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CASE NO.:

Appeal (crl.) 998 of 1997

PETITIONER:

State of U.P.

RESPONDENT:

Virendra Prasad

DATE OF JUDGMENT: 03/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

This appeal by the State of Uttar Pradesh questions

legality of the judgment rendered by a Division Bench of the

Allahabad High Court holding that the respondent Virendra

Prasad was guilty of offence punishable under Section 304

Part II of the Indian Penal Code, 1860 (in short 'the IPC')

and not under Section 302 IPC as was contended by the

prosecution. Custodial sentence of the respondent was

limited to the period undergone by him in custody i.e. about

8 months. Though the State had filed appeal against the two

persons including respondent Virendra who had faced trial,

the special leave petition so far as the other accused i.e.

Ram Prasad was dismissed by order dated 20.10.1997.

Background facts giving rise to the present appeal are

essentially as follows:

On getting information that accused Ram Prasad and his

two sons (accused Virendra and one Gorakh) were operating

gambling den in his house, S.K. Astik (PW-6) organized a

raid after obtaining search warrant. The search party

consisted of ASI, Gokaran Nath Pandey (hereinafter referred

to as 'the deceased), ASI R.P. Tripathi (PW-4) and, head

constable Anand Shanker Tiwari (PW-5) amongst others. The

raid was conducted after lot of meticulous planning, because

the accused Ram Prasad was known to be a notorious anti-

social. The plan to raid the house was chalked out and the

raiding party consisted of policemen and public men. They

were divided into three groups. The first party was to stay

outside the house, the second party was to be on the ground

floor of the house and the third party was to go upstair. It

consisted of circle inspector O.P. Agnihotri, PW-6, the

deceased, injured PWs 4 and 5 and others. Police officials

Ram Pal and Dinanath were deputed to proceed ahead to get

the door opened. Members of the third group went behind

those two constables. They covered the doors of the accused

and gave necessary signal to the raiding party. Thereupon

the members of the second and third groups entered into the

house of the accused. On reaching the first floor of the

house the members of the third group found 11 persons

engaged in gambling. Both accused Ram Prasad and Virendra

Prasad were making collections. They entered the eastern

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room where the gambling was going on and produced the search

warrant to accused Ram Prasad. All the 11 persons engaging

in gambling were required to stand up to facilitate their

search by the police officials. When the search was in

progress, both the accused persons and Gorakh slipped out of

that room and ran towards the western room. Gorakh

disappeared and managed to escape. Both the accused persons

entered into the western room. Hearing the shouts of PW-6

that the accused were running away, the deceased and the two

injured PWs 4 and 5 chased them. Accused Ram Prasad fired

his rifle which did not hit anybody. Deceased caught hold of

Ram Prasad and dragged him outside the room to the balcony.

Accused-respondent Virendra Prasad snatched the rifle from

the hands of his father, and started firing on the members

of the raiding party. In all he fired seven rounds. Because

of gunshots, deceased, PWs 4 and 5 received injuries. PW-6

managed to reach behind the accused Virendra and caught him

from behind. He tried to snatch the rifle from his hand. But

accused-respondent Virendra Prasad was not prepared to part

with it. Then some members of the police party hit him with

the batons which they were holding, and managed to take

possession of the rifle. PW-6 found a live cartridge in the

magazine of that rifle and one live cartridge was found in

its chamber. Eight blank cartridges were also found at the

scene of offence. The injured persons were immediately sent

to the hospital, where deceased breathed his last. Case was

registered on the basis of report on 4.11.1972 at 4.30 a.m.

In view of the deceased's death the case which was

originally registered for offence punishable under Section

307 IPC was converted to Section 302 IPC. Investigation was

undertaken and charge sheet was filed. Twenty two persons

were examined to further the prosecution version. Apart

from PWs. 5 and 6 to whom reference has been made supra,

PWs. 10, 14, 18 and 22 were also stated to be the

eyewitnesses. They described the scenario leading to the

death of the deceased and injury to PWs. 4 and 5. One

witness was examined to show that Virendra had sustained

injuries. The Trial Court on consideration of the evidence

on record found the accused persons guilty. While accused

Ram Prasad was found guilty of offence punishable under

Sections 27 and 28 of the Arms Act, 1959 (in short 'the Arms

Act'), accused-respondent Virendra was found guilty of

offences punishable under Sections 302, 307 IPC and 28 of

the Arms Act. While Ram Prasad was convicted to undergo

imprisonment for one year each for the offences noted above,

accused-respondent Virendra was sentenced to undergo

imprisonment for life, five years and one year respectively

for the offences attributed to him.

