STATE OF RAJASTHANversusRAM KAILASH ALIAS RAM VILAS

                         [2016] l S.C.R. 49


                    STATE OF RAJASTHAN                                 A
                                 v.

              RAM KAILASH ALIAS RAM VILAS
                (Criminal Appeal No. 2454 of 2009)
                       JANUARY 28, 2016                                B

           [M. Y. EQBAL AND ARUN MISHRA, JJ.]
       Penal Code, 1860 - s. 302 r/w ss. 3125 and 3127 ~f Arms Act,
1959 - Conviction under and sentence of life imprisonment and
three years and seven years RI and fine with default clauses - By
trial court - High Court converted the conviction u/s. 302 to u/s.
                                                                       c
304 (Part I) holding that the accused did not know as to whom (out
of the two persons) he was causing harm - Reduced the sentence
of life imprisonment to eight years RI - conviction under provisions
of Arms Act, upheld - On appeal, held: Intention of accused for
causing bodily injury which was likely to cause death was not          D
disputed - The High Court altered the conviction without taking
into consideration the doctrine of malice as envisaged u/s. 301 !PC
- In the light of the evidence on record ingredients of s. 300 !PC
proved - Hence, conversion of conviction to one uls. 304 (Part I)
is not sustainable.
                                                                       E
      Doctrine - Doctrine of transfer of malice - Penal Code, I 860
- s. 301.
      Allowing the appeal, the Court
       HELD: The intention on the part of the respondent-
accused in causing bodily injury as is likely to cause death is not    F
a disputed fact. 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 law. The High Court has
failed to take into consideration the doctrine of transfer of malice   G
as provided in Section 301IPC. In view of the 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 totalit)'    H
                                 49
50               SUPREME COURT REPORTS                      [2016] 1 S.C.R.



A    and in the light of evidences on record clearly prove the
     ingredients of Section 300, IPC. Therefore, the High Court
     converting the sentence from Section 302 to Section 304 (Part-I)
     IPC cannot be sustained. [Paras 9, 10, 11 and 12] [54-C-D; 55-
     C, E-F]
B          State of Andhra Pradesh vs. Rayavarapu Punnayya and
           Anr. AIR 1977 SCC 45: 1977(1)SCR 601- relied on.
                             Case Law Reference
           1977 (1) SCR 601                   relied on.      Para9
C          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 2454 of2009
            From the Judgment and Order dated 15.09.2008 of the High Court
     of Judicature for Rajasthan at Jodhpur in D. B. Criminal Appeal No. 630
     of2004
D         S.S. Shamshery, AAG, Amit Sharma, Yishu Prayash, S. Spandana
     Reddy, Milind Kumar for the Appellant.
           Charu Mathur, (for Mukul Kumar) for the Respondent.
           The Judgment of the Court was delivered by

E           M. Y. EQBAL, J. I. This appeal by the appellant State is
     directed against the judgment and order dated 15.09.2008 passed by the
     High Court of Rajas than 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
F    sentenced him to a period of eight years rigorous imprisonment and fine
     of Rs.50,000/-.
            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
G    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
H    Kailash and driver Mangi Lal were on the suzuki motorcycle. Accused-
   STATE OF RAJASTHAN v. RAM KAILASH ALIAS RAM                              51
                VILAS [M. Y. EQBAL, J.]

respondent Ram Kailash fired with pistol, to whom, he and Mangla Ram A
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 B
Hospital, where he died on 22.6.2001. Thereafter, police filed charge-
sheet against accused-respondent under Sections 302, 120-B IPC and
3125 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 C
charged under Sections 302, 120-B, !PC 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
                                                                           D
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     E
upper part of the 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   F
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                 G
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         H
52               SUPREME COURT REPORTS                       [2016] I S.C.R.


A    the rear side, who fired on them, which collided 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
B    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
c    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.
D          5. On completion of trial, Additional Sessions Judge (Fast Track),
     N agaur acquitted accused Durga Ram and Ghewar Ram, whereas he
     convicted and sentenced accused-respondent as under:
       Under Section 302 !PC            Imprisonment of life and to pay a
                                        fine of Rs.20,000/-, and in default
E                                       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
F                                       of payment of fine to further
                                        undergo one month's S.l.
       Under Section 3/27 Arms Act      Seven years' R.L and to pay a
                                        fine of Rs.3,000/-, and in default
                                        of payment of fine to further
G                                       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:
H          "9. In the present case, two persons were riding on the motorcycle
   STATE OF RAJASTHAN v. RAM KAILASH ALIAS RAM                                   53
                VILAS [M. Y. EQBAL, J.]

      namely Mangla Ram on the back side and Ram Chandra was                     A
      driving the motorcycle, and they were followed by two persons
      on the motorcycle including accused appellant Ram Kailash @
      Ram 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            B
      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 on! y 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                    C
      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.                                                               D
                                       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,                E
      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             F
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/-,             G
      and in default of payment of fine to further undergo one year's
      rigorous imprisonment. However, the conviction and sentences
      under Sections 3125 and 3/27 of the Arms Act are maintained.
      The fine of Rs.50,000/- 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              H
54               SUPREME COURT REPORTS                        [2016] I S.C.R.


A          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
B    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
c    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 law. The High Court has failed to take into
     consideration the doctrine of transfer of malice as provided in Section
D    301 of the Code. 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'
E          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
F          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
G          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,
H          depending, respectively, on whether the second or the third Clause
   STATE OF RAJASTHAN v. RAM KAILASH ALIAS RAM                                 55
                VILAS [M. Y. EQBAL, J.]

       of Sec. 299 is applicable. If this question is found in the positive,   A
       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."
        10. Keeping in view the above test and on the perusal of the Trial     B
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         c
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      D
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 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                 E
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, !PC.
       12. For the reason aforesaid, we are of the view that the judgment      F
of the High Court converting the sentence from Section 302 to Section
304 Part-I, !PC 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.
                                                                               G
Kalpana K. Tripathy                                          Appeal allowed.