ASHOK SAXENAversusTHE STATE OF UTTARAKHAND ETC.

         [2025] 1 S.C.R. 1454 : 2025 INSC 148

                     Ashok Saxena
                            v.
              The State of Uttarakhand Etc.
        (Criminal Appeal No(s). 1704-1705 of 2015)
                        30 January 2025
       [J.B. Pardiwala and R. Mahadevan, JJ.]


                    Issue for Consideration
Whether the High Court committed any error in holding the appellant
guilty of the offence of murder.

                           Headnotes†
Penal Code, 1860 – s.301, exception 4 to s.300, s.304 Part-I –
Murder – Culpable homicide by causing death of person
other than person whose death was intended – Culpable
homicide not murder if it is committed without premeditation
in a sudden fight – When – On facts, altercation between the
parties – Appellant armed with knife and co-accused with
hockey stick trespassed into the house of the first informant
with the intention to lay an assault on him – Informant’s wife
intervened and in the process the appellant alleged to have
inflicted knife blow in the abdomen of the wife, resulting in
her death – Trial court acquitted the appellant, however, the
High Court convicted him u/s.302 – Correctness:
Held: Even for the sake of argument, the appellant had no intention
to cause death of the deceased, the doctrine of transfer of malice,
as contemplated u/s.301 applicable to the instant case and the
appellant would be guilty u/s.302 – Having regard to the genesis
of the occurrence, the case falls within exception 4 to s.300 –
Impugned judgment modified – Appellant to be convicted for the
offence punishable u/s.304 Part-I and sentence reduced to the
period already undergone since incident is of 1992 and that the
appellant is aged 74 years. [Paras 36-46]

                        Case Law Cited
Gyanendra Kumar v. State of U.P., AIR 1972 SC 502; Hari Shankar
Sharma v. State of Mysore, 1979 UJ 659 (SC); Jagpal Singh v.
State of Punjab, AIR 1991 SC 982 : 1991 CrLJ 597; Abdul Ise
Suleman v. State of Gujarat, 1995 CrLJ 464 – referred to.
[2025] 1 S.C.R.                                                         1455

             Ashok Saxena v. The State of Uttarakhand Etc.


                               List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860.

                            List of Keywords
     Murder; Culpable homicide by causing death of person other than
     person whose death was intended; Altercation between the parties;
     Intention to lay assault; Doctrine of transfer of malice.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
     1704-1705 of 2015
     From the Judgment and Order dated 20.01.2015 of the High Court
     of Uttarakhand at Nainital in GA No. 82 of 2001 and CRLR No.
     359 of 2001

                        Appearances for Parties
     Narender Hooda, Sr. Adv., Jasbir Singh Malik, Ms. Rhythm
     Bharadwaj, Ms. Suman Sharma, Ms. Niharika Singh, Varun Punia,
     Advs. for the Appellant.
     Sudarshan Singh Rawat, Ms. Saakshi Singh Rawat, Sunny Sachin
     Rawat, Ajay Kumar Bahuguna, Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                                  Order

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:-
           “Present Govt. Appeal has been filed by the State being
           aggrieved against the judgment and order dated 06.11.1996
1456                                                     [2025] 1 S.C.R.

