Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on: 25 , November 2009
th
Judgment Delivered on: 4 , December 2009
+ CRL.REV.P.646/2003
BRIJPAL SINGH ……Petitioner
Through: Ms.Urmil Sharma, Mr.U.K.Sharma &
Mr.Sanjay Mishra, Advocates.
Versus
STATE …Respondent
Through: Mr.Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not? Yes
3.Whether the judgment should be reported in the Digest? Yes
INDERMEET KAUR, J.
1. FIR No.198/92 registered under sections 286/304A of the IPC
at police station I.G.I.Airport was on the complaint of Darshan Lal
PW-7. As per his version, on 22.4.1992 he along with deceased Pali
@ Ravinder was sitting near their canteen; deceased Pali was a taxi
driver; suddenly a fire shot was heard and he saw that Pali had been
hit by a bullet on his chest. He was removed to the hospital where
he remained alive for about 4-5 hours; he succumbed to his death.
2. Statement Ex.PW-7/A of Darshan Lal was recorded which had
set the investigation of this case into motion. H.Ct. Subhash Chand
PW-2 along with SI Umesh Singh had reached the spot on receipt of
information of this incident which had been recorded in DD No.40.
Crl.Rev.P.No.646/2003 Page 1 of 16
He took the rukka Ex.PW-2/A for the registration of the formal FIR
Ex.PW-2/B.
3. Investigation had revealed that the fire shot had emanated
from a SAF Gun which had been issued to Cont.Anil Kumar PW-3.
PW-3 had deposed that he had handed over this SAF Gun to the
accused along with the magazine after taking permission from
H.Ct.Raj Kapoor PW-1 as he wanted to go to the toilet; ten minutes
later when he came back he saw that the local police had already
gathered there and the magazine of his gun contained only 19
th
cartridges, the 20 cartridge had been used.
4. H.Ct.Raj Kapoor had been examined as PW-1; on 21-22.4.1992
he was the duty constable outside the arrival hall of the I.G.I.Airport.
As per his version at about 2.50 AM PW-3 has sought his permission
to attend the call of nature; on the instruction of PW-1, PW-3 had
handed over his SAF Gun to the accused who had been instructed to
sit inside the booth along with weapon. PW-1 has further deposed
that he was at the distance of 20-25 yards from the booth when he
heard the sound of a gunshot; bullet injuries had been sustained by
a taxi driver; police had been informed.
5. Dead body of the victim Ravinder Singh had been identified by
his landlord Jaswant Singh PW-4. MLC of the victim had been
prepared by Dr.Sanjiv whose signature had been identified by
Bhuvan Ram PW-9 on Ex.PW-9/A. Ex.PW-9/A had noted one bullet
entry wound one inch above and one inch medial to the right nipple.
Cause of death had been opined by Dr.S.D.Diman PW-12 who had
identified the signature of Dr.P.K.Kundal who had conducted the
Crl.Rev.P.No.646/2003 Page 2 of 16
post mortem of the deceased vide his report Ex.PW-11/A, cause of
as being haemorrhagic shock following firearm injury. Ex.PW-11/A
noted that the bullet which had been recovered from the thoracic
vertebrae of the victim was duly sealed and handed over the
Investigating Officer.
6. Mr.A.Day, Sr.Scientific Officer had examined the sten gun
Ex.P-1 along with 9 m.m. cartridge case and 19 9 m.m. cartridges
which had been sent to him for analysis; vide his report Ex.PW-8/A
dated 31.7.1992 he noted that the sten gun was in a working order
and the 9 m.m. bullet marked BC/1 of parcel no.4 i.e. the bullet
retrieved from the dead body had been fired from this 9 m.m. sten
carbine. It had further been opined that the bullet hole on the right
front chest portion of the T- Shirt of the victim could have been
caused by the 9 m.m. bullet i.e. mark BC/1 contained in parcel no.4.
7. On the basis of the aforestated evidence collected and proved
by the prosecution the Trial Court vide impugned judgment and
order of sentence dated 9.4.2003 and 10.4.2004 convicted the
petitioner under Section 304 A of the IPC; he was sentenced to
undergo RI for two years and to pay a fine of Rs.2000/- in default of
payment of fine to undergo SI for one month.
8. In appeal before Additional Sessions Judge vide judgment
dated 21.4.2003, while dismissing the appeal and maintaining the
conviction no modification was made in the sentence either.
9. On behalf of the petitioner, it is submitted:
(i). That the judgment of both the Courts below suffers
from inherent illegalities which has resulted in a
Crl.Rev.P.No.646/2003 Page 3 of 16
miscarriage of justice; both the Courts below had failed to
appreciate that it was a pure and simple accident which
had occurred; this act of the petitioner could not be
qualified as either rash act or negligent in the absence of
which the offence under Section 304 A of the IPC could not
be sustained.
(ii). The Investigating Officer has not come into witness
box and crucial documents i.e. seizure memo, the site plan
had remained unexhibited and not proved.
(iii). Attention has been drawn to the seizure memo dated
22.4.1992 wherein it has been recorded inter alia as
under:-
“ …… One sten gun, on the magazine catch of
which Carbine Machine 9 m.m. A registered No.NN
1303 SAA 1972 is engraved.”
The weapon sent to the CFSL was not described in
the forwarding letter and does not find mention in the
report of the CFSL Ex.PW-8/A; it does not match the
description given in Ex.PW-8/A i.e. the report of the CFSL
vide which the sten gun had been received by the
scientific expert for the consequent analysis. In this
context attention has been drawn to the version of PW-8,
CFSL Expert; PW-8 in his deposition has deposed that the
sten gun bears an engraved signature; such a description
given by PW-8 does not match the description given in the
seizure memo.
