Holding

Section 301 IPC applies and the High Court erred; charges must be framed against the accused under the IPC and the SC/ST Act.

Summary

The complainant Rajbir Singh lodged an FIR alleging that armed assailants fired at his father Hoti Lal, killing him and a Scheduled Caste girl, Pooja Kumari. During investigation, Akhilesh Chauhan (respondent No.2) was found to have received a rifle from one of the accused and fled the scene, leading the Special Judge to frame charges under Sections 302 IPC read with 34 and Section 3(2)(v) of the SC/ST Act. Chauhan challenged the framing of charges; the Allahabad High Court quashed them on the ground that the girl was hit accidentally and there was no caste‑based intent. The Supreme Court held that Section 301 IPC applies by the doctrine of transferred malice, and that the High Court failed to apply the test under Sections 227 and 228 CrPC for determining sufficient ground to proceed. Consequently, the Court directed that appropriate charges be framed against Chauhan for each murder and the SC/ST Act offence. The appeal was allowed, setting aside the High Court order and remanding the matter for trial.

Issues considered

Whether Section 301 IPC applies when a death occurs while the accused intended to kill another person, i.e., the doctrine of transferred malice.
Whether the High Court correctly applied Sections 227 and 228 of the CrPC in discharging the charges against the accused.
Whether the absence of caste‑based intent precludes framing of charges under the SC/ST Act.
Whether separate charges are required for each victim in a multiple‑murder scenario.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 228(1)(b)
Indian Penal Code, 1860s. 201, s. 301, s. 302, s. 34
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Acts. 3(2)(v)

Subjects

murderculpable homicide not amounting to murdertransferred maliceSection 301 IPCSC/ST Actcharge framingcriminal revisioncaste based atrocity

Judgment

A RAJBIR sr-.JGH
v.
STATE OF U.P. AND ANR.

MARCH 8, 2006

B [ARUN KUMAR AND G.P. MATHUR, JJ.)

Penal Code, 1860---Sections 201, 301 and 302--Criminal Procedure
Code, 1973-Sections 227 and 228(1) (b)-Scheduled Castes and Scheduled
C Tribes (Prevention of Atrocities) Act-Section 3(2) (iv)--Charges framed
against respondent for involvement in murder of a Schedule Caste girl and
running away with firearm from site of occurrence-High Court quashed the
charges on the ground that the respondent never intended to kill the girl due
to her caste and that she accidentall:y received injuries--.Correctness a/-
Held, the respondent is clearly guilty under section 301 lPC-On facts, the
D respondent is prima facie involved in commission of crime under section 20 I
!PC-Trial Court directed to proceed against respondent after framing
appropriate charges.

Appellant-complainant lodged an FIR with police alleging that
accused came to his shop armed with firearms and fired at him and his
E family members. His father and a girl, belonging_ to Schedule Caste
community who was in the shop to purchase some articles, sustained
firearm injuries and fell down. Both of them died on way to hospital. On
the basis of the FIR, a case was registered under section 302 IPC and
section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention
F of Atrocities) Act. During the course of investigation, the name of
respondent no. 2 also appeared as some witnesses stated that one of the
accused handed over his firearm to him who ran away from the spot with
it. The trial court framed charges against respondent no. 2 under section
302 read with Section 34 IPC and under section 3(2) (v) of the SC/ST Act.
Respondent no. 2 filed a criminal revision under section 397/401 Cr.P.C.
G before High Court challenging the order of the trial court framing charges
against him. The High Court allow1~d the revision by quashing the charges
framed against respondent no. 2 under the SC/ST Act on the ground that
the respondent never intended to kill the girl on the ground of her caste
and that she accidentally received injuries.
H 1134
RAJBIRSINGHv. STATEOFU.P. 1135
·Allowing the appeal, the Court A
HELD: I.I. The High Court completely ignored the provisions of
section 301 IPC. The provision clearly shows that if the killing took place
in the course of doing an act which a person intends or knows to be likely
to cause death, it ought to be treated as if the real intention of the killer
had been actually carried out. The fact that there was no intention to cause B
injury to the girl and she was accidentally hit can make no difference as
according to the version of the prosecution, the accused intended to cause
t injuries by firearm to the father of the complainant and in attempting to
carry out the same, also caused injuries to her. The reasons given by the
High Court for quashing the charges are wholly erroneous in law and C
cannot be sustained. (1137-G; 1138-B; F-G]

Shankarlal Kacharabhai and Ors. v. State of Gujarat, AIR (1965) SC
1260, relied on.

