# RAMPAL SINGH v. STATE OF UP

- **Citation:** [2012] 7 S.C.R. 160
- **Court:** Supreme Court of India
- **Decided:** 2012-07-24
- **Case number:** Criminal Appeal No. 2114 of 2009
- **Bench:** Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rampal-singh-v-state-of-up-28296
- **Pages:** 27

## Headnote

Penal Code, 1860 - s. 304 Part I Is. 302 - Death of person
c due to gunshot injury - Classification of the offence -
Determination of appropriate penal provision - Deceased had
constructed a 'ladauri' - Accused-appellant broke the 'ladauri'
and started throwing garbage on the vacant land of deceased
- This led to altercation between the appellant and the
0
deceased and they also grappled with eac/:1 other - Appellant
went to his house, took out a rifle and from a roof in the
neighbourhood, shot at the deceased which ultimately
resulted in his death - Conviction of appellant u/s.302 with life
imprisonment by courts below - Propriety - Held: The
E appellant and the deceased were related to each other and
there was no previous animosity between them - The entire
incident happened within a very short span of time - It was in
a state of anger that the appellant shot at the deceased - But
before shooting at the deceased, the appellant had asked
DW1 (who was talking to deceased at that time) to keep away
F - On this, the deceased had provoked the appellant by asking
him to shoot 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
- The appellant committed the offence without any preG meditation - However, he was a person from the armed forces
and knew the consequences of using a rifle - He had taken a
clear aim at the lower part of the body, i.e. the stomach of the
deceased - The offence was committed with the intent of
causing a bodily injury which could result in death of the
H
RAMPAL SINGH v. STATE OF UP
161
deceased - It was thus not a case of knowledge simplicitor but A
of intention ex facie - Conviction of appellant accordingly
altered from that uls. 302 to one u/s. 304 Part I - Appellant
sentenced to 1 O years rigorous imprisonment along with fine
of Rs 10,000/-.
B
Penal Code, 1860 - ss. 300, 302 and 304 - Culpable
homicide - When amounting to murder and when not
amounting to murder - Distinction between the two parts of
s.304 - Legal principles governing the distinction between
ss.300, 302 on the one hand and s.304, Part I and II on the
C
other - Discussed.
The prosecution case was that there was altercation
between the appellant and his relative 'RKS', and they
even grappled with each other as the appellant had
demolished the ladauri constructed by 'RKS' and had
D
started throwing garbage on his vacant land; that though
appellant and 'RKS' were thereafter separated by DW1
and another person, but while DW1 was talking to 'RKS',
the appellant climbed on a roof in the neighbourhood
armed with a rifle and warned DW1 to keep away saying
E
that he wanted to shoot 'RKS' on which the latter
remarked that he could shoot at him if he had the courage
and on this, the appellant shot at 'RKS' with his rifle and
ran away. 'RKS' was brought to the hospital. A bullet
wound was found in the right side of his abdomen.
F
Subsequently, on account of the said i.njury, 'RKS'
developed infection and died. The trial court convicted the
appellant under Section 302 IPC and sentenced him to
life imprisonment. The conviction and the sentence was
affirmed by the High Court.
G
In the instant appeal, the appellant did not question
the correctness of the concurrent findings of the courts
below holding him guilty. The only contention raised by
him was that even as per the case of the prosecution,
taken at its best, the only offence that the appellant could
H
162
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A be said to have committed would be that under Part II of
Section 304 IPC and not under Section 302 IPC.
B
Disposing of the appeal the Court,
HELD:
Distinction between ss.300, 302 IPC on the one hand and
s.304, Part I and II IPC on the other.
1.1. Sections 299 and 300 IPC deal with the definition
C of 'culpable homicide' and 'murder', respectively. In terms
of Section 299 IPC, 'culpable homicide' is described as
an act of causing death (i) with the int

## Text

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A
B
[2012] 7 S.C.R. 160
RAMPAL SINGH
v.