Crl.Rev.P.No.646/2003 Page 4 of 16
(iv). There were twenty cartridges in the weapon; one
had been fired; 19 live cartridges had been sent to the
CFSL for analysis. This is also evident from the report of
the CFSL and parcel no.2 which had described 19
cartridges having been received in the department. Out of
these 19 cartridges, as per Ex.PW-8/A six cartridges of 9
m.m. had been test fired thereby leaving a balance of 13
cartridges. PW-8 in his deposition has stated that three
cartridges were test fired which is not in conformity with
the document Ex. PW-8/A.
(v). There is no explanation as to why the seizure
which had been effected of this weapon on 22.4.1992 had
been sent to the CFSL after such a inordinate delay;
Ex.PW-8/A reflects that this parcel had been received in
the department only on 22.5.1992 i.e. after a delay of one
month. Counsel for the petitioner has placed reliance
upon 1985(1) Cri 72 Suman Singh Vs. State of UP as also
1992 Crl.L.J. 1150 Khalaksingh & Ors. Vs. State of M.P. to
substantiate his submission that long delay in sending the
recovered cartridges from the Malkhana of the police
station creates a suspicion about this recovery and the
possibility of tampering cannot be excluded.
(vi). Attention has been drawn to the version of PW-3
Ct. Anil Kumar; it is submitted that his cross-examination
had been deferred on 11.1.1995 for want of the
ammunition register but in spite of opportunity this has not
Crl.Rev.P.No.646/2003 Page 5 of 16
been brought on record; obviously for the reason that they
were discrepant entries which would have been gone
against prosecution i.e. the reason why the prosecution
had not coming forward with the said register. Adverse
inference for not producing this relevant piece of evidence
has to be drawn against the prosecution under Section 114
(g) of the Evidence Act.
(vii). This is admittedly a case of circumstantial
evidence; there is no eye-witness. Even as per the case of
PW-7 he had only heard the sound; he had not seen the
actual firing. Prosecution has to stand on its own legs and
prove its case beyond all reasonable doubt. Reliance has
been placed 2001(1) CCC 221 Sohan Lal & Anr. Vs. State of
Haryana & Anr. to support his submission. This proposition
is not in dispute and has not been countered by the
learned public prosecutor and calls for no further debate.
(viii). It has lastly been submitted that provisions of
Section 80 of the IPC are attracted and the act of the
petitioner is a lawful act falling within the general
exceptions contained in Chapter-IV of the Indian Penal
Code. Nothing is an offence which is done by an accident
or misfortune; petitioner had no criminal intention or
knowledge that by his act, this would be the resultant
consequence; he is adequately protected by this
exception.
Crl.Rev.P.No.646/2003 Page 6 of 16
10. Arguments have been countered by the learned public
prosecutor.
11. Record has been perused and the submissions and counter
submissions have been noted and appreciated.
12. It is not in dispute that on 22.4.1992 PW-3 was the lawful
holder of this weapon of offence i.e. SAF gun; he had taken
permission of PW-1 to attend the call of nature and in this
intervening period to handover the weapon to the present petitioner
i.e. Brij Pal. This has been reiterated by PW-3 on oath and has not
been assailed in his cross-examination.
13. PW-1 has also corroborated this version of PW-3 and has
deposed that PW-3 had sought his permission to hand over the
weapon to Brij Pal as he wanted to attend the call of nature. PW-1
had instructed the petitioner to sit in the booth with the weapon.
This version of Pw-1 has also not been challenged.
14. Evidence has established that on 22.4.1992 the victim
Ravinder Pal Singh had received one bullet injury on the right side of
his chest from a 9 m.m. SAF sten gun; the bullet mark BC/1
recovered from the thoracic region of his body and handed over by
the Post Mortem Doctor i.e. Dr. P.K.Kundal to the Investigating
Officer finds mention in the post mortem report Ex. PW-11/A. This
bullet along with the sten gun Ex.P-1 had been sent to the CFSL for
analysis. The CFSL vide its report Ex.PW-8/A had received seven
parcels in its department. Parcel no.3 contained two articles and
had been described as follows:-
i. One 9 m.m. Sten carbine ( marked A/1 by me) bearing
No.NN1303.
Crl.Rev.P.No.646/2003 Page 7 of 16
ii. One 9 m.m. Magzine.
15. This description of the 9 m.m. sten gun having no.NN 1303
finds mention in the seizure memo dated 22.4.1992 vide which this
weapon of offence had been seized from the present petitioner; in
this seizure memo also the weapon of offence has been described
as a sten gun and on the magazine catch Carbine Machine 9 m.m.
registered no.NN1303 SAF 1972 had been ascribed. This clearly
establishes that the weapon seized was the same weapon which
had been sent to the CFSL for examination.
16. Vide Ex.PW-8/A, PW-8 Dr. A. Day had opined that this weapon
was in a working order. Dr.Day had also examined the 9 m.m. fired
bullet mark BC/1, retrieved from the dead body of the victim; on this
examination he had concluded that this bullet had been fired from
this weapon i.e. 9 m.m. sten carbine contained in parcel no.3. He
had further opined that the bullet hole on the right front T-shirt of
parcel no.5 i.e. the T-shirt of the deceased victim could have been
caused by this weapon.
