Appeal
Appeal against the judgment of High Court setting aside the acquittal
1. These appeals arise from the judgment and order passed by the High Court of Uttarakhand at Nainital dated 20-01-2015 by which the appeal filed by the State of Uttar Pradesh came to be allowed and thereby the judgment and Order of acquittal passed by the Trial Court in Sessions Case No. 204 of 1994 came to be set aside.
2. Since, we intend to dispose of this appeal on a short ground we need not reproduce the facts or rather the case of the prosecution in details. We borrow the facts as stated by the High Court in its impugned judgment and order. We quote the relevant part of the High Court’s judgment:-
“ ….. “
Facts
3. Thus, it appears from the above that the nephew of the first informant along with Joginder were learning typewriting & for that they used to attend a typing institute.
4. While both were on their way to the typing centre, the appellant herein namely Ashok Saxena and the co-accused Yashpal Singh (since deceased) met them and threatened them with dire consequences. The two boys reached home and narrated the entire episode first before the deceased and then upon arrival of Hetram in the evening, the same was conveyed to him also.
6. It appears that the appellant herein with a knife in his hand and Yashpal Singh (since deceased) with a hockey stick in his hand trespassed into the house of the first informant with the intention to lay an assault on him. The deceased i.e. the wife of Hetram, sensing trouble tried to intervene and in the process the appellant herein is alleged to have inflicted a knife blow in the abdomen of the deceased. Of-course there are allegations that at the relevant point of time the co-accused(deceased) had caught hold of the hands of the deceased.
9. The First Information Report (FIR) was lodged by Hetram at the Kichan Police Station, Nainital on 25.6.1992, which reads thus:-
“To SHO Police Station Kichan, Nainital Sir, It is submitted that I am living with my family in the Hydril Colony, Kichan. My son Joginder Singh goes to learn typing in Kichan since last 4-5 days and at the same shop, Yashpal Singh’s son Surinder Singh also learns typing. Day before yesterday, my son Joginder had a heated arguments with Yashpal’s son Surinder at the typing shop. When my son came home and told about this, my nephew Man Singh went and lodged complaint about this to Surinder’s father at his house. On this, Surinder beat my son Joginder in the evening in the colony. I complained about this to my officers. Earlier also, I have made several similar complaints to my officers. To avoid a quarrel, in the evening my nephew went to pick up Joginder from the typing shop. On the way, they meet Ashok Saxena and Yashpal Singh both on the scooter and said that you keep complaining for no reason at all and today we shall see you. At that time, my nephew and son escaped and came home and told everything to his mother and following them Yashpal also came to his house and sat at his door and started abusing when electricity went off. I finished my duty and came home and with me, my acquaintance Chandra Shekhar Mohalla Kishanpur had also come. Then I was told the whole thing. I went out and stopped Yashpal and Ashok Saxena from abusing then both peoples stood up in anger and Ashok Saxena with a knife in his hand and Yashpal Singh with a hockey in hand ran after me. I ran inside my house. As soon as both these persons entered my house, my wife came forward to save me. Ashok Saxena stabbed my wife with a knife from the front and Yashpal, while abusing held both hands of my wife. Candles were lighted in the house. This incident took place at about quarter to 7.45 pm. I immediately tried to catch them both but could not get hold of them and they ran off. After being stabbed with knife my wife fell down on the floor. I immediately put her in a rickshaw and took her to the hospital where the doctors declared my wife as dead. Dead body of my wife is kept in the Kichan Hospital. Please oblige me by writing my report and taking necessary action.”
12. The clothes and other articles of the deceased as well those of the accused persons were collected and sent to the Forensic Science Laboratory for chemical analysis. Statements of various witnesses were recorded by the police under Section 161 of the Criminal Procedure Code, 1973 (for short the “Cr.P.C.”)
Final report
13. Upon completion of the investigation chargesheet was filed for the offence of murder.
Committal
14. The case came to be committed to the Court of Sessions under the provisions of Section 209 of the Cr.P.C. Upon committal, the case came to be registered in the Court of Additional Sessions Judge II, Nainital as Sessions Case No. 204 of 1994.
