KUNWAR PALversusSTATE OF UTTARAKHAND

                  [2013] 10 S.C.R. 239


                      KUNWAR PAL                               A
                            v.
               STATE OF UTTARAKHAND
           (Criminal Appeal No. 1643 of 2013)
                    OCTOBER 8, 2013
                                                               B
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

     Penal Code, 1860 - s. 304 (Part II) - Prosecution and
conviction of accused u/s. 304 by courts below - On appeal,
held: The Intention of the acused to kill the deceased not     C
proved beyond reasonable doubt - However, it can be held
that he had knowledge that his act was likely to cause death
- Hence his conviction altered to one u/s. 304 (Part II) -
Sentence of life imprisonment reduced to 7 years.
                                                               D
     Appellant-accused was prosecuted for killing one
person. The prosecution case was that the appellant-
accused alongwith three others, had gone wit~ 3 double
barrel guns to a marriage ceremony. Due to negligent
firing, a cartridge hit the deceased and resulted in his
                                                               E
death. PW-2 (the nephew of the deceased) lodged FIR.
Trial court convicted the appellant uls. 304 IPC and
sentence him to life imprisonment and imposed fine of
Rs.1000/- with default clause. High Court confirmed the
conviction and sentence. Hence the present appeal.
                                                               F
    Partly allowing the appeal, the Court

    HELD: 1. From the evidence on record, it is difficult
to accept that the shot which killed the deceased came
from the gun of the appellant only. This assumes               G
importance because admittedly there were three other
persons in the ceremony, who were firing their guns. It
is not possible therefore to attribute the act of killing to
the appellant, or attributing any intention to cause the
                            239                                H
    240    SUPREME COURT REPORTS               [2013] 10 S.C.R.


A death of the deceased. The High Court in its judgment
  has found intention to kill only with the observation that
  the DBBL gun was carried to the ceremony with a view
  to create wild disorder (pandemonium) and to do some
  harm to some people. This observation is not sufficient
B to attribute the intention to kill a particular person. This
  observation is also made in disregard of the practice in
  this part of the country to use guns while celebrating
  marriages in some communities. Therefore, it cannot be
  said that in the instant case, the gun was carried to the
C marriage ceremony only to kill someone. [Para 9) [244-G-
  H; 245-A-D]

       2. Thus the intention of the appellant to kill the
  deceased has not been proved beyond a reasonable
  doubt and the appellant is entitled to the benefit of doubt.
D Therefore, the sentence under Section 304 (Part I) of the
  IPC, which requires that the act by which death is caused,
  must be done with the intention of causing death or with
  the intention of causing such bodily injury as is likely to
  cause death is not sustainable. Though it is not possible
E to attribute intention, it is equally not possible to hold that
  the act was done without the knowledge that it is likely
  to cause death. [Para 10) [245-E-G]

      3. The appellant is guilty of committing the act which
F caused the death of the deceased since the act was done
  with the knowledge that it is likely to cause death within
  the meaning of Section 304 (Part II) of the IPC. However,
  the sentence imposed upon the appellant is reduced to
  a period of 7 (seven) years without making any alteration
G in the fine amount imposed by the trial court and
  confirmed by the High Court. [Para 13) [246-E-F]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1643 of 2013.

H
    KUNWAR PAL v. STATE OF UTTARAKHAND                     241

     From the Judgment & Order dated 06.12.2012 of the High       A
C:ourt of Uttarakhand at Nainital in Criminal Appeal No. 198 of
2005.
   Jayant Bhushan, Gyanendra Kr. Mishra, Pawash Piyush,
Gyan Prakash Srivastava for the Appellant.                        8
    Rajiv Nanda for the Respondent.

    The Judgment of the Court was delivered by

    S.A. BOBDE, J.1. The appellant has approached this            C
Court challenging the concurrent finding of the Trial Court and
the High Court convicting and sentencing him to rigorous life
imprisonment under Section 304 of the Indian Penal Code,
1860 [for short 'IPC'] and imposing a fine of Rs. 1,000/-, in
default, to undergo further imprisonment for one year.
                                                                  D
      2. According to the prosecution the appellant is guilty of
the said offence for having caused the death of one Ramayan
Prasad, who was present in the marriage ceremony of one
Kaushalya, daughter of Shyam Sunder. The incident took place
on 22.05.1998 in the courtyard (aangan) inside the house of E
Shyam Sunder, father of the bride, where around 30 people
were present to attend the ceremony while about 60 people
were outside the house having snacks. The appellant was
sitting at one side of the courtyard in the verandah on a trunk
box. Four persons, namely, Hanuman Prasad, Ram Sewak, F
Mangal Singh and the appellant -Kunwar Pal, had brought
double barrel guns, ostensibly for celebration. Ramayan Prasad
prohibited them from firing but they did not listen. Due to
negligent firing a cartridge hit the neck of the deceased, who
fell down. The deceased was taken to Gadarpur Government G
Hospital in a Tractor Trolley where a doctor declared him dead.
Ram Sewak ran away from the spot leaving behind his double
barrel gun. Mangal Singh ran away with his double barrel gun.
Hanuman Prasad and the appellant did not run away.