In appeal, by the impugned judgment the High Court came

to hold that it would not be desirable to send accused

persons to jail because of passage of time. It altered the

custodial sentence to fine of Rs.1,000/- each in respect of

the offences relatable to the Arms Act so far as accused

Ram Prasad is concerned. Conviction of accused Virendra was

altered to Section 304 Part II IPC. His custody was

restricted to the period already undergone. Additionally

fine of Rs.10,000/- was imposed. The alteration of

conviction and the period of sentence as directed by the

High Court is the subject matter of challenge in this

appeal.

Learned counsel for the appellant submitted that case

of Section 302 IPC was clearly made out. The High Court on

surmises and conjectures came to hold that firing took place

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during scuffle between accused-respondent Virendra and PW 3

for the weapon. The evidence, according to him, clearly

shows that Virendra had snatched away the weapon from his

father and had fired seven rounds. It was submitted that the

evidence of PW6 did not in any way show that there was a

scuffle for the gun. In fact, the evidence of PW-6 goes to

show that he tried to snatch away the gun after firing was

done by accused-respondent Virendra. In any event, the

evidence clearly established commission of offence

punishable under Section 302 IPC. Further the meagre

custodial sentence of 8 months awarded for altered

conviction to Section 304 Part II cannot be maintained.

This was a case where the protectors of life and properties

of citizen and those who had to maintain law and order were

attacked by criminals operating gambling dens. One officer

lost his life while performing his official duty. Any

leniency by awarding sentence of smaller term would be not

only illegal but also inappropriate.

Per contra, learned counsel appearing for the accused-

respondent Virendra submitted that the prosecution version

itself goes to show that Ram Prasad fired one gunshot when

the police personnel were chasing his sons, he was dragged

from the roof to balcony. Further, Virendra received seven

injuries and Ram Prasad had received two injuries. The

prosecution has not established as to how these injuries

were sustained. Therefore, the prosecution has not come with

clean hands. The evidence of PWs 4 and 5 shows that the

deceased caught hold of accused Ram Prasad when firing was

done by him. Virendra has not acted with cruelty and the

firing was clearly without premeditation. This clearly rules

out operation of Section 302 IPC. The first information

report was also lodged after considerable delay. The

respondent has suffered agony of criminal trial for more

than three decades and, therefore, the judgment of the High

Court should not be interfered with. It is urged that the

prosecution has tried to suppress the genesis of occurrence.

It was denied that accused-respondent was beaten by any

person. On the contrary, doctor on examination, of accused

persons has found several injuries on Ram Prasad and

Virendra. In essence, prayer was made to dismiss the appeal.

By way of clarification counsel for the State submitted that

Ram Prasad was examined at 2.10 a.m. on 4.11.1972 along with

other accused, and injured PWs.

This brings us to the crucial question as to which was

the appropriate provision to be applied. In the scheme of

IPC "culpable homicide" is the genus and "murder", its

specie. All "murder" is "culpable homicide" but not vice

versa. Speaking generally, "culpable homicide" sans "special

characteristics of murder is culpable homicide not amounting

to murder". For the purpose of fixing punishment,

proportionate to the gravity of the generic offence, IPC

practically recognizes three degrees of culpable homicide.

The first is, what may be called, "culpable homicide of the

first degree". This is the gravest 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.

The academic distinction between "murder" and "culpable

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homicide not amounting to murder" has always vexed the

courts. The 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 Sections 299 and 300. The following comparative table

will be helpful in appreciating the points of distinction

between the two offences:

Section 299 Section 300

A person commits Subject to certain exceptions

culpable homicide if the act by culpable homicide is murder if the

the death is caused is act by which the death is caused

done - is done -

INTENTION

(a) with the intention of causing (1) with the intention of causing

death; or death; or

(b) with the intention (2) with the intention of causing

of causing such such bodily injury as the

bodily injury as is offender knows to be likely to

likely to cause death; or 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 (4) with the knowledge that the

knowledge that act is so imminently

the act is likely to dangerous that it must in all

cause death. probability cause death or

such bodily injury as is likely

to cause death, and commits

such act without any

excuse for incurring the

risk of causing death

or such injury as is mentioned above.