Charge framing and trial
15. The Trial Court framed charge to which both the accused persons pleaded not guilty and claimed to be tried.
Prosecution witness
16. The prosecution examined the following witnesses:-
“PW 1 Hetram (Informant),
PW 2 Joginder Singh (Son of deceased),
PW 3 Surinder Singh (S.I. & I.O.),
PW 4 Dr. Anil Kumar Tiwari (conducted post mortem)”
17. The prosecution also led few pieces of documentary evidence.
Section 313 Cr.P.C questioning
18. Upon closure of the recording of the oral evidence the further statements of the appellant herein and the co-accused were recorded under Section 313 of the Cr.P.C., to which both claimed to be innocent and said that they were falsely implicated.
Trial court acquitted the accused
19. The Trial Court upon appreciation of the oral as well as documentary evidence on record came to the conclusion that the prosecution had failed to establish its case beyond reasonable doubt and accordingly acquitted both the accused.
Upon preferred an appeal by the state Hon’ble High Court reversed the acquittal
20. The State went in appeal before the High Court. The High Court allowed the appeal. Against the order passed by the High Court allowing the appeal filed by the State and holding the appellant herein guilty of the alleged offence, the appellant came before this Court by filing Criminal Appeal Nos. 963-964 of 2011 respectively.
22. At this stage, it is relevant to note that one of the co-accused Yashpal passed away while the appeal was pending before the High Court. It is only the appellant who ultimately stood convicted for the offence of murder.
Main contention of the appellant
26. His third argument in the aforesaid context is that the appellant herein had no intention to cause any harm to the deceased. The appellant had nothing to do with the deceased. Even according to the case of the prosecution, the appellant had some grudge towards Hetram and the intention was to cause harm to Hethram, but unfortunately the deceased all of a sudden came in between and got severely injured who later succumbed. Therefore, his argument is that the case on hand is not even one of culpable homicide not amounting to murder but only knowledge could be attributed.
Analysis
34. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in holding the appellant herein guilty of the offence of murder.
35. We have no difficulty in answering the first submission of Mr. Hooda that the offence is not one of murder or even culpable homicide not amounting to murder as the appellant herein had no intention worth the name to cause any harm to the deceased.
Section 301 IPC
36. Section 301 of the IPC is the answer to the contention of Mr. 11 Hooda. Section 301 of the IPC, reads thus:-
“301. Culpable homicide by causing death of person other than person whose death was intended.—
If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”
Transfer of malice or the transmigration of motive explained
37. From the perusal of the provision of Section 301 of the IPC, it becomes manifest that Section 301 embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive. Under the Section, if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under Section 301, A is deemed to have hit C with the intention to kill him. What is to be noticed is that to invoke Section 301 of the IPC, A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C. This Section lays down that culpable homicide may be committed by causing death of a person whom the offender neither intended nor knew himself to be likely to kill. If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it must be treated as if the real intention of the killer had been actually carried out.
The act of accused was nothing but murder under section 302 IPC r/w section 301 IPC
38. Having noticed salutary principles on which Section 301 of the IPC is based, it would be instructive to refer to law on the point as laid down by this Court. In Gyanendra Kumar v. State of U.P., reported in AIR 1972 SC 502 the accused was deliberately trying to shoot at a fleeing man who had criticized his father in a School Committee Meeting, but unfortunately, his own maternal uncle came in between him and the intended victim and thus got killed. This Court has held that the act of the accused was nothing but murder under Section 302 read with Section 301 of the IPC.