17. This ballistic report has conclusively established that the
weapon, custody of which was with the petitioner at the relevant
time had fired the bullet mark BC/1 which was the cause of death of
Ravinder Pal Singh. The bullet hole in the T-shirt of the victim was
also the result of the firing from this weapon. This is a lethal piece
of evidence and coupled with the ocular version of PW-1 and PW-3
has conclusively established that it was the act of the petitioner in
firing the bullet from the sten gun Ex.P-1 which had caused the
death of Ravinder Pal Singh.
Crl.Rev.P.No.646/2003 Page 8 of 16
18. In this context it would be relevant to state that in his
statement under Section 313 of the Cr.P.C., the petitioner had made
a bald denial and has stated that this sten gun had not been handed
over to him by PW-3. This version in his statement under Section
313 Cr.P.C. is contrary to the defence taken by the accused that his
act of firing is protected under Section 80 of the IPC. These varying
and contradictory stands adopted by the accused clearly show that
he is shifting his corners; he does not know where to stand; whether
in corner A or corner B; neither appears to be of any help to him as
evidence adduced and proved by the prosecution has established
otherwise.
19. A false plea taken by an accused under Section 313 of the Cr.
P.C. has to be read against such an accused. In 1981 Crl.L.J. 325,
Shankralal Vs. State of Maharashtra the question of falsity of the
plea taken by the accused in his statement under Section 313 of the
Cr.P.C. the Apex Court had held that such a false plea is an
additional circumstance lending support to the other impelling
circumstances pointing out towards the guilt of the accused.
20. The question which now arises for decision is whether the act
of the accused falls within the ambit and scope of Section 304A of
the IPC or not; whether he is entitled to the consequent protection
under section 80 of the IPC.
21. Section 304A of the IPC necessarily postulates a rash or
negligent act; mere carelessness is not sufficient for a conviction
under this section. Criminal rashness is hazardous or a dangerous
or a wanton act with the knowledge that it is so, and that it may
Crl.Rev.P.No.646/2003 Page 9 of 16
cause injury, but without the intention to cause injury, or knowledge
that it will probably be caused. The criminality lies in running the
risk of doing such an act with recklessness or indifference as to the
consequences. Criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public generally or to
an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
22. Weapon of offence is a sten gun. The sten submachine gun
operates by “blowback” cycling, a common method of operation
used by many firearms, including many low-powered rifles and
pistols. The receiver, a metal tube which retains the operating
components, contains a metal cylinder called the bolt, a powerful
operating spring, and the sear, a hardened hook which controls the
bolt. When ready for firing, the sear holds the bolt in a retracted
position with the operating spring compressed. When the trigger is
pulled, the sear releases the bolt, and the spring propels it forward
at high speed, where it “feeds” a cartridge from the magazine and
into the firing chamber. If the trigger is released, the sear catches
and holds the bolt in the retracted position, halting the firing
sequence. The sten gun fires at a rate of nine shots per second
(550 rounds per minute), or, a thirty-round magazine load in 3.3
seconds. The mode of retaining the bolt retracted when not firing is
known as “open bolt” operation, which is both easier to engineer,
and also utilized for safety reasons.
Crl.Rev.P.No.646/2003 Page 10 of 16
23. In this context the cross-examination of PW-8 is also relevant.
He has categorically deposed that the sten gun was found to be in a
normal working order and no defect was found in it during the test
firing; a cartridge cannot be fired without pressing the trigger of the
fire arm; the safety lever has to be released and after pressing the
trigger the system will work.
24. From the history of this weapon as detailed above as also the
answers elicited from PW-8 in his cross-examination it is apparent
that the sten gun has a safety device i.e. a safety lever and it is only
after the safety lever is released and the trigger pressed, that the
system will work and the cartridge will be fired.
25. It is in this background that the act of the petitioner has to be
construed.
26. The petitioner himself was a police personnel i.e. of the rank
of a constable. He was well conversant and in the know-how of
dealing with a weapon of this kind i.e. a loaded SAF sten gun which
was a dangerous weapon and he was fully aware of the hazards
attached in handling such a weapon; he was also aware of the fact
that the weapon was loaded. This weapon could not have been
fired unless the safety lever was released followed by the pressing
of the trigger. There were two overt acts which were required on
the part of the petitioner before this gun could have released the
cartridge. Even presuming that one of the two acts was accidental,
the other could not have followed unless there was a active
participation by the petitioner; it was his active overt act which had
led to the incident.
Crl.Rev.P.No.646/2003 Page 11 of 16
27. In such a situation even if it is presumed that the intention to
cause the injury is absent, yet the from the fact that there is a
safety device attached to this weapon and unless this safety device
is released, the weapon cannot be set in motion, it is a clear case
where there was a wanton lack of care in handling this dangerous
weapon; the hazards attached to it being well-known to the
petitioner who was of the rank of a Constable and was dealing with
such type of weapons in the normal course of duty. The act of the
petitioner leadings to the death of the victim was clearly without
due care and caution, it was an act sufficient to be encompassed
within the definition of `negligent’. The recklessness and in
difference of the petitioner in handling this dangerous weapon is
apparent and the consequences have flown from this negligent act.
