IMPORTANT POINT
When accused in course of scuffle fired pistol shot on deceased, case could not be said covered under Section 80 IPC.

Headnote:Indian Penal Code, 1860-Section 304 Part II-Appellant had altercation with deceased over parking of scooter of deceased-During course of scuffle, appellant took out his pistol and fired at deceased who collapsed on spot-Conviction under Section 302 IPC altered under Section 304 Part I IPC by High Court-Appeal-Defence plea that shot was fired accidently during scuffle and thus incident was covered under Section 80 IPC exception-Factual position showed accused deliberately used the gun-High Court rightly concluded that accused-appellant was the assailant-High Court was not justified in holding that Exception I to Section 300 IPC was applicable-Appellant could not be said to have fired shot in grave and sudden provocation-Exception 4 was attracted and offence would fall under Section 304 Part II IPC-Sentence of 8 years awarded.
       Held : In our view, the High Court was not justified in holding that Exception I to Section 300 of the IPC was applicable. The said exception deals with homicide committed in the heat of passion or way of sudden provocation. The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provocated as to loose self-control. In determining the question of provocation the objective test as was applied by the Privy Council in Philips vs. R. (1969 AC 100) must be applied. The two questions which require affirmative answers are as follows :
        (1) Would the reasonable man have lost his self-control, and
        (2) would he then have retaliated as the offender did?
       In the present case the gunshots cannot be said to be the result of grave and sudden provocation. On the contrary this appears to be a case as noted above covered by Exception 4 to Section 300. Four requirements are to be satisfied to bring in application of Exception 4. They are as follows :
        (1) It was a sudden fight;
        (2) There was no premeditation;
        (3) The Act was in a heat of passion; and
        (4) The assailant had not taken any undue advantage or acted in a cruel manner.
       The cause of quarrel is not relevant nor is it relevant who offered the provocation or started the fight. (Paras 12 to 16)
       (ii) Indian Penal Code, 1860-Section 80-Accident in doing a lawful act-Provision protects doer of an innocent or lawful act in an innocent and lawful manner from any unforseen result that may ensue from accident or misfortune.
       Held : The section exempts the doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen result that may ensue from accident or misfortune. If either of these elements is wanting the act will not be excused on the ground of accident. An accident is not the same as an occurrence, but something that happens out of the normal or ordinary course of things. An effect is said to be accidental when the act is not done with the intention of causing it, and its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done to take reasonable precautions against it. The idea of something fortuitous and unexpected is involved in the word "accident". (Per Lord Halsbury LC in Hamilton Frazon & Co. v. Pandorf & Co. (1837) 12 App. Cases 518). (Para 9)

JUDGMENT

Arijit Pasayat, J.-Appellant faced trial for alleged commission of offence punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (for short IPC ). Learned Additional Sessions Judge, Delhi found him guilty of the aforesaid offences and sentenced him to undergo imprisonment for life and fine of Rs. 300/-, and for two years imprisonment and a fine of Rs. 200/- respectively for the aforesaid offences. The matter was carried in appeal before the Delhi High Court. By the impugned judgment the High Court held that the case was not one covered by Section 302 IPC, but Section 304 Part-I IPC was attracted. Similarly, instead of Section 307 it was held that Section 308 IPC was appropriate. Sentences of 10 years and 2 years respectively were awarded.

2. Prosecution version as unfolded during trial is as follows :

Appellant was attached to Mangat Ram, a Municipal Councillor and Chairman, Works Committee of the municipality as a Personal Security Officer. On 14.6.1989 there was an altercation followed by scuffle between the accused-appellant and one Devender Singh (hereinafter referred to as the deceased ). On the date of occurrence, deceased had parked his three-wheeler scooter opposite the gate of Mangat Ram s office. He opened lid of the engine. This was objected to by the accused-appellant who asked him to take away the vehicle. The deceased ignored the objection which led to further altercations. Accused-appellant threatened the deceased that he would take the vehicle to the police station. Thereupon, the deceased retorted that he would see as to what the accused-appellant could do. On hearing this accused-appellant boarded the scooter, and asked the deceased to take the scooter to the police station at Adarsh Nagar. The deceased did not take the correct route and tried to proceed in a wrong direction. Accused-appellant asked him to stop and again a scuffle took place. During the course of scuffle, accused-appellant took out his pistol and fired at the deceased. The bullet missed the target, and instead hit the thigh of one Vijay Kumar (PW 7) who was standing nearby. The accused-appellant fired again and the bullet hit the deceased and he collapsed. The deceased and Vijay Kumar were taken to Hindu Rao Hospital. The deceased was declared to be dead, but doctor examined Vijay Kumar (PW 7) and he was admitted to the hospital. On the basis of information lodged, investigation was undertaken and charge sheet was placed. Accused claimed trial. His defence was that besides the deceased there was another person and when he asked them to remove the vehicle for security reasons, the deceased and his companion picked up quarrel with the accused-appellant and dragged him about 20 feet. Thereafter three or four drivers joined the deceased and his companion. They assaulted him and his shirt was torn. They snatched away his pistol, and he grappled with them to recover his pistol. In this process the pistol went off. He told the incident to Mangat Ram (PW-3). The Trial Court held that the case would not fall within the Exceptions 1, 2 and 4 of Section 300 IPC and it was clearly covered under Section 302.

3. In appeal, the High Court came to the following conclusions (as noted in Para 18 of the judgment)

"The conclusions are obvious (a) the appellant had no enmity with the three wheeler scooter driver (b) there was an altercation and (c) it was followed by a scuffle between the two..."

4. Therefore, Exception 1 to Section 300 IPC was held to be applicable. Accordingly the conviction was altered and so also the sentence. The appellant as noted supra was directed to undergo sentence of 10 years under Section 304 Part-I IPC and 2 years sentence under Section 308 IPC with a fine of Rs. 200/- for each count.

5. Said judgment is impugned in this appeal. In support of the appeal, learned counsel for the accused-appellant submitted that the High Court has not considered the case in its proper perspective. It did not consider the plea of the

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2003 Supreme(SC) 831

IMPORTANT POINTWhen accused in course of scuffle fired pistol shot on deceased, case could not be said covered under Section 80 IPC.

Cases Referred (2)

IMPORTANT POINT
When accused in course of scuffle fired pistol shot on deceased, case could not be said covered under Section 80 IPC.