STATE OF U.P. versus VIRENDRA PRASAD

Citation: [2004] 2 S.C.R. 39 · Decided: 03-02-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

STATE OF U.P. 
A 
v. 
VIRENDRA PRASAD 
FEBRUARY 3, 2004 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.} 
B 
Penal Code, 1860-Section 302, 304 Part II & 307/Arms Act, 1958-
Section 28-Accused killed one policeman .and injured two others when he 
attempted to flee-Trial court convicted the accused for murder 1111der section c 
302 /PC-High Court, taking the view that there was a scu./Jle, convicted the 
accused under sec/ion 304 Part II /PC-Correctness of-Held, on facts and 
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evidence, acc11sed shot seven rounds on policemen from very close range with 
intention to kill-Hence right~v convicted under section 302 /PC by the trial 
Court. 
D 
A police party raided the house of respondent on getting information 
that he was operating a gambling den. When the respondent tried to flee, 
the deceased and two other policemen PWs 4 and S chased him. The 
respondent fired at the policemen with his rine killing the deceased and 
injuring PWs 4 and S. Other policemen caught hold of the respondent. 
E 
) 
Trial Court found the respondent guilty of offences punishable under 
sections 302 and 307 IPC and Section 28 of the Arms Act, 1959 and 
sentenced him to life imprisonment. High Court altered the conviction of 
the resrondent to Section 304 Part 11 IPC and the sentence was restricted 
to ~!l,..e period already undergone. 
In appeal to this Court, appellant State contended that the High F 
Court on surmises and conjectures came to hold wrongly that the firing 
took place during scuffle; that the evidence clearly shows that the 
respondent snatched the gun from his father and fired seven rounds at 
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the police party and hence the commission of offence punishable under 
section 302 IPC is clearly established; that _the deceased laid his life while G 
performing his official duty and hence the awarding of a sentence with 
smaller terms is illegal and inappropriate. 
~ 
Respondent contended that from the evidence, it is clear that the 
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firing was done by the respondent without premeditation ruling out 
39 
H 
40 
SUPREME COURT REPORTS 
[2004) 2 S.C.R. 
A operation of section 302 IPC; and that there was a delay in filing FIR; 
and that respondent had received seven injuries which were not explained 
by the prosecution. 
B 
Allowing the appeal, the Court 
HELD: I.I. The High Court has completely misread the evidence of 
PW6. It is nowhere stated therein about any scuffle. On the ~.ontrary, the 
evidence of eyewitnesses clearly shows that after the father of the 
respondent fired the gun and while the police officials were ttying to take 
the gun from him, the respondent snatched away the gun from his father 
C and started firing. There was no question of fight or scuffle as such. As 
evidence on record clearly establishes, seyen rounds of bullets were fired 
by the respondent from very close range which hit the deceased and the 
two injured witnesses PWs. 4 and 5. He aimed at the deceased and other 
police officials. Though the bullets did not hit PWs. 4 and 5 on vital parts, 
yet the intention of the respondent was crystal clear. The deceased was 
D hit on the chest. Merely because there was firing all round, it would not 
bring the accused within ambit of Section 304 Part II JPC because the 
intention was to hit police officials. 149-C, D, El 
1.2. The evidence of PW 6 goes to show that the shots were fired 
before the attempt to disarm the respondent was made. Additionally, the 
E evidence of PWs. 4 and 5 clearly shows as to how the occurrence took place 
and how the respondent fired from close range. Their evidence does not 
suffer from any infirmity to throw any suspicion on its veracity. From 'the 
factual position, the inevitable conclusion is that the case is covered under 
Section 302 I PC. The High Court was not justified in altering the 
F conviction or directing acquittal so far as the offence punishable under 
. 
I 
Section 307 is concerned. No reason whatsoever has been indicated for 
holding that a case under Section 307 was not made out. The respondent 
shall surrender to custody to serve remainder of sentence as was awarded 
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by the trial Court. 149-H; 50-A-D) 
G 
Rajwani Singh v. State of Kera/a, AIR (1966) SC 1874; Virsa Singh v. 
State of Punjab, AIR (1958) SC 465; State of A.P. v. Rayavarapu Punnayya, 
(19761 4 SCC 382; Abdul Waheed Khan alias Waheed and Ors. v. State of 
A.P., (200217 SCC 175 and State of Karnataka v. Puttaraja, 1200411 SCC 
475, referred to. 
H 
Dennis Councle MCGDautha v. State of Cal

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