Clause (b) of Section 299 corresponds with clauses (2)

and (3) of Section 300. The distinguishing feature of the

mens rea requisite under clause (2) is the knowledge

possessed by the offender regarding the particular victim

being in such a peculiar condition or state of health that

the internal harm caused to him is likely to be fatal,

notwithstanding the fact that such harm would not in the

ordinary way of nature be sufficient to cause death of a

person in normal health or condition. It is noteworthy that

the "intention to cause death" is not an essential

requirement of clause (2). Only the intention of causing the

bodily injury coupled with the offender's knowledge of the

likelihood of such injury causing the death of the

particular victim, is sufficient to bring the killing within

the ambit of this clause. This aspect of clause (2) is borne

out by Illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such

knowledge on the part of the offender. Instances of cases

falling under clause (2) of Section 300 can be where the

assailant causes death by a fist-blow intentionally given

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knowing that the victim is suffering from an enlarged liver,

or enlarged spleen or diseased heart and such blow is likely

to cause death of that particular person as a result of the

rupture of the liver, or spleen or the failure of the heart,

as the case may be. If the assailant had no such knowledge

about the disease or special frailty of the victim, nor an

intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death, the offence will

not be murder, even if the injury which caused the death,

was intentionally given. In clause (3) of Section 300,

instead of the words "likely to cause death" occurring in

the corresponding clause (b) of Section 299, the words

"sufficient in the ordinary course of nature" have been

used. Obviously, the distinction lies between a bodily

injury likely to cause death and a bodily injury sufficient

in the ordinary course of nature to cause death. The

distinction is fine but real and if overlooked, may result

in miscarriage of justice. The difference between clause (b)

of Section 299 and clause (3) of Section 300 is one of

degree of probability of death resulting from the intended

bodily injury. To put it more broadly, it is the degree of

probability of death which determines whether a culpable

homicide is of the gravest, medium or the lowest degree. The

word "likely" in clause (b) of Section 299 conveys the sense

of probability as distinguished from a mere possibility. The

words "bodily injury ... sufficient in the ordinary course

of nature to cause death" mean that death will be the "most

probable" result of the injury, having regard to the

ordinary course of nature.

For cases to fall within clause (3), it is not

necessary that the offender intended to cause death, so long

as the death ensues from the intentional bodily injury or

injuries sufficient to cause death in the ordinary course of

nature. Rajwant Singh v. State of Kerala (AIR 1966 SC 1874)

is an apt illustration of this point.

In Virsa Singh v. State of Punjab (AIR 1958 SC 465)

Vivian Bose, J. speaking for the Court, explained the

meaning and scope of clause (3). It was observed that the

prosecution must prove the following facts before it can

bring a case under Section 300 "thirdly". First, it must

establish quite objectively, that a bodily injury is

present; secondly, the nature of the injury must be proved.

These are purely objective investigations. Thirdly, it must

be proved that there was an intention to inflict that

particular injury, that is to say, that it was not

accidental or unintentional or that some other kind of

injury was intended. Once these three elements are proved to

be present, the enquiry proceeds further, and fourthly, it

must be proved that the injury of the type just described

made up of the three elements set out above was sufficient

to cause death in the ordinary course of nature. This part

of the enquiry is purely objective and inferential and has

nothing to do with the intention of the offender.

The ingredients of clause "thirdly" of Section 300 IPC

were brought out by the illustrious Judge in his terse

language as follows :

"12. To put it shortly, the prosecution must

prove the following facts before it can

bring a case under Section 300 'thirdly';

First, it must establish, quite objectively,

that a bodily injury is present;

Secondly, the nature of the injury must be

proved; These are purely objective

investigations.

Thirdly, it must be proved that there was an

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intention to inflict that particular bodily

injury, that is to say, that it was not

accidental or unintentional, or that some

other kind of injury was intended.

