Full Judgment Text
2023 INSC 622
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2390 OF 2010
Arvind Kumar … Appellant
versus
State of NCT, Delhi … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
By this appeal, the appellantaccused has taken an
1.
exception to the order of his conviction passed by the
Sessions Court for the offence punishable under Section 302
of the Indian Penal Code (for short, “IPC”). The learned
Sessions Judge held that the case of the appellantaccused
was covered by “thirdly” in Section 300 of IPC. The learned
Sessions Judge held that the appellantaccused has failed to
Signature Not Verified
bring the case within the protective umbrella of the exception
Digitally signed by
Anita Malhotra
Date: 2023.07.17
16:24:05 IST
Reason:
4 to Section 300 of IPC. By the impugned judgment of the
Criminal Appeal No.2390 of 2010 Page 1 of 16
High Court, the conviction of the appellant has been
confirmed. The Trial Court sentenced the appellant to
undergo a life sentence. By the time the appellant was
th
released on bail by this Court by the order dated 27
November 2017, the appellant had undergone incarceration
for a period of about 8 years and 11 months.
The case of the prosecution is that one Shashi Bala
2.
(PW12) who was a Subinspector of Police was posted as a
th
Duty Officer in I.P. Estate Police Station, Delhi on 28
December 1994. One constable Mohd. Rashid (the deceased)
was on duty as “MunshiRoznamacha”. At about 5.45 pm,
the deceased came to the reporting room and started talking
on the official telephone of the Police Station. After noticing
that the deceased was talking on the phone for about 5 to 7
minutes, Shashi Bala (PW12) advised him not to keep the
official telephone engaged as the Police Station may receive
some urgent calls. The case of the prosecution is that the
deceased did not pay heed to the advice of PW12. The
appellant was posted as a guard at the Police Station. The
appellant was carrying a SemiAutomatic Fire (SAF) – carbine.
PW12 Shashi Bala, around 5.55 pm, requested the appellant
to ask the deceased to desist from continuing with his
conversation on the telephone. Therefore, the appellant
entered the duty room where the deceased was sitting and
talking on the phone. The appellant put his hand on the
shoulder of the deceased and advised him to end the call.
The initial case of the prosecution was that the deceased
Criminal Appeal No.2390 of 2010 Page 2 of 16
playfully pushed the appellant while holding the SAF carbine
of the appellant. The appellant tried to extricate his SAF.
During the scuffle, SAF got entangled in the chain attached to
the appellant’s belt which led to the accidental firing of five
rounds from the said automatic weapon. The deceased got
five rounds of bullets in his neck. The police personnel
present rushed the deceased to a hospital where he was
declared dead.
3. Initially, based on a statement of Shashi Bala (PW12),
an offence under Section 304A was registered against the
appellant. On the next day of the incident, the father of the
deceased submitted a complaint to the Deputy Commissioner
of Police and to the Commissioner of Police, Delhi. Based on
the said complaints, the investigation was transferred to the
Crime Branch. According to the prosecution, the opinion of
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 the incident, the deceased had caught the
accused and Shashi Bala in objectionable condition.
Therefore, Shashi Bala and the appellant got annoyed and
they threatened to kill the deceased. On the basis of the
investigation carried out by the Crime Branch, Section 302 of
IPC was applied while filing the chargesheet.
We must record here that the High Court has
4.
disbelieved the prosecution’s case about the existence of
motive. The prosecution’s case was that the deceased had
Criminal Appeal No.2390 of 2010 Page 3 of 16
seen the appellant and PW12 in a compromising position and
therefore, they held a grudge against the deceased. After
considering the evidence of PW3, PW18 and PW22 on the
alleged motive of the crime, the High Court came to the
conclusion that motive was not established. The High Court
relied upon the testimony of PW13 Karim Baksh who stated
that he heard the cry of the deceased “Mujhe Bachao” and
sound of the firing of SAF. The witness stated that when he
saw the deceased lying on the chair with bullet injuries, the
appellant was telling PW12 Shashi Bala in Hindi “Madam
aapne yeh kya karva diya, Mere to bache barbad ho jayenge".