It is thus clear that in such a situation even in the absence of
intention to cause injury, the doer of the act is guilty of a rash and
negligent act. Death of the petitioner was the direct and proximate
result of this act of the petitioner.
28. In AIR 1949 Lahore 85 Mohd. Sadiq vs. The Crown the
accused who had a loaded pistol was demonstrating to the
deceased by bringing the pistol into two different positions; there
were facts showing possibility of the pistol exploding and killing the
deceased. Accused was held guilty for an offence under this
Section.
29. The exception contained in Section 80 of the IPC does not
come to the aid of the petitioner. Besides the fact that the petitioner
has taken conflicting stands and where as in his statement under
Crl.Rev.P.No.646/2003 Page 12 of 16
Section 313 of the Cr. P.C. he had made a bald denial and has
denied that this weapon of offence had been handed over to him,
yet in the same breath he had taken up his contrary plea that his
act of firing from the weapon was a lawful act. For the sake of
arguments, even while ignoring his first plea which had been taken
up by him in his the statement recorded under Section 313 of the
Cr. P.C., the second defence also does not come to his aid.
30. In J.T. 2009 (9) SC 413 Raj Kumar Vs. State of Maharashtra , it
has been held by the Supreme Court that in order to bring the case
within any one of the general exception under the IPC, under
Section 105 of the Evidence Act, the burden of proving the
existence of such a circumstance is upon the accused and in the
absence of this the Court would be justified in presuming that there
is no such circumstance in his favour.
31. In 1998 III AD (SC) 373 Atmendra Vs. The State of Karnataka
Supreme Court had held that to claim the benefit of Section 80 of
the IPC it has to be shown:
(i) That the act in question was without any criminal
intention or knowledge ;
(ii) that the act was being done in a lawful manner by
lawful means;
(iii) the act was being done with proper care and
caution.
32. No such cross-examination had been done on the witnesses of
the prosecution i.e. either of PW-1, PW-2 or PW-7; such defence has
also not been raised by the accused in his statement recorded
under Section 313 of the Cr.P.C. or at the opportune time of leading
evidence in defence.
Crl.Rev.P.No.646/2003 Page 13 of 16
33. Submission of the learned defence counsel that the delay in
sending the samples has caused prejudice to him is an argument
without any merit; petitioner has failed to point out as to what is
prejudice suffered by him; Ex.PW-8/A i.e. the report of the CFSL
clearly states that the seven parcels received in the department
were received with the seal intact and tallying with the specimen
seal. No suggestion to the contrary has also been given to PW-8 or
any of the other witness of the prosecution.
34. There is also no discrepancy in the number of the bullet which
had been retrieved vide the seizure memo and the bullets which
had been test fired; there were twenty bullets in the sten gun; one
had been fired which had resulted in the death of the victim; 19 live
cartridges had been seized and had been sent for necessary
analysis to the CFSL; this is evident from the seizure memo, the
report of the CFSL Ex.PW-8/A as also the version of PW-8. Ex.PW-8/A
clearly recites that six 9 m.m. cartridges which were test fired, are
being returned back in the same parcel i.e. the test fired bullets
were also returned back in the cartridge cases in which they had
been received. Oral version of PW-8 that three cartridges were test
fired is an insignificant contradiction; this witness being a scientific
expert has deposed in his official capacity; document Ex.PW-8/A
prepared by him had noted that six cartridges had been test fired.
This argument is also of no help.
35. The non-examination of the Investigating Officer and the non
proof of the site plan has also not affected the merits of the case;
Crl.Rev.P.No.646/2003 Page 14 of 16
the Investigating Officer could not be examined in spite of the best
efforts.
36. In 83 2000 DLT 476 Ambika Prasad vs. State Supreme Court
had held that non-examination of the Investigating Officer even if it
is without any justifiable ground would not be a ground for
disregarding other evidence including testimony of witnesses
whose presence on the spot has been established beyond all
reasonable doubt.
37. Conviction of the petitioner for the offence for which he had
been convicted calls for no interference.
38. Offence is related to the year 1992. Petitioner was a first time
offender; he was a constable in the Delhi Police; he was a public
servant; his one negligent act has made a world of difference in his
life not only in his career but also in his personal life.
39. While considering the sentence, one of the prime
considerations should be deterrence. But at the same time the
Legislature has also kept in mind that for an offence under this
Section a term of imprisonment is not a must and this section
visualises the possibility of an offence falling under it being
penalised by a fine alone. The severity to the sentence must
depend to a great extent on the degree of callousness which is
present in the conduct of the accused. The curative approach of
sentencing must also be kept in mind.
40. The background of this case calls for a deterrent as also a
reformative approach. While maintaining the balance between the
two approaches this Court is of the view that the sentence imposed
Crl.Rev.P.No.646/2003 Page 15 of 16
by the two Courts below calls for a modification. The RI of two years
is accordingly modified to RI for six months. Fine is enhanced from
Rs.2000/- to Rs.5000/- in default of payment of fine the petitioner
will undergo SI for one month. Bail bond and surety bond of the
petitioner stand cancelled. He shall surrender forthwith to suffer the
sentence.
