Holding

The acts constitute murder under Section 302 IPC; the conviction under Section 304 Part II was erroneous and the trial court’s conviction and sentence are restored.

Summary

The police raided the house of a gambling den where Virendra Prasad and his father Ram Prasad were present. When the police attempted to seize a rifle, Virendra snatched it from his father and fired seven rounds at the police party, killing ASI Gokaran Nath Pandey and injuring two constables. The trial court convicted Virendra under Sections 302, 307 IPC and Section 28 of the Arms Act, sentencing him to life imprisonment. The Allahabad High Court altered the murder conviction to culpable homicide not amounting to murder (Section 304 Part II) and reduced the sentence to the time already served. On appeal, the Supreme Court held that the evidence showed a clear intention to kill, no scuffle, and that the shots were fired before any attempt to disarm him, thereby sustaining the conviction under Section 302 IPC and the sentence of life imprisonment. The High Court’s judgment was set aside and the trial court’s order restored.

Issues considered

The appropriate offence under the IPC: whether the facts constitute murder under Section 302 or culpable homicide not amounting to murder under Section 304 Part II.
Whether the conviction under Section 307 IPC for attempt to murder stands.
Whether the sentence imposed by the High Court (time already served) is legally valid.

Legislation cited

Arms Act, 1959s. 28
Indian Penal Code, 1860s. 302, s. 304 Part II, s. 307

Subjects

murderculpable homicideSection 302 IPCSection 304 Part II IPCintention to killpolice raidfirearmsArms Actsentencingproportionality

Judgment

STATE OF U.P. A
v.
VIRENDRA PRASAD

FEBRUARY 3, 2004

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.} B

Penal Code, 1860-Section 302, 304 Part II & 307/Arms Act, 1958-
Section 28-Accused killed one policeman .and injured two others when he
attempted to flee-Trial court convicted the accused for murder 1111der section
302 /PC-High Court, taking the view that there was a scu./Jle, convicted the
c
accused under sec/ion 304 Part II /PC-Correctness of-Held, on facts and
' evidence, acc11sed shot seven rounds on policemen from very close range with
intention to kill-Hence right~v convicted under section 302 /PC by the trial
Court.
D
A police party raided the house of respondent on getting information
that he was operating a gambling den. When the respondent tried to flee,
the deceased and two other policemen PWs 4 and S chased him. The
respondent fired at the policemen with his rine killing the deceased and
injuring PWs 4 and S. Other policemen caught hold of the respondent.
) Trial Court found the respondent guilty of offences punishable under E
sections 302 and 307 IPC and Section 28 of the Arms Act, 1959 and
sentenced him to life imprisonment. High Court altered the conviction of
the resrondent to Section 304 Part 11 IPC and the sentence was restricted
to ~!l,..e period already undergone.

In appeal to this Court, appellant State contended that the High F
Court on surmises and conjectures came to hold wrongly that the firing
took place during scuffle; that the evidence clearly shows that the
respondent snatched the gun from his father and fired seven rounds at
the police party and hence the commission of offence punishable under
-I
section 302 IPC is clearly established; that _the deceased laid his life while G
performing his official duty and hence the awarding of a sentence with
smaller terms is illegal and inappropriate.

~ Respondent contended that from the evidence, it is clear that the .,
' firing was done by the respondent without premeditation ruling out
39 H
40 SUPREME COURT REPORTS [2004) 2 S.C.R.

A operation of section 302 IPC; and that there was a delay in filing FIR;
and that respondent had received seven injuries which were not explained
by the prosecution.

Allowing the appeal, the Court

B HELD: I.I. The High Court has completely misread the evidence of
PW6. It is nowhere stated therein about any scuffle. On the ~.ontrary, the
evidence of eyewitnesses clearly shows that after the father of the
respondent fired the gun and while the police officials were ttying to take
the gun from him, the respondent snatched away the gun from his father
C and started firing. There was no question of fight or scuffle as such. As
evidence on record clearly establishes, seyen rounds of bullets were fired
by the respondent 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 respondent was crystal clear. The deceased was
D hit on the chest. Merely because there was firing all round, it would not
bring the accused within ambit of Section 304 Part II JPC because the
intention was to hit police officials. 149-C, D, El

1.2. The evidence of PW 6 goes to show that the shots were fired
before the attempt to disarm the respondent was made. Additionally, the
E evidence of PWs. 4 and 5 clearly shows as to how the occurrence took place
and how the respondent fired from close range. Their evidence does not
suffer from any infirmity to throw any suspicion on its veracity. From 'the
factual position, the inevitable conclusion is that the case is covered under
Section 302 I PC. The High Court was not justified in altering the
conviction or directing acquittal so far as the offenceI punishable under
F .

Section 307 is concerned. No reason whatsoever has been indicated for
holding that a case under Section 307 was not made out. The respondent
shall surrender to custody to serve remainder of sentence as was awarded
'. '
by the trial Court. 149-H; 50-A-D)

G Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874; Virsa Singh v.
State of Punjab, AIR (1958) SC 465; State of A.P. v. Rayavarapu Punnayya,
(19761 4 SCC 382; Abdul Waheed Khan alias Waheed and Ors. v. State of
A.P., (200217 SCC 175 and State of Karnataka v. Puttaraja, 1200411 SCC
475, referred to.

H Dennis Councle MCGDautha v. State of Cal/ifornia, 402 US 183, 28
STATE OF U.P. v. VIRENDRA PRASAD [PASAYAT . .J.] 41
L.D. 2d 711, referred to. A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
998 of 1997.