                      Supreme Court Reports


        passed by learned 2nd Addl. Sessions Judge, Nainital,
        whereby the respondents were acquitted of the charge(s)
        levelled against them. Respondent Ashok Saxena was
        exonerated of the charge levelled against him under
        Section 302 IPC and the respondent no. 2 Yashpal
        Singh was exonerated of the charge levelled against him
        under Section 302 read with Section 34 IPC, giving them
        benefit of doubt. Respondent Yashpal Singh died during
        the pendency of the Govt. Appeal, on 24.01.2007, which
        fact is admitted to both the sides and therefore, this Court
        proceeds to discuss the appeal only against respondent
        no. 1 Ashok Saxena filed by the State.
        2. Earlier, on a Govt. Appeal, being Govt. Appeal No. 82 of
        2001 and Criminal Revision, being Criminal Revision No.
        359 of 2001 filed by the revisionist, Division Bench of this
        Court held Ashok Saxena guilty of the offence punishable
        under Section 302 IPC and also held Yashpal Singh guilty
        of the offence punishable under Section 302 read with
        Section 34 IPC. They were accordingly convicted and
        sentenced to undergo imprisonment for life, as also to
        pay fine of Rs. 5,000/- each, vide order dated 14.07.2010.
        3. Present respondent i.e. Ashok Saxena filed Criminal
        Appeal Nos. 963 -964 of 2011 before the Hon’ble Supreme
        Court of India and the Hon’ble Apex Court, among other
        things, was pleased to direct as under:
             “In the above view of the matter, we are satisfied
             that the judgment/order dated 14.07.2010
             rendered by the High Court in Government
             Appeal No. 82 of 2001 and Criminal Revision
             No. 359 of 2001, as against the appellant
             herein deserve to be set aside. The same
             are accordingly set aside and the matter is
             remanded back and restored on the file of the
             High Court. The High Court of Uttarakhand shall
             re-adjudicate the Government Appeal no. 82 of
             2001 and Criminal Revision No. 359 of 2001 in
             accordance with law. The appellant shall enter
             appearance through counsel before the High
             Court of Uttarakhand on 19.11.2014. In case
[2025] 1 S.C.R.                                                           1457

             Ashok Saxena v. The State of Uttarakhand Etc.


                the appellant remains unrepresented, it will be
                open to the High Court to appoint an amicus
                curiae to assist it on behalf of the appellant”.
           4. Thereafter, in the light of the directions of Hon’ble the
           Apex Court dated 15.10.2014, this Court proceeded to
           hear the Govt. Appeal as well as Criminal Revision afresh.
           5. Whereas the State was represented by Mr. A.S. Gill,
           Deputy Advocate General with Mr. Milind Raj, Brief Holder
           for the State, the respondent Ashok Saxena by Mr. Lok
           Pal Singh, Advocate.
           6. PW-1 Het Ram wrote a complaint (Ext. Ka-1) to SHO
           police station Kichha, District Nainital on 25.06.1992
           enumerating the facts contained therein that the
           complainant is residing in Hydel Colony Kichcha; his
           son Joginder Singh used to go for learning typing and
           Surendra Singh S/o Yashpal Singh was also learning
           typing there. There was an altercation between Joginder
           Singh and Surender Singh at the typing centre; Joginder
           Singh narrated the incident of altercations at his home and
           his nephew-Man Singh made complaint to the father of
           Surender Singh. Thereafter, Surender Singh did marpeet
           with Joginder Singh and the complainant made complaint to
           his superior officers in this regard. On the day of incident,
           when nephew of complainant, accompanied with Joginder,
           had gone to typing centre, in the way, accused Ashok
           Saxena and Yashpal Singh met them and they threatened
           them with dire consequences. The son and nephew of the
           complainant reached home and narrated the entire story
           to the deceased. Accused persons Ashok Saxena and
           Yashpal also reached there and started hurling abuses at
           them. When the complainant came back from his duty, the
           entire story was narrated to him. On this, the complainant
           came outside his house and asked the accused persons
           not to hurl abusive languages, to which both the accused
           got annoyed. At that time, Ashok Saxena was having knife
           in his hand and Yashpal Singh was armed with hockey
           stick and they chased the complainant and entered into
1458                                                       [2025] 1 S.C.R.

                        Supreme Court Reports


          his house. In the meantime, when wife of the complainant
          came to his rescue, Ashok Saxena gave a knife blow in
          the stomach of his wife and Yashpal Singh caught hold
          of the hands of the victim. There was candlelight in the
          house. The incident took place at about 7:45 p.m. The
          complainant tried to catch hold of the accused persons, but
          they fled away. On receiving knife blow, wife of complainant
          fell down on the floor and she was taken to hospital in
          a rickshaw, where doctors declared her ‘brought dead’.”
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.
5.   The aforesaid was the starting point of all the trouble for both the
     families.
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.
7.   The aforesaid incident took place at about 7.45 p.m. Hetram tried
     to catch hold of the accused persons but they managed to make
     good their escape.
8.   The deceased having suffered a stab serious injury in her abdomen
     was put in a rikshaw for being taken to the hospital. However, she
     was declared dead on being brought to the hospital.
9.   The First Information Report (FIR) was lodged by Hetram at the
     Kichan Police Station, Nainital on 25.6.1992, which reads thus:-
[2025] 1 S.C.R.                                                            1459

             Ashok Saxena v. The State of Uttarakhand Etc.


