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“REPORTABLE”

IN  THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2454 OF 2009

State of Rajasthan ….Appellant(s)

versus

Ram Kailash alias Ram Vilas              ….Respondent(s)

J U D G M E N T

M.Y. EQBAL, J.

This appeal by the appellant State is directed against the  

judgment  and  order  dated  15.09.2008  passed  by  the  High  

Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No.  

630 of 2004, whereby Division Bench of the High Court partly  

allowed the appeal of the accused-respondent and altered his  

conviction from Section 302 of the Indian Penal Code (IPC) to  

Section 304 Part-I, IPC and sentenced him to a period of eight  

years rigorous imprisonment and fine of Rs.50,000/-.

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2. Facts  in  brief  of  the  present  case  are  that  one  Ram  

Chandra filed a report Ex.P-13 before the Superintendent of  

Police, Nagaur on 16.6.2001 stating inter alia that on the same  

day,  when he  and Mangla  Ram were  going  from Bodwa to  

Dadariya Khurd for attending 'maira', one suzuki motorcycle  

came from the  back side at a distance of ten kilometers away  

from Kuchera. Mangla Ram, who was sitting on the back side  

of  the  motorcycle,  cried  that  someone  from  the  suzuki  

motorcycle  has  fired  upon  him.   Thereupon,  he  saw  that  

accused Ram Kailash and driver Mangi Lal were on the suzuki  

motorcycle. Accused-respondent Ram Kailash fired with pistol,  

to whom, he and Mangla Ram Sarpanch identified. Sarpach  

Mangla Ram was taken to Kuchera hospital, and thereafter, to  

Nagaur and from there, he was referred to Jodhpur hospital.  

Upon  this  report,  In-charge  of  Police  Station  Kuchera  

registered a case under Section 307/34 IPC and Section 3/25  

of the Arms Act and commenced investigation. Injured Mangla  

Ram was  operated  at  Jodhpur  Hospital,  where  he  died  on  

22.6.2001.  Thereafter,  police  filed  charge-sheet  against  

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accused-respondent under Sections 302, 120-B IPC and 3/25  

of the Arms Act. Accused Ghewar Ram was challaned under  

Section  302/34  and  120-B  IPC  and  third  person  namely  

Durga Ram was declared as absconding. Later on Durga Ram  

was arrested and he was charged under Sections 302/34 and  

120-B,  IPC.  Respondent  was  charged  under  Sections  302,  

120-B,  IPC  and  Sections  3/25  and  3/27  of  the  Arms  Act.  

Accused Durga Ram was charged under Sections 120-B and  

302 in alternative 302/34 IPC and accused Ghewar Ram was  

charged under Section 120-B IPC, to which they pleaded not  

guilty. Prosecution examined 33 witnesses. Statements of the  

accused  were  recorded  under  Section  313  Cr.P.C.  Three  

witnesses were examined in defence.

3.  From the documents on record and the impugned order,  

it  is  clear  that  the  main  injury  on  the  person  of  deceased  

Mangla  Ram  as  per  the  Medical  Jurist  M.S.  Kothari  was  

Kothari a cut wound of 5.5 cm x 5 cm x plural cavity deep on  

the lower part of the right chest and on the upper part of the  

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leg and in consequence of this, there were multiple wounds on  

account of abrasions and bruises on the right arm. According  

to him, these injuries were caused by fire arm. He advised X-

ray of both these injuries. On the multiple wounds on the arm,  

there was no bone injury as per the Radiological Report, and  

fracture of 10th rib was found on the right side of the chest  

vide Radiological Report. As a result of these injuries caused  

on 16.6.2001, deceased Mangla Ram died on 22.6.2001.  The  

main eye witness according to the FIR is Ram Chandra, who  

has  been  examined  as  PW-10.  He  has  stated  in  his  

examination in chief that when he was going with Mangla Ram  

Sarpanch  on  the  motorcycle,  then,  he  saw  Ghewar  Ram,  

accused-respondent Ram Kailash, Durga Ram and Mangi Lal  

two  kilometers  before  Kuchera  near  Suzuki  motorcycle  and  

another  Rajdoot  motorcycle,  and  on  seeing  them  on  

motorcycle,  they all  four entered in the dhani of Sangramji.  

