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Friday, October 11, 2013

Under Sec. 304 Part II of IPC - sentence reduced to 7 years from life - KUNWAR PAL Vs. STATE OF UTTARAKHAND published in judis.nic.in/supremecourt/filename=40870

Sec. 304 Part II of IPC = Using guns in marriage ceremonies even though prohibited - when caused death of a person who gathered in the marriage ceremony, the accused is liable to be punished under sec. 304 Part II of the IPC. but not under rash and negligent act under sec. 304 A of IPC  due to absence of intention to kill that particular person =

 In the present case, we are of the view that the appellant  is  guilty
of committing the act which caused the death of the deceased since  the  act
was done with the knowledge that is it likely  to  cause  death  within  the
 meaning of Section 304 Part II of the IPC.
 In  the  circumstances,  the
appeal is allowed in part, however, we reduce the sentence imposed upon  the
 appellant  to  a  period  of  7  (seven)  years  without  making  any
alteration in the fine amount imposed by the trial court  and  confirmed  by
the High Court.


                                                   REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL  APPEAL NO. 1643   OF 2013
               [Arising out of S.L.P. (Crl.) No. 2792 of 2013]




Kunwar Pal                                                  …. Appellant


                                   Versus

State of Uttarakhand                                      …. Respondent






                                 1 JUDGMENT




S. A. BOBDE, J.


        1.  The  appellant  has  approached  this  Court  challenging   the
           concurrent finding  of  the  Trial  Court  and  the  High  Court
           convicting and sentencing  him  to  rigorous  life  imprisonment
           under Section 304 of the Indian  Penal  Code,  1860  [for  short
           ‘IPC’] and imposing a  fine  of  Rs.  1,000/-,  in  default,  to
           undergo further imprisonment for one year.
        2. According to the prosecution the appellant is guilty of the said
           offence for   having caused the death of one Ramayan Prasad, who
           was present in the marriage ceremony of one Kaushalya,  daughter
           of Shyam Sunder.  
The incident took place  on  22.05.1998
           in the courtyard (aangan) inside  the  house  of  Shyam  Sunder,
           father of the bride, where around  30  people  were  present  to
           attend the ceremony while about 60 people were outside the house
           having snacks.
The appellant was sitting at one side of the
           courtyard in the verandah on a trunk box.
Four persons, namely,
           Hanuman Prasad,  Ram  Sewak,  Mangal  Singh  and  the  appellant
           –Kunwar Pal, had brought double   barrel  guns,  ostensibly  for
           celebration. 
Ramayan Prasad   prohibited them  from  firing  but
           they did not listen.  
Due to negligent  firing  a  cartridge
           hit the neck of the deceased, who fell down.  
The  deceased  was
           taken to Gadarpur  Government Hospital  in  a  Tractor
           Trolley where a doctor declared him dead.
Ram Sewak  ran
           away from the spot  leaving behind his double  barrel  gun.
         
