ARVIND KUMAR versus STATE OF NCT, DELHI on 17 July 2023

1. By this appeal, the appellant-accused has taken an exceptionto the order of his conviction passed by the Sessions Court for the offenceDpunishable under Section 302 of the Indian Penal Code (for short, “IPC”).The learned Sessions Judge held that the case of the appellant-accusedwas covered by “thirdly” in Section 300 of IPC. The learned SessionsJudge held that the appellant-accused has failed to bring the case withinthe protective umbrella of the exception 4 to Section 300 of IPC. By theimpugned judgment of the High Court, the conviction of the appellantEhas been confirmed. The Trial Court sentenced the appellant to undergoa life sentence. By the time the appellant was released on bail by thisCourt by the order dated 27[th] November 2017, the appellant had undergoneincarceration for a period of about 8 years and 11 months.

2. The case of the prosecution is that one Shashi Bala (PW-12)Fwho was a Sub-inspector of Police was posted as a Duty Officer in I.P.Estate Police Station, Delhi on 28[th] December 1994. One constable Mohd.Rashid (the deceased) was on duty as “Munshi-Roznamacha”. At about5.45 pm, the deceased came to the reporting room and started talking onthe official telephone of the Police Station. After noticing that theGdeceased 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 thePolice Station may receive some urgent calls. The case of the prosecutionis that the deceased did not pay heed to the advice of PW-12. Theappellant was posted as a guard at the Police Station. The appellant wascarrying a Semi-Automatic Fire (SAF) – carbine. PW-12 Shashi Bala,H

around 5.55 pm, requested the appellant to ask the deceased to desistfrom continuing with his conversation on the telephone. Therefore, theappellant entered the duty room where the deceased was sitting andtalking on the phone. The appellant put his hand on the shoulder of thedeceased and advised him to end the call. The initial case of theprosecution was that the deceased playfully pushed the appellant whileholding the SAF carbine of the appellant. The appellant tried to extricatehis SAF. During the scuffle, SAF got entangled in the chain attached tothe appellant’s belt which led to the accidental firing of five rounds fromthe said automatic weapon. The deceased got five rounds of bullets inhis neck. The police personnel present rushed the deceased to a hospitalwhere he was declared dead.

3. Initially, based on a statement of Shashi Bala (PW-12), anoffence under Section 304A was registered against the appellant. Onthe next day of the incident, the father of the deceased submitted acomplaint to the Deputy Commissioner of Police and to the Commissionerof Police, Delhi. Based on the said complaints, the investigation wastransferred to the Crime Branch. According to the prosecution, the opinionof 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 theincident, the deceased had caught the accused and Shashi Bala inobjectionable condition. Therefore, Shashi Bala and the appellant gotannoyed and they threatened to kill the deceased. On the basis of theinvestigation carried out by the Crime Branch, Section 302 of IPC wasapplied while filing the chargesheet.

4. We must record here that the High Court has disbelieved theprosecution’s case about the existence of motive. The prosecution’s casewas that the deceased had seen the appellant and PW-12 in acompromising position and therefore, they held a grudge against thedeceased. After considering the evidence of PW-3, PW-18 and PW-22on the alleged motive of the crime, the High Court came to the conclusionthat motive was not established. The High Court relied upon the testimonyof PW-13 Karim Baksh who stated that he heard the cry of the deceased“Mujhe Bachao” and sound of the firing of SAF. The witness stated thatwhen he saw the deceased lying on the chair with bullet injuries, theappellant was telling PW-12 Shashi Bala in Hindi “Madam aapne yehkya karva diya, Mere to bache barbad ho jayenge”. According to thewitness, Shashi Bala responded by telling the accused that: “tum phikr AB

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Amat karo may bhi tumhare saath hu, court tak tumhara saath dungi”.The Court applied the doctrine of res gestae covered by Section 6 of theIndian Evidence Act 1872 (for short, “the Evidence Act”).

RIVAL SUBMISSIONS

5. The learned senior counsel appearing for the appellant has takenBus through the notes of evidence of the relevant witnesses. He submittedthat taking the prosecution case as correct, in the scuffle between thedeceased and the appellant, the SAF got entangled in the chain of theappellant’s belt which resulted in the accidental firing of bullets from theSAF. He submitted that once the motive is discarded, the prosecution’sCcase based on circumstantial evidence must fail. He urged that no offencewas committed by the appellant in view of Section 80 of IPC as thedeath was as a result of purely an accident.