From the Judgment and Order dated 11.4.96 of the Allahabad High
Court in Crl. A. No. 2951 of 1978. B
Garvesh Kabra for Ravi Prakash Mehrotra for the Appellant.
i
)
Sudamaji Shandilya, R.D. Upadhayay, Syed Ali. Ahmed, Syed Tanweer
Ahmeed, Awadesh Kumar Singh and Vikas Bansal for the Respondent.
c
The Judgment of the Court was delivered by

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, D
1860 (in short 'the !PC') and not under Section 302 !PC 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 E
Prasad was dismissed by order dated 20.10.1997.

Background fact~ giving rise to the present appeal are essentially as
follows:

On getting information that accused Ram Prasad and his two sons F
(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 pr.i ty 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 G
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, H
~

42 SUPREME COURT REPORTS [2004] 2 S.C.R.
injured PWs 4 and 5 and others. Police officials Ram Pal and Dinanath were
A 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 accus~d. On reaching
the first floor of the house the members of the third group found 11 persons
B engaged in gambling. Both accused Ram Prasad and Virendra Prasad were
making collections. They entered the eastern 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
c 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
D 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 \ .
E 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
F 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. IO, 14, 18 and 22 were also
G 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 u.nder Sections 27 and
"
28 of the Arms Act, 1959 (in· short 'the Arms Act'), accused-respondent
H

(
STATE OF U.P. v. VIRENDRA PRASAD [PASA Y AT, J.] 43

Virendra was found guilty of offences punishable under Sections 302, 307 A
!PC 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 B
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 !PC. His custody was restricted to the period already undergone. Additionally C
fine of Rs. I 0,000 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
!PC was clearly made out. The High Court on surmises and conjectures came D
to hold that firing took place 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- E
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 F
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 G
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 H
44 SUPREME COURT REPORTS [2004] 2 S.C.R.

A deceased caught hold of accused Ra'in Prasad when firing was done by him.
Yirendra 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,
B 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 r
on examination, of accused persons has found severa"I injuries on Ram Prasad '
and Yirendra. In essence, prayer was made to dismiss the appeal. By way of
clarification counsel for the State submitted that Ram Prasad was examined
C 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 !PC "culpable homicide" is the
genus and "murder", its specie. All "murder" is "culpable homicide" but not
vice versa. Speaking generally, "culpable homicide" sans "special
D characteristics of murder is culpable homicide not amounting to murder". For
the purpose of fixing punishment, proportionate to the gravity of the generic
offence, !PC 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
E "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 pa1t of Section 304.
F
The academic distinction between "murder" and "culpable 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
G 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: ,>

H
STATE OF U.P. v. VIRENDRA PRASAD [PASAY AT, .I.] 45

Section 299 Section 300 A
A person commits culpable homicide Subject to certain exceptions
if the act by the death is caused is culpable homicide is murder if the
done- act by which the death is caused is
done -
INTENTION B
(a) with the intention of causing (I) with the intention of causing
death; or death; or

(b) with the intention of causing such (2) with the intention of causing
bodily injury as is likely to cause such bodily injury as the offender C
death; or 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 D
bodily injury intended to be
inflicted is sufficient in the ordinary
course of nature to cause death; or
KNOWLEDGE
E
(c) with the knowledge that the act (4) with the knowledge that the
is likely to cause death. act is so imminently dangerous that
it must in all probability cause death
or such bodily injury as is likely to
cause death, and commits such act F
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 vietim G
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 sufficienc 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 H
46 SUPREME COURT REPORTS (2004] 2 S.C.R.

A 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
B 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
knowing that the victim is suffering from an enlarged liver, or enlarged
spleen or diseased heart and such blow is likely to cause de&th of that particular
person as a result of the rupture of the liver, or spleen or the failure of the
C 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
D 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
E
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"
F 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
G nature. Rajwani Singh v. State of Kera/a, 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
H observed that the prosecution must prove the following facts before it can
STATE OF U.P. v. VIRENDRA PRASAD [PASAYAT, .I.] 47

bring a case under Section 300 "thirdly": First, it must establish quite A .
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 B
enquiry proceeds further, and fou11hly, 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 i.ngredients of clause "thirdly" of Section 300 IPC were brought
c
out by the illustrious Judge .in his terse language as follows :

"12. To put it sho11ly, 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; D

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 bodily injury, that is to say, that it was not accidental or E
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 F
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 G
(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, H
l
•. ""

48 SUPREME COURT REPORTS 12004] 2 S.C.R.

A the intent that the section requires is not proved. But ifthere 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. 1he question, so far as the intention is concerned, is not
whether he intended to kill, or to inflict an injury of a particul_ar
B 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."

C These observations of Vivian Bose, J have become locus c!assicus.
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 pait of the
rule of law. Under clause thirdly of Section 300 !PC, 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
D 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
E 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 injµry
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
F (c) appended to Section 300 clearly brings our 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 dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that clause (4) ofSection
G 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 pa11 of the
offender must be of the highest degree of probability, the act having been
H committed by the offender without any excuse for incurring the risk of causing
STATE OF U.P. v. VIRENDRA PRASAD [PASA YAT . .1.) 49
death or such injury as aforesaid. A
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
fnto 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. B
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 C
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. D
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 E
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 F
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 G
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 H.
50 SUPREME COURT REPORTS [2004] 2 S.C.R.

·A 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 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.
B 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
!PC. 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
C 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.
D
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.
\
E 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 signitica1it 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;
F 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
G 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
H departure from the principle of proportionality has disappeared from the law .\
-~
STATE OF U.P.v. VIRENDRAPRASAD[PASAYAT,J.] 51
only in recent times on account Of misplaced sympathies to the perpetrator A
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 B
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 balanced on the basis of really
c
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 71 l
that no formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate punishment in the D
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. E

These aspects were highlighted by us in State of Karnataka v. Puttaraja,
[2004] 1 sec 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 F
expected that the Courts would operate the sentencing system so a; 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.
G
B:S. Appeal allowed .
...
~