{"id":92328,"date":"2004-02-03T00:00:00","date_gmt":"2004-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004"},"modified":"2018-10-14T05:01:16","modified_gmt":"2018-10-13T23:31:16","slug":"state-of-u-p-vs-virendra-prasad-on-3-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004","title":{"rendered":"State Of U.P vs Virendra Prasad on 3 February, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Virendra Prasad on 3 February, 2004<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  998 of 1997\n\nPETITIONER:\nState of U.P.\t\t\t\t\t\t\t\n\nRESPONDENT:\nVirendra Prasad\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 03\/02\/2004\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT,J.\n<\/p>\n
\tThis appeal by the State of Uttar Pradesh questions
\nlegality of the judgment rendered by a Division Bench of the
\nAllahabad High Court holding that the respondent Virendra
\nPrasad was guilty of offence punishable under Section 304
\nPart II of the Indian Penal Code, 1860 (in short ‘the IPC’)
\nand not under Section 302 IPC as was contended by the
\nprosecution. Custodial sentence of the respondent was
\nlimited to the period undergone by him in custody i.e. about
\n8 months. Though the State had filed appeal against the two
\npersons including respondent Virendra who had faced trial,
\nthe special leave petition so far as the other accused i.e.
\nRam Prasad was dismissed by order dated 20.10.1997.\n<\/p>\n
\tBackground facts giving rise to the present appeal are
\nessentially as follows:\n<\/p>\n
\tOn getting information that accused Ram Prasad and his
\ntwo sons (accused Virendra and one Gorakh) were operating
\ngambling den in his house, S.K. Astik (PW-6) organized a
\nraid after obtaining search warrant.  The search party
\nconsisted of ASI, Gokaran Nath Pandey  (hereinafter referred
\nto as ‘the deceased), ASI R.P. Tripathi (PW-4) and, head
\nconstable Anand Shanker Tiwari (PW-5) amongst others.  The
\nraid was conducted after lot of meticulous planning, because
\nthe accused Ram Prasad was known to be a notorious anti-
\nsocial. The plan to raid the house was chalked out and the
\nraiding party consisted of policemen and public men. They
\nwere divided into three groups. The first party was to stay
\noutside the house, the second party was to be on the ground
\nfloor of the house and the third party was to go upstair. It
\nconsisted of circle inspector O.P. Agnihotri, PW-6, the
\ndeceased, injured PWs 4 and 5 and others. Police officials
\nRam Pal and Dinanath were deputed to proceed ahead to get
\nthe door opened. Members of the third group went behind
\nthose two constables. They covered the doors of the accused
\nand gave necessary signal to the raiding party. Thereupon
\nthe members of the second and third groups entered into the
\nhouse of the accused. On reaching the first floor of the
\nhouse the members of the third group found 11 persons
\nengaged in gambling. Both accused Ram Prasad and Virendra
\nPrasad were making collections.  They entered the eastern
\nroom where the gambling was going on and produced the search
\nwarrant to accused Ram Prasad. All the 11 persons engaging
\nin gambling were required to stand up to facilitate their
\nsearch by the police officials.  When the search was in
\nprogress, both the accused persons and Gorakh slipped out of
\nthat room and ran towards the western room. Gorakh
\ndisappeared and managed to escape. Both the accused persons
\nentered into the western room. Hearing the shouts of PW-6
\nthat the accused were running away, the deceased and the two
\ninjured PWs 4 and 5 chased them. Accused Ram Prasad fired
\nhis rifle which did not hit anybody. Deceased caught hold of
\nRam Prasad and dragged him outside the room to the balcony.
\nAccused-respondent Virendra Prasad snatched the rifle from
\nthe hands of his father, and started firing on the members
\nof the raiding party. In all he fired seven rounds. Because
\nof gunshots, deceased,  PWs 4 and 5 received injuries.  PW-6
\nmanaged to reach behind the accused Virendra and caught him
\nfrom behind. He tried to snatch the rifle from his hand. But
\naccused-respondent Virendra Prasad was not prepared to part
\nwith it.  Then some members of the police party hit him with
\nthe batons which they were holding, and managed to take
\npossession of the rifle. PW-6 found a live cartridge in the
\nmagazine of that rifle and one live cartridge was found in
\nits chamber. Eight blank cartridges were also found at the
\nscene of offence. The injured persons were immediately sent
\nto the hospital, where deceased breathed his last. Case was
\nregistered on the basis of report on 4.11.1972 at 4.30 a.m.
