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SUPREME COURT OF INDIA
ABHAY S. OKA, RAJESH BINDAL, JJ.
Arvind Kumar – Appellant
Versus
State of NCT, Delhi – Respondent
Criminal Appeal No. 2390 of 2010
Decided On : 17-07-2023
(A) Indian Penal Code, 1860 – Section 302 – Murder – Life sentence – Appellant had undergone incarceration for a period of about 8 years and 11 months at the time of release on bail – Deceased was victim of five bullets fired from SAF carbine held by appellant – Failure to prove existence of motive is one of circumstances which makes prosecution case regarding intentional firing by appellant not worthy of acceptance – Version of PWs who were claiming to be eyewitnesses completely supports defence of appellant of accidental firing – Appellant must take blame for not taking elementary precaution of keeping change lever in safety position – Case of prosecution that he intentionally opened fire by aiming at deceased was not put to appellant in his examination under Section 313 of Cr.P.C. – Theory of prosecution that appellant fired intentionally has not been established – Prosecution has failed to prove that appellant had either any intention of causing death of deceased – However, there is gross negligence on part of appellant which led to loss of human life – Appellant is guilty of a lesser offence punishable under Section 304A of IPC for which maximum sentence is imprisonment for two years – Appellant has undergone sentence of more than eight years – Conviction of appellant under Section 302 of IPC set aside and he is held guilty of committing offence punishable under Section 304A of IPC and sentence modified to period already undergone. (Paras 8, 9, 12, 14, 15, 17, 19, 20 and 21)
(B) Indian Evidence Act, 1872 – Section 6 – Doctrine of res gestae – Section 6 is applicable to facts which are not in issue – Such facts become relevant only when same satisfy tests laid down in Section 6 – Statement of an accused to which Section 6 is applicable cannot be treated as confession of guilt – Statement becomes relevant which can be read in evidence as it shows conduct of appellant immediately after incident. (Para 18)
Facts of the case:
Appellant-accused has taken exception to order of his conviction passed by Sessions Court for offence punishable under Section 302 of Indian Penal Code. Sessions Judge held that case of appellant-accused was covered by “thirdly” in Section 300 of IPC. Sessions Judge held that appellant-accused has failed to bring the case within protective umbrella of exception 4 to Section 300 of IPC. By impugned judgment of High Court, conviction of appellant has been confirmed.
Findings of Court:
Appellant has undergone maximum sentence prescribed for the said offence. Hence, his detention in prison is no longer required. Hence, his bail bonds are cancelled.
Result : Appeal Partly allowed.
JUDGMENT :
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. By this appeal, the appellant-accused has taken an exception to the order of his conviction passed by the Sessions Court for the offence punishable under Section 302 of the Indian Penal Code (for short “IPC”). The learned Sessions Judge held that the case of the appellant-accused was covered by “thirdly” in Section 300 of IPC. The learned Sessions Judge held that the appellant-accused has failed to bring the case within the protective umbrella of the exception 4 to Section 300 of IPC. By the impugned judgment of the High Court, the conviction of the appellant has been confirmed. The Trial Court sentenced the appellant to undergo a life sentence. By the time the appellant was released on bail by this Court by the order dated 27th November 2017, the appellant had undergone incarceration for a period of about 8 years and 11 months.
2. The case of the prosecution is that one Shashi Bala (PW-12) who was a Sub-Inspector of Police was posted as a Duty Officer in I.P. Estate Police Station, Delhi on 28th December 1994. One constable Mohd. Rashid (the deceased) was on duty as “Munshi-Roznamacha.” At about 5.45 pm, the deceased came to the reporting room and started talking on the official telephone of the Police Station. After noticing that the deceased was talking on the phone for about 5 to 7 minutes, Shashi Bala (PW-12) advised him not to keep the official telephone engaged as the Police Station may receive some urgent calls. The case of the prosecution is that the deceased did not pay heed to the advice of PW-12. The appellant was posted as a guard at the Police Station. The appellant was carrying a Semi-Automatic Fire (SAF) - carbine. PW-12 Shashi Bala, around 5.55 pm, requested the appellant to ask the deceased to desist from continuing with his conversation on the telephone. Therefore, the appellant entered the duty room where the deceased was sitting and talking on the phone. The appellant put his hand on the shoulder of the deceased and advised him to end the call. The initial case of the prosecution was that the deceased playfully pushed the appellant while holding the SAF carbine of the appellant. The appellant tried to extricate his SAF. During the scuffle, SAF got entangled in the chain attached to the appellant’s belt which led to the accidental firing of five rounds from the said automatic weapon. The deceased got five rounds of bullets in his neck. The police personnel present rushed the deceased to a hospital where he was declared dead.
3. Initially, based on a statement of Shashi Bala (PW-12), an offence under Section 304A was registered against the appellant. On the next day of the incident, the father of the deceased submitted a complaint to the Deputy Commissioner of Police and to the Commissioner of Police, Delhi. Based on the said complaints, the investigation was transferred to the Crime Branch. According to the prosecution, the opinion of the expert ruled out any possibility of accidental fire from SAF carbine. It was also revealed by the father of the deceased that prior to the incident, the deceased had caught the accused and Shashi Bala in objectionable condition. Therefore, Shashi Bala and the appellant got annoyed and they threatened to kill the deceased. On the basis of the investigation carried out by the Crime Branch, Section 302 of IPC was applied while filing the charge-sheet.
4. We must record here that the High Court has disbelieved the prosecution’s case about the existence of motive. The prosecution’s case was that the deceased had seen the appellant and PW-12 in a compromising position and therefore, they held a grudge against the deceased. After considering the evidence of PW-3, PW-18 and PW-22 on the alleged motive of the crime, the High Court came to the conclusion that motive was not established. The High Court relied upon the testimony of PW-13 Karim Baksh who stated that he heard the cry of the deceased “Mujhe Bachao” and sound of the firing of SAF
The court determined that the appellant's actions constituted culpable homicide under Section 304 Part II due to lack of intent, modifying the conviction from murder under Section 302.
Under such backdrop the conviction of the appellant under section 27 of Arms Act is maintained.
The conviction for attempted murder was upheld based on reliable witness testimony and corroborative forensic evidence, establishing the prosecution's case beyond reasonable doubt.
The court established that a lack of premeditation and the presence of provocation can reduce a murder charge to culpable homicide not amounting to murder.
Shooting resulting in death constitutes culpable homicide amounting to murder when executed with intent or knowledge of likely fatal consequences.
: : (1) Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused. (2) Circumstance of last seen together does not by itself and necessarily lead t....
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