BHAGWAN SINGH versus STATE OF UTTARAKHAND on 18 March 2020

JUDGMENT

1. Leave granted.

2. This Criminal Appeal is directed against the judgment dated26[th] July, 2017 passed by the High Court of Uttarakhand whereby theappellant’s criminal appeal against the judgment and order dated 11[th]/12[th] July, 2013 rendered by Learned Sessions Judge, Bageshwarconvicting the appellant under Sections 302 and 307 of Indian PenalCode (for short, ‘IPC’) and sentencing him to undergo life imprisonment(under Section 302, IPC) and 5 years’ rigorous imprisonment (underSection 307, IPC) along with a fine of Rs. 20,000/- in default whereofhe was directed to undergo 6 months’ additional rigorous imprisonment,was dismissed. The appellant was, however, acquitted for offencepunishable under Section 25 of the Arms Act for want of the requisitesanction.

3. It may be mentioned at the outset that notice of the specialleave petition was issued on the limited question to determine the natureof offence committed by the appellant i.e. whether it falls under theambit of Section 302 or 304 of IPC. To determine this question the factsmay be briefly noted.

Facts:

On 21st April, 2007, the marriage ceremony of the Appellant’sson was taking place at village Dafaut, Uttarakhand, when around A

B

C

D

E

F

G

H

A5:30 pm as soon as the marriage procession reached the Appellant’scourtyard - he suddenly fired celebratory gunshots. The pellets struck5 persons standing in the courtyard namely, Smt. Anita W/o ChanchalSingh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt. VimlaW/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh(P.W.7). The injured were taken to the hospital where two of them –BAnita and Khushal Singh @ Sonu succumbed to their injuries. Later atabout 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali,Bageshwar, narrating in full detail the incident of which he himself wasa witness.

5. After the conclusion of investigation, initially a charge sheetCunder Section 304, IPC was filed but later on the appellant was chargedunder Sections 302 and 307, IPC along with Section 25 of the ArmsAct.

6. The Ld. Sessions Judge held the appellant guilty of offencesunder Sections 302 and 307, IPC based on testimonies of eye witnessesDand injured witnesses. It was noted that Appellant fired shots from hisson’s licensed gun causing fatal injuries to Smt. Anita and Khushal Singhand injuring three others. He was consequently sentenced in the manneras briefly noticed in the opening paragraph of the order.

E7. The appellant went in appeal before the High Court. Hisprimary contention was that he had no intention to cause anyone’sdeath. He stated that the firing was accidental and was caused by aball with which some children were playing. The ball struck against thegun in his hand and led to the firing of shots. The occurrence was anadmitted fact and the only plea taken was that it being a case ofFaccidental firing, Section 300 punishable under Section 302, IPC wasnot attracted.

8. The High Court rejected the appellant’s plea and held asfollows:

“There is no merit in the submission put forth by learnedGAdvocates appearing for the appellant. PW2 Chanchal Singhhas categorically deposed that the appellant has aimed athis wife Smt. Anita and fired. The bullet hit on her chest. Shewas taken to the hospital and declared dead. In his cross-examination, he has denied the suggestion that the ball hasHstruck against the gun which led to accidental fire. PW3

Dharam Singh has also admitted that the injuries werecaused by the accused with the firearm. The injured weretaken to the hospital. He has also denied that it was a caseof accidental fire. PW4 Tejpal Singh is another eyewitness.According to him the appellant fired. The pellets had hit Anitaand his son Khushal @ Sonu. He has also denied thesuggestion that it was an accidental fire. PW5 Vimla DeviW/o Devendra Singh has also corroborated the statementsof eyewitnesses PW2 Chandchal (sic.) Singh and PW4 TejpalSingh. According to her also, the appellant has fired and shesuffered the pellet injuries and was taken to the hospital.PW6 Ummed Singh is another eye witness. According to himalso, the appellant was seen holding a gun. He also receivedthe injuries. He was taken to the hospital for treatment. Hehas also denied that it was a case of accidental fire. PW7Vimla Devi W/o Bhupal Singh is also the eye witness.According to her, the appellant fired his gun and she alongwith others had received the pellet injuries. She was alsotaken to the hospital. He has admitted in the cross-examination that the appellant fired aiming Anita Devi andKhushal Singh.”

