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CASE NO.:

Appeal (crl.) 54 of 2003

PETITIONER:

Sukhdev Singh

RESPONDENT:

Vs.

Delhi State (Govt. of NCT of Delhi)

DATE OF JUDGMENT: 01/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

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.

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.

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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.

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..."

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.

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 accused-appellant that this was a case

of accident covered under Section 80 IPC. The prosecution version was

not established by any witness examined and on the contrary version

given by the accused-appellant was more than probable and materials on

record accord with the defence version. Great emphasis was laid on the

evidence of the Principal Scientific Officer ((PW 27) who stated that

weapon used by the accused-appellant was semi-automatic; when trigger

is pressed, the bullet is fired and the pistol is automatically

reloaded; the possibility of the pistol being pressed unintentionally

second time during the course of a scuffle cannot be ruled out. With

reference to this evidence, it was submitted that the defence version

is probabilised. Reference was also made to the evidence of PW 8 who

was posted in PCR as Constable. She was informed by some unknown

person on telephone regarding shooting by 3 persons at Shastri Market,

Azadpur, Delhi. With reference to this evidence, leaned counsel

submitted that 3 persons were involved in the scuffle and, therefore,

the version of the accused-appellant that the deceased had snatched

away the pistol is established.

Per contra learned counsel for the State submitted that the High

Court's judgment is in order and needs no interference.

When it was pointed out to Learned Counsel for the appellant that

the only point which appears to have been urged before the High Court

is the non-applicability of Section 302, and applicability of Section

304 IPC, learned counsel for the appellant submitted that in the

grounds of appeal other pleas were also taken. When it was pointed out

that in paragraph 22 of the High Court's judgment it was clearly noted

that no other argument was advanced, she gave an evasive reply and

submitted that the High Court has not correctly reflected the

arguments. To say the least this argument does not appeal to us and on

the contrary surprise us. If in reality the High Court had failed to

consider the argument or any other plea or wrongly recorded that no

other plea was urged the course to be adopted is well known. It is not

for this Court to accept the plea about non-consideration.

Even otherwise, Section 80 IPC has no application to the fact of

the case. The said provision reads as follows:

"80. Accident in doing a lawful act. â\200\223 Nothing is an

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offence which is done by accident or misfortune, and

without any criminal intention or knowledge in the

doing of a lawful act in a lawful manner by lawful

means and with proper care and caution."

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 Frazor & Co. v. Pandorf & Co. (1887)

12 App. Cases 518)

As was observed by this Court in Atmendra vs. State of Karnataka

(1998 (4) SCC 256), to claim the benefit of the provisions of Section

80, it has to be shown (1) that the act in question was without any

criminal intention or knowledge; (2) that the act was being done in

lawful manner and by lawful means; (3) that the act was being done with

proper care and caution. In the said case it was observed that the

evidence established that the accused unintentionally fired the gun

and, therefore, the question of applying Section 80 did not arise.

In K.M. Nanavati vs. State of Maharashtra (AIR 1962 SC 605), it

was observed that Section 80 exempts the doer of an innocent or lawful

act, in an innocent or lawful manner and proper care and caution from

any unforeseen evil result that may ensue from accident or misfortune.

When an accused pleads an exception within the meaning of Section 80

there is a presumption against him and the burden to rebut the

presumption lies on him.

The factual position shows that the accused deliberately used the

gun, of course during the scuffle. The evidence of PW 3 Mangat Ram is

very significant. He is an independent witness and the accused-

appellant was posted as his Personal Security Officer. Immediately

after the occurrence, the accusedâ\200\223appellant told him (as deposed by PW

3 in Court) about the incident and did not tell him that the deceased

snatched away the pistol, or that he was accompanied by 3-4 persons who

were scooter drivers. He specifically told him that as the deceased

tried to snatch the pistol, he fired at him. But he did not tell him

as to how many shots he had fired. Even if PW 7 injured resiled from

his statement made during investigation there was no departure from the

statement made that the person who fired the shot was the accused-

appellant. The hypothetical answer given by PW 27 that the possibility

about trigger being pressed unintentionally second time during the

course of scuffle cannot be ruled out, does not in any manner help the

accused-appellant despite the factual position in this case indicating

use of the gun by the appellant. This was just a hypothetical answer

to a hypothetical question. On the contrary, the evidence of PW 3

Mangat Ram clearly shows that Sukhdev Singh had not told him that the

bullet went off in the process of struggle and snatching. That being

the position, the inevitable conclusion as rightly held by the High

Court, is that the accused-appellant is the assailant. The only other

question is about the applicability of an exception to Section 300. 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

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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.

The factual scenario as presented by the prosecution and the

conclusions of the High Court, noted supra go to show that in course of

sudden quarrel, the offender fired the shots.

Therefore, though the High Court was justified in holding that

Section 302 was not applicable, it was not correct in holding that

Exception I applied. In fact, Exception 4 to Section 300 applied. We,

therefore, alter the conviction by Section 300 Part II instead of

Section 304 Part I, as was held by the High Court. Custodial sentence

of 8 years would suffice. So far Section 308 IPC is concerned, we do

not find any infirmity in the conclusions of the High Court to warrant

interference.

The appeal is partly allowed to the extent indicated.