    3. A first information report (FIR) was lodged on the same    H
    242      SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A day i.e. on 22.05.1998 by one Kamlesh Kumar nephew of
  Ramayan Prasad, the deceased. In the FIR the informant
  alleged that three persons had brought guns and though
  prohibited they fired their gun. Due to negligent firing a cartridge
  hit the neck of the Ramayan Prasad, who fell down. The person
B who fired and the other instigators were caught by the villagers,
  who beat them. He named the appellant - Kunwar Pal. He
  further stated that from one barrel of the gun one empty
  cartridge was found and from the other barrel a live cartridge
  was found. He further stated that Ram Sewak and Mangal
c Singh, who were Barati, had fired from their guns and ran away.
  Ram Sewak left behind his gun at the spot.

          4. After conclusion of the investigation, a charge sheet was
    filed naming the appellant and one Hanuman Prasad under
    Section 304 read with Section 120-B IPC.
D
        5. The learned trial Judge recorded the evidence and
  heard the matter and convicted the appellant as aforesaid on
  the basis of the statements recorded from PW-1, PW-2, PW-
  4, PW-5 and PW-6. The High Court dismissed the appeal
E carried by the appellant and confirmed the finding of the learned
  Trial Judge.

        6. Shri Jayant Bhushan, learned senior counsel, appearing
  for the appellant submitted that the impugned judgment as well
F as the judgment of the Trial Court is erroneous and illegal.
  According to the learned counsel no attempt was made by the
  prosecution to co-relate the fatal shot, which killed Ramayan
  Prasad with the gun of the appellant. No Ballistic Expert was
  consulted. According to the learned counsel this was crucial
  since even according to the prosecution 3 people had been
G firing from their gun and there was absolutely no motive for the
  appellant to kill Ramayan Prasad. Assuming without admitting
  that the appellant was guilty no reasons whatsoever have been
  recorded by the High Court for coming to the concl'llsion that
  the appellant is liable to be convicted and sentenced under Part
H I of Section 304 of the IPC instead of Part II of that section.
     KUNWAR PAL v. STATE OF UTTARAKHAND                        243
               [S.A. BOBDE, J.]
Without prejudice it is submitted assuming that the appellant          A
is responsible for causing the death of the deceased it can only
be attributed to a rash and negligent act within the meaning of
Section 304A of the IPC. On the other hand, learned counsel
for the prosecution supported the conviction and sentence.
According to the learned counsel it is established that the            B
appellant was carrying a gun and had fired it. There was no
reason for him to carry a gun to a celebration of a marriage
and it has been rightly found that he did so only with the intention
of killing.

      7. We have heard the learned counsel for the parties and         C
perused the record. The prosecution has mainly relied on the
FIR and the deposition of PW-2, who is the nephew of the
deceased and PW-1, who was the priest called for performing
the marriage rites. A perusal of the evidence of PW-2, who also
lodged the FIR, shows that at least 3 persons were firing from         D
3 guns. Though they were prohibited by his uncle, they
continued firing. One shot hit the neck of his uncle. Ram Sewak
ran away leaving his gun. Mangal Singh ran away with his gun.
He identified the gun used by the appellant. He also stated that
one empty and one live cartridge were found in the barrels of          E
gun of Ram Kunwar. He stated that his uncle, the deceased,
was sitting facing the east and he was sitting facing the west.
From this evidence, it is not at all clear that he saw the appellant
or anyone else firing. He does not say he saw. It is difficult to
read the deposition of this witness to mean that he saw the            F
appellant firing at his uncle or anyone else in particular. The
witness does not state where the other persons, who were also
firing, were located and in which direction they were firing.