           “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
1460                                                     [2025] 1 S.C.R.

                        Supreme Court Reports


          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.”
10. On the FIR being registered the investigation started. The inquest
    Panchnama of the dead body of the deceased was drawn in the
    presence of two independent Panch witnesses. The body of the
    deceased was sent to the hospital for post mortem.
11. The post mortem revealed the following two injuries:-
          “1. Cut wound 3cm x Yi cm deep till the cavity on the
          stomach towards the left 10 cm above the mid claride
          line and diagonal. On opening the wound muscles of
          stomach, walls, fragments, and left lobe of the liver was
          found to be cut.
          2. On internal examination right portion of the heart was
          full of blood and left was empty. Around 11/2 liters blood
          was present in the stomach cavity. Some undigested food
          was present in the intestine.”
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.”)
13. Upon completion of the investigation chargesheet was filed for the
    offence of murder.
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.
15. The Trial Court framed charge to which both the accused persons
    pleaded not guilty and claimed to be tried.
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)”
[2025] 1 S.C.R.                                                         1461

             Ashok Saxena v. The State of Uttarakhand Etc.


17. The prosecution also led few pieces of documentary evidence.
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.
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.
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.
     This Court vide a order dated 15.10.2014 disposed of both the
     appeals in the following terms:-
           “Heard learned counsel for the parties.
           It is not a matter of dispute that the appellant herein was
           prosecuted in furtherance of FIR S.T.No.204 of 1994 dated
           25.06.1992 lodged at police station Kichan, Nainital. The
           Trial Court, namely, the Additional Sessions Judge-II,
           Nainital while proceeding against the appellant in Sessions
           Case No.204 of 1994 acquitted the appellant, as also,
           his co-accused Yashpal Singh vide judgment/order dated
           06.11.1996.
           Dissatisfied with the order of acquittal dated 06.11.1996,
           the State of Uttarakhand preferred Government Appeal
           No.82 of 2001 (Old number Government Appeal No.1198
           of 1997). The complainant also preferred Criminal Revision
           No.359 of 2001 (Old number Criminal Revision No.139 of
           1997). The High Court of Uttarakhand vide its impugned
           judgment dated 14.07.2010 reversed the finding of the
           Trial Court, and ordered the conviction of the appellant,
           and his co-accused Yashpal Singh.
           The solitary contention raised by the learned counsel for
           the appellant before this Court was, that even though the
1462                                                    [2025] 1 S.C.R.

                      Supreme Court Reports


        appellant was served in Criminal Revision No.359 of 2001,
        he did not enter appearance before the High Court of
        Uttarakhand through counsel. His further contention was,
        that he was not served in the Government Appeal No.82
        of 2001. It was pointed out, that his co-accused Yashpal
        Singh was served in Government Appeal No.82 of 2001,
        and that, he entered appearance before the High Court
        of Uttarakhand through Mr.Rakesh Thapliyal, Advocate.
        A xerox copy of the power of attorney executed by the
        aforesaid Yashpal Singh in favour of his counsel Mr.Rakesh
        Thapliyal is available on the record of this case (at page
        No.150 of the appeal paperbook). It was submitted, that
        the aforesaid Yashpal Singh died during the pendency of
        the proceedings before the High Court of Uttarakhand on
        24.01.2007. The Death Certificate of the aforesaid Yashpal
        Singh is also available on the record of this case (at page
        No.90 of the appeal paperbook).
        The contention of the learned counsel for the appellant
        was, that Mr.Rajesh Sharma, Advocate, holding the brief
        of Mr.Rakesh Thapliyal, Advocate, had appeared before
        the High Court whereupon the impugned judgment/order
        dated 14.07.2010 was passed. It is submitted that neither
        Mr.Rajesh Sharma, Advocate nor Mr.Rakesh Thapliyal,
        Advocate, had the right to represent the appellant herein
        (Ashok Saxena) before the High Court of Uttarakhand.
        When confronted with the aforesaid factual position, learned
        counsel appearing on behalf of the State of Uttarakhand
        acknowledges, that there was no representation on behalf
        of the appellant herein when Government Appeal No.82 of
        2001 and Criminal Revision No.359 of 2001 were disposed
        of by the High Court.
        It is, therefore, apparent that the High Court proceeded
        against the appellant, even though he was not represented.
        In the above view of the matter, we are satisfied that the
        judgment/order dated 14.07.2010 rendered by the High
        Court in Government Appeal No.82 of 2001 and Criminal
        Revision No.359 of 2001, as against the appellant herein
        deserve to be set aside. The same are accordingly set
[2025] 1 S.C.R.                                                        1463