\nIn view of the deceased’s death the case which was
\noriginally registered for offence punishable under Section
\n307 IPC was converted to Section 302 IPC. Investigation was
\nundertaken and charge sheet was filed. Twenty two persons
\nwere examined to further the prosecution version.  Apart
\nfrom PWs. 5 and 6 to whom reference has been made supra,
\nPWs. 10, 14, 18 and 22 were also stated to be the
\neyewitnesses. They described the scenario leading to the
\ndeath of the deceased and injury to PWs. 4 and 5. One
\nwitness was examined to show that Virendra had sustained
\ninjuries. The Trial Court on consideration of the evidence
\non record found the accused persons guilty. While accused
\nRam Prasad was found guilty of offence punishable under
\nSections 27 and 28 of the Arms Act, 1959 (in short ‘the Arms
\nAct’), accused-respondent Virendra was found guilty of
\noffences punishable under Sections 302, 307 IPC and 28 of
\nthe Arms Act. While Ram Prasad was convicted to undergo
\nimprisonment for one year each for the offences noted above,
\naccused-respondent Virendra was sentenced to undergo
\nimprisonment for life, five years and one year respectively
\nfor the offences attributed to him.\n<\/p>\n
\tIn appeal, by the impugned judgment the High Court came
\nto hold that it would not be desirable to send accused
\npersons to jail because of passage of time.  It altered the
\ncustodial sentence to fine of Rs.1,000\/- each in respect of
\nthe offences relatable to the Arms Act so far as  accused
\nRam Prasad is concerned. Conviction of accused Virendra was
\naltered to Section 304 Part II IPC.  His custody was
\nrestricted to the period already undergone. Additionally
\nfine of Rs.10,000\/- was imposed. The alteration of
\nconviction and the period of sentence as directed by the
\nHigh Court is the subject matter of challenge in this
\nappeal.\n<\/p>\n
\tLearned counsel for the appellant submitted that case
\nof Section 302 IPC was clearly made out. The High Court on
\nsurmises and conjectures came to hold that firing took place
\nduring scuffle between accused-respondent Virendra and PW 3
\nfor the weapon. The evidence, according to him, clearly
\nshows that Virendra had snatched away the weapon from his
\nfather and had fired seven rounds. It was submitted that the
\nevidence of PW6 did not in any way show that there was a
\nscuffle for the gun. In fact, the evidence of PW-6 goes to
\nshow that he tried to snatch away the gun after firing was
\ndone by accused-respondent Virendra. In any event, the
\nevidence clearly established commission of offence
\npunishable under Section 302 IPC. Further the meagre
\ncustodial sentence of 8 months awarded for altered
\nconviction to Section 304 Part II cannot be maintained.
\nThis was a case where the protectors of life and properties
\nof citizen and those who had to maintain law and order were
\nattacked by criminals operating gambling dens. One officer
\nlost his life while performing his official duty.  Any
\nleniency by awarding sentence of smaller term would be not
\nonly illegal but also inappropriate.\n<\/p>\n
\tPer contra, learned counsel appearing for the accused-
\nrespondent Virendra submitted that the prosecution version
\nitself goes to show that Ram Prasad fired one gunshot when
\nthe police personnel were chasing his sons, he was dragged
\nfrom the roof to balcony. Further, Virendra received seven
\ninjuries  and Ram Prasad had received two injuries.  The
\nprosecution has not established as to how these injuries
\nwere sustained. Therefore, the prosecution has not come with
\nclean hands. The evidence of PWs 4 and 5 shows that the
\ndeceased caught hold of accused Ram Prasad when firing was
\ndone by him. Virendra has not acted with cruelty and the
\nfiring was clearly without premeditation. This clearly rules
\nout operation of Section 302 IPC.  The first information
\nreport was also lodged after considerable delay. The
\nrespondent has suffered agony of criminal trial for more
\nthan three decades and, therefore, the judgment of the High
\nCourt should not be interfered with.  It is urged that the
\nprosecution has tried to suppress the genesis of occurrence.