The High Court has further held that:

“Appellant was standing on the roof. He aimed at AnitaDevi. The bullet struck Anita Devi on her chest. KhushalSingh @ Sonu also received firearm injuries. Other personsalso suffered the pellet injuries by firearm. Appellant wasseen shooting by PW2 Chanchal Singh, PW4 Tejpal Singh,PW5 Smt. Vimla Devi W/o Devendra Singh, PW6 UmmedSingh and PW7 Vimla Devi W/o Bhupal Singh. It cannot betermed as the case of negligence. The accused hadknowledge throughout that if the bullet is fired aiming at aparticular person, it would result in his/her death.”

9. As stated earlier, this Court issued notice restricted to thenature of the offence. The appellant’s culpability of causing the deathof Smt. Anita and Khushal Singh by way of gunshot injury asconcurrently established was thus neither intended to be interfered withnor the same has been seriously re-agitated before us.

Contentions:

10. Learned senior counsel for the appellant very passionately AB

C

D

E

F

G

H

Acontended that this is a case of celebratory firing which unfortunatelycaused unintentional death of two persons and injuries to three others.It is not ‘culpable homicide’ because the appellant had, while firingtowards roof, no knowledge that the act was likely to cause death. Hecontended that such an act amounts to negligence of the nature asdefined under Section 304-A, IPC. Learned senior counsel alternativelyBsubmitted that the appellant’s act at best would constitute culpablehomicide not amounting to murder punishable under Section 304Part-2, IPC, for the appellant can be said to have the knowledge thathis act was likely to cause death but he had no intention to cause deathor such bodily injury likely to cause death. Reliance was placed on theCdecision of this Court in Kunwar Pal vs. State of Uttarakhand[1].11. Conversely, learned State Counsel reiterated that the appellantwas rightly convicted under Section 302, IPC as the evidence on recorddoes suggest that while standing on the roof he aimed at Smt. Anitaand fired the gunshot and the bullet struck her chest. Similarly, KhushalDSingh @ Sonu received firearms injuries. Both Anita and Khushal Singhadmittedly died of those injuries.

Analysis:

12. We have heard learned counsel for the parties and perusedthe record. From the contents of FIR read with the statements of injuredEand eye-witnesses, it emerges out that there was a marriage functionof son of the appellant and no sooner did the rituals of marriage wereperformed at about 5.30 p.m., the appellant fired from a licensed gunpointing towards the roof and caused injuries to 5 persons. Smt. AnitaW/o Chanchal Singh and Khushal Singh @ Sonu were grievously injuredwho eventually succumbed to their respective injuries. Smt. Anita asFwell as Khushal Singh were present there in order to participate in themarriage celebrations which suggests that neither they nor their familieshad any animosity with the appellant. Similarly, Dharm Singh (P.W.3)– complainant, too had no axe to grind against the appellant. The eye-witness account further reveals that the shots were fired towards theGroof and not aiming at any of the victims. It may thus be difficult toaccept that the appellant had any intention to kill Smt. Anita or KhushalSingh.

13. Equally unfounded is the defence plea taken by the appellantthat he was only holding the licenced gun and a ball thrown by theH1 (2014) 12 SCC 434

children who were playing with it, struck the gun causing accidentalfiring. The version of eye-witnesses completely belies such a defencestory. Otherwise also, it does not appeal to common sense that a ballwould strike the gun in appellant’s hand resulting in an undesigned firing.Unless the safety lock of the gun was moved forward, the gun wouldn’tgo off automatically even if its butt was hit by a play-ball. Appellant’sattempt to shelter behind Section 304-A, IPC is thus an exercise infutility and is liable to be rejected.

14. In this backdrop, the short question which falls forconsideration is whether the appellant’s act of causing death ofSmt. Anita and Khushal Singh tantamounts to offence of ‘murder’ asheld by the trial court and the High Court or any lesser offence as urgedby Shri Siddharth Luthra, learned senior counsel for the appellant.Sections 299 as well as 300, IPC provide for situations in which deathis caused by an act with the intention of causing death or such bodilyinjury which the offender knows is likely to cause death. Both Sections299 and 300 deal with instances in which death is caused by an actwith the intention of causing such bodily injury as the offender knowsto be likely to cause death of the person to whom injury is inflicted.These provisions also deal with cases where there is no intention ofeither causing death or a bodily injury which is ordinarily sufficient tocause death. The absence of intention to cause death or bodily injurywhich is in the ordinary course of nature likely to cause death is,therefore, not conclusive. What is required to be seen is whether theact is one where the offender must be deemed to have had theknowledge that he was likely, by such act, to cause death.

