IN Cri.A. 2390 OF 2010 - SC- Prosecution failed to prove that the appellant had any intention of causing death of Police Constable: Supreme Court modifies conviction and sentence of convict undergoing incarceration for 8 years, to offence with maximum prescribed sentence of 2 years imprisonment
Justice  Abhay S. Oka and Justice Rajesh Bindal [17.07.2023]

Read More: Arvind Kumar v. State of NCT Delhi

Simran Singh

New Delhi, July 21, 2023: Noting that the prosecution failed to prove that there was intention to cause  death on the part of the appellant-convict, the Supreme Court recently set aside the conviction of the appellant under Section 302 of the IPC, for which he had already spent 8 years behind bars, and held him guilty of committing the offence punishable under Section 304A of IPC for which the maximum punishment is 2 years imprisonment.

While acquitting the appellant, who was posted as a guard at a police station, of the charge of murder of a police constable, the Top Court however, stated that he was guilty of culpable homicide not amounting to murder due to his negligent act of not ensuring the carbine's change lever in the safety position. The appellant had already undergone more than the maximum sentence of 2 years prescribed for that offence, hence, his conviction and sentence were modified, and his bail bonds were canceled.

The Division Bench comprising of Justice  Abhay S. Oka and Justice Rajesh Bindal stated that “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.”

The Bench however stated that there was 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.” In view thereof, the Court partly allowed the appeal and the conviction under Section 302 of IPC was set aside and he was held guilty of committing the offence punishable.

In the matter at hand, the appellant was convicted of murdering a constable by the Trial Court and the High Court under Section 304 of the Indian Penal Code, 1860 (IPC), thus preferred an appeal against the conviction before the Supreme Court. The Sessions Judge had held that the case of the appellant-­accused was covered by ‘thirdly’ in Section 300 of IPC but had failed to bring the case within the protective umbrella of the exception 4 to Section 300 of IPC. The same was confirmed by the High Court. By the time the appellant was released on bail by Supreme Court by the order dated 271-11-2017, the appellant had undergone incarceration for a period of about 8 years and 11 months.

According to the prosecution, on 2812-1994, the deceased constable was talking on the phone for a long time at the police station where the appellant was posted as a guard. The duty officer asked the appellant to ask the deceased to stop using the phone. The appellant went to the deceased and put his hand on his shoulder to ask him to stop. The deceased playfully pushed the appellant while holding his SAF carbine. During the scuffle, the carbine got entangled in the appellant's belt chain and accidentally fired five rounds, hitting the deceased, killing him.

However, the motive alleged by the prosecution that the appellant and the duty officer had a grudge against the deceased was disbelieved by the High Court. The eyewitnesses supported the appellant's claim of accidental firing. The ballistic reports also indicated that the carbine could have been accidentally cocked and fired while getting entangled in the chain.