\nIt was denied that accused-respondent was beaten by any
\nperson. On the contrary, doctor on examination, of accused
\npersons has found several injuries on Ram Prasad and
\nVirendra. In essence, prayer was made to dismiss the appeal.
\nBy way of clarification counsel for the State submitted that
\nRam Prasad was examined at 2.10 a.m. on 4.11.1972 along with
\nother accused, and injured PWs.\n<\/p>\n
This brings us to the crucial question as to which was
\nthe appropriate provision to be applied. In the scheme of
\nIPC “culpable homicide” is the genus and “murder”, its
\nspecie. All “murder” is “culpable homicide” but not vice
\nversa. Speaking generally, “culpable homicide” sans “special
\ncharacteristics of murder is culpable homicide not amounting
\nto murder”. For the purpose of fixing punishment,
\nproportionate to the gravity of the generic offence, IPC
\npractically recognizes three degrees of culpable homicide.
\nThe first is, what may be called, “culpable homicide of the
\nfirst degree”. This is the gravest form of culpable
\nhomicide, which is defined in Section 300 as “murder”. The
\nsecond may be termed as “culpable homicide of the second
\ndegree”. This is punishable under the first part of Section\n<\/p>\n
304. Then, there is “culpable homicide of the third degree”.
\nThis is the lowest type of culpable homicide and the
\npunishment provided for it is also the lowest among the
\npunishments provided for the three grades. Culpable homicide
\nof this degree is punishable under the second part of
\nSection 304.\n<\/p>\n
The academic distinction between “murder” and “culpable
\nhomicide not amounting to murder” has always vexed the
\ncourts. The confusion is caused, if courts losing sight of
\nthe true scope and meaning of the terms used by the
\nlegislature in these sections, allow themselves to be drawn
\ninto minute abstractions. The safest way of approach to the
\ninterpretation and application of these provisions seems to
\nbe to keep in focus the keywords used in the various clauses
\nof Sections 299 and 300. The following comparative table
\nwill be helpful in appreciating the points of distinction
\nbetween the two offences:\n<\/p>\n
 \tSection 299    \t\t\t\t  Section 300  \n A person commits    \t Subject to certain exceptions \n<\/pre>\n
culpable homicide if the act by\t\tculpable homicide is murder if  the
\nthe death is caused   is      \t\tact by which the death is caused
\ndone – \t\t\t\tis done –\n<\/p>\n
INTENTION\n<\/p>\n
\t (a) with the intention  of causing \t\t(1) with the intention of causing
\ndeath;  or \t\t\t\tdeath; or<\/p>\n
 \t (b) with the intention    \t\t(2) with the intention of causing
\n\tof causing such                      \t\tsuch bodily injury as the
\n\tbodily injury as is                 \t \toffender knows to be likely to
\n\tlikely to cause   death; or        \t\tcause the death of the person
\n\t\t\t \t\tto whom the harm is caused; or<\/p>\n
\t\t\t                   \t(3)With the intention of causing
\n\t\t                                     \t bodily injury to any person
\n\t\t                                      \tand the bodily injury intended
\n\t\t                                      \tto be inflicted is sufficient
\n\t\t                                      \tin the ordinary course of
\n\t\t                                      \tnature to cause death; or <\/p>\n
KNOWLEDGE\n<\/p>\n
\t (c) with the                         \t\t(4) with the knowledge that the
\n      \tknowledge that                      \t\t act is so imminently
\n     \tthe act is likely to                 \t\tdangerous that it must in all
\n    \tcause death.                        \t\t probability cause death or
\n\t\t                                     \t such bodily injury as is likely
\n\t\t                                     \t to cause death, and commits
\n\t\t                                      \tsuch act without any
\n\t\t\t\t\t excuse for incurring the
\n\t\t\t\t \trisk of causing death
\n\t\t\t\t\tor such injury as is mentioned above.\n<\/p>\n
Clause (b) of Section 299 corresponds with clauses (2)
\nand (3) of Section 300. The distinguishing feature of the
\nmens rea requisite under clause (2) is the knowledge
\npossessed by the offender regarding the particular victim
\nbeing in such a peculiar condition or state of health that
\nthe internal harm caused to him is likely to be fatal,
\nnotwithstanding the fact that such harm would not in the
\nordinary way of nature be sufficient to cause death of a
\nperson in normal health or condition. It is noteworthy that
\nthe “intention to cause death” is not an essential
\nrequirement of clause (2). Only the intention of causing the
\nbodily injury coupled with the offender’s knowledge of the
\nlikelihood of such injury causing the death of the
\nparticular victim, is sufficient to bring the killing within
\nthe ambit of this clause. This aspect of clause (2) is borne
\nout by Illustration (b) appended to Section 300.
