- We must record here that the High Court has disbelieved the prosecution’s case about the existence of motive. The prosecution’s case was that the deceased had 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”).
MOTIVE NOT PROVED
- The motive alleged by the prosecution was that the deceased had seen PW12 Shashi Bala (Sub Inspector) 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 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 Sub Inspector 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.
OMISSION TO PUT QUESTION TO ACCUSED U/S 313 Cr.P.C
- 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.
- 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 PW13 Karim 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 PW12 “Madam, apane isko marva diya ab mera kya hoga”. Both the witnesses have stated that they heard the cry “Mujhe 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. -
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 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 PW12 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.
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Section 6 of the Evidence Act and illustration (a) below Section 6 read thus:
“6. Relevancy of facts forming part of same transaction:––
Facts which, though 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 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 witnesses who have deposed about the appellant making such statement does not inspire confidence.
INTENTION OF CAUSING THE DEATH NOT PROVED
- The prosecution has failed to prove that the appellant 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.
PUNISHMENT REDUCED
- However, there is a failure on the part of the appellant 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 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.
Party
Arvind Kumar vs. State of NCT, Delhi – Criminal Appeal No.2390 of 2010 – July 17, 2023.
https://main.sci.gov.in/supremecourt/2010/31119/31119_2010_11_1501_45112_Judgement_17-Jul-2023.pdf