1.2. The High Court did not at all apply the relevant test, namely, D
whether there is sufficient ground for proceeding against the accused or
whether there is ground for presuming that the accused has committed
an offence. If the answer is in the affirmative, an order of discharge cannot
be passed and the accused has to face the trial. Section 301 IPC have been
completely ignored by the High Court and the relevant criteria for judging
the validity of the order passed by the trial court directing framing of E
charges have not been applied. (1140-D, F]

1.3. The prosecution case that one of the accused handed over his
rifle to respondent no. 2 and thereafter he ran away from the scene of
occurrence prima facie shows commission of an offence under Section 201
IPC. Since two persons have been killed there should be separate and F
distinct charge for each murder besides the charge under Section 3(2) (v)
SC/ST Act. The charges framed against the accused who are alleged to
have resorted to firing should be amended accordingly. The trial court
before whom the trial of the other co-accused is pending, is directed to
proceed against respondent no. 2 after framing appropriate charges and G
try him in accordance with law. [1140-G, H; 1141-AI

State of Bihar v. Ramesh Singh, AIR (1977) SC 2018 and Stree Atyachar
Virodhi Parishad v. Dilip Nathumal Chordia and Anr., (1989[ 1 SCC 715,
referred to.
H
1136 SUPREME COURT REPORTS [2006] 2 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303
of 2006.

From the final Judgment and Order dated 9.7.2004 of the Allahabad
High Court in Criminal Revision No. 2769/2004.

B Dinesh Kumar Garg and Manzoor Ali Khan for the Appellant.

Uday U. Lalit, D.S. Choudhary, Ajay Choudhary, M.R. Shishodia, V.N.
Raghupathy, Suresh Shishodia, Pramod Swarup, Ms. Shalini Kumar and
Jatinder Kumar Bhatia for the Respondents.

C The Judgment of the Court was delivered by

G.P. MATHUR, J. 1. Leave granted.

2. This appeal, by special leave, has been preferred by the complainant
(first informant) against the judgment and order dated 9.7.2004 of Allahabad
D High Court by which the charges framed against Akhilesh Chauhan (respondent
No. 2) were set aside.

3. The appellant, Rajbir Singh, lodged an FIR at 5.10 p.m. on 29.9.2003
•
at P.S. New Agra, alleging that a day before some brickbats were thrown in
the compound of his brother's house from the house of his neighbour Ramraj
E Rathore. On account of this incident, exchange of hot words took place
between his father Ho ti Lal and accused Ramraj Rathore, but the matter was
pacified due to intervention of some persons of the locality. At about 4.00
p.m. on 29.9.2003 Ramraj Rathore and his relations Geetendra Singh and
Prem Narain who were armed with firearms came near the shop of the
F complainant where his father was standing and all of them exhorted that Hoti
Lal should be killed. Ramraj Rathore started firing towards Hoti Lal who
after receiving the injuries fell down. Pooja Kumari, a girl belonging to
Scheduled Caste community, who had come to purchase some articles from
the shop, also sustained firearm injuries and fell down. Both the injured were
taken to the hospital but they died on the way. The accused continued to fire
G from their weapons and tried to kill the complainant and his family members
as well. On account of the firing resorted to by the accused, a feeling of terror
spread and people started running towards their houses. On the basis of the
FIR lodged by the appellant a case was registered under Section 302 IPC and
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
H Atrocities) Act (for short 'SC/ST Act') at the police station. The name of
RAJBIRSINGHv. STATEOFU.P. [G.P.MATHUR,J.] 1137
Akhilesh Chauhan (respondent no. 2) was not mentioned in the FIR. During A
the course of investigation, the police recorded statement of some persons
under Section 161 Cr.P.C., wherein his name appeared and the allegation
made against him was that after the incident of firing, one of the accused
handed over his rifle to him and then he ran away from the spot.