According to the witness, Shashi Bala responded by telling
the accused that: "tum phikr mat karo may bhi tumhare
saath hu, court tak tumhara saath dungi". The Court applied
the doctrine of res gestae covered by Section 6 of the Indian
Evidence Act 1872 (for short, “the Evidence Act”).
RIVAL SUBMISSIONS
5. The learned senior counsel appearing for the appellant
has taken us through the notes of evidence of the relevant
witnesses. He submitted that taking the prosecution case as
correct, in the scuffle between the deceased and the
appellant, the SAF got entangled in the chain of the
appellant’s belt which resulted in the accidental firing of
bullets from the SAF. He submitted that once the motive is
discarded, the prosecution’s case based on circumstantial
evidence must fail. He urged that no offence was committed
Criminal Appeal No.2390 of 2010 Page 4 of 16
by the appellant in view of Section 80 of IPC as the death was
as a result of purely an accident.
In the alternative, he submitted that at the highest, the
6.
second part of Section 304 of IPC was applicable. He
submitted that the Courts below have committed an error by
invoking Section 302.
7. Learned counsel for the State supported the impugned
judgments. Learned counsel pointed out that the reports of
the ballistic expert and ocular evidence clearly show that the
appellant certainly had knowledge that the use of SAF carbine
may cause death.
CONSIDERATION OF THE SUBMISSIONS
8. There is no dispute that the deceased was the victim of
five bullets fired from the SAF carbine held by the appellant
and that the bullet injuries caused his death. The Trial Court
and the High Court held that the defence of accidental firing
cannot be accepted and that the act of firing bullets by the
appellant was intentional. The Court rejected the defence of
the accident pleaded by the appellant by taking recourse to
Section 80 of IPC.
9. The motive alleged by the prosecution was that the
deceased had seen PW12 Shashi Bala (SubInspector) and
the appellant in a compromising position. The allegation is
that as the deceased had seen both in a compromising
position, PW12 and the appellant were annoyed with him
Criminal Appeal No.2390 of 2010 Page 5 of 16
and thus, threatened to kill him. It is not necessary for us to
go into the issue of the existence of motive as the High Court
in paragraph 34 of the impugned judgment has recorded a
finding after considering the testimony of PW3 Nazir Ahmed,
PW18 SubInspector Ram Singh and PW22 Shaukat Ali, the
father of the deceased that the case of the prosecution
regarding the existence of motive does not inspire confidence.
Therefore, we will have to proceed on the footing that the
motive was not proved. Therefore, the failure to prove the
existence of the motive is one of the circumstances which
makes the prosecution case regarding intentional firing by the
appellant not worthy of acceptance.
10. There are two witnesses who claim that they were
eyewitnesses to the incident. PW12 Shashi Bala is one such
witness who stated in her examinationinchief that:
“On 28.12.94 I was posted as DO in PS
I.P. Estate with duty hours from 12.00
noon to 6.00 p.m. On that day deceased
ct.Md.Rashid was also discharging duty
as Roznamcha Munshi till 8.00 p.m. At
about 5.45 p.m. deceased came to my
office i.e reporting room and started
making phone call while sitting chair
lying in front of me leaving a table which
was lying between in two tables. He
continued the phone call for nearly 5/7
minutes. I asked the deceased not to
continue the talks and make the
telephone engaged as some urgent call
may be recd. in the PS. But the deceased
did not take it seriously but he continued
making the phone call. At about 5.55
Criminal Appeal No.2390 of 2010 Page 6 of 16
p.m. I asked Santri Ct.Arvind i.e
accused present in the court today to
restrained the deceased from talking
the phone call for such a long period.
