion, the offence committed by the appellant
was only culpable homicide not amounting to murder. Under these
circumstances, we are inclined to bring down the offence from
first degree murder to culpable homicide not amounting to
murder, punishable under the second part of Section 304 IPC.”
30. The above case is quite close on facts and law to the case in hand,
except to the extent that the appellant was a person from the armed forces
and knew the consequences of using a rifle. He had not fired
indiscriminately but took a clear aim at his brother. Thus, the present is
not a case of knowledge simplicitor but that of intention ex facie. In the
case of Aradadi Ramudu @ Aggiramudu vs. State, through Inspector of Police
[(2012) 5 SCC 134], this Court also took the view that for modification of
sentence from Section 302 of the Code to Part II of Section 304 of the
Code, not only should there be an absence of the intention to cause death
but also an absence of intention to cause such bodily injury that in the
ordinary course of things is likely to cause death.
31. In view of the above discussion, we partially accept this appeal and
alter the offence that the appellant has been held guilty of, from that
under Section 302 of the Code to the one under Section 304 Part I of the
Code. Having held that the accused is guilty of the offence under Section
304 Part I, we award a sentence of ten years rigorous imprisonment and a
fine of Rs.10,000/-, in default to undergo simple imprisonment for one
month. The judgment under appeal is modified in the above terms. The
appeal is disposed of accordingly.
………...….…………......................J.
(Swatanter Kumar)
………...….…………......................J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
July 24, 2012