15. The trial court as well as the High Court have proceeded onthe premise that the appellant’s act by firing from the gun which waspointed towards the roof, was as bad as firing into a crowd of personsso he ought to have known that his act of gun-shot firing was soimminently dangerous that it would, in all probability, cause death orsuch bodily injury as was likely to cause death.

16. The facts and circumstances of the instant case, however,do not permit to draw such a conclusion. We have already rejectedthe prosecution version to the extent that the appellant aimed at Smt.Anita and then fired the shot(s). The evidence on record contrarilyshows that the appellant aimed the gun towards the roof and then fired.It was an unfortunate case of mis-firing. The appellant of course cannot ABC

DE

F

G

H

Aabsolve himself of the conclusion that he carried a loaded gun at acrowded place where his own guests had gathered to attend themarriage ceremony. He did not take any reasonable safety measurelike to fire the shot in the air or towards the sky, rather he invited fullrisk and aimed the gun towards the roof and fired the shot. He wasexpected to know that pellets could cause multiple gun-shot injuries toBthe nearby persons even if a single shot was fired. The appellant is,thus, guilty of an act, the likely consequences of which including causingfatal injuries to the persons being in a close circuit, are attributable tohim. The offence committed by the appellant, thus, would amount to‘culpable homicide’ within the meaning of Section 299, though punishableCunder Section 304 Part 2 of the IPC.

17. Incidents of celebratory firing are regretfully rising, for theyare seen as a status symbol. A gun licensed for self-protection or safetyand security of crops and cattle cannot be fired in celebratory events,it being a potential cause of fatal accidents. Such like misuse of fireDarms convert a happy event to a pall of gloom. Appellant cannot escapethe consequences of carrying the gun with live cartridges with theknowledge that firing at a marriage ceremony with people present therewas imminently dangerous and was likely to cause death.

18. A somewhat, similar situation arose in Kunwar Pal (Supra)wherein this Court held as under:E

“12. We find that the intention of the appellant to kill thedeceased, if any, has not been proved beyond a reasonabledoubt and in any case the appellant is entitled to the benefitof doubt which is prominent in this case. It is not possibletherefore to sustain the sentence under Section 304 Part IFIPC, which requires that the act by which death is caused,must be done with the intention of causing death or with theintention of causing such bodily injury as is likely to causedeath. Though it is not possible to attribute intention it isequally not possible to hold that the act was done withoutGthe knowledge that it is likely to cause death. Everybody, whocarries a gun with live cartridges and even others know thatfiring a gun and that too in the presence of several peopleis an act, is likely to cause death, as indeed it did. Guns mustbe carried with a sense of responsibility and caution and arenot meant to be used in such places like marriageHceremonies.”

19. Resultantly, we hold that the appellant had the requisiteknowledge essential for constituting the offence of ‘culpable homicide’under Section 299 and punishable under Section 304 Part-2 of IPC.He is thus held guilty under Section 304 Part-2 and not under Section302 of IPC. On the same analogy, the appellant is liable to be punishedfor ‘attempt to commit culpable homicide’ not amounting to murderunder Section 308, in place of Section 307 of IPC for the injuries causedto the other three victims. To this extent, the appellant’s contentionsmerit acceptance.

Conclusion:

20. For the above-stated reasons, the appeal is allowed in part.The conviction of the appellant under Section 302, IPC is modified toSection 304 Part-2, IPC and that under Section 307, IPC is altered toSection 308, IPC. As a necessary corollary, the sentence of lifeimprisonment awarded to the appellant for committing the offence underSection 302 IPC, is reduced to 10 years’ rigorous imprisonment andthe sentence awarded to him under Section 307, IPC is substituted withSection 308 IPC, without any alteration in the fine imposed by the trialcourt.

Nidhi Jain

Appeal partly allowed.

A

B

C

D

E

F

G

H