STATE OF UP
(Criminal Appeal No. 2114 of 2009)
JULY 24, 2012
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - s. 304 Part I Is. 302 - Death of person
c due to gunshot injury - Classification of the offence -
Determination of appropriate penal provision - Deceased had
constructed a 'ladauri' - Accused-appellant broke the 'ladauri'
and started throwing garbage on the vacant land of deceased
- This led to altercation between the appellant and the
0
deceased and they also grappled with eac/:1 other - Appellant
went to his house, took out a rifle and from a roof in the
neighbourhood, shot at the deceased which ultimately
resulted in his death - Conviction of appellant u/s.302 with life
imprisonment by courts below - Propriety - Held: The
E appellant and the deceased were related to each other and
there was no previous animosity between them - The entire
incident happened within a very short span of time - It was in
a state of anger that the appellant shot at the deceased - But
before shooting at the deceased, the appellant had asked
DW1 (who was talking to deceased at that time) to keep away
F - On this, the deceased had provoked the appellant by asking
him to shoot 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
- The appellant committed the offence without any preG meditation - However, he was a person from the armed forces
and knew the consequences of using a rifle - He had taken a
clear aim at the lower part of the body, i.e. the stomach of the
deceased - The offence was committed with the intent of
causing a bodily injury which could result in death of the
H
RAMPAL SINGH v. STATE OF UP
161
deceased - It was thus not a case of knowledge simplicitor but A
of intention ex facie - Conviction of appellant accordingly
altered from that uls. 302 to one u/s. 304 Part I - Appellant
sentenced to 1 O years rigorous imprisonment along with fine
of Rs 10,000/-.
B
Penal Code, 1860 - ss. 300, 302 and 304 - Culpable
homicide - When amounting to murder and when not
amounting to murder - Distinction between the two parts of
s.304 - Legal principles governing the distinction between
ss.300, 302 on the one hand and s.304, Part I and II on the
C
other - Discussed.
The prosecution case was that there was altercation
between the appellant and his relative 'RKS', and they
even grappled with each other as the appellant had
demolished the ladauri constructed by 'RKS' and had
D
started throwing garbage on his vacant land; that though
appellant and 'RKS' were thereafter separated by DW1
and another person, but while DW1 was talking to 'RKS',
the appellant climbed on a roof in the neighbourhood
armed with a rifle and warned DW1 to keep away saying
E
that he wanted to shoot 'RKS' on which the latter
remarked that he could shoot at him if he had the courage
and on this, the appellant shot at 'RKS' with his rifle and
ran away. 'RKS' was brought to the hospital. A bullet
wound was found in the right side of his abdomen.
F
Subsequently, on account of the said i.njury, 'RKS'
developed infection and died. The trial court convicted the
appellant under Section 302 IPC and sentenced him to
life imprisonment. The conviction and the sentence was
affirmed by the High Court.
G
In the instant appeal, the appellant did not question
the correctness of the concurrent findings of the courts
below holding him guilty. The only contention raised by
him was that even as per the case of the prosecution,
taken at its best, the only offence that the appellant could
H
162
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A be said to have committed would be that under Part II of
Section 304 IPC and not under Section 302 IPC.
B
Disposing of the appeal the Court,
HELD:
Distinction between ss.300, 302 IPC on the one hand and
s.304, Part I and II IPC on the other.