6. In the alternative, he submitted that at the highest, the secondpart of Section 304 of IPC was applicable. He submitted that the CourtsDbelow have committed an error by invoking Section 302.

7. Learned counsel for the State supported the impugnedjudgments. Learned counsel pointed out that the reports of the ballisticexpert and ocular evidence clearly show that the appellant certainly hadknowledge that the use of SAF carbine may cause death.

ECONSIDERATION OF THE SUBMISSIONS

8. There is no dispute that the deceased was the victim of fivebullets fired from the SAF carbine held by the appellant and that thebullet injuries caused his death. The Trial Court and the High Court heldthat the defence of accidental firing cannot be accepted and that the actFof firing bullets by the appellant was intentional. The Court rejected thedefence of the accident pleaded by the appellant by taking recourse toSection 80 of IPC.

9. The motive alleged by the prosecution was that the deceasedhad seen PW-12 Shashi Bala (Sub-Inspector) and the appellant in aGcompromising position. The allegation is that as the deceased had seenboth in a compromising position, PW-12 and the appellant were annoyedwith him and thus, threatened to kill him. It is not necessary for us to gointo the issue of the existence of motive as the High Court in paragraph34 of the impugned judgment has recorded a finding after considering the testimony of PW-3 Nazir Ahmed, PW-18 Sub-Inspector Ram Singhand PW-22 Shaukat Ali, the father of the deceased that the case of theprosecution regarding the existence of motive does not inspire confidence.Therefore, we will have to proceed on the footing that the motive wasnot proved. Therefore, the failure to prove the existence of the motive isone of the circumstances which makes the prosecution case regardingintentional firing by the appellant not worthy of acceptance.

10. There are two witnesses who claim that they were eyewitnessesto the incident. PW-12 Shashi Bala is one such witness who stated inher examination-in-chief that:-

“On 28.12.94 I was posted as DO in PS I.P. Estate with dutyhours from 12.00 noon to 6.00 p.m. On that day deceasedct.Md.Rashid was also discharging duty as Roznamcha Munshitill 8.00 p.m. At about 5.45 p.m. deceased came to my office i.ereporting room and started making phone call while sitting chairlying in front of me leaving a table which was lying between intwo tables. He continued the phone call for nearly 5/7 minutes. Iasked the deceased not to continue the talks and make thetelephone engaged as some urgent call may be recd. in the PS.But the deceased did not take it seriously but he continued makingthe phone call. At about 5.55 p.m. I asked Santri Ct.Arvindi.e accused present in the court today to restrained thedeceased from talking the phone call for such a long period.Accd. asked the deceased to leave the telephone by puttinghis hand on the shoulder. Taking it as a joke deceased caughthold the SAF of accused and accd. tried to take back hisSAF. During this scuffle the SAF of the accused gotentangled in the chain tied with the belt of accused andduring this course the fire is opened from accused whichhit the deceased on his neck and chest and blood startedcoming out from his wound. I got sent the decd. to JPS hospitalwho was declared dead by the concerned Doctor.”

In the examination-in-chief, she stated that the father of thedeceased after one month of the incident threatened to kill her as shewas not willing to change her version. It is pertinent to note that PW-12Shashi Bala was not declared as a hostile witness.

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11. The only other witness apart from PW-12 who claims to be aneyewitness is PW-25 Satbir Singh Sherawat. He was not a member ofthe police force, but he was a part of CISF and was posted on internalsecurity duty at the police station. His version is also important to benoted which reads thus:

“I was present at PS I.P. Estate at about 6 p.m. I saw that oneconstable posted there at PS I.P. Estate and was sitting on chairat Control Room in front of Duty Officer and he was making callfrom the telephone kept in control room and I was waiting tomake a call from the said phone for giving my O.K report. I kepton waiting in the gallery on the door of the control room and inthe meantime the duty officer asked the said constable notto leave the busy so long, as it was an official phone. He didnot pay any heed to the request of the said duty officer. Theduty officer requested the Santri to ask the said constableto leave the phone for other person. The Santri also wentthere and requested the said constable for leaving the saidphone but he did not pay any heed to his request also. TheSantri caught him by his right arm as he was holding thereceiver of the phone by his left hand and he casually pushedthe Santri. The Santri again requested him to leave thephone and in response the said constable making the callcaught the SAF of the Santri and while making fun with eachother, pushed him and at that time accidental fire took placefrom the said SAF and five rounds from the said SAF hit theperson making the phone call. WSI Shashi Bala was alsopresent there and she had also requested the constablemaking the phone not to touch the SAF as it was dangerous,prior to the incident. The Santri at that time was the accusedpresent in the Court whose name was known as Arvind(present in the Court today, correctly identified by thewitness). A public person was also present there but I do notknow his name. I did not know the name of the constable whowas making the call after the bullet hit him at his chest and hewas badly injured in the incident and after hearing the noise of thebullet all the staff of the PS gathered there. The SAF was kept onthe table after the incident and I was not aware as to how manyrounds were there in the magazine of the same and the same

were not taking out in my present. No conversation took placebetween the accused and WSI Shashi Bala in my presence.”

