Full Judgment Text
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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.