     8. PW-1, the priest, states that he was invited to perform G
the marriage rituals of the daughter of Shyam Sunder and the
incident took place in the courtyard where the wedding rituals
were to be performed. He deposed that he heard firing and in ·
two-three minutes a shot from Kunwar Pal hit the right side of
neck of the deceased. This happened though Ramayan Prasad
                                                                       H
    244      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   had asked the gun toting guests not to fire. According to this
   witness, the appellant was instigated by Ram Sewak and
    Hanuman Prasad to fire. Thereafter accused Ram Sewak and
    Hanuman Prasad were caught with a gun on the spot. It is
   difficult from the evidence of this witness to infer the veracity of
B . his claim that it was the cartridge of Kunwar Pal that hit the
    deceased. He does not say whether all those firing from their
    gun were in his field of vision and whether he was watching each
    person. At another place he said that he was waiting for the
    bride when he "heard" the sound of fire. He did not say he saw
c the firing. PW-6, the investigating officer, deposed that he
    identified tlie live cartridge and empty cartridge shown to him
    and that he obtained the statement of FIR writer, namely, Rishi
    Pal Singh and complainant Kamlesh Kumar. He deposed that
    on the day of the incident he recorded the statement of accused
    persons, appellant- Kunwar Pal and Hanuman Prasad. He
D inspected the place of incident and prepared a site plan. He
    stated that he investigated the matter against Ram Sewak and
    Mangal Singh, who had run away: He said that he does not
    know from whom he enquired nor their details were mentioned
    in the case diary. He said that he had not taken the guns of
E Ram Sewak and Mangal Singh in his possession. He said that
    gun of the accused person was sent to the Ballistic Expert but
    he does not remember the report. Then he said that he does
    not remember whether the guns were sent or not to the Ballistic
    Expert. It is apparent from the deposition that the investigation
F was slipshod and careless. Why, without investigation about the
    notice of the others, the 1.0. only chose to proceed against the
    appellant is not known. Why a ballistic report was not obtained
    is not known.

G      9. From the evidence on record, we find much substance
  in the submissions made on behalf of the appellant. It is difficult
  to accept that the shot which killed the deceased came from
  the gun of the appellant only. This assumes importance
  because admittedly there were three other persons in the
H ceremony, who were firing their gun. It is not possible therefore
     KUNVVAR PAL v. STATE OF UTTARAKHAND                        245
                [S.A. BOBDE. J.)
to attribute the act of killing to the appellant, leave alone           A
attributing any intention to import causing the death of the
deceased. The High Court in its judgment has found intention
to kill only with the observation that "a person, who goes to holy
ceremony along with DBBL gun, which is used for killing
animals, must be said to be going there with the intention to           B
create ruckus and to kill someone in the holy ceremony. What
for the DBBL gun was taken to the marriage ceremony then?
The obvious inference was that the same was carried to the
ceremony with a view to create wild disorder (pandemonium)
and to do some harm to some people." This observation is not            c
sufficient to attribute the intention to kill a particular person. It
is also made in disregard of the practice in this part of the
country to use guns while celebrating marriages in some
communities. We must say at once that we do not mean to
approve of this practice in any way. It is not possible to agree
                                                                        0
with the High Court that in the instant case the gun was carried
to the marriage ceremony only to kill someone.

       10. In these circumstances, we find that the intention of the
appellant to kill the deceased, if any, has not been proved
beyond a reasonable doubt and in any case the appellant is              E
entitled to the benefit of doubt which is prominent in this case.
It is not possible therefore to sustain the sentence under Section
304 Part I of the IPC, which requires that the act by which death
is caused, must be done with the intention of causing death or
with the intention of causing such bodily injury as is likely to        F
cause death. Though it is not possible to attribute intention it
is equally not possible to hold that the act was done without the
knowledge that it is likely to cause death. Everybody, who
carries a gun with live cartridges and even others know that firing
a gun and that too in the presence of several people is an act,         G
is likely to cause death, as indeed it did. Guns must be carried
with a sense of responsibility and caution and are not mpr
to be used in such places like marriage ceremonies.

     11. It was argued by Shri Jayant Bhushan, learned senior           H
    246       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   counsel that the appellant might at the most, be guilty of doing
    a rash and negligent act not amounting to culpable homicide
    under section 304A. Section 304A reads as follows:

          "304A. Causing death by negligence - Whoever causes
          the death of any person by doing any rash or negligent act
B
          not amounting to culpable homicide, shall be punished with
          imprisonment of either description for a term which may
          extend to two years, or with fine, or with both."

       12. It is not possible to accept this submission since, for
C an act to be construed as an act not amounting to culpable
  homicide it is necessary that the act be done without the
  knowledge that the act is likely to cause death. Section 299 of
  the IPC reads as under:

0         "299. Culpable homicide.- Whoever causes death by
          doing an act with the intention of causing death, or with the
          interition of causing such bodily injury as is likely to cause
          death, or with the knowledge that he is likely by such act
          to cause death, commits the offence of culpable homicide."
E         13. In the present case, we are of the view that the appellant
    is guilty of committing the act which caused the death of the
    deceased since the act was done with the knowledge that is it
    likely to cause death within the meaning of Section 304 Part II
    of the IPC. In the circumstances, the appeal is allowed in part,
F   however, we reduce the sentence imposed upon the appellant
    to a period of 7 (seven) years without making any alteration in
    the fine amount imposed by the trial court and confirmed by the
    High Court.

    K.K.T.                                     Appeal partly allowed.