41. Petition disposed of in the above terms.
(INDERMEET KAUR)
JUDGE
December 04, 2009
nandan
Crl.Rev.P.No.646/2003 Page 16 of 16
th
% Judgment Reserved on: 25 , November 2009
th
Judgment Delivered on: 4 , December 2009
+ CRL.REV.P.646/2003
BRIJPAL SINGH ……Petitioner
Through: Ms.Urmil Sharma, Mr.U.K.Sharma &
Mr.Sanjay Mishra, Advocates.
Versus
STATE …Respondent
Through: Mr.Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not? Yes
3.Whether the judgment should be reported in the Digest? Yes
INDERMEET KAUR, J.
1. FIR No.198/92 registered under sections 286/304A of the IPC
at police station I.G.I.Airport was on the complaint of Darshan Lal
PW-7. As per his version, on 22.4.1992 he along with deceased Pali
@ Ravinder was sitting near their canteen; deceased Pali was a taxi
driver; suddenly a fire shot was heard and he saw that Pali had been
hit by a bullet on his chest. He was removed to the hospital where
he remained alive for about 4-5 hours; he succumbed to his death.
2. Statement Ex.PW-7/A of Darshan Lal was recorded which had
set the investigation of this case into motion. H.Ct. Subhash Chand
PW-2 along with SI Umesh Singh had reached the spot on receipt of
information of this incident which had been recorded in DD No.40.
Crl.Rev.P.No.646/2003 Page 1 of 16
He took the rukka Ex.PW-2/A for the registration of the formal FIR
Ex.PW-2/B.
3. Investigation had revealed that the fire shot had emanated
from a SAF Gun which had been issued to Cont.Anil Kumar PW-3.
PW-3 had deposed that he had handed over this SAF Gun to the
accused along with the magazine after taking permission from
H.Ct.Raj Kapoor PW-1 as he wanted to go to the toilet; ten minutes
later when he came back he saw that the local police had already
gathered there and the magazine of his gun contained only 19
th
cartridges, the 20 cartridge had been used.
4. H.Ct.Raj Kapoor had been examined as PW-1; on 21-22.4.1992
he was the duty constable outside the arrival hall of the I.G.I.Airport.
As per his version at about 2.50 AM PW-3 has sought his permission
to attend the call of nature; on the instruction of PW-1, PW-3 had
handed over his SAF Gun to the accused who had been instructed to
sit inside the booth along with weapon. PW-1 has further deposed
that he was at the distance of 20-25 yards from the booth when he
heard the sound of a gunshot; bullet injuries had been sustained by
a taxi driver; police had been informed.
5. Dead body of the victim Ravinder Singh had been identified by
his landlord Jaswant Singh PW-4. MLC of the victim had been
prepared by Dr.Sanjiv whose signature had been identified by
Bhuvan Ram PW-9 on Ex.PW-9/A. Ex.PW-9/A had noted one bullet
entry wound one inch above and one inch medial to the right nipple.
Cause of death had been opined by Dr.S.D.Diman PW-12 who had
identified the signature of Dr.P.K.Kundal who had conducted the
Crl.Rev.P.No.646/2003 Page 2 of 16
post mortem of the deceased vide his report Ex.PW-11/A, cause of
as being haemorrhagic shock following firearm injury. Ex.PW-11/A
noted that the bullet which had been recovered from the thoracic
vertebrae of the victim was duly sealed and handed over the
Investigating Officer.
6. Mr.A.Day, Sr.Scientific Officer had examined the sten gun
Ex.P-1 along with 9 m.m. cartridge case and 19 9 m.m. cartridges
which had been sent to him for analysis; vide his report Ex.PW-8/A
dated 31.7.1992 he noted that the sten gun was in a working order
and the 9 m.m. bullet marked BC/1 of parcel no.4 i.e. the bullet
retrieved from the dead body had been fired from this 9 m.m. sten
carbine. It had further been opined that the bullet hole on the right
front chest portion of the T- Shirt of the victim could have been
caused by the 9 m.m. bullet i.e. mark BC/1 contained in parcel no.4.
7. On the basis of the aforestated evidence collected and proved
by the prosecution the Trial Court vide impugned judgment and
order of sentence dated 9.4.2003 and 10.4.2004 convicted the
petitioner under Section 304 A of the IPC; he was sentenced to
undergo RI for two years and to pay a fine of Rs.2000/- in default of
payment of fine to undergo SI for one month.
8. In appeal before Additional Sessions Judge vide judgment
dated 21.4.2003, while dismissing the appeal and maintaining the
conviction no modification was made in the sentence either.
9. On behalf of the petitioner, it is submitted:
(i). That the judgment of both the Courts below suffers
from inherent illegalities which has resulted in a
Crl.Rev.P.No.646/2003 Page 3 of 16
miscarriage of justice; both the Courts below had failed to
appreciate that it was a pure and simple accident which
had occurred; this act of the petitioner could not be
qualified as either rash act or negligent in the absence of
which the offence under Section 304 A of the IPC could not
be sustained.
(ii). The Investigating Officer has not come into witness
box and crucial documents i.e. seizure memo, the site plan
had remained unexhibited and not proved.
