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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.