IMPORTANT POINT
Clause (c) of Section 299 and Clause (4) of Section 300 IPC both require knowledge of probability of the act causing death but clause (4) of Section 300 IPC would be applicable where knowledge of offender as to probability of death of a person or persons in general as distinguished from a particular person being cause from his imminently dangerous act, approximates to a practical certainty.

Headnote:Indian Penal Code, 1860—Section 304 Part II—Appellant convicted u/s 302 IPC by trial Court and High Court upheld conviction—Appeal—Deceased with PW8 was returning from field when appellant armed with gun appeared and raised “lalkara” saying that he will teach lesson to them for giving secret information to police and for taking land from his brother on lease—Appellant then fired a shot at deceased which hit on his right thigh—Deceased later died in hospital—Doctor opined in post mortem report that inquiry was dangerous to life—Question as to nature of offence—Distinction between `murder’ and `culpable homicide not amounting to murder’—Clause (c) of Section 299 and Clause (4) of Section 300 IPC both required knowledge of probability of the act causing death—Clause (4) of Section 300 IPC would be applicable where knowledge of the offender as to the probability of death of a person being caused from his imminently dangerous act approximated to a practical certainty—Offence of accused fell u/s 304 Part II IPC and not u/s 302 IPC—Custodial sentence of 7 years awarded to meet ends of justice.
       Held : 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) of Section 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 part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.(Para 25)
       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 into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.(Para 26)
       When the factual background is tested on the principles set out above, the inevitable conclusion is that the conviction under Section 302 IPC cannot be maintained and the conviction has to be in terms of Section 304 Part II IPC. Custodial sentence of 7 years would meet the ends of justice.(Para 28)
       Result : Appeal allowed partly.

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Appellant calls in question legality of the judgment rendered by a Division Bench of the Punjab and Haryana High Court dismissing the appeal filed by the appellant, upholding the conviction recorded and sentenced imposed on the appellant by learned Additional Sessions Judge, Hissar, for alleged commission of offences punishable under Section 302 of the Indian Penal Code, 1860 (in short ‘IPC’) and Section 27 of the Arms Act 1959, (in short the ‘Arms Act’). The appellant was convicted for the offence punishable under Section 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs. 10,000/- with default stipulation. He was also convicted in terms of Section 27 of the Arms Act and was sentenced to undergo RI for one year and to pay a fine of Rs. 500/- with default stipulation.

3. Background facts in nutshell are as follows :

Vishnu Ram (PW-8) followed agricultural pursuits at village Tharwa. His elder brother Prithi Raj lived separately from him. Subhash (hereinafter referred to as the ‘deceased’) was the son of said Prithi Raj. About 1½ years prior to this occurrence, the police had recovered poppy husk from appellant - Rajinder. He suspected that deceased had given secret information to the police and he had a hand in getting the poppy husk, recovered from him. Then in the year 1995, Prithi Raj had taken 10 acres of land on lease from Indal Kumar, brother of appellant-Rajinder. Rajinder took ill of it.

4. On 29.4.1995 at about 7.00 p.m., Vishnu Ram (PW-8) and deceased were going to irrigate their fields. Appellant met them on the village phirni. He declared that deceased had given information to the police regarding the poppy husk and Prithi Raj had taken on lease the land of his brother and they shall have to pay price for the same. Vishnu Ram (PW-8) pacified appellant and he left for the village. Then later at about 9.15 p.m. Vishnu Ram (PW-8) and deceased were going through their fields looking after the water course. Vishnu Ram (PW-8) had a torch with him. When they reached on the culvert by the side of the village near the road leading to village Pirthala and deceased was walking ahead of Vishnu Ram (PW-8), appellant was spotted in the torch light coming from the village side. He was armed with his gun. He enquired from Vishnu Ram (PW-8) and deceased as to who they were. Vishnu Ram disclosed his own identity and identity of Subhash. Then appellant raised a ‘lalkara’ saying that he will teach a lesson to them for giving secret information to the police and for taking the land on lease. He then fired a shot at Subhash with his gun, which hit on his right thigh. Subhash fell down on the ground. Vishnu Ram (PW-9) raised alarm. Appellant then ran away towards his house by firing shots from the gun. Prithi Raj, elder brother of Vishnu Ram (PW-8) reached the spot on hearing the alarm. A conveyance was arranged and Vishnu Ram and Prithi Raj took Subhash to Tohana for treatment.

5. Dr. H.L. Gupta (PW-9) on 29.4.1995 at 10 a.m. medically examined the injured. He found the following injury on his body :

“1.A fire arm wound on the right thigh-wound of entry - circular in shape 1¼ cm x 1¼ cm margins were inverted on the postereo-lateral aspect of the middle of the right thigh. Margins were greasy and black.

Wound of exit-large extensive would 1½ x 4” on the atereo-medical aspect of right thigh (at middle). There were severe bleeding from the wound and margins were averted. There was corresponding tears in the pant.

There was corresponding tear in the pant. Pant Ex.P 16 was sealed by the doctor into a parcel and it was given to the police.”

6. The doctor opined that the injury was dangerous to life. Its duration was fresh and it was caused by a fire-arm. Ex.PK is copy of the M.L. report. Dr. H.L. Gupta had sent ruqas Ex.PM and PL to the police.

7. Subhash Chander (PW-14) SI/SHO Police Station Tohana on the night intervening 29/30.4.1995 received two ruqas Ex.PL and PM from Civil Ho

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