Penal Code, 1860 – s.307 – Attempt to murder – AppellantHead Constable convicted u/s.307 and s.27 of Arms Act, sentenced to rigorous imprisonment of 3 years for both the offences – On appeal, held: Appellant was in an inebriated condition when he entered residential office of the complainant – After consuming water, he pulled out his pistol and aimed it at the complainant, whereafter he directed PW-3 and PW-4 to get out of the room – CFSL Report proves that the cartridge recovered from the office of the complainant was fired from the service pistol recovered from the appellant – Although, the prosecution failed to attribute any motive to the appellant for yearning to kill the complainant, however, the absence of motive alone cannot abjure the guilt of the appellant – Conviction u/s.307 fully justified – However, illegal use of a licensed or sanctioned weapon per se does not constitute an offense u/s.27, Arms Act without proving the misdemeanour u/ss.5 or 7, Arms Act – Conviction and sentence awarded to the appellant u/s.27, Arms Act set aside – Further, the incident occurred in 1999 – In view of the passage of a long time period coupled with appellant’s clean record, before and after the incident, the sentence u/s.307 is reduced to the period already undergone – Arms Act, 1959 – ss.5, 7, 27 – Arms Amendment Act, 1988 – Constitution of India – Arts.14, 136.
Constitution of India – Art.136 – Powers under – Exercise of, in criminal appeals – Discussed.
Penal Code, 1860 – s.307 – Ingredients – Held: The two ingredients to be considered for constituting an offence u/s.307 are, first, intention or knowledge on the part of accused to cause death of the victim and second, such intent or knowledge followed by some overt actus rea in execution thereof, irrespective of whether or not any injury is inflicted upon the victim. Criminal Law – Evidence – Motive – Charge u/s.307, IPC – Absence of motive – When not fatal – Discussed – Penal Code, 1860 – s.307.
Arms Act, 1959 – ss. 5, 7, 27 – Pre & post amendment – Held: Prior to amendment, s.27 penalized the use of any arms and ammunitions for any ‘unlawful purpose’ – However, post amendment, s.27 is strictly confined to violation of conditions mentioned either u/ss.5 or 7 and the ‘unlawful purpose’ of using arms and ammunitions is no longer an inseparable component of the delinquency – Arms (Amendment) Act, 1988.
Sentence/Sentencing – Quantum of Sentence – Doctrine of proportionality – Mitigation of Sentence – Discussed – Constitution of India – Art.14.
Partly allowing the appeal, the Court
HELD: 1. Although there are spacious powers vested under Article 136 of the Constitution, nevertheless, while imploring such powers in a criminal appeal by special leave, this Court would ordinarily abstain from entering into a fresh re-appraisement of evidence and doubt the credibility of witnesses when there is a concurrent finding of fact, save for certain exceptional circumstances. [Para 17][1071-A-B]
2.1 For the purpose of constituting an offence under Section
307 IPC, there are two ingredients that a Court must consider, first, whether there was any intention or knowledge on the part of accused to cause death of the victim, and, second, such intent or knowledge was followed by some overt actus rea in execution thereof, irrespective of the consequential result as to whether or not any injury is inflicted upon the victim. The Courts may deduce such intent from the conduct of the accused and surrounding circumstances of the offence, including the nature of weapon used or the nature of injury, if any. The manner in which occurrence took place may enlighten more than the prudential escape of a victim. It is thus not necessary that a victim shall have to suffer an injury dangerous to his life, for attracting Section 307 IPC. [Para 20][1072-E-G]
2.2 ‘Motive’ is distinct from ‘object and means’ which innervates or provokes an action. Unlike ‘intention’, ‘motive’ is not the yardstick of a crime. A lawful act with an ill motive would not constitute an offence but it may not be true when an unlawful act is committed with best of the motive. Whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record. [Paras 22, 24][1073-A-B, E-F]