39. In Hari Shankar Sharma v. State of Mysore reported in 1979 UJ 659 (SC), the intention of the accused was to kill prosecution witness No. 15 by firing a shot at him, but the accused shot the fire and killed the deceased. A plea was raised before this Court that the appellant would be guilty of offence under Section 304-A or 307 of the IPC. While negativing the said plea, this Court has held as under:
“This appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act is directed against the judgment of the Mysore High Court convicting the appellant under Section 302 and sentencing him to imprisonment for life. Detailed facts of the case have been narrated in the judgment of the High Court and it is not necessary for us to reproduce the same here. The main allegation against the appellant was that he had shot the deceased Nazirunnissa and Killadher. So far as the facts are concerned both the Sessions Judge and the High Court have concurrently found that the case was fully proved. The Sessions Judge was of the opinion that the first appellant wanted to kill PW. 15, but as PW. 15 was not available at that time, Nazirunnissa come in between and she was shot, therefore the appellant could be guilty of an offence under Section 304(A) or under Section 307 IPC. This view of the learned Sessions Judge was legally erroneous as rightly pointed out by the High Court. Section 301 furnishes a complete answer to the view taken by the Sessions Judge. It is obvious that the appellant has the intention to kill PW.15 and if with this intention, he kills somebody also, he is undoubtedly guilty of committing murder. There is evidence of PWs. 13, 14 and 15 to show that A.1 fired that shot and killed the deceased. There is no escape from conclusion that the appellant committed an offence under Section 302 of the IPC. In these circumstances, the High Court was right in correcting the error of law committed by the Learned Sessions Mr. Udayarathnam, tried to bring the case of the appellant within the ambit of Section 304(a) or Section 307 but on the fact found it is not possible for us to accede to her contention. For the reasons given above, there is no merit in the appeal, which is accordingly, dismissed.”
40. In Jagpal Singh v. State of Punjab reported in AIR 1991 SC 982=1991 CrLJ 597 (SC), appellant Jagpal had shot at Surjit Kaur even though he aimed at only Kapur Singh. After applying doctrine of transfer of malice as contemplated under Section 301 of the IPC, this Court has held that Jagpal had made himself punishable under Section 302 of the IPC.
41. In Abdul Ise Suleman v. State of Gujarat reported in 1995 CrLJ 464, it was the case of the prosecution that the accused had fired freely towards the fleeing complainant party and the first shot had 14 injured one person whereas second shot had resulted into death of ten year old son of the complainant. It was noticed that firing was resorted to in a commercial locality. The Sessions Court had acquitted the accused, but acquittal appeal was allowed by the High Court and the appellant was convicted under Section 302 read with Section 301 and other provisions of the IPC. It was submitted before this Court that the facts and circumstances of the case and evidence led by the prosecution did not establish that the appellant had any intention to commit murder of an innocent boy aged ten years with whom there was no question of having any enmity or any occasion to take a revenge. According to the learned Counsel of the appellant, even from the evidence, it was possible to hold that such death of the boy was absolutely unintentional and at best it could be held that such firing was a rash and negligent action on the part of the appellant. It was argued by the learned Counsel of the appellant that act committed by the appellant was not murder under Section 302 read with Section 301 of the IPC as held by the High Court, but was an offence under Section 304A of the IPC. Negativing the said contention, this Court has held that gun was not fired in the air just to frighten the complainant and his companions, but the gun was fired by the appellant towards fleeing person even when by the first shot one of such person was injured. According to this Court, such firing was resorted to in a locality 15 where there were number of shops and provision of Section 301 of the IPC was clearly attracted in the facts and circumstances of the case. Ultimately, the conviction of the appellant under Section 302 read with Section 301 of the IPC was upheld by this Court.
42. In view of the principles laid down by this Court in above quoted decisions, it is evident that even if it is held for the sake of argument that the appellant had no intention to cause death of the deceased, it will have to be held that doctrine of transfer of malice, as contemplated under Section 301, is applicable to the facts of the present case and that the appellant would be guilty under Section 302 of the IPC.
43. We do not propose to look into the matter any further, more particularly, the evidence of the two eye-witnesses. In other words, whether the oral testimonies of the two eye-witnesses PW1 and PW4 respectively inspire any confidence. 44. We are of the view that having regard to the genesis of the occurrence, the case falls within Exception 4 to Section 300 of the IPC.
45. In the result, the appeals are partly allowed. The impugned judgement and order of the High Court is modified to the extent that the appellant stands convicted for the offence punishable under Section 304 Part-I of the IPC.
46. Having altered the conviction from Section 302 to section 304 Part-I, we reduce the sentence to the period already undergone keeping two things in mind the year of the incident i.e. 1992 and the age of the appellant as on date, 74 years.
Party
Ashok Saxena (Appellant) vs. The State of Uttarakhand (Respondent) – Criminal Appeal Nos. 1704-1705 of 2015 – 2025 INSC 148 – 30th January, 2025