Mangal Singh ran away  with  his  double  barrel  gun.  
Hanuman
           Prasad and the appellant did not run away.
3.     A first information report (FIR) was lodged on the same day  i.e.  on
22.05.1998  by  one  Kamlesh   Kumar   nephew   of   Ramayan   Prasad,   the
deceased.
In the FIR the informant alleged that three persons  had brought
guns and though prohibited they fired their gun.  Due to negligent firing  a cartridge hit the neck of the Ramayan Prasad, who  fell  down.  
The  person
who fired and the other instigators were caught by the villagers,  who  beat
them.  He named the appellant – Kunwar Pal.  He  further  stated  that  from
one barrel of the gun one empty cartridge  was  found  and  from  the  other
 barrel a live cartridge was found.  He further stated that  Ram  Sewak  and
Mangal Singh, who were Barati, had fired from their guns and ran away.  Ram
Sewak left behind his gun at the spot.
4. After conclusion of the investigation, a charge sheet  was  filed  naming
the appellant and one Hanuman Prasad under Section  304  read  with  Section
120-B IPC.
5.  The learned trial Judge recorded the evidence and heard the  matter  and
convicted the  appellant  as  aforesaid  on  the  basis  of  the  statements
recorded from PW-1, PW-2, PW-4, PW-5 and PW-6.   
The  High  Court  dismissed
the appeal carried by  the  appellant  and  confirmed  the  finding  of  the
learned Trial Judge.
 6.   Shri  Jayant  Bhushan,  learned  senior  counsel,  appearing  for  the
  appellant submitted that the impugned judgment as well as the judgment  of
the Trial Court is erroneous and illegal.
According to the learned  counsel
no   attempt was made by the prosecution  to  co-relate  the  fatal  shot,
which killed Ramayan Prasad with the gun of  the  appellant.   No  Ballistic
Expert was  consulted.
 According  to  the  learned  counsel  this  was
crucial since even     according  to  the  prosecution  3  people  had  been
firing from their gun and there was absolutely no motive for  the  appellant
to kill Ramayan Prasad.   
Assuming without admitting that the appellant  was
guilty no reasons   whatsoever have been recorded  by  the  High  Court
for coming to the  conclusion that  the  appellant  is  liable  to  be
convicted and sentenced under Part I of Section 304 of the  IPC  instead  of
Part II of that section.   
Without prejudice it is  submitted  assuming
that the appellant is responsible for causing the death of the  deceased  it
can only be attributed to a rash and negligent act  within  the  meaning  of
Section 304A of the IPC.  
 On  the  other  hand,  learned  counsel  for  the
prosecution supported the conviction and  sentence.  According  to  the
learned counsel it is established that the  appellant  was  carrying
a gun and had fired it.
There was no reason for him to carry  a  gun  to  a
celebration of a marriage and it has been rightly found that he did so  only with the intention of killing.
7.  We have heard the learned  counsel  for  the  parties  and  perused  the
record.
The prosecution has mainly relied on the FIR and the deposition  of
PW-2, who is the nephew of the deceased and PW-1, who was the priest  called
for performing the marriage rites.
A perusal of the evidence  of  PW-2,  who
also lodged the FIR, shows that at least 3 persons were firing from 3  guns.
Though they were prohibited by his uncle, they continued firing.  One  shot hit the neck of his uncle.  
Ram Sewak ran  away  leaving  his  gun.   Mangal
Singh  ran  away  with  his  gun.   He  identified  the  gun  used  by   the
appellant.  He also stated that one empty and one live cartridge were  found
in the barrels of gun  of  Ram  Kunwar.   
He  stated  that  his  uncle,  the
deceased, was sitting facing the east and  he  was  sitting  facing  the
west.  From this evidence, it is not at all clear that he saw the  appellant
or anyone else firing.  He does not say he saw. 
 It  is  difficult  to  read
the deposition of this witness to mean that he saw the appellant  firing  at
his uncle or anyone else  in  particular.   The  witness  does  not
state where the other persons, who were also firing,  were  located  and  in
which direction they were firing.
8.   PW-1, the priest, states that he was invited to  perform  the  marriage
rituals of the daughter of Shyam Sunder and the incident took place  in  the
courtyard where the wedding rituals were to be performed.  He  deposed  that
he heard firing and in two-three minutes a shot  from  Kunwar  Pal  hit  the
right side of neck of the deceased.  This  happened  though  Ramayan  Prasad
had asked the gun toting guests not to fire.   According  to  this  witness,
the appellant was instigated by Ram  Sewak  and  Hanuman  Prasad  to
fire.
Thereafter accused Ram Sewak and Hanuman Prasad were  caught  with  a
gun on the spot.  It is difficult from  the  evidence  of  this  witness  to
infer the veracity of his claim that it was  the  cartridge  of  Kunwar  Pal
that hit the deceased. 
 He does not say whether all those firing  from
their gun were in his field of vision  and  whether  he  was  watching  each
person.
At another place he said that he was waiting for the bride when  he
“heard” the sound of fire.  He did not say he saw  the  firing.   PW-6,  the
investigating officer, deposed that he identified  the  live  cartridge  and
empty cartridge shown to him and that  he  obtained  the  statement  of  FIR
writer, namely, Rishi Pal Singh and complainant Kamlesh Kumar.
 He  deposed
that on the day of the incident  he  recorded  the  statement  of