Accd. asked the deceased to leave the
telephone by putting his hand on the
shoulder. Taking it as a joke deceased
caught hold the SAF of accused and
accd. tried to take back his SAF.
During this scuffle the SAF of the
accused got entangled in the chain
tied with the belt of accused and
during this course the fire is opened
from accused which hit the deceased
on his neck and chest and blood
. I
started coming out from his wound
got sent the decd. to JPS hospital who
was declared dead by the concerned
Doctor.”
(emphasis added)
In the examinationinchief, she stated that the father of the
deceased after one month of the incident threatened to kill
her as she was not willing to change her version. It is
pertinent to note that PW12 Shashi Bala was not declared as
a hostile witness.
11. The only other witness apart from PW12 who claims to
be an eyewitness is PW25 Satbir Singh Sherawat. He was
not a member of the police force, but he was a part of CISF
and was posted on internal security duty at the police station.
His version is also important to be noted which reads thus:
“I was present at PS I.P. Estate at about 6
p.m. I saw that one constable posted there
at PS I.P. Estate and was sitting on chair
Criminal Appeal No.2390 of 2010 Page 7 of 16
at Control Room in front of Duty Officer
and he was making call from the
telephone kept in control room and I was
waiting to make a call from the said phone
for giving my O.K report. I kept on waiting
in the gallery on the door of the control
room and in the meantime the duty
officer asked the said constable not to
leave the busy so long, as it was an
official phone. He did not pay any heed
to the request of the said duty officer.
The duty officer requested the Santri to
ask the said constable to leave the
phone for other person. The Santri also
went there and requested the said
constable for leaving the said phone
but he did not pay any heed to his
request also. The Santri caught him by
his right arm as he was holding the
receiver of the phone by his left hand
and he casually pushed the Santri. The
Santri again requested him to leave the
phone and in response the said
constable making the call caught the
SAF of the Santri and while making fun
with each other, pushed him and at
that time accidental fire took place
from the said SAF and five rounds from
the said SAF hit the person making the
phone call. WSI Shashi Bala was also
present there and she had also
requested the constable making the
phone not to touch the SAF as it was
dangerous, prior to the incident. The
Santri at that time was the accused
present in the Court whose name was
known as Arvind (present in the Court
today, correctly identified by the
Criminal Appeal No.2390 of 2010 Page 8 of 16
witness). A public person was also
present there but I do not know his name.
I did not know the name of the constable
who was making the call after the bullet
hit him at his chest and he was badly
injured in the incident and after hearing
the noise of the bullet all the staff of the
PS gathered there. The SAF was kept on
the table after the incident and I was not
aware as to how many rounds were there
in the magazine of the same and the same
were not taking out in my present. No
conversation took place between the
accused and WSI Shashi Bala in my
presence.”
(emphasis added)
We may note here that even this witness was not declared as
hostile.
Thus, the version of PW12 and PW25 who were
12.
claiming to be the eyewitnesses completely supports the
defence of the appellant of accidental firing and in any case,
they have not deposed that the appellant intentionally fired
bullets at the deceased. PW22, the father of the deceased,
who was not an eyewitness, deposed in support of the case
that the appellant intentionally opened fire. But his testimony
on motive has been disbelieved by the High Court. Moreover,
admittedly, his second statement in which the aforesaid
allegation was made, was recorded three to four months after
the incident. In his earlier statement recorded by the police
after the incident, this version was not found as can be seen
from his crossexamination.
Criminal Appeal No.2390 of 2010 Page 9 of 16
13. There are four reports/opinions of the ballistic expert on
record. Two reports mention that the bullets were shot at a
close distance about which there is no dispute. Pursuant to
the queries made by the investigating officer, a second report
th
dated 18 August 1995 was submitted by the ballistic expert,
Smt. Asha Dhir. Clauses 4 and 5 of the said report read thus:
“4 . The 9 mm carbine marked A under
reference received in the laboratory having
change lever in 'A' (i.e. auto) position, it
could fire if the firearm would have been
cocked and the trigger was pressed and
could go on firing as long as having trigger
remain pressed.