About ten kilometers away from Kuchera, Suzuki motorcycle  

came. The driver of which was Mangi Lal and the respondent  

was sitting on the rear side, who fired on them, which collided  

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with the right thigh of the Sarpanch.  Thereafter, he went to  

the hospital and lodged the report.

4. Furthermore,  there  is  a  dying  declaration  of  deceased  

Mangla  Ram  recorded  on  the  very  day  of  the  incident,  in  

which,  he has stated that  accused-respondent came on the  

motorcycle from his back side and fired on him.  Someone else  

was driving the motorcycle. He felt unconscious till he reached  

Kuchera. This evidence clearly indicates that gunshot injury  

was  inflicted  by  accused-respondent.  Further  upon  the  

information of accused-respondent furnished under Section 27  

of the Evidence Act and in pursuance to this, desi pistol and  

empty bag of 12 bore kartoos were recovered, which has been  

proved  by  Budha  Ram  PW-29,  Ghewar  Ram  PW-30  and  

Banwari Lal PW-21.   Though these three witnesses of recovery  

are police constables, but in view of the fact that recovery was  

made from the forest, it was not possible for the police officer  

to  bring  independent  witnesses.   As  per  the  F.S.L.  Report,  

blood that was found on the pellets was of human origin.

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5. On completion of trial, Additional Sessions Judge (Fast  

Track),  Nagaur  acquitted  accused  Durga  Ram  and  Ghewar  

Ram,  whereas  he  convicted  and  sentenced  accused-

respondent as under:  

Under Section 302 IPC Imprisonment of life and to pay a  fine  of  Rs.20,000/-,  and  in  default  of  payment  of  fine  to  further undergo one year's simple  imprisonment.

Under  Section  3/25  Arms Act

Three years' R.I. and to pay a fine  of  Rs.2,000/-,  and  in  default  of  payment of fine to further undergo  one month's S.I.

Under  Section  3/27  Arms Act

Seven years' R.I. and to pay a fine  of  Rs.3,000/-,  and  in  default  of  payment of fine to further undergo  two months' S.I.  

All the sentences were ordered to run concurrently.  

6. Aggrieved  by  the  decision  of  the  trial  court,  accused-

respondent  preferred  appeal  before  the  High  Court,  which  

observed as under:

“9. In the present case, two persons were riding on the  motorcycle namely Mangla Ram on the back side and  Ram Chandra was driving  the  motorcycle,  and they  were  followed  by  two  persons  on  the  motorcycle  including  accused  appellant  Ram  Kailash  @  Ram  

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Vilas, who fired on them, which collided on the lower  side of the right chest of  Mangla Ram, and after six  days of the incident, he died. This gun shot injury was  of-course of such a nature as opined by the doctor was  likely to cause death and was fired with an intention,  but the offender was not knowing that as to whom he  is causing harm out of the two on the motorcycle. In  the absence of it and also of the fact that there was  only  one gun shot  injury,  it  is  a case of  intentional  causing bodily injury as is likely to cause death, which  covers under clause (b) of Section 299 IPC punishable  under  Section  304  Part-I  IPC.  It  is  not  a  case  of  intentional act of causing bodily injury with knowledge  of likely death but an intentional act of causing death  by inflicting injury with fire arm. Had it been a simple  case of knowledge without there being intention, then  the case would fall under Section 304 Part-II IPC.

xxxx 11. ….it can safely be said that the present case falls  under Section 304 Part-I IPC instead of Section 302  IPC. So far as offences under Sections 3/25 and 3/27  of the Arms Act are concerned, they have rightly been  held to be proved on account of the fact that accused  has not been able to establish that he was having valid  licence of the recovered pistol, which he used in the  commission of the crime.”

7. Allowing respondent’s appeal in part, the Division Bench  

of the High Court held thus:

“While altering the conviction and sentence of accused  appellant  Ram  Kailash  @  Ram  Vilas  from  offence  under Section 302 IPC to Section 304 Part-I IPC, he is  sentenced  for  a  period  of  eight  years'  rigorous  imprisonment and to pay a fine of Rs.50,000/-, and in  default  of  payment  of  fine  to  further  undergo  one  year's rigorous imprisonment. However, the conviction  and sentences under Sections 3/25 and 3/27 of the  Arms  Act  are  maintained.  The  fine  of  Rs.50,000/-  

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imposed under Section 304 Part-I IPC shall be paid to  the legal heirs of deceased Mangla Ram. However, the  fine  imposed  under  Sections  3/25  and 3/27  of  the  Arms  Act  for  a  sum  of  Rs.2,000/-  and  Rs.3,000/-  respectively shall be deposited in the State fund.”