1.1. Sections 299 and 300 IPC deal with the definition
C of 'culpable homicide' and 'murder', respectively. In terms
of Section 299 IPC, '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
D 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
E 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
F 300 IPC. 'Culpable homicide' is the genus and 'murder'
is its species and all 'murders' are 'culpable homicides'
but all 'culpable homicides' are not 'murders'. Another
classification is 'culpable homicide not amounting to
murder', punishable under Section 304 IPC. There is
G again a very fine line of distinction between the cases
falling under Section 304, Part I and Part II, IPC. [Paras
10, 11] [174-D-H]
1.2. Section 300 IPC proceeds with reference to
H Section 299 IPC. 'Culpable homicide' may or may not
RAMPAL SINGH v. STATE OF UP
163
amount to 'murder', in terms of Section 300 IPC. When a
A
'culpable homicide is murder', the punitive consequences
shall follow in terms of Section 302 IPC while in other
cases, that is, where an offence is 'culpable homicide not
amounting to murder', punishment would be dealt with
under Section 304 IPC. [Para 13] [175-E-G]
B
1.3. Section 300 IPC 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 C
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
D
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
E
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,
F
'culpable homicide would not amount to murder'. This
exception itself has three limitations. All these are
questions of facts and would have to be determined in
the facts and circumstances of a given case. [Para 15]
[177-D-H; 178-A]
G
1.4. Section 300 IPC 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
leqislature in its wisdom. thus, covered the entire gamut
H
164
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A of culpable homicide that 'amounting to murder' as well
as that 'not amounting to murder' in a composite manner
in Section 300 of IPC. Sections 302 and 304 of IPC are
primarily the punitive provisions. They declare what
punishment a person would be liable to be awarded, if
B he commits either of the offences. 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,
c then it is culpable homicide amounting to murder, for
which punishment is prescribed in Section 302 IPC.
Section 304 IPC deals with cases not covered by Section
3<J2 IPC and it divides the offence into two distinct
classes, that is (a) those in which the death is intentionally
0
caused; and (b) those in which the death is caused
unintentionally but knowingly. 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 IPC, the second clause deals only with the cases in
E which the accused has no intention of injuring anyone
in particular. 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
F sentence only extends to imprisonment for 10 years.
[Paras 18, 19] [179-E-H; 180-A-C]
1.5, Where the act committed is done with the clear
intention to kill the other person, it will be a murder within
G the meaning of Section 300 IPC and punishable under
Section 302 IPC 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 IPC and is
H punishable under Section 304 IPC. Another fine tool
RAMPAL SINGH v. STATE OF UP
165
which would help in determining such matters is the
A
extent of brutality or cruelty with which such an offence
is committed. An important corollary is the marked
distinction between the provisions of Section 304 Part I
and Part II of IPC. Linguistic distinction between the two
Parts of Section 304 is evident from the very language of B
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 straightc
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 IPC to the facts of the case with a clear 0
demarcation as to under what category of cases, the
case at hand falls and accordingly punish the accused.
[Paras 20, 21) [180-D-H; 181-A]
E
1.6. Classification of an offence into either Part of
Section 304 IPC 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 in the commission of the
crime and to some extent the motive for commission of
F
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 Indian Penal Code, 1860 the accused is
liable to be punished. This can also be decided from
G
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
H
166
SUPREME COURT REPORTS
[2012J 7 S.C.R.
A substantive provisions of Section 302 IPC, 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 IPC. This would
doubly ensure that the conclusion arrived at by the court
B is correct on facts and sustainable in law. 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
c accused. [Para 23] [181-F-H; 182-A-D]
State of Andhra Pradesh v. Rayavarapu Punnayya and
Anr. (1976) 4 SCC 382: 1977 (1) SCR 601; Abdul Waheed
Khan@ Waheed and Others v. State of A.P. (2002) 7 SCC
0 175: 2002 (1) Suppl. SCR 703; Virsa Singh v. State of
Punjab AIR 1958 SC 465: 1958 SCR 1495; Rajwant and
Anr. v. State of Kera/a AIR 1966 SC 1874; Phulia Tudu & Anr.
v. State of Bihar (now Jharkhand) AIR 2007 SC 3215: 2007
(9) SCR 997; Vineet Kumar Chauhan v. State of U.P. (2007)
14 sec 660: 2001 (13) SCR 727; Ajit Singh v. State of
E Punjab (2011) 9 SCC 462: 2011 (12) SCR 375 and Mohinder
Pal Jolly v. State of Punjab 1979 AIR SC 577: 1979 (2) SCR
805 - referred to.
F
Fatta v. Emperor 1151. C. 476 - referred to.
Penal Law of India by Dr. Hari Singh Gour, Volume 3,
2009 - referred to.