(iii). Attention has been drawn to the seizure memo dated
22.4.1992 wherein it has been recorded inter alia as
under:-
“ …… One sten gun, on the magazine catch of
which Carbine Machine 9 m.m. A registered No.NN
1303 SAA 1972 is engraved.”
The weapon sent to the CFSL was not described in
the forwarding letter and does not find mention in the
report of the CFSL Ex.PW-8/A; it does not match the
description given in Ex.PW-8/A i.e. the report of the CFSL
vide which the sten gun had been received by the
scientific expert for the consequent analysis. In this
context attention has been drawn to the version of PW-8,
CFSL Expert; PW-8 in his deposition has deposed that the
sten gun bears an engraved signature; such a description
given by PW-8 does not match the description given in the
seizure memo.
Crl.Rev.P.No.646/2003 Page 4 of 16
(iv). There were twenty cartridges in the weapon; one
had been fired; 19 live cartridges had been sent to the
CFSL for analysis. This is also evident from the report of
the CFSL and parcel no.2 which had described 19
cartridges having been received in the department. Out of
these 19 cartridges, as per Ex.PW-8/A six cartridges of 9
m.m. had been test fired thereby leaving a balance of 13
cartridges. PW-8 in his deposition has stated that three
cartridges were test fired which is not in conformity with
the document Ex. PW-8/A.
(v). There is no explanation as to why the seizure
which had been effected of this weapon on 22.4.1992 had
been sent to the CFSL after such a inordinate delay;
Ex.PW-8/A reflects that this parcel had been received in
the department only on 22.5.1992 i.e. after a delay of one
month. Counsel for the petitioner has placed reliance
upon 1985(1) Cri 72 Suman Singh Vs. State of UP as also
1992 Crl.L.J. 1150 Khalaksingh & Ors. Vs. State of M.P. to
substantiate his submission that long delay in sending the
recovered cartridges from the Malkhana of the police
station creates a suspicion about this recovery and the
possibility of tampering cannot be excluded.
(vi). Attention has been drawn to the version of PW-3
Ct. Anil Kumar; it is submitted that his cross-examination
had been deferred on 11.1.1995 for want of the
ammunition register but in spite of opportunity this has not
Crl.Rev.P.No.646/2003 Page 5 of 16
been brought on record; obviously for the reason that they
were discrepant entries which would have been gone
against prosecution i.e. the reason why the prosecution
had not coming forward with the said register. Adverse
inference for not producing this relevant piece of evidence
has to be drawn against the prosecution under Section 114
(g) of the Evidence Act.
(vii). This is admittedly a case of circumstantial
evidence; there is no eye-witness. Even as per the case of
PW-7 he had only heard the sound; he had not seen the
actual firing. Prosecution has to stand on its own legs and
prove its case beyond all reasonable doubt. Reliance has
been placed 2001(1) CCC 221 Sohan Lal & Anr. Vs. State of
Haryana & Anr. to support his submission. This proposition
is not in dispute and has not been countered by the
learned public prosecutor and calls for no further debate.
(viii). It has lastly been submitted that provisions of
Section 80 of the IPC are attracted and the act of the
petitioner is a lawful act falling within the general
exceptions contained in Chapter-IV of the Indian Penal
Code. Nothing is an offence which is done by an accident
or misfortune; petitioner had no criminal intention or
knowledge that by his act, this would be the resultant
consequence; he is adequately protected by this
exception.
Crl.Rev.P.No.646/2003 Page 6 of 16
10. Arguments have been countered by the learned public
prosecutor.
11. Record has been perused and the submissions and counter
submissions have been noted and appreciated.
12. It is not in dispute that on 22.4.1992 PW-3 was the lawful
holder of this weapon of offence i.e. SAF gun; he had taken
permission of PW-1 to attend the call of nature and in this
intervening period to handover the weapon to the present petitioner
i.e. Brij Pal. This has been reiterated by PW-3 on oath and has not
been assailed in his cross-examination.
13. PW-1 has also corroborated this version of PW-3 and has
deposed that PW-3 had sought his permission to hand over the
weapon to Brij Pal as he wanted to attend the call of nature. PW-1
had instructed the petitioner to sit in the booth with the weapon.
This version of Pw-1 has also not been challenged.
14. Evidence has established that on 22.4.1992 the victim
Ravinder Pal Singh had received one bullet injury on the right side of
his chest from a 9 m.m. SAF sten gun; the bullet mark BC/1
recovered from the thoracic region of his body and handed over by
the Post Mortem Doctor i.e. Dr. P.K.Kundal to the Investigating
Officer finds mention in the post mortem report Ex. PW-11/A. This
bullet along with the sten gun Ex.P-1 had been sent to the CFSL for
analysis. The CFSL vide its report Ex.PW-8/A had received seven
parcels in its department. Parcel no.3 contained two articles and
had been described as follows:-
i. One 9 m.m. Sten carbine ( marked A/1 by me) bearing
No.NN1303.
Crl.Rev.P.No.646/2003 Page 7 of 16
ii. One 9 m.m. Magzine.
15. This description of the 9 m.m. sten gun having no.NN 1303
finds mention in the seizure memo dated 22.4.1992 vide which this
weapon of offence had been seized from the present petitioner; in
this seizure memo also the weapon of offence has been described
as a sten gun and on the magazine catch Carbine Machine 9 m.m.
registered no.NN1303 SAF 1972 had been ascribed. This clearly
establishes that the weapon seized was the same weapon which
had been sent to the CFSL for examination.