\nClause (b) of Section 299 does not postulate any such
\nknowledge on the part of the offender. Instances of cases
\nfalling under clause (2) of Section 300 can be where the
\nassailant causes death by a fist-blow intentionally given
\nknowing that the victim is suffering from an enlarged liver,
\nor enlarged spleen or diseased heart and such blow is likely
\nto cause death of that particular person as a result of the
\nrupture of the liver, or spleen or the failure of the heart,
\nas the case may be. If the assailant had no such knowledge
\nabout the disease or special frailty of the victim, nor an
\nintention to cause death or bodily injury sufficient in the
\nordinary course of nature to cause death, the offence will
\nnot be murder, even if the injury which caused the death,
\nwas intentionally given. In clause (3) of Section 300,
\ninstead of the words “likely to cause death” occurring in
\nthe corresponding clause (b) of Section 299, the words
\n“sufficient in the ordinary course of nature” have been
\nused. Obviously, the distinction lies between a bodily
\ninjury likely to cause death and a bodily injury sufficient
\nin the ordinary course of nature to cause death. The
\ndistinction is fine but real and if overlooked, may result
\nin miscarriage of justice. The difference between clause (b)
\nof Section 299 and clause (3) of Section 300 is one of
\ndegree of probability of death resulting from the intended
\nbodily injury. To put it more broadly, it is the degree of
\nprobability of death which determines whether a culpable
\nhomicide is of the gravest, medium or the lowest degree. The
\nword “likely” in clause (b) of Section 299 conveys the sense
\nof probability as distinguished from a mere possibility. The
\nwords “bodily injury … sufficient in the ordinary course
\nof nature to cause death” mean that death will be the “most
\nprobable” result of the injury, having regard to the
\nordinary course of nature.\n<\/p>\n
For cases to fall within clause (3), it is not
\nnecessary that the offender intended to cause death, so long
\nas the death ensues from the intentional bodily injury or
\ninjuries sufficient to cause death in the ordinary course of
\nnature. Rajwant Singh v. State of Kerala (AIR 1966 SC 1874)
\nis an apt illustration of this point.\n<\/p>\n
In Virsa Singh v. State of Punjab (AIR<\/a> 1958 SC 465)
\nVivian Bose, J. speaking for the Court, explained the
\nmeaning and scope of clause (3). It was observed that the
\nprosecution must prove the following facts before it can
\nbring a case under Section 300 “thirdly”. First, it must
\nestablish quite objectively, that a bodily injury is
\npresent; secondly, the nature of the injury must be proved.
\nThese are purely objective investigations. Thirdly, it must
\nbe proved that there was an intention to inflict that
\nparticular injury, that is to say, that it was not
\naccidental or unintentional or that some other kind of
\ninjury was intended. Once these three elements are proved to
\nbe present, the enquiry proceeds further, and fourthly, it
\nmust be proved that the injury of the type just described
\nmade up of the three elements set out above was sufficient
\nto cause death in the ordinary course of nature. This part
\nof the enquiry is purely objective and inferential and has
\nnothing to do with the intention of the offender.
