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
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