2.1. In the instant appeal, both the accused-appellant
G and the deceased 'RKS' 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
H construction of ladauri by the deceased to prevent
RAMPAL SINGH v. STATE OF UP
167
garbage from being thrown on his open land. However,
A
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 and
B
an uncle of the deceased that they were separated and c
were required to maintain their cool. However, the
appellant went to his house and climbed to the roof with
a rifle in his hands when others, including the deceased,
were talking to each other. Before shooting at the
deceased, the appellant had asked DW1 to keep away 0
from the deceased. 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
E
evidence and the recovery of the weapon of crime. 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 IPC. [Para 24]
[182-E-H; 183-A-C]
F
2.2. PW1 is the wife of the deceased 'RKS'. From the
statement of PW1, 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 DW1 and an uncle of G
the deceased. 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. [Para 26] [184-E-F]
H
168
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
2.3. Another very important aspect is that it was not
a case of previous animosity. There is nothing on record
to show that the relation between the families of the
deceased 'RKS' and the appellant was not cordial. On the
contrary, there is evidence that the relations between
B them were cordial, as deposed by PW1. The dispute
between the parties arose with a specific reference to the
lad~uH. It is clear that the appallant 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
c short span of time. The deceased and the appellant had
had an altercation and the 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
0 Muneshwar, he shot at the deceased. But before
shooting, he expressed his intention to shoot by warning
DW1 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
E 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 the deceased. The
F 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
G lower part of the body, i.e. the stomach of the deceased.
As per the statement of PW2 (the doctor who conducted
the post-mortem), there was a stitched wound obliquely
placed on the right iliac tossa which shows the part of
the body the appellant aimed at. This evidence, examined
H in its entirety, shows that without any pre-meditation, the
RAMPAL SINGH v. STATE OF UP
169
appellant committed the offence. The same, however,
A
was done with the intent to cause a bodily injury which
could result in death of the deceased. [Paras 27, 28] [184E-H; 185-A-F]
2.4. The appellant was a person from the armed
forces and knew the consequences of using a rifle. He
8
had not fired indiscriminately but took a clear aim at the
deceased. For modification of conviction from Section
302 IPC to Part II of Section 304 IPC, 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 C
in the ordinary course of things is likely to cause death.
The present case was not a case of knowledge simplicitor
but that of intention ex facie. The conviction of the
. appellant is accordingly altered from that under Section
302 IPC to the one under Section 304 Part I IPC. The
D
appellant is sentenced to ten years rigorous
imprisonment alongwith a fine of Rs.10,000/-, and in
default of payment of fine, to undergo simple
imprisonment for one month. [Paras 30, 31] [186-D-G]
Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC
E
660: 2007 (13) SCR 727 and Aradadi Ramudu @
Aggiramudu vs. State, through lnspe tor of Police (2012) 5
sec 134 - referred to.
Case Law Reference:
F
1977 (1) SCR 601
referred to
Para 12
2002 (1) Suppl. SCR 703 referred to
Para 13
1958 SCR 1495
referred to
Para 13
G
AIR 1966 SC 1874
referred to
Para 13
2007 (9) SCR 997
referred to
Para 14
2007 (13) SCR 727
referred to
Paras 16, 29
2011 (12) SCR 375
referred to
Para 18
H
A
170
SUPREME COURT REPORTS
(2012] 7 S.C.R.
1979 (2) SCR 805
1151. c. 476
(2012) 5 sec 134
referred to
Para 22
referred to
Para 19
referred to
Para 30
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c
No. 2114 of 2009.
From the Judgment & Order dated 15.05.2007 of the High
Court of Judicature at Allahabad in Crl. Appeal No. 1371 of
1982.
Manish Bhandari, Omkar Shrivastava, Rameshwar Prasad
Goyal for the Appellant.
lrshad Ahmad, AAG, Anuvrat Sharma, Alka Sinha, Kabir
0
Dixit for the Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
directed against the judgment of a Division Bench of the High
E 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
F punishable under Section 302 of the Indian Penal Code, 1860
(for short 'the Code').
2. Necessary facts, eschewing unnecessary details, can
be stated at the very outset.
G
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
H of Chhatar Singh. Rampal Singh and the deceased both were
RAMPAL SINGH v. STATE OF UP
171
[SWATANTER KUMAR, J.]
serving in the Army as Lans Naik. Two months prior to the date
A
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
B
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 c
person of village Dhaniapur and they all were 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
0
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.