16. Vide Ex.PW-8/A, PW-8 Dr. A. Day had opined that this weapon
was in a working order. Dr.Day had also examined the 9 m.m. fired
bullet mark BC/1, retrieved from the dead body of the victim; on this
examination he had concluded that this bullet had been fired from
this weapon i.e. 9 m.m. sten carbine contained in parcel no.3. He
had further opined that the bullet hole on the right front T-shirt of
parcel no.5 i.e. the T-shirt of the deceased victim could have been
caused by this weapon.
17. This ballistic report has conclusively established that the
weapon, custody of which was with the petitioner at the relevant
time had fired the bullet mark BC/1 which was the cause of death of
Ravinder Pal Singh. The bullet hole in the T-shirt of the victim was
also the result of the firing from this weapon. This is a lethal piece
of evidence and coupled with the ocular version of PW-1 and PW-3
has conclusively established that it was the act of the petitioner in
firing the bullet from the sten gun Ex.P-1 which had caused the
death of Ravinder Pal Singh.
Crl.Rev.P.No.646/2003 Page 8 of 16
18. In this context it would be relevant to state that in his
statement under Section 313 of the Cr.P.C., the petitioner had made
a bald denial and has stated that this sten gun had not been handed
over to him by PW-3. This version in his statement under Section
313 Cr.P.C. is contrary to the defence taken by the accused that his
act of firing is protected under Section 80 of the IPC. These varying
and contradictory stands adopted by the accused clearly show that
he is shifting his corners; he does not know where to stand; whether
in corner A or corner B; neither appears to be of any help to him as
evidence adduced and proved by the prosecution has established
otherwise.
19. A false plea taken by an accused under Section 313 of the Cr.
P.C. has to be read against such an accused. In 1981 Crl.L.J. 325,
Shankralal Vs. State of Maharashtra the question of falsity of the
plea taken by the accused in his statement under Section 313 of the
Cr.P.C. the Apex Court had held that such a false plea is an
additional circumstance lending support to the other impelling
circumstances pointing out towards the guilt of the accused.
20. The question which now arises for decision is whether the act
of the accused falls within the ambit and scope of Section 304A of
the IPC or not; whether he is entitled to the consequent protection
under section 80 of the IPC.
21. Section 304A of the IPC necessarily postulates a rash or
negligent act; mere carelessness is not sufficient for a conviction
under this section. Criminal rashness is hazardous or a dangerous
or a wanton act with the knowledge that it is so, and that it may
Crl.Rev.P.No.646/2003 Page 9 of 16
cause injury, but without the intention to cause injury, or knowledge
that it will probably be caused. The criminality lies in running the
risk of doing such an act with recklessness or indifference as to the
consequences. Criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public generally or to
an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
22. Weapon of offence is a sten gun. The sten submachine gun
operates by “blowback” cycling, a common method of operation
used by many firearms, including many low-powered rifles and
pistols. The receiver, a metal tube which retains the operating
components, contains a metal cylinder called the bolt, a powerful
operating spring, and the sear, a hardened hook which controls the
bolt. When ready for firing, the sear holds the bolt in a retracted
position with the operating spring compressed. When the trigger is
pulled, the sear releases the bolt, and the spring propels it forward
at high speed, where it “feeds” a cartridge from the magazine and
into the firing chamber. If the trigger is released, the sear catches
and holds the bolt in the retracted position, halting the firing
sequence. The sten gun fires at a rate of nine shots per second
(550 rounds per minute), or, a thirty-round magazine load in 3.3
seconds. The mode of retaining the bolt retracted when not firing is
known as “open bolt” operation, which is both easier to engineer,
and also utilized for safety reasons.
Crl.Rev.P.No.646/2003 Page 10 of 16
23. In this context the cross-examination of PW-8 is also relevant.
He has categorically deposed that the sten gun was found to be in a
normal working order and no defect was found in it during the test
firing; a cartridge cannot be fired without pressing the trigger of the
fire arm; the safety lever has to be released and after pressing the
trigger the system will work.
24. From the history of this weapon as detailed above as also the
answers elicited from PW-8 in his cross-examination it is apparent
that the sten gun has a safety device i.e. a safety lever and it is only
after the safety lever is released and the trigger pressed, that the
system will work and the cartridge will be fired.
25. It is in this background that the act of the petitioner has to be
construed.
26. The petitioner himself was a police personnel i.e. of the rank
of a constable. He was well conversant and in the know-how of
dealing with a weapon of this kind i.e. a loaded SAF sten gun which
was a dangerous weapon and he was fully aware of the hazards
attached in handling such a weapon; he was also aware of the fact
that the weapon was loaded. This weapon could not have been
fired unless the safety lever was released followed by the pressing
of the trigger. There were two overt acts which were required on
the part of the petitioner before this gun could have released the
cartridge. Even presuming that one of the two acts was accidental,
the other could not have followed unless there was a active
participation by the petitioner; it was his active overt act which had
led to the incident.
Crl.Rev.P.No.646/2003 Page 11 of 16
27. In such a situation even if it is presumed that the intention to
cause the injury is absent, yet the from the fact that there is a
safety device attached to this weapon and unless this safety device
is released, the weapon cannot be set in motion, it is a clear case
where there was a wanton lack of care in handling this dangerous
weapon; the hazards attached to it being well-known to the
petitioner who was of the rank of a Constable and was dealing with
such type of weapons in the normal course of duty. The act of the
petitioner leadings to the death of the victim was clearly without
due care and caution, it was an act sufficient to be encompassed
within the definition of `negligent’. The recklessness and in
difference of the petitioner in handling this dangerous weapon is
apparent and the consequences have flown from this negligent act.
