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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  

15th 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’).

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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 13th 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  

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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.

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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 13th February, 1978 itself, the deceased had made a dying  

declaration which was recorded by Lieutenant Colonel Basu  

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

appellant with rifle at about 2.00 p.m. on 13th February 1978, when  

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

said injury, the deceased developed infection and died on 17th  

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 1st March, 1978, he further  

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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 25th 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 3rd 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 2nd January 1978 and reported  

on duty on 3rd 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  

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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  

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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  

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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  

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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.  

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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  

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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.”

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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  

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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  

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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  

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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  

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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  

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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.

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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  

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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.

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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.  

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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  

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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.”

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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  

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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  

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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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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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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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