Once these three elements are proved to be

present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury

of the type just described made up of the

three elements set out above is sufficient

to cause death in the ordinary course of

nature. This part of the enquiry is purely

objective and inferential and has nothing to

do with the intention of the offender."

The learned Judge explained the third ingredient in the

following words (at page 468):

"The question is not whether the prisoner

intended to inflict a serious injury or a

trivial one but whether he intended to

inflict the injury that is proved to be

present. If he can show that he did not, or

if the totality of the circumstances justify

such an inference, then, of course, the

intent that the section requires is not

proved. But if there is nothing beyond the

injury and the fact that the appellant

inflicted it, the only possible inference is

that he intended to inflict it. Whether he

knew of its seriousness, or intended serious

consequences, is neither here nor there. The

question, so far as the intention is

concerned, is not whether he intended to

kill, or to inflict an injury of a

particular degree of seriousness, but

whether he intended to inflict the injury in

question; and once the existence of the

injury is proved the intention to cause it

will be presumed unless the evidence or the

circumstances warrant an opposite

conclusion."

These observations of Vivian Bose, J. have become locus

classicus. The test laid down by Virsa Singh case (supra)

for the applicability of clause "thirdly" is now ingrained

in our legal system and has become part of the rule of law.

Under clause thirdly of Section 300 IPC, culpable homicide

is murder, if both the following conditions are satisfied

i.e. (a) that the act which causes death is done with the

intention of causing death or is done with the intention of

causing a bodily injury; and (b) that the injury intended to

be inflicted is sufficient in the ordinary course of nature

to cause death. It must be proved that there was an

intention to inflict that particular bodily injury which, in

the ordinary course of nature, was sufficient to cause death

viz. that the injury found to be present was the injury that

was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh

case (supra) even if the intention of the accused was

limited to the infliction of a bodily injury sufficient to

cause death in the ordinary course of nature, and did not

extend to the intention of causing death, the offence would

be murder. Illustration (c) appended to Section 300 clearly

brings out this point.

Clause (c) of Section 299 and clause (4) of Section 300

both require knowledge of the probability of the act causing

death. It is not necessary for the purpose of this case to

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dilate much on the distinction between these corresponding

clauses. It will be sufficient to say that clause (4) of

Section 300 would be applicable where the knowledge of the

offender as to the probability of death of a person or

persons in general as distinguished from a particular person

or persons - being caused from his imminently dangerous act,

approximates to a practical certainty. Such knowledge on the

part of the offender must be of the highest degree of

probability, the act having been committed by the offender

without any excuse for incurring the risk of causing death

or such injury as aforesaid.

The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate

the task of the court. But sometimes the facts are so

intertwined and the second and the third stages so

telescoped into each, that it may not be convenient to give

a separate and clear cut treatment to the matters involved

in the second and third stages.

The position was illuminatingly highlighted by this

Court in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC

382 and Abdul Waheed Khan alias Waheed and ors. v. State of

A.P. (2002 (7) SCC 175).

In the case at hand the High Court appears to have

completely misread the evidence of PW6. It is nowhere

stated therein about any scuffle. On the contrary, the

evidence of eyewitnesses clearly shows that after accused

Ram Prasad fired the gun and while the police officials were

trying to take the gun from him, accused-respondent Virendra

snatched away the gun from his father and started firing.

There was no question of fight or scuffle as such. No

foundation has been led to substantiate the plea that there

was fighting or scuffle. As evidence on record clearly

establishes, seven rounds of bullets were fired by accused

Virendra from very close range which hit the deceased and

the two injured witnesses PWs. 4 and 5. He aimed at the

deceased and other police officials. Though the bullets did

not hit PWs. 4 and 5 on vital parts, yet the intention of

the accused was crystal clear. The deceased was hit on the

chest. Merely because there was firing all around, it would

not bring the accused within ambit of Section 304 Part II

IPC because the intention was to hit police officials. The

reasoning given by the High Court is cryptically indicated

as follows:

"The evidence of the prosecution is

that Ram Prasad fired and then nobody was

hurt and Virendra Prasad snatched the rifle

from which he started firing. If Virendra

really wanted to kill any person he easily

would have armed with a rifle and persons

who were close to him he could not have

found target on which bullets have been

fired. No bullet injury on the person of any

of the witnesses indicated that the

intention of the appellant was neither to

kill nor did actually aim to kill".