It is thus clear that in such a situation even in the absence of
intention to cause injury, the doer of the act is guilty of a rash and
negligent act. Death of the petitioner was the direct and proximate
result of this act of the petitioner.
28. In AIR 1949 Lahore 85 Mohd. Sadiq vs. The Crown the
accused who had a loaded pistol was demonstrating to the
deceased by bringing the pistol into two different positions; there
were facts showing possibility of the pistol exploding and killing the
deceased. Accused was held guilty for an offence under this
Section.
29. The exception contained in Section 80 of the IPC does not
come to the aid of the petitioner. Besides the fact that the petitioner
has taken conflicting stands and where as in his statement under
Crl.Rev.P.No.646/2003 Page 12 of 16
Section 313 of the Cr. P.C. he had made a bald denial and has
denied that this weapon of offence had been handed over to him,
yet in the same breath he had taken up his contrary plea that his
act of firing from the weapon was a lawful act. For the sake of
arguments, even while ignoring his first plea which had been taken
up by him in his the statement recorded under Section 313 of the
Cr. P.C., the second defence also does not come to his aid.
30. In J.T. 2009 (9) SC 413 Raj Kumar Vs. State of Maharashtra , it
has been held by the Supreme Court that in order to bring the case
within any one of the general exception under the IPC, under
Section 105 of the Evidence Act, the burden of proving the
existence of such a circumstance is upon the accused and in the
absence of this the Court would be justified in presuming that there
is no such circumstance in his favour.
31. In 1998 III AD (SC) 373 Atmendra Vs. The State of Karnataka
Supreme Court had held that to claim the benefit of Section 80 of
the IPC it has to be shown:
(i) That the act in question was without any criminal
intention or knowledge ;
(ii) that the act was being done in a lawful manner by
lawful means;
(iii) the act was being done with proper care and
caution.
32. No such cross-examination had been done on the witnesses of
the prosecution i.e. either of PW-1, PW-2 or PW-7; such defence has
also not been raised by the accused in his statement recorded
under Section 313 of the Cr.P.C. or at the opportune time of leading
evidence in defence.
Crl.Rev.P.No.646/2003 Page 13 of 16
33. Submission of the learned defence counsel that the delay in
sending the samples has caused prejudice to him is an argument
without any merit; petitioner has failed to point out as to what is
prejudice suffered by him; Ex.PW-8/A i.e. the report of the CFSL
clearly states that the seven parcels received in the department
were received with the seal intact and tallying with the specimen
seal. No suggestion to the contrary has also been given to PW-8 or
any of the other witness of the prosecution.
34. There is also no discrepancy in the number of the bullet which
had been retrieved vide the seizure memo and the bullets which
had been test fired; there were twenty bullets in the sten gun; one
had been fired which had resulted in the death of the victim; 19 live
cartridges had been seized and had been sent for necessary
analysis to the CFSL; this is evident from the seizure memo, the
report of the CFSL Ex.PW-8/A as also the version of PW-8. Ex.PW-8/A
clearly recites that six 9 m.m. cartridges which were test fired, are
being returned back in the same parcel i.e. the test fired bullets
were also returned back in the cartridge cases in which they had
been received. Oral version of PW-8 that three cartridges were test
fired is an insignificant contradiction; this witness being a scientific
expert has deposed in his official capacity; document Ex.PW-8/A
prepared by him had noted that six cartridges had been test fired.
This argument is also of no help.
35. The non-examination of the Investigating Officer and the non
proof of the site plan has also not affected the merits of the case;
Crl.Rev.P.No.646/2003 Page 14 of 16
the Investigating Officer could not be examined in spite of the best
efforts.
36. In 83 2000 DLT 476 Ambika Prasad vs. State Supreme Court
had held that non-examination of the Investigating Officer even if it
is without any justifiable ground would not be a ground for
disregarding other evidence including testimony of witnesses
whose presence on the spot has been established beyond all
reasonable doubt.
37. Conviction of the petitioner for the offence for which he had
been convicted calls for no interference.
38. Offence is related to the year 1992. Petitioner was a first time
offender; he was a constable in the Delhi Police; he was a public
servant; his one negligent act has made a world of difference in his
life not only in his career but also in his personal life.
39. While considering the sentence, one of the prime
considerations should be deterrence. But at the same time the
Legislature has also kept in mind that for an offence under this
Section a term of imprisonment is not a must and this section
visualises the possibility of an offence falling under it being
penalised by a fine alone. The severity to the sentence must
depend to a great extent on the degree of callousness which is
present in the conduct of the accused. The curative approach of
sentencing must also be kept in mind.
40. The background of this case calls for a deterrent as also a
reformative approach. While maintaining the balance between the
two approaches this Court is of the view that the sentence imposed
Crl.Rev.P.No.646/2003 Page 15 of 16
by the two Courts below calls for a modification. The RI of two years
is accordingly modified to RI for six months. Fine is enhanced from
Rs.2000/- to Rs.5000/- in default of payment of fine the petitioner
will undergo SI for one month. Bail bond and surety bond of the
petitioner stand cancelled. He shall surrender forthwith to suffer the
sentence.
41. Petition disposed of in the above terms.
(INDERMEET KAUR)
JUDGE
December 04, 2009
nandan
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