Supreme Court: In an appeal filed by the accused against the order of the Delhi High Court, wherein the Court upheld his conviction order passed by the Sessions Court for the offence punishable under Section 302 of the Penal Code (‘IPC’), the division bench of Abhay S. Oka* and Rajesh Bindal,JJ. has set aside the conviction of the accused under Section 302 IPC and held him guilty of committing the offence punishable under Section 304-A of IPC. Further, after noting that the accused has undergone the maximum sentence prescribed for the offence, it said that his detention in prison is no longer required.
Background:
In this case, a constable on duty (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, one of the witnesses advised him not to keep the official telephone engaged as the Police Station may receive some urgent calls. The accused was posted as a guard at the Police Station and was carrying a Semi-Automatic Fire (SAF) – carbine The Sub Inspector requested the accused to ask the deceased to desist from continuing with his conversation on the telephone. Therefore, the accused entered the duty room where the deceased was sitting and talking on the phone. The accused 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 accused while holding the SAF carbine. The accused tried to free his SAF. During the scuffle, SAF got entangled in the chain attached to the accused’s belt which led to the accidental firing of five rounds from the 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.
The Sessions Judge held that the case of the – accused was covered by “thirdly” in Section 300 IPC and the accused has failed to bring the case within the protective umbrella of the exception 4 to Section 300 of IPC. Thus, sentenced him to undergo a life sentence. The accused was released on bail by the Supreme Court in 2017 and had undergone imprisonment for a period of about 8 years and 11 months.
The Trial Court and the High Court held that the defence of accidental firing cannot be accepted and that the act of firing bullets by the accused was intentional. The Court rejected the defence of the accident pleaded by the accused by taking recourse to Section 80 of IPC
Analysis:
The Court noted that the motive alleged by the prosecution was that the deceased had seen the Sub Inspector and the accused in a compromising position. Thus, the accused was annoyed with him and has threatened to kill him. The Bench, after noting the High Court’s observation that the case of the prosecution regarding the existence of motive does not inspire confidence, said that the motive was not proved. Therefore, the failure to prove the existence of motive is one of the circumstances which makes the prosecution case regarding intentional firing by the accused not worthy of acceptance.
Further, the Court noted that there are four reports/opinions of the ballistic expert on record. The reports mentioned that the bullets were shot at a close distance. The second report submitted by the ballistic expert mentioned that the firearm under reference can be cocked by entangling with the chain, provided, if the change lever is not at safety position. There is also an opinion dated 18-08-1995 of the same expert which records that the possibility of simultaneously cocking and pressing the trigger of SAF after entangling with a chain is ruled out.
Thus, the Court said that if this opinion is read with the opinion dated 18-08-1995, it is apparent that if the change lever is not in safety position, the firearm can be cocked by entangling with a chain.
The Court, after noting the prosecution’s evidence, held that the SAF got entangled with the chain attached to the belt of the accused. Further, after considering the opinion of the expert, it said that when the incident occurred, the change lever was not kept in a safety position by the accused and therefore, SAF got cocked which resulted in the firing of five bullets. The accused must take the blame for not taking the elementary precaution of keeping the change lever in the safety position.
The Court further examined the effect of the statements made by the accused immediately after the incident as the Court below have taken them as relevant by invoking the doctrine of res gestae incorporated in Section 6 of the Indian Evidence Act. The Court noted that the accused spontaneously reacted by telling the Sub Inspector what she has got done from him. Thus, it said that if the theory of accidental firing is accepted, the interpretation of the aforesaid statements becomes a possible interpretation which is consistent with normal human conduct.
The Bench said that the prosecution has failed to prove that the accused 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 Court said that when the accused 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. In fact, the accused could not have imagined that the deceased would do anything like this. Thus, it is not a case of culpable homicide as the existence of none of the three ingredients incorporated therein was proved by the prosecution.
However, the Court said that there was a failure on the part of the accused 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 accused which led to the loss of human life. Due to his rash and negligent act, the deceased lost his life. Therefore, the accused is guilty of a lesser offence punishable under Section 304-A of IPC for which the maximum sentence is imprisonment for two years.
[Arvind Kumar v. State (NCT of Delhi), 2023 SCC OnLine SC 845, decided on 17-07- 2023]
*Judgment Authored by: Justice Abhay S. Oka
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