5. The firearm under reference can be
cocked by entangling with the chain,
provided, if the change lever is not at
'S' (safety) position. If the trigger is
pressed in cocked condition, it will
fire. ”
(emphasis added)
nd
There is also an opinion dated 22 December 1995 of the
same expert which records that the possibility of
simultaneously cocking and pressing the trigger of SAF after
entangling with a chain is ruled out. If this opinion is read
th
with the opinion dated 18 August 1995, it is apparent that if
the change lever is not in safety position, the firearm can be
cocked by entangling with a chain.
Criminal Appeal No.2390 of 2010 Page 10 of 16
14. Going by the evidence of prosecution witnesses, it will
have to be held that the SAF got entangled with the chain
attached to the belt of the appellant. Considering the opinion
of the expert, it is obvious that when the incident occurred,
the change lever was not kept in a safety position by the
appellant and therefore, SAF got cocked which resulted in the
firing of five bullets. The appellant must take the blame for
not taking the elementary precaution of keeping the change
lever in the safety position.
15. Having carefully perused the statement of the appellant
recorded under Section 313 of CrPC, the case of the
prosecution that he intentionally opened fire by aiming at the
deceased was not put to the appellant.
16. What remains is the statement attributed to the
appellant and the response of PW12 to the appellant’s
statement. These statements were read in evidence in view of
Section 6 of the Evidence Act. According to the prosecution
witness PW13Karim Baksh, after the firing was heard, the
appellant was heard telling PW12 that “Madam aapne yeh
kya karva diya, Mere to bache barbad ho jayenge". Reply of
Shashi Bala was: "tum phikr mat karo may bhi tumhare
saath hu, court tak tumhara saath dungi". The only other
witness who deposed about such statements is PW5 Zahir
Ahmed. According to him, he heard the appellant telling PW
12 “Madam, apane isko marva diya ab mera kya hoga”. Both
the witnesses have stated that they heard the cry “Mujhe
Criminal Appeal No.2390 of 2010 Page 11 of 16
bachao”. Surprisingly, PW25, who claims to have seen the
incident has not deposed about any such statements made by
the appellant, PW12 and the deceased. PW5 claims to have
attended the funeral of the deceased. He admitted that as per
the instructions of the father of the deceased, he met an
inspector of the Crime Branch two months after the incident
when his statement was recorded. Till that time, he did not
report anything to the police about what he heard. PW13
stated that PW6, PW17 and certain other persons were
present when he heard the accused making aforesaid
statements. Both PW6 and PW17 did not support the
prosecution. The others who were present according to PW13
were not examined by the prosecution. Therefore, the version
of the prosecution about the appellant and PW12 making
such statements does not inspire confidence.
17. We will also examine the effect of such statements
assuming that the same were really made. These statements
were allegedly made immediately after the incident. The
statements do have a connection with the incident. The
statements were allegedly made spontaneously. Therefore, the
Courts have treated the statements as relevant by invoking
the doctrine of res gestae incorporated in Section 6 of the
Indian Evidence Act. We have held that the theory of the
prosecution that the appellant fired intentionally has not been
established. The appellant was instructed by PW12 to go to
the deceased and to prevent him from continuing the use of
the telephone. Therefore, he went near the deceased. It is the
Criminal Appeal No.2390 of 2010 Page 12 of 16
reaction or the action of the deceased which resulted in the
SAF getting entangled with the chain attached to the
appellant’s belt; which led to the accidental fire from SAF.
Therefore, the accused spontaneously reacted by telling PW
12 what she has got done from him. While implementing the
direction issued by PW12, the accidental fire took place and
that is how the appellant became responsible for the death. It
is in this context that the reaction of the appellant has to be
understood. By those words, he has blamed the PW12. The
statement attributed to PW12 means that she would support
the appellant before the Court by telling the truth. If the
theory of accidental firing is accepted, the interpretation of
the aforesaid statements as made by us becomes a possible
interpretation which is consistent with normal human
conduct.