4. After the case had been committed to the Court of Sessions, the B
learned Special Judge (SC/ST Act) by his order dated 11.5.2004 framed
charges under Section 302 read with Section 34 !PC and Section 3(2)(v) SC/
' ST Act against Akhilesh Chauhan (respondent no. 2). Akhilesh Chauhan then
filed a criminal revision under Section 397/401 Cr.P.C. before the High Court
challenging the order by which charges had been framed against him. The C
High Court by a very brief order set aside the order passed by the learned
Special Judge and the relevant part of the order passed by the High Court is
being reproduced below:

"It was argued by the applicants counsel that the deceased has
received injuries by way of accident as the firing was aimed at the D
other persons and accidently the deceased Pooja Balmiki was passing
through that way and she was hit. The applicant neither intended to
kill the deceased nor she was aimed out because of the reason that
she was scheduled caste. The charges framed by the learned Special
Judge (SC/ST Act), Agra is liable to be quashed as no offence under
the said Act is made out against him. E
In view of the aforesaid discussion this revision is allowed and
the order impugned dated 11.5.04 is set aside."

Feeling aggrieved by the order passed by the High Court, the
complainant has filed the present appeal by special leave. F
5. We have heard learned counsel for the appellant (complainant),
learned counsel for Akhilesh Chauhan (respondent no. 2) and have perused
records. The only reason given by the High Court for setting aside the order
passed by the learned Special Judge framing charges against respondent no.
2 is that the firing was not aimed at Pooja Balmiki but she accidently received G
the injuries as she was passing through that way and was hit. The High Court
·completely ignored the provisions of Section 30 I !PC which reads as under

30 I. Cu{pab/e homicide by causing death ofperson other than person
whose death was intended.--If a person, by doing anything which he H
1138 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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.
B
The aforesaid provision clearly shows that if the killing took place in
the course of doing an act which a person intends or knows to be likely to
cause death, it ought to be treated as if the real intention of the killer had
been actually carried out.
c 6. The contents and scope of Section 30 I !PC were examined in
Shankarla/ Kacharabhai and Ors. v. The State of Gujarat, AIR (1965) SC
1260 and the same were explained as under :

".............. h embodies what the English authors describe as the
doctrine of transfer of malice or the transmigration of motive. Under
D 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 8, 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
E sight or out of sight, under S. 30 I, A is deemed to have hit C with
the intention to kill him. What is to be noticed is that to invoke S. 301
of the Indian Penal Code A shall not have any intention to cause the
death or the knowledge that he is likely to cause the death of C.
,,

F The fact that there was no intention to cause injury to Pooja Balmiki
and she was accidently hit can make no difference as according to the version
of the prosecution, the accused intended to cause injuries by firearm to Hoti
Lal and in attempting to carry out the same, also caused injuries to her. The
reasons given by the High Court for quashing the charges are, therefore,
G wholly erroneous in law and cannot be sustained.

7. The FIR of the case shows that the three accused named therein
came on the spot armed with firearms and after giving a exhortation to kill
Hoti Lal and others resorted to firing. During the course of investigation, the
name of Akhilesh Chauhan (respondent no. 2) also appeared and some
H witnesses stated that one of the accused handed over his rifle to Akhilesh
RAJBIRSINGHv.STATEOFU.P. (G.P.MATHUR,J.] 1139

Chauhan who ran away from the spot. Chapter XVIII of Code of Criminal A
Procedure (for short 'Cr.P.C.') gives the procedure of trial before a Court of
".! Session. Section 227 Cr.P.C. says that if, upon consideration of the record of
the case and the documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the accused, B
he shall discharge the accused and record his reasons for so doing. Section
22 8(1 )(b) says that if, after such consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for presuming that the accused has
committed an offence which is exclusively triable by the Court, he shall
frame in writing a charge against the accused. The scope of these provisions
have been considered in a catena of decisions of this Court. In State of Bihar C
v. Ramesh Singh, AIR (1977) SC 2018, it was held :

