1. Accidental discharge of a semi-automatic carbine during a scuffle leading to death — Conviction under Section 302, IPC — Appeal against conviction. (Para 1 , 2 , 3 )
Back
Next 
2023 Supreme(SC) 637
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
Advocates appeared:
For the Petitioner(s): Mr. Surya Prakhash V Raju, A.S.G. Mr. Sairika Raju, Adv. Mr. Annam Vekatesh, Adv. Mrs. Deepanwita Priyanka, Adv. Mr. Ashutosh Ghade, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Hasan Murtaza, AOR Mr. Buddy A Ranganadhan, Adv.
For the Petitioner(s): Mr. Surya Prakhash V Raju, A.S.G. Mr. Sairika Raju, Adv. Mr. Annam Vekatesh, Adv. Mrs. Deepanwita Priyanka, Adv. Mr. Ashutosh Ghade, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Hasan Murtaza, AOR Mr. Buddy A Ranganadhan, Adv.
IMPORTANT POINTS
(1) Murder – Failure to prove existence of motive is one of circumstances which makes prosecution case regarding intentional firing by appellant not worthy of acceptance.
(2) Doctrine of res gestae – Statement of an accused to which Section 6 is applicable cannot be treated as confession of guilt.
Headnote:
(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.
Legal Category Hierarchy
Table of Contents
2. Defence of accidental firing under Section 80, IPC — Alternative plea for Section 304, IPC — Prosecution contention of intentional firing and knowledge of lethality. (Para 5 , 6 , 7 )
3. Motive not established — Eye-witness testimony supporting accidental discharge — Ballistic evidence confirming cocking via chain entanglement — Statements under res gestae not amounting to confession. (Para 9 , 10 , 11 , 12 , 13 , 14 , 16 , 17 , 18 )
4. Absence of intent or knowledge of death — Gross negligence in failing to keep firearm on safety — Offence falls under Section 304A, IPC. (Para 19 , 20 )
5. Conviction under Section 302, IPC set aside — Conviction modified to Section 304A, IPC — Accused released as sentence already served. (Para 21 )
6. Can statements made immediately after an incident under the doctrine of res gestae be treated as confessions of guilt?
No. Statements relevant under Section 6 of the Evidence Act as part of the same transaction are admissible to show the conduct of the accused but cannot be treated as a confession of guilt. (Para 18 )
7. When does the accidental discharge of a firearm constitute gross negligence under Section 304A instead of murder under Section 302?
When the prosecution fails to prove intent or knowledge of causing death, but the accused failed to take elementary precautions, such as keeping a weapon's change lever on safety, resulting in death. (Para 19 , 20 )
8. What is the effect of the prosecution's failure to prove motive in a case of alleged intentional firing?
The failure to prove motive is a circumstance that makes the prosecution's case regarding intentional firing less worthy of acceptance, particularly when other evidence supports an accidental occurrence. (Para 9 )
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