(emphasis added)

We may note here that even this witness was not declared ashostile.

12. Thus, the version of PW-12 and PW-25 who were claiming tobe the eyewitnesses completely supports the defence of the appellant ofaccidental firing and in any case, they have not deposed that the appellantintentionally fired bullets at the deceased. PW-22, the father of thedeceased, who was not an eyewitness, deposed in support of the casethat the appellant intentionally opened fire. But his testimony on motivehas been disbelieved by the High Court. Moreover, admittedly, his secondstatement in which the aforesaid allegation was made, was recordedthree to four months after the incident. In his earlier statement recordedby the police after the incident, this version was not found as can beseen from his cross-examination.

13. There are four reports/opinions of the ballistic expert on record.Two reports mention that the bullets were shot at a close distance aboutwhich there is no dispute. Pursuant to the queries made by theinvestigating officer, a second report dated 18[th] August 1995 wassubmitted by the ballistic expert, Smt. Asha Dhir. Clauses 4 and 5 of thesaid report read thus:

“4. The 9 mm carbine marked A under reference received in thelaboratory having change lever in ‘A’ (i.e. auto) position, it couldfire if the firearm would have been cocked and the trigger waspressed and could go on firing as long as having trigger remainpressed.

5. The firearm under reference can be cocked by entanglingwith the chain, provided, if the change lever is not at ‘S’(safety) position. If the trigger is pressed in cockedcondition, it will fire.”

(emphasis added)

There is also an opinion dated 22[nd] December 1995 of the sameexpert which records that the possibility of simultaneously cocking andpressing the trigger of SAF after entangling with a chain is ruled out. Ifthis opinion is read with the opinion dated 18[th] August 1995, it is apparent A

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Athat if the change lever is not in safety position, the firearm can becocked by entangling with a chain.

14. Going by the evidence of prosecution witnesses, it will have tobe held that the SAF got entangled with the chain attached to the belt ofthe appellant. Considering the opinion of the expert, it is obvious thatBwhen the incident occurred, the change lever was not kept in a safetyposition by the appellant and therefore, SAF got cocked which resultedin the firing of five bullets. The appellant must take the blame for nottaking the elementary precaution of keeping the change lever in thesafety position.C15. Having carefully perused the statement of the appellantrecorded under Section 313 of CrPC, the case of the prosecution that heintentionally opened fire by aiming at the deceased was not put to theappellant.

16. What remains is the statement attributed to the appellant andDthe response of PW-12 to the appellant’s statement. These statementswere read in evidence in view of Section 6 of the Evidence Act. Accordingto the prosecution witness PW-13-Karim Baksh, after the firing washeard, the appellant was heard telling PW-12 that “Madam aapne yehkya karva diya, Mere to bache barbad ho jayenge”. Reply of ShashiBala was: “tum phikr mat karo may bhi tumhare saath hu, court takEtumhara saath dungi”. The only other witness who deposed about suchstatements is PW-5 Zahir Ahmed. According to him, he heard theappellant telling PW-12 “Madam, apane isko marva diya ab mera kyahoga”. Both the witnesses have stated that they heard the cry “Mujhebachao”. Surprisingly, PW-25, who claims to have seen the incident hasFnot deposed about any such statements made by the appellant, PW-12and the deceased. PW-5 claims to have attended the funeral of thedeceased. He admitted that as per the instructions of the father of thedeceased, he met an inspector of the Crime Branch two months afterthe incident when his statement was recorded. Till that time, he did notreport anything to the police about what he heard. PW-13 stated thatGPW-6, PW-17 and certain other persons were present when he heardthe accused making aforesaid statements. Both PW-6 and PW-17 didnot support the prosecution. The others who were present according toPW-13 were not examined by the prosecution. Therefore, the version ofthe prosecution about the appellant and PW-12 making such statementsHdoes not inspire confidence.

