Page 1 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

15

th

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’).

Page 2 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 13

th

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

2

Page 3 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.

3

Page 4 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 13

th

February, 1978 itself, the deceased had made a dying

declaration which was recorded by Lieutenant Colonel Basu

4

Page 5 (Exhibit Ka-4) wherein he stated that he had been shot at by the

appellant with rifle at about 2.00 p.m. on 13

th

February 1978, when

he was coming out of his house. Subsequently, on account of the

said injury, the deceased developed infection and died on 17

th

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 1

st

March, 1978, he further

5

Page 6 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 25

th

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 3

rd

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 2

nd

January 1978 and reported

on duty on 3

rd

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

6

Page 7 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

7

Page 8 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

8

Page 9 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

9

Page 10 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.

10

Page 11 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 Subject to certain exceptions

11

Page 12 homicide if the act by which

the death is caused is done -

culpable homicide is murder if

the act by which the death is

caused is done –

INTENTION

(a)with the intention of

causing death; or

(1)with the intention of causing

death; or

(b)with the intention of

causing such bodily

injury as is likely to

cause death; or

(2)with the intention of causing

such bodily injury as the

offender 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 is likely to cause

death.

(4)with the knowledge that the

act 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.”

12

Page 13 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

13

Page 14 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

14

Page 15 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

15

Page 16 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. Section 304 deals with cases not

covered by Section 302 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

16

Page 17 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

17

Page 18 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.

18

Page 19 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

19

Page 20 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.

20

Page 21 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.

21

Page 22 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

22

Page 23 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.”

23

Page 24 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

24

Page 25 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

25

Page 26 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

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Page 27 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

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Page 28 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

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