To say the least, the reasons indicated are vague, lack

cohesion and have been arrived at without any material to

support them. The conclusions have been arrived at by a

complete misreading of evidence of PW-6 who did not in any

manner state in his evidence that there was any fighting or

scuffle. On the contrary, his evidence goes to show that the

shots were fired before the attempt to disarm the accused-

respondent Virendra was made. Additionally the evidence of

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PWs. 4 and 5 clearly shows as to how the occurrence took

place and how the accused Virendra fired from close range.

Their evidence does not suffer from any infirmity to throw

any suspicion on its veracity. When the factual position is

judged in the background of legal position noted above, the

inevitable conclusion is that the case is covered under

Section 302 IPC. The High Court was not justified in

altering the conviction or directing acquittal so far as the

offence punishable under Section 307 is concerned. No reason

whatsoever has been indicated for holding that a case under

Section 307 was not made out. The other points raised by

the respondent have been dealt with in detail by the Courts

below and rightly rejected.

We, therefore, set aside the impugned judgment of the

High Court and restore that of the Trial Court. The

accused-respondent shall surrender to custody to serve

remainder of sentence as was awarded by the trial Court.

Since we have restored the sentences awarded by the

Trial Court, it is not necessary to deal with the question

whether the sentence awarded by the High Court was without

application of mind. It is, however, necessary to note that

sentence should commensurate with the gravity of offence.

The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the

culpability of each kind of criminal conduct. It ordinarily

allows some significant discretion to the Judge in arriving

at a sentence in each case, presumably to permit sentences

that reflect more subtle considerations of culpability that

are raised by the special facts of each case. Judges in

essence affirm that punishment ought always to fit the

crime; yet in practice sentences are determined largely by

other considerations. Sometimes it is the correctional needs

of the perpetrator that are offered to justify a sentence.

Sometimes the desirability of keeping him out of

circulation, and sometimes even the tragic results of his

crime. Inevitably these considerations cause a departure

from just desert as the basis of punishment and create cases

of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal

respected in principle, and in spite of errant notions, it

remains a strong influence in the determination of

sentences. The practice of punishing all serious crimes with

equal severity is now unknown in civilized societies, but

such a radical departure from the principle of

proportionality has disappeared from the law only in recent

times on account of misplaced sympathies to the perpetrator

of crime leaving the victim or his family into oblivion.

Even now for a single grave infraction drastic sentences are

imposed. Anything less than a penalty of greatest severity

for any serious crime is thought then to be a measure of

toleration that is unwarranted and unwise. But in fact,

quite apart from those considerations that make punishment

unjustifiable when it is out of proportion to the gravity of

the crime, uniformly disproportionate punishment has some

very undesirable practical consequences.

After giving due consideration to the facts and

circumstances of each case, for deciding just and

appropriate sentence to be awarded for an offence, the

aggravating and mitigating factors and circumstances in

which a crime has been committed are to be delicately

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balanced on the basis of really relevant circumstances in a

dispassionate manner by the Court. Such act of balancing is

indeed a difficult task. It has been very aptly indicated

in Dennis Councle MCGDautha v. State of Callifornia: 402 US

183: 28 L.D. 2d 711 that no formula of a foolproof nature is

possible that would provide a reasonable criterion in

determining a just and appropriate punishment in the

infinite variety of circumstances that may affect the

gravity of the crime. In the absence of any foolproof

formula which may provide any basis for reasonable criteria

to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary

judgment in the facts of each case, is the only way in which

such judgment may be equitably distinguished.

These aspects were highlighted by us in State of

Karnataka vs. Puttaraja (2004 (1) SCC 475)

The object should be to protect the society and to

deter the criminal in achieving the avowed object of law by

imposing appropriate sentence. It is expected that the

Courts would operate the sentencing system so as to impose

such sentence which reflects the conscience of the society

and the sentencing process has to be stern where it should

be.

Appeal is allowed.