3. The prosecution has failed to attribute any motive to the Appellant for yearning to kill the Complainant, however, the absence of motive alone cannot abjure the guilt of the Appellant. This Court is one with the concurrent findings of the two Courts that the conduct of the Appellant is sufficient to surmise that his action was intended to eliminate the Complainant, and that his conviction under Section 307 IPC is fully justified. Neither the presence of the Appellant at the site of the episode, nor the fact that the bullet was fired through his service pistol is disputed by the Appellant. The CFSL Report (Ex-PW 13/A) proves that the cartridge recovered from the office of the Complainant was fired from the service pistol recovered from the possession of the Appellant. The Medico-Legal Report (Ex. J MLR) and the testimony of the Doctor (PW-7) who had examined the appellant on the day of the incident corroborate with the ocular versions of the Complainant (PW-2), his clerk (PW-3) and his steno (PW-4), all of whom have sworn in their respective depositions that the Appellant was in an inebriated condition when he entered the residential office of the Complainant. Both the Complainant and PW-4 have categorically testified to the effect that after consuming water, the Appellant pulled out his pistol and aimed the same at the Complainant, whereafter, he directed PW-3 and PW-4 to get out of the room. The offending weapon was a semi-loader/semiautomatic pistol which was specifically pulled out of the cover and aimed at the Complainant. PW-13 in his cross-examination categorically stated that a semi-automatic pistol must be brought into firing mode by pulling back the frame of the weapon manually for the first time, to enable a bullet to be fired. Further, both the Complainant and PW-4 unequivocally asserted that the bullet was fired by the Appellant. The version of the Complainant, that had he not interfered and caught hold of the hand of the Appellant, the gun, which was aimed onto his face would have unloaded the bullet, resulting in unfortunate consequences carries weight. The alternate version set up by the Appellant looks to be incredulous that he took his loaded pistol out of the cover, placed it on the table of the Complainant, and let him toy around with it as the Complainant pleased. [Paras 25, 26][1073-G-H; 1074-A-H; 1075-A]
4. Prior to the amendment of Section 27 of the Arms Act, vide Arms (Amendment) Act 1988, the said provision penalized the use of any arms and ammunitions for any ‘unlawful purpose’. However, post its amendment, Section 27 of the Arms Act is strictly confined to violation of conditions mentioned either under Section 5 or 7 of the Arms Act and the ‘unlawful purpose’ of using arms and ammunitions is no longer an inseparable component of the delinquency. The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. Illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. At best, it could be a ‘misconduct’ under the service rules, the determination of which was not the subject of the trial. The Appellant is acquitted of the charge under Section 27 of the Arms Act. [Paras 29-31][1076-C-H]
5.1 The equality of ratio between two sets of variables is now well known as the doctrine of proportionality. The bedrock of sentencing policy in our criminal justice system is also based on the axiom of proportionality. The equality of treatment so as to eliminate discriminatory practices in the award of sentencing, is integral to the canons of proportionality. There is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner. This Court has explicitly ruled out the practice of awarding disproportionate sentences, especially those that showcase undue leniency, for it would undermine the public confidence in efficacy of law. The primary emphasis while deciding the quantum of sentence should lie on the gravity or penal value of the offense. However, other guiding elements of rehabilitative justice model, including, appreciation of grounds for mitigation of sentence also deserve to be duly considered within the permissible limits of judicial discretion. [Paras 32-34][1077-B, D-H]
Andrew Ashworth, Sentencing and Criminal Justice (5th edition, Cambridge University Press 2010) – referred to.
5.2 The sentence awarded to the appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors: No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant; Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. The offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant; The passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence; Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record; Lastly, the Appellant was suspended in 1999 and has also been subsequently dismissed from service in 2007. This is also a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction. While the conviction and sentence awarded to the Appellant under Section 27 of the Arms Act is set aside, his conviction under Section 307 IPC is maintained. The sentence under Section 307 IPC is however reduced to the period already undergone. [Paras 35, 36][1078-B-F, H; 1079-A-E]
State of Madhya Pradesh vs. Saleem @ Chamaru & Anr. (2005) 5 SCC 554 : [2005] 1 Suppl. SCR 562; Shivaji Genu Mohite v. State of Maharashtra (1973) 3 SCC 219; Bipin Kumar Mondal vs. State of West Bengal (2010) 12 SCC 91 : [2010] 8 SCR 1036 – relied on.
State of M.P. vs. Kashiram & Ors. (2009) 4 SCC 26 : [2009] 1) SCR 806; Jage Ram & Ors. vs. State of Haryana (2015) 11 SCC 366 : [2015] 11 SCR 1004; State of M.P. vs.Kanha @ Om Prakash (2019) 3 SCC
605 : [2019] 1 SCR 1074 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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