\nThe ingredients of clause “thirdly” of Section 300 IPC
\nwere brought out by the illustrious Judge in his terse
\nlanguage as follows :\n<\/p>\n
“12. To put it shortly, the prosecution must
\nprove the following facts before it can
\nbring a case under Section 300 ‘thirdly’;
\nFirst, it must establish, quite objectively,
\nthat a bodily injury is present;\n<\/p>\n
Secondly, the nature of the injury must be
\nproved; These are purely objective
\ninvestigations.\n<\/p>\n
Thirdly, it must be proved that there was an
\nintention to inflict that particular bodily
\ninjury, that is to say, that it was not
\naccidental or unintentional, or that some
\nother kind of injury was intended.\n<\/p>\n
Once these three elements are proved to be
\npresent, the enquiry proceeds further and,
\nFourthly, it must be proved that the injury
\nof the type just described made up of the
\nthree elements set out above is sufficient
\nto cause death in the ordinary course of
\nnature. This part of the enquiry is purely
\nobjective and inferential and has nothing to
\ndo with the intention of the offender.”\n<\/p>\n
The learned Judge explained the third ingredient in the
\nfollowing words (at page 468):\n<\/p>\n
“The question is not whether the prisoner
\nintended to inflict a serious injury or a
\ntrivial one but whether he intended to
\ninflict the injury that is proved to be
\npresent. If he can show that he did not, or
\nif the totality of the circumstances justify
\nsuch an inference, then, of course, the
\nintent that the section requires is not
\nproved. But if there is nothing beyond the
\ninjury and the fact that the appellant
\ninflicted it, the only possible inference is
\nthat he intended to inflict it. Whether he
\nknew of its seriousness, or intended serious
\nconsequences, is neither here nor there. The
\nquestion, so far as the intention is
\nconcerned, is not whether he intended to
\nkill, or to inflict an injury of a
\nparticular degree of seriousness, but
\nwhether he intended to inflict the injury in
\nquestion; and once the existence of the
\ninjury is proved the intention to cause it
\nwill be presumed unless the evidence or the
\ncircumstances warrant an opposite
\nconclusion.”\n<\/p>\n
These observations of Vivian Bose, J. have become locus
\nclassicus. The test laid down by Virsa Singh case (supra)
\nfor the applicability of clause “thirdly” is now ingrained
\nin our legal system and has become part of the rule of law.
\nUnder clause thirdly of Section 300 IPC, culpable homicide
\nis murder, if both the following conditions are satisfied
\ni.e. (a) that the act which causes death is done with the
\nintention of causing death or is done with the intention of
\ncausing a bodily injury; and (b) that the injury intended to
\nbe inflicted is sufficient in the ordinary course of nature
\nto cause death. It must be proved that there was an
\nintention to inflict that particular bodily injury which, in
\nthe ordinary course of nature, was sufficient to cause death
\nviz. that the injury found to be present was the injury that
\nwas intended to be inflicted.\n<\/p>\n
Thus, according to the rule laid down in Virsa Singh
\ncase (supra) even if the intention of the accused was
\nlimited to the infliction of a bodily injury sufficient to
\ncause death in the ordinary course of nature, and did not
\nextend to the intention of causing death, the offence would
\nbe murder. Illustration (c) appended to Section 300 clearly
\nbrings out this point.\n<\/p>\n
Clause (c) of Section 299 and clause (4) of Section 300
\nboth require knowledge of the probability of the act causing
\ndeath. It is not necessary for the purpose of this case to
\ndilate much on the distinction between these corresponding
\nclauses. It will be sufficient to say that clause (4) of
\nSection 300 would be applicable where the knowledge of the
\noffender as to the probability of death of a person or
\npersons in general as distinguished from a particular person
\nor persons – being caused from his imminently dangerous act,
\napproximates to a practical certainty. Such knowledge on the
\npart of the offender must be of the highest degree of
\nprobability, the act having been committed by the offender
\nwithout any excuse for incurring the risk of causing death
\nor such injury as aforesaid.\n<\/p>\n
The above are only broad guidelines and not cast-iron
\nimperatives. In most cases, their observance will facilitate
\nthe task of the court. But sometimes the facts are so
\nintertwined and the second and the third stages so
\ntelescoped into each, that it may not be convenient to give
\na separate and clear cut treatment to the matters involved
\nin the second and third stages.\n<\/p>\n
The position was illuminatingly highlighted by this
\nCourt in State of A.P. v. Rayavarapu Punnayya<\/a> (1976 (4) SCC
\n382 and Abdul Waheed Khan alias Waheed and ors. v. State of
\nA.P. (2002 (7) SCC 175).\n<\/p>\n
\tIn the case at hand the High Court appears to have
\ncompletely misread the evidence of PW6.  It is nowhere
\nstated therein about any scuffle. On the contrary, the
\nevidence of eyewitnesses clearly shows that after accused
\nRam Prasad fired the gun and while the police officials were
\ntrying to take the gun from him, accused-respondent Virendra
\nsnatched away the gun from his father and started firing.
\nThere was no question of fight or scuffle as such.  No
\nfoundation has been led to substantiate the plea that there
\nwas fighting or scuffle. As evidence on record clearly
\nestablishes, seven rounds of bullets were fired by accused
\nVirendra from very close range which hit the deceased and
\nthe two injured witnesses PWs. 4 and 5.  He aimed at the
\ndeceased and other police officials. Though the bullets did
\nnot hit PWs. 4 and 5 on vital parts, yet the intention of
\nthe accused was crystal clear. The deceased was hit on the
\nchest. Merely because there was firing all around, it would
\nnot bring the accused within ambit of Section 304 Part II
\nIPC because the intention was to hit police officials. The
\nreasoning given by the High Court is cryptically indicated
\nas follows:\n<\/p>\n
\t“The evidence of the prosecution is
\nthat Ram Prasad fired and then nobody was
\nhurt and Virendra Prasad snatched the rifle
\nfrom which he started firing. If Virendra
\nreally wanted to kill any person he easily
\nwould have armed with a rifle and persons
\nwho were close to him he could not have
\nfound target on which bullets have been
\nfired. No bullet injury on the person of any
\nof the witnesses indicated that the
\nintention of the appellant was neither to
\nkill nor did actually aim to kill”.\n<\/p>\n
\tTo say the least, the reasons indicated are vague, lack
\ncohesion and have been arrived at without any material to
\nsupport them. The conclusions have been arrived at by a
\ncomplete misreading of evidence of PW-6 who did not in any
\nmanner state in his evidence that there was any fighting or
\nscuffle. On the contrary, his evidence goes to show that the
\nshots were fired before the attempt to disarm the accused-
\nrespondent Virendra was made. Additionally the evidence of
\nPWs. 4 and 5 clearly shows as to how the occurrence took
\nplace and how the accused Virendra fired from close range.
\nTheir evidence does not suffer from any infirmity to throw
\nany suspicion on its veracity. When the factual position is
\njudged in the background of legal position noted above, the
\ninevitable conclusion is that the case is covered under
\nSection 302 IPC. The High Court was not justified in
\naltering the conviction or directing acquittal so far as the
\noffence punishable under Section 307 is concerned. No reason
\nwhatsoever has been indicated for holding that a case under
\nSection 307 was  not made out. The other points raised by
\nthe respondent have been dealt with in detail by the Courts
\nbelow and rightly rejected.\n<\/p>\n
\tWe, therefore, set aside the impugned judgment of the
\nHigh Court and restore that of the Trial Court.  The
\naccused-respondent shall surrender to custody to serve
\nremainder of sentence as was awarded by the trial Court.\n<\/p>\n
\tSince we have restored the sentences awarded by the
\nTrial Court, it is not necessary to deal with the question
\nwhether the sentence awarded by the High Court was without
\napplication of mind. It is, however, necessary to note that
\nsentence should commensurate with the gravity of offence.\n<\/p>\n
The criminal law adheres in general to the principle of
\nproportionality in prescribing liability according to the
\nculpability of each kind of criminal conduct. It ordinarily
\nallows some significant discretion to the Judge in arriving
\nat a sentence in each case, presumably to permit sentences
\nthat reflect more subtle considerations of culpability that
\nare raised by the special facts of each case.  Judges in
\nessence affirm that punishment ought always to fit the
\ncrime; yet in practice sentences are determined largely by
\nother considerations. Sometimes it is the correctional needs
\nof the perpetrator that are offered to justify a sentence.
\nSometimes the desirability of keeping him out of
\ncirculation, and sometimes even the tragic results of his
\ncrime. Inevitably these considerations cause a departure
\nfrom just desert as the basis of punishment and create cases
\nof apparent injustice that are serious and widespread.\n<\/p>\n
\tProportion between crime and punishment is a goal
\nrespected in principle, and in spite of errant notions, it
\nremains a strong influence in the determination of
\nsentences. The practice of punishing all serious crimes with
\nequal severity is now unknown in civilized societies, but
\nsuch a radical departure from the principle of
\nproportionality has disappeared from the law only in recent
\ntimes on account of misplaced sympathies to the perpetrator
\nof crime leaving the victim or his family into oblivion.
\nEven now for a single grave infraction drastic sentences are
\nimposed. Anything less than a penalty of greatest severity
\nfor any serious crime is thought then to be a measure of
\ntoleration that is unwarranted and unwise. But in fact,
\nquite apart from those considerations that make punishment
\nunjustifiable when it is out of proportion to the gravity of
\nthe crime, uniformly disproportionate punishment has some
\nvery undesirable practical consequences.\n<\/p>\n
After giving due consideration to the facts and
\ncircumstances of each case, for deciding just and
\nappropriate sentence to be awarded for an offence, the
\naggravating and mitigating factors and circumstances in
\nwhich a crime has been committed are to be delicately
\nbalanced on the basis of really relevant circumstances in a
\ndispassionate manner by the Court.  Such act of balancing is
\nindeed a difficult task.  It has been very aptly indicated
\nin Dennis Councle MCGDautha v. State of Callifornia: 402 US
\n183: 28 L.D. 2d 711 that no formula of a foolproof nature is
\npossible that would provide a reasonable criterion in
\ndetermining a just and appropriate punishment in the
\ninfinite variety of circumstances that may affect the
\ngravity of the crime.  In the absence of any foolproof
\nformula which may provide any basis for reasonable criteria
\nto correctly assess various circumstances germane to the
\nconsideration of gravity of crime, the discretionary
\njudgment in the facts of each case, is the only way in which
\nsuch judgment may be equitably distinguished.\n<\/p>\n
These aspects were highlighted by us in State of
\nKarnataka  vs. Puttaraja<\/a> (2004 (1) SCC 475)<\/p>\n
The object should be to protect the society and to
\ndeter the criminal in achieving the avowed object of law by
\nimposing appropriate sentence. It is expected that the
\nCourts would operate the sentencing system so as to impose
\nsuch sentence which reflects the conscience of the society
\nand the sentencing process has to be stern where it should
\nbe.\n<\/p>\n
\tAppeal is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Virendra Prasad on 3 February, 2004 Author: A Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 998 of 1997 PETITIONER: State of U.P. RESPONDENT: Virendra Prasad DATE OF JUDGMENT: 03\/02\/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-92328","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2004-02-02T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-10-13T23:31:16+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"22 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"State Of U.P vs Virendra Prasad on 3 February, 2004\",\"datePublished\":\"2004-02-02T18:30:00+00:00\",\"dateModified\":\"2018-10-13T23:31:16+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\"},\"wordCount\":4440,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\",\"name\":\"State Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2004-02-02T18:30:00+00:00\",\"dateModified\":\"2018-10-13T23:31:16+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"State Of U.P vs Virendra Prasad on 3 February, 2004\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"State Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004","og_locale":"en_US","og_type":"article","og_title":"State Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2004-02-02T18:30:00+00:00","article_modified_time":"2018-10-13T23:31:16+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"22 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"State Of U.P vs Virendra Prasad on 3 February, 2004","datePublished":"2004-02-02T18:30:00+00:00","dateModified":"2018-10-13T23:31:16+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004"},"wordCount":4440,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004","url":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004","name":"State Of U.P vs Virendra Prasad on 3 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2004-02-02T18:30:00+00:00","dateModified":"2018-10-13T23:31:16+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-virendra-prasad-on-3-february-2004#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"State Of U.P vs Virendra Prasad on 3 February, 2004"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/92328","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=92328"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/92328\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=92328"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=92328"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=92328"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}