             Ashok Saxena v. The State of Uttarakhand Etc.


           aside and the matter is remanded back and restored on
           the file of the High Court. The High Court of Uttarakhand
           shall re-adjudicate the Government Appeal No.82 of 2001
           and Criminal Revision No.359 of 2001 in accordance with
           law. The appellant shall enter appearance through counsel
           before the High Court of Uttarakhand on 19.11.2014. In
           case the appellant remains unrepresented, it will be open
           to the High Court to appoint an amicus curiae to assist it
           on behalf of the appellant.
           Since the order of the High Court is set aside, no order
           is required on the application for bail.
           The appeals stand disposed of accordingly.”
21. The High Court upon considering the appeals afresh once again
    reiterated that the Trial Court had committed an error in acquitting
    the accused persons and accordingly held both the accused persons
    guilty.
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.
23. In such circumstances, referred to above, the appellant-convict is
    here before this Court with the present appeals.
24. Mr. Hooda, the learned senior counsel appearing for the appellant
    submitted that the High Court committed a gross error in disturbing
    a very well-reasoned judgement of acquittal passed by the Trial
    Court. He would submit that once the Trial Court upon appreciation
    of the oral as well as documentary evidence acquits the accused
    of the offence like murder, then unless the High Court finds such
    judgement to be absolutely perverse or contrary to the evidence on
    record the same should not be disturbed by the appellate court even
    if a different view is possible.
25. The second contention before us is that the case is one of culpable
    homicide & not one of murder. In other words, according to him,
    even if the entire case of the prosecution is believed or accepted to
    be true the only offence that could be said to have been committed
    is Section 304 of the IPC.
1464                                                       [2025] 1 S.C.R.

                         Supreme Court Reports


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.
27. In the last the learned counsel submitted that the incident is of the
    year 1992. Almost 33 years have passed by. The appellant as on
    date is 74 years of age. He has undergone about more than five
    years of sentence (a little under 6 years of sentence).
28. He submitted that having regard to the oral evidence on record and
    the peculiar facts and circumstances, the conviction at best could
    be under Section 304, Part-I giving benefit of exception 4 of Section
    300 of the IPC.
29. On the other hand, Mr. Sudarshan Singh Rawat, the learned counsel
    appearing for the State vehemently submitted that no error not to
    speak of any error of law could be said to have been committed by
    the High Court in holding the appellant herein guilty of the offence.
30. He would submit that there are two eye-witnesses to the incident
    PW-1 Hetram and PW-2 Joginder Singh.
31. The oral version of both these two-eye witnesses has been correctly
    looked into & accepted by the High Court in holding the appellant
    guilty of the alleged offence.
32. He would submit that there is no good reason to disbelieve the two
    eye-witnesses referred to above.
33. In the last he submitted that the case on hand is one of murder and
    no benefit of any of the exceptions to Section 300 is available to
    the appellant herein.

     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.
[2025] 1 S.C.R.                                                           1465

             Ashok Saxena v. The State of Uttarakhand Etc.


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.
36. Section 301 of the IPC is the answer to the contention of Mr. 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.”
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.
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
1466                                                      [2025] 1 S.C.R.

                        Supreme Court Reports


     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,
[2025] 1 S.C.R.                                                        1467

             Ashok Saxena v. The State of Uttarakhand Etc.


           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, 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 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 where there were number of shops
    and provision of Section 301 of the IPC was clearly attracted in the
1468                                                        [2025] 1 S.C.R.

                             Supreme Court Reports


     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.
47. With the aforesaid these appeals stand disposed of.

     Result of the case: Appeals disposed of.



     †
         Headnotes prepared by: Nidhi Jain