E
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.
F
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.
G
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
H
172
SUPREME COURT REPORTS
[2012J 7 S.C.R.
A 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
B 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
c 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
D a dying declaration which was recorded by Lieutenant Colonel
Basu (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
E 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
F 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
G 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
H site with the help of other persons and prepared a site plan
RAMPAL SINGH v. STATE OF UP
[SWATANTER KUMAR, J.]
173
(Exhibit Ka-17). After receiving the post mortem report on 1st
A
March, 1978, he further recorded the statement of other
witnesses which, amongst others, included the wife of the
deceased, Smt. Sneh Lata, PW1, and her father, Virendra
Singh, PWS. On 25th July, 1978 the Investigating Officer made
a request to the Military Unit at Delhi to hand over custody of
B
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 c
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
D
of the prosecution, taken at its best, the only offence that the
E
appellant 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 sounsel
appearing for the appellant has taken us through the statements
of PW1, PW2, PW3 and other circumstances besides arguing
F
that the gun fire by the appellant was the result of a provocation
which transpired suddenly at the spot and there was no premeditation on the part of the appellant to commit murder of his
brother, the deceased.
8. In response, the learned counsel appearing for the State
G
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
H
murder of the deceased and it was not a result of any sudden
174
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A 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
8 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 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
C 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
D 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
E 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
F 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 repeatedly
held by this Court, 'culpable homicide' is the genus and 'murder'
is its species and all 'murders' are 'culpable homicides' but all
G '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
H Section 304, Part I and Part II, which we shall shortly discuss.
RAMPAL SINGH v. STATE OF UP
[SWATANTER KUMAR, J.]
175
12. In the case of State of Andhra Pradesh v. Rayavarapu
A
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'
8
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
C
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
D
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 part of Section 304."
E
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
F
the cases which fall in various classes of firstly, secondly, thirdly
G
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 sec 175], Virsa
Singh v. State of Punjab [AIR 1958 SC 465] and Rajwant and
H
176
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Anr. v. State of Kera/a [AIR 1966 SC 1874] are the broad
guidelines and not cast-iron imperatives. 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
B 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
C 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
D 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 :
E
F
G
H
"Section 299
A person commits culpable
homicide if the act by which
the death is caused is done -
Section 300
Subject to certain exceptions
culpable homicide is murder if
the act by which the death is
caused is done -
INTENTION
(a) with the intention of
causing death; or
(b) with the intention of
causing such bodily
injury as is likely to
cause death; or
(1) with the intention of causing
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
RAMPAL SINGH v. STATE OF UP
177
[SWATANTER KUMAR, J.]
(3) with the intention of causing
A
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
B
KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that
the act is likely to
the act is so imminently
cause death.
dangerous that it must in
C
all probability cause
death or such bodily injury
as is likely to cause
death, and without any
excuse or incurring the
0
risk of causing
death
or such injury as is
mentioned above."
15. Section 300 of the Code states what kind of acts, when
done with the intention of causing death or bodily injury as the
E
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 01:1t the elements which need
F
to be satisfied for application of such exceptions, like an act
done in the heat of passion and without pre-mediation. Where
G
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,
H
178
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A 'culpable homicide would not amount to murder'. This exception
itself has three limitations. All these are questions of facts and
would have to be determined in the facts and circumstances
of a given case.
8
16. This Court in the case of Vineet Kumar Chauhan v.
State of UP. (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:
c
D
E
F
G
H
" ..... 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 Rajwani 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 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
RAMPAL SINGH v. STATE OF UP
179
[SWATANTER KUMAR, J.]
within any of the exceptions enumerated in Section 300,
A
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."
B
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.
C
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
D
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 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
E
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
F
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
G
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
H
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SUPREME COURT REPORTS
[2012] 7 S.C.R.
A 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 knowingly. In the former
case the sentence of imprisonment is compulsory and the
maximum sentence admissible is imprisonment for life. In the
B 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
C 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)
D
20.