SUPREME COURT UPHOLDS CONVICTION OF ACCUSED FOR ACCIDENTAL FIRING DESPITE LACK OF MOTIVE, BASED ON CIRCUMSTANTIAL EVIDENCE

A Two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Rajesh Bindal in Criminal Appeal No. 2390 of 2010 passed a Judgment dated 17-07-2023 in the matter of Arvind Kumar Vs. State of NCT, Delhi made observations regarding the focal issue i.e. whether the Appellant’s actions constituted intentional homicide or if they were a result of accidental firing.

Facts:

1) In the present case, one, Shashi Bala, a Sub-Inspector of Police, was on duty at the I.P. Estate Police Station, Delhi, when she observed that the Constable, Mohd. Rashid (now, Deceased), had engaged in a prolonged phone call on the official telephone. Subsequently, it was advised by her to not keep the line busy, as a police station may receive urgent calls at any time, but her instructions were ignored by him.

2) The Accused-Appellant, Arvind Kumar, a guard at the said Police Station, was requested by the Prosecution Witness (PW)-12, Shashi Bala to intervene and ask the Constable, Mohd. Rashid to stop his telephone conversation. Subsequently, the Accused-Guard entered into the duty room where the Constable, Mohd. Rashid was seated and was talking over phone. The Appellant-Guard placed his hand on the Constable’s shoulder and advised him to end the call. According to the initial case of the Prosecution, the Constable playfully pushed the Appellant away while holding the Appellant’s Semi-Automatic Fire (SAF) Carbine, leading to a scuffle. During the scuffle, the Appