19 July 2023 11:44 AM GMT
The Supreme Court recently converted the conviction of a Delhi Police guard under Section 302 IPC(Murder) to Section 304A(causing death by negligence) in the case related to the death of a constable due to accidental firing. The appellant armed with a semiautomatic weapon was merely asking the deceased constable to get off the phone when a playful scuffle led to the tragic incident.The...
The Supreme Court recently converted the conviction of a Delhi Police guard under Section 302 IPC(Murder) to Section 304A(causing death by negligence) in the case related to the death of a constable due to accidental firing. The appellant armed with a semiautomatic weapon was merely asking the deceased constable to get off the phone when a playful scuffle led to the tragic incident.
The Supreme Court held that even if it is assumed that the Semi-Automatic weapon pistol was not in a safety position, it cannot be said that the appellant knew that by not keeping the weapon in the safety position, he was likely to cause the death of the deceased.
The Court held that none of the ingredients of ingredients of culpable homicide was made out. However, it held that there was gross negligence on the part of the appellant in not keeping the semi-automatic weapon in a safe position.
The Supreme Court comprising Justices Abhay S. Oka and Rajesh Bindal was hearing an appeal from the High Court which had affirmed the punishment of life imprisonment sentenced by the Session court.
“It is not possible to attribute knowledge to him that by his failure to keep SAF in the safety position, he was likely to cause the death of the deceased. By no stretch of imagination, it is a case of culpable homicide as defined under Section 299 of IPC as the existence of none of the three ingredients incorporated therein was proved by the prosecution". the Court observed.
In view of the fact that the maximum punishment under section 304A IPC was 2 years and the appellant had already undergone imprisonment for 8 years, the court found his detention no longer necessary.
BRIEF FACTS OF THE CASE
It was a regular day at the police station when the deceased Constable was talking over the phone in the reporting room. With him being on the line, Duty Officer Shashi Bala was concerned that they might miss urgent calls at the police station. She asked one of the guards to ensure that he hung up the phone. The guard who was armed with a semiautomatic weapon tapped on the shoulders of the constable who pushed him away jokingly. In the scuffle, the weapon was triggered and the constable died in the accidental firing.
The guard was accused of murder under section 302 and was given a life sentence. A playful thing turned into a nightmare for the guard who spent more than 8 years in jail-that too only in the course of asking the constable to put down the phone.
The Sessions Court judge had held that the case of the present appellant would be covered by the “thirdly” clause of section 300 IPC. It was held that the appellant could not bring his case within exception 4 to section 300 IPC. The court, thus, sentenced him to undergo a life sentence.
On appeal, the High Court affirmed the conviction. The High Court had disbelieved the existence of motive based on evidence of PW-3,18 and 22. The court relied on the testimony of PW-13 who heard the cry of the deceased “mujhe bachao” and firing of SAF. Upon seeing the deceased, he heard the appellant saying “Madam aapne yeh kya karva diya, Mere to bache barbad ho jayenge". The Court applied the doctrine of res gestae covered by Section 6 of the Indian Evidence Act 1872.
Aggrieved by the said decision, the accused filed an appeal before the Supreme Court referred to as Appellant in this matter.
The Appellant submitted that once the motive is discarded, the case based on circumstantial evidence would fail. He contended that it was purely an accidental death covered under section 80, IPC. At best, offence under section 304IPC can be made out.
The respondent relied on ballistic experts and ocular evidence to contest that appellant had the knowledge that the use of carbine may cause death.
SUPREME COURT’S ANALYSIS
Failure to prove motive makes the prosecution case of intentional firing not acceptable
The Court did not go into the aspect of motive since the impugned judgment of HC made a finding that no motive could be attributed to the appellant. The HC came to such a conclusion based on the testimonies of PW3 Nazir Ahmed, PW18 SubInspector Ram Singh, and PW22 Shaukat Ali, the father of the deceased.
Eyewitnesses support the defense of the appellant of accidental firing
The Court observed that “the version of PW12 and PW25 who were claiming to be the eyewitnesses completely support the defence of the appellant of accidental firing and in any case, they have not deposed that the appellant intentionally fired bullets at the deceased”.
The court noted that the testimony of the father of the deceased was disbelieved by the HC since his statement was made after a few months.
Firearm could be cocked by entangling with chain: Ballistic expert
Based on various expert opinions rendered in this case, the court concluded that “it is apparent that if the change lever is not in the safety position, the firearm can be cocked by entangling with a chain. The appellant must take the blame for not taking the elementary precaution of keeping the change lever in the safety position.”
Statement of appellant as res gestae under section 6 of the Evidence Act
The Court observed that the statements were certainly connected with the fact in issue, namely, the alleged act of the appellant of killing the deceased. Therefore, assuming that the statements attributed to the appellant and PW12 were in fact made, the conduct of the appellant in making the said statement becomes relevant in view of Section 6.
However, in this case, the appellant acted as per the direction given by Shashi Bala to get the deceased off the phone. In this course, an accidental fire took place. It is in this context that the reaction of the appellant-” Madam aapne yeh kya karva diya, Mere to Bache barbad ho jayenge” has to be understood. By those words, he has blamed the PW12.
The court opined that “If the theory of accidental firing is accepted, the interpretation of the aforesaid statements as made by us becomes a possible interpretation that is consistent with normal human conduct.”
The court noted that PW13 stated that PW6, PW17, and certain other persons were present when he heard the appellant making aforesaid statements. However, Both PW6 and PW17 did not support the prosecution. The others who were present according to PW13 were not examined by the prosecution.
Therefore, the court concluded that the version of the prosecution about the appellant and PW12 making such statements did not inspire confidence.
The court finally held that “the prosecution has failed to prove that the appellant had either any intention of causing the death of the deceased or the intention of causing such bodily injury to the deceased which was likely to cause his death.”
The Supreme Court held the appellant liable under section 304-A and set aside his conviction for murder under section 302 IPC. Maximum punishment of 2 yrs can be awarded under this whereas the appellant underwent 8 years in prison already. Therefore, the appellant was set free.
Case title: Arvind Kumar v State, NCT of Delhi
Citation: 2023 LiveLaw (SC) 539
Indian Penal Code Section 80- Defence of Accident rejected-The Trial Court and the High Court held that the defense of accidental firing cannot be accepted and that the act of firing bullets by the appellant was intentional. The Court rejected the defence of the accident pleaded by the appellant by taking recourse to Section 80 of IPC(Para 8)
Motive- The failure to prove the existence of the motive is one of the circumstances which makes the prosecution case regarding intentional firing by the appellant not worthy of acceptance. (Para 9)
Indian Evidence Act, section 45- If this opinion is read with the opinion dated 18th August 1995, it is apparent that if the change lever is not in a safety position, the firearm can be cocked by entangling with a chain(Para 13)
Indian Evidence Act, Section 6- Assuming that the statements attributed to the appellant and PW12 were in fact made, the conduct of the appellant in making the said statement becomes relevant in view of Section 6. Section 6 is applicable to facts that are not in issue. Such facts become relevant only when the same satisfies the tests laid down in Section 6. Hence, the statement of an accused to which Section 6 is applicable cannot be treated as a confession of guilt. The statement becomes relevant which can be read in evidence as it shows the conduct of the appellant immediately after the incident.(para 18)
Indian Penal Code, Section 299, 302 IPC- Assuming that when the appellant approached the deceased to stop him from using the telephone, he was aware that the change lever was not in a safety position, it is not possible to attribute knowledge to him that by his failure to keep SAF in the safety position, he was likely to cause the death of the deceased. Thus, by no stretch of the imagination, it is a case of culpable homicide as defined under Section 299 of IPC as the existence of none of the three ingredients incorporated therein was proved by the prosecution. (Para 19)
Indian Penal Code, section 304-A- There is a failure on the part of the appellant who was holding a sophisticated automatic weapon to ensure that the change lever was always kept in a safety position. This was the minimum care that he was expected to take while he approached the deceased. Thus, there is gross negligence on the part of the appellant which led to a loss of human life. (para 20)
Citation: Criminal Appeal No. 2390 OF 2010| Justice Abhay S. Oka
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