18. Section 6 of the Evidence Act and illustration (a) below
Section 6 read thus:
“ 6. Relevancy of facts forming part of
.––Facts which, though
same transaction
not in issue, are so connected with a fact
in issue as to form part of the same
transaction, are relevant, whether they
occurred at the same time and place or
at different times and places.
Illustrations
(a) A is accused of the murder of B by
beating him. Whatever was said or
done by A or B or the bystanders at
the beating, or so shortly before or
Criminal Appeal No.2390 of 2010 Page 13 of 16
after it as to form part of the
transaction, is a relevant fact.
(b) .. .. .. .. .. .. .. .. .. .. ..
(c) .. .. .. .. .. .. .. .. .. .. ..
(d) .. .. .. .. .. .. .. .. .. .. ..”
PW5 and PW13 have attributed the aforesaid statements
mentioned in paragraph 16 above to the appellant and PW12
Shashi Bala which were immediately made after the incident
of firing. The alleged statements are certainly connected with
the fact in issue, namely, the alleged act of the appellant of
killing the deceased. Therefore, assuming that the statements
attributed to the appellant and PW12 were in fact made, the
conduct of the appellant of making the said statement
becomes relevant in view of Section 6. Section 5 of the
Evidence Act provides that evidence may be given in a
proceeding of the existence or nonexistence of every fact in
issue and of such other facts which are declared to be
relevant under the provisions of Chapter II of the Evidence
Act, 1872. Section 6 is applicable to facts which are not in
issue. Such facts become relevant only when the same satisfy
the tests laid down in Section 6. Hence, the statement of an
accused to which Section 6 is applicable cannot be treated as
a confession of guilt. The statement becomes relevant which
can be read in evidence as it shows the conduct of the
appellant immediately after the incident. In any case, in the
facts of the case, we have held that the version of the two
Criminal Appeal No.2390 of 2010 Page 14 of 16
witnesses who have deposed about the appellant making such
statement does not inspire confidence.
The prosecution has failed to prove that the appellant
19.
had either any intention of causing the death of the deceased
or the intention of causing such bodily injury to the deceased
which was likely to cause his death. Assuming that when the
appellant approached the deceased to stop him from using
the telephone, he was aware that the change lever was not in
a safety position, it is not possible to attribute knowledge to
him that by his failure to keep SAF in the safety position, he
was likely to cause the death of the deceased. The knowledge
of the possibility of the deceased who was himself a policeman
pulling SAF carbine cannot be attributed to the appellant. In
fact, the appellant could not have imagined that the deceased
would do anything like this. Thus, by no stretch of the
imagination, it is a case of culpable homicide as defined
under Section 299 of IPC as the existence of none of the three
ingredients incorporated therein was proved by the
prosecution.
However, there is a failure on the part of the appellant
20.
who was holding a sophisticated automatic weapon to ensure
that the change lever 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 loss of
human life. Due to his rash and negligent act, the deceased
Criminal Appeal No.2390 of 2010 Page 15 of 16
lost his life. Therefore, the appellant is guilty of a lesser
offence punishable under Section 304A of IPC for which the
maximum sentence is imprisonment for two years. The
appellant has undergone a sentence of more than eight years.
21. Hence, the appeal is partly allowed. The conviction of
the appellant under Section 302 of the IPC is set aside and he
is held guilty of committing the offence punishable under
Section 304A of IPC. The appellant has undergone the
maximum sentence prescribed for the said offence. Hence,
his detention in prison is no longer required. Hence, his bail
bonds are cancelled.
……..….……………J.
(Abhay S. Oka)
……...………………J.
(Rajesh Bindal)
New Delhi;
July 17, 2023.
Criminal Appeal No.2390 of 2010 Page 16 of 16