  8. Hence, State of Rajasthan has preferred present appeal  

by special leave being aggrieved by the judgment of the High  

Court.

9. We have heard the learned Additional Advocate General  

for the State of Rajasthan and the learned counsel appearing  

for the respondent-accused. We have also examined the facts  

of the case and evidence both oral and documentary adduced  

on behalf of the prosecution.  In our considered opinion the  

Trial  Court  rightly  convicted  the  respondent  accused  under  

Section  302,  IPC  whereas,  the  High  Court  grossly  erred  in  

holding that it is a case of Section 299 Clause (b) read with  

Section 304 Part-I, IPC only.  The reason given by the High  

Court that, the respondent did not know as to whom he was  

causing harm out of the two on the motorcycle and it was only  

one gunshot injury which resulted in death is not tenable in  

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law.  The High Court has failed to take into consideration the  

doctrine of transfer of malice as provided in Section 301 of the  

Court.  The facts and the law applicable thereto in such a case  

has  been discussed  by  this  Court  in  the  case  of  State  of  

Andhra Pradesh  vs.  Rayavarapu Punnayya and another,  

AIR 1977 SCC 45:-

“21.  From  the  above  conspectus,  it  emerges  that  whenever  a  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 will  be convenient for it to, approach the problem in three  stages. The question to be considered at the first stage  would be,  whether  the accused has done an act  by  doing  which  he  has  caused  the  death  of  another.  Proof of such causal connection between 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  prima facie  found in  the  affirmative, the stage for considering the operation of  Section 300, Penal Code, is reached.  This is the stage  at which the Court should determine whether the facts  proved by the prosecution bring the case within the  ambit of any of the four Clauses of the definition of  ‘murder’  contained  in  Section  300.  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  the  second  part  of  Section 304, depending, respectively, on whether the  second or the third Clause of Sec. 299 is applicable.  If  this  question is  found in  the  positive,  but  the  case  comes  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, Penal Code.”

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10. Keeping in view the above test and on the perusal of the  

Trial Court and the High Court judgment and the evidences on  

record, it is not a disputed fact as to whose fire shot resulted  

in the death of the deceased.  The only question which is to be  

examined  here  is  whether  the  offence  committed  by  the  

respondent  is  culpable  homicide  amounting  to  murder  

punishable  under  Section  302  or  culpable  homicide  not  

amounting  to  murder  punishable  under  Section 304 Part-I.  

Here, the intention on the part of the respondent-accused in  

causing bodily injury as is likely to cause death is also not a  

disputed fact.  The only thing which is to be tested is whether  

the  bodily  injury  is  covered  under  either  of  the  Clauses  of  

Section 300 of the Indian Penal Code.

11. We are, therefore, of  the view that the High Court has  

further erred in not taking into consideration Section 301, IPC  

in  forming  its  opinion  before  converting  the  sentence  from  

Section 302 to Section 304 Part-I.  Moreover, in view of the  

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fact that respondent-accused knew that his act of shooting the  

deceased  person  is  likely  to  cause  death  of  that  person  to  

whom harm is caused.  It cannot be believed that respondent-

accused did not know about the likelihood of causing death,  

though, he may not know as to whom he is causing bodily  

harm, but his act in totality and in the light of evidences on  

record clearly prove the ingredients of Section 300, IPC.

12. For  the  reason  aforesaid,  we  are  of  the  view  that  the  

judgment  of  the  High  Court  converting  the  sentence  from  

Section 302 to Section 304 Part-I, IPC cannot be sustained.  In  

the light of the above, this appeal is allowed and the judgment  

of the High court is set aside and restore the conviction and  

sentence passed by the Trial  Court  under Section 302, IPC  

read with other sections of the Arms Act.         

…………………………….J. (M.Y. Eqbal)

…………………………….J. (Arun Mishra)

New Delhi January 28, 2016

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