accused persons, appellant- Kunwar Pal and  Hanuman  Prasad.   He  inspected
the place of  incident  and  prepared  a  site  plan.   He  stated  that  he
investigated the matter against Ram Sewak and  Mangal  Singh,  who  had  run
away.  He said that he does  not  know  from  whom  he  enquired  nor  their
details were mentioned in the case diary.
 He said that he  had  not  taken
the guns of Ram Sewak and Mangal Singh in his possession.  He said that  gun
of the accused person was sent to the  Ballistic  Expert  but  he  does  not
remember the report.  
Then he said that he does  not  remember 
whether  the
guns were sent or not to the Ballistic Expert.  It  is apparent  from
the deposition that the  investigation  was  slipshod  and  careless.
Why, without investigation about the notice of the others,  the  I.O.   only
chose to proceed against the  appellant  is  not  known.  
Why  a  ballistic
report was not obtained is not known.
9. From the evidence on record, we find much substance  in  the  submissions
made on behalf of the appellant.  
It is difficult to accept  that  the  shot
which killed the deceased came from the gun of  the  appellant  only.   
This assumes importance because admittedly there were three other persons in  the ceremony, who were firing their gun.  
It is  not  possible  therefore
to attribute the act of killing to the appellant,  leave  alone attributing any intention to import causing the death of the deceased.   
The  High
Court in its judgment has found intention to kill only with the  observation
that “a person, who goes to holy ceremony along  with  DBBL  gun,  which  is
used for killing animals, must be said to be going there with the  intention
to create ruckus and to kill someone in the holy  ceremony.  
What  for  the DBBL gun was taken to the marriage ceremony  then?   
The  obvious  inference
was that the same was carried to the ceremony with a  view  to  create  wild
disorder  (pandemonium)  and  to  do  some  harm  to  some  people.”    
This
observation  is  not  sufficient  to  attribute  the  intention  to  kill  a
particular person.  
It is also made in disregard of  the  practice  in  this
part of the country to use guns while celebrating  marriages  in some communities.  
We must say at once that we do not mean  to  approve  of  this practice in any way.  
It is not possible to agree with the High  Court  that
in the instant case the gun was carried to the marriage  ceremony  only
to kill someone.
10.  In these circumstances, we find that the intention of the appellant  to kill the deceased, if any, has not been proved  beyond  a  reasonable  doubt and in any case the appellant is entitled to the benefit of doubt  which  is prominent in this case.  
 It  is  not  possible  therefore  to  sustain  the
sentence under Section 304 Part I of the I P C, which requires  that  the  act
by which death is caused, must be done with the intention of  causing  death
or with the intention of causing such bodily injury as is  likely  to  cause
death.  
Though it is not possible to attribute intention it is  equally  not possible to hold that the act was done without  the  knowledge  that  it  is likely to cause death.
 Everybody, who carries a gun  with  live  cartridges
and even others know that firing a gun and  that  too  in  the  presence  of
several people is an act, is likely to cause death, as indeed it did.   Guns
must be carried with a sense of  responsibility  and  caution  and  are  not
meant to be used in such places like marriage ceremonies.
11.  It was argued by Shri Jayant Bhushan, learned senior counsel  that  the
appellant might at the most, be guilty of doing a  rash  and  negligent  act
not amounting to culpable homicide under section 304A.  
Section  304A  reads
as follows:
     “304A. Causing death by negligence - Whoever causes the death  of  any
     person by doing any rash or negligent act not  amounting  to  culpable
     homicide, shall be punished with imprisonment  of  either  description
     for a term which may    extend to two years, or  with  fine,  or  with
     both.”


12.  It is not possible to accept this submission since, for an  act  to  be construed as  an  act  not  amounting  to  culpable  homicide  it  is necessary that the act be done without the knowledge that the act is  likely to cause death.  
Section 299 of the IPC reads as under:
     “299. Culpable homicide.-- 
Whoever causes death by doing an  act  with
     the intention of causing death, or with  the             intention  of
     causing such bodily injury as is likely to cause death,  or  with  the
     knowledge that he is likely by such act to cause  death,  commits  the
     offence of culpable homicide.”


13.   In the present case, we are of the view that the appellant  is  guilty
of committing the act which caused the death of the deceased since  the  act
was done with the knowledge that is it likely  to  cause  death  within  the
   meaning of Section 304 Part II of the IPC.   
In  the  circumstances,  the
appeal is allowed in part, however, we reduce the sentence imposed upon  the
       appellant  to  a  period  of  7  (seven)  years  without  making  any
alteration in the fine amount imposed by the trial court  and  confirmed  by
the High Court.

                                         .........................………………..J.

[DR. B.S. CHAUHAN]

                                                  ..…............………………………J.
                                                   [S.A. BOBDE]

New Delhi,
October 8, 2013


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