17. We will also examine the effect of such statements assumingthat the same were really made. These statements were allegedly madeimmediately after the incident. The statements do have a connectionwith the incident. The statements were allegedly made spontaneously.Therefore, the Courts have treated the statements as relevant by invokingthe doctrine of res gestae incorporated in Section 6 of the Indian EvidenceAct. We have held that the theory of the prosecution that the appellantfired intentionally has not been established. The appellant was instructedby PW-12 to go to the deceased and to prevent him from continuing theuse of the telephone. Therefore, he went near the deceased. It is thereaction or the action of the deceased which resulted in the SAF gettingentangled with the chain attached to the appellant’s belt; which led tothe accidental fire from SAF. Therefore, the accused spontaneouslyreacted by telling PW-12 what she has got done from him. Whileimplementing the direction issued by PW-12, the accidental fire tookplace and that is how the appellant became responsible for the death. Itis in this context that the reaction of the appellant has to be understood.By those words, he has blamed the PW-12. The statement attributed toPW-12 means that she would support the appellant before the Court bytelling the truth. If the theory of accidental firing is accepted, theinterpretation of the aforesaid statements as made by us becomes apossible interpretation which is consistent with normal human conduct.

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18. Section 6 of the Evidence Act and illustration (a) below Section6 read thus:

“6. Relevancy of facts forming part of same transaction.––Facts which, though not in issue, are so connected with a fact inissue as to form part of the same transaction, are relevant, whetherthey occurred at the same time and place or at different timesand places.

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Illustrations

(a) A is accused of the murder of B by beating him. Whateverwas said or done by A or B or the by-standers at the beating,Gor so shortly before or after it as to form part of the transaction,is a relevant fact.

(b) .. .. .. .. .. .. .. .. .. .. ..

(c) .. .. .. .. .. .. .. .. .. .. ..

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A(d) .. .. .. .. .. .. .. .. .. .. ..”

PW-5 and PW-13 have attributed the aforesaid statementsmentioned in paragraph 16 above to the appellant and PW-12 ShashiBala which were immediately made after the incident of firing. Thealleged statements are certainly connected with the fact in issue, namely,Bthe alleged act of the appellant of killing the deceased. Therefore,assuming that the statements attributed to the appellant and PW-12 werein fact made, the conduct of the appellant of making the said statementbecomes relevant in view of Section 6. Section 5 of the Evidence Actprovides that evidence may be given in a proceeding of the existence ornon-existence of every fact in issue and of such other facts which areCdeclared to be relevant under the provisions of Chapter II of the EvidenceAct, 1872. Section 6 is applicable to facts which are not in issue. Suchfacts become relevant only when the same satisfy the tests laid down inSection 6. Hence, the statement of an accused to which Section 6 isapplicable cannot be treated as a confession of guilt. The statementDbecomes relevant which can be read in evidence as it shows the conductof the appellant immediately after the incident. In any case, in the factsof the case, we have held that the version of the two witnesses whohave deposed about the appellant making such statement does not inspireconfidence.

E19. The prosecution has failed to prove that the appellant hadeither any intention of causing the death of the deceased or the intentionof causing such bodily injury to the deceased which was likely to causehis death. Assuming that when the appellant approached the deceasedto stop him from using the telephone, he was aware that the changelever was not in a safety position, it is not possible to attribute knowledgeFto him that by his failure to keep SAF in the safety position, he was likelyto cause the death of the deceased. The knowledge of the possibility ofthe deceased who was himself a policeman pulling SAF carbine cannotbe attributed to the appellant. In fact, the appellant could not have imaginedthat the deceased would do anything like this. Thus, by no stretch of theGimagination, it is a case of culpable homicide as defined under Section299 of IPC as the existence of none of the three ingredients incorporatedtherein was proved by the prosecution.

20. However, there is a failure on the part of the appellant whowas holding a sophisticated automatic weapon to ensure that the changeHlever 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 appellant which led to a lossof human life. Due to his rash and negligent act, the deceased lost hislife. Therefore, the appellant is guilty of a lesser offence punishableunder Section 304A of IPC for which the maximum sentence isimprisonment for two years. The appellant has undergone a sentence ofmore than eight years.

21. Hence, the appeal is partly allowed. The conviction of theappellant under Section 302 of the IPC is set aside and he is held guiltyof committing the offence punishable under Section 304A of IPC. Theappellant has undergone the maximum sentence prescribed for the saidoffence. Hence, his detention in prison is no longer required. Hence, hisbail bonds are cancelled.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeal partly allowed.

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