"Reading Ss. 227 and 228 together in juxtaposition, as they have
got to be, it would be clear that at the beginning and the initial stage
of the trial the truth, veracity and effect of the evidence which the
prosecutor to adduce are not to be meticulously judged. Nor is any D
weight to be attached to the probable defence of the accused. It is not
obligatory for the Judge at that stage of the trial to consider in any
detail and weigh in a sensitive balance whether the facts, if proved,
would be incompatible with the innocence of the accused or not. The
standard of test and judgment which is to be finally applied before E
recording a finding regarding the guilt or otherwise of the accused is
not exactly to be applied at the stage of deciding the matter under S.
227 or S. 228 of the Code. At that stage the Court is not to see
whether there is sufficient ground for conviction of the accused or
whether the trial is sure to end in his conviction.
F
Strong suspicion against the accused, if the matter remains in the
region of suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is a strong
suspicion which leads the Court to think that there is ground for
presuming that the accused has committed an offence then it is not
open to the Court to say that there is no sufficient ground for G
proceeding against the accused.

If the evidence which the prosecutor proposes to adduce to prove
the guilt of the accused even if fully accepted before it is challenged
in cross-examination or rebutted by the defence evidence, if any,
cannot show that the accused committed the offence, then there will H
1140 SUPREME COURT REPORTS [2006] 2 S.C.R.

A be no sufficient ground for proceeding with the trial."

8. In Stree Atyachar Virodhi Parishad v. Dilip Nathuma/ Chordia and
Anr., [1989] I SCC 715, the Court while examining the scope of Section 227
held as under :

B "Section 227 itself contains enough guidelines as to the scope of
inquiry for the purpose of discharging an accused. It provides that
''the judge shall discharge when he considers that there is no sufficient
ground for proceeding against the accused". The 'ground' in the t

context is not a ground for conviction, but a ground for putting the
accused on trial. It is in the trial, the guilt or the innocence of the
c accused will be determined and not at the time of framing of charge.
The court, therefore, need not undertake an elaborate inquiry in sifting
and weighing the materials. Nor is it necessary to delve deep into
various aspects. All that the court has to consider is whether the
evidentiary material on record, if generally accepted, would reasonably
D connect the accused with the crime."

The High Court did not at all apply the relevant test, namely, whether
there is sufficient ground for proceeding against the accused or whether there
is ground for presuming that the accused has committed an offence. If the
answer is in affinnative an order of discharge cannot be passed and the
E accused has to face the trial. The High Court after merely observing that "as
the firing was aimed at the other persons and accidently the deceased Pooja .
Balmiki was passing through that way and she was hit" and further observing
that "the applicant neither intended to kill the deceased nor she was aimed
out because of the reason that she was scheduled caste" set aside the order
by which the charges had been framed against respondent no. 2. There can
F be no manner of doubt that the provisions of Section 301 !PC have been
completely ignored and the relevant criteria for judging the validity of the
order passed by the learned Special Judge directing framing of charges have
not been applied. The impugned order is, therefore, clearly erroneous in law
and is liable to be set aside.
G
I0. The prosecution case that one of the accused handed over his rifle
to Akhilesh Chauhan (respondent no. 2) and thereafter he ran away from the
scene of occurrence prima facie shows commission of an offence under Section
20 I IPC. Since two persons have been killed there should be separate and
distinct charge for each murder besides the charge under Section 3(2)(v) SC/
H ST Act. The charges framed against the accused who are alleged to have
RAJBIR SINGH v. STATE OF U.P. [G.P. MATHUR, J.] 1141
resorted to firing should be amended accordingly. A
11. In the result, the appeal is allowed and the impugned order dated
9.7.2004 of the High Court is set aside. The learned Special Judge (SC/ST
Act), Agra, before whom the trial of the other co-accused of the case is
pending, is directed to proceed against respondent no. 2 after framing
appropriate charges and try him in accordance with law. It is made clear that B
any observation made in this order is only for the limited purpose of deciding
the appeal and shall not be construed as an expression of opinion on the
7 merits of the case. The learned Special Judge shall decide the case striclty on
the basis .of evidence adduced by the parties and in accordance with law.

B.S. Appeal allowed. C