Singh Vs. Delhi State (Govt. of NCT of Delhi)  Insc 423 (1 September 2003)
Raju & Arijit Pasayat Arijit Pasayat, J.
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.
version as unfolded during trial is as follows:
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
asked him to stop and again a scuffle took place.
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.
three or four drivers joined the deceased and his companion.
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.
appeal, the High Court came to the following conclusions (as noted in Para 18 of the judgment) "The conclusions are
appellant had no enmity with the three wheeler scooter driver
was an altercation and
was followed by a scuffle between the two..."
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.
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.
contra learned counsel for the State submitted that the High Court's judgment is
in order and needs no interference.
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
otherwise, Section 80 IPC has no application to the fact of the case. The said
provision reads as follows:
Accident in doing a lawful act. – Nothing is an 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
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
the act in question was without any criminal intention or knowledge;
the act was being done in lawful manner and by lawful means;
the act was being done with proper care and caution.
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.
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
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.
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 accused–appellant 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 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
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:
Would the reasonable man have lost his self-control, and
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.
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:
was a sudden fight;
There was no premeditation;
The Act was in a heat of passion; and
The assailant had not taken any undue advantage or acted in a cruel manner.
cause of quarrel is not relevant nor is it relevant who offered the provocation
or started the fight.
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.
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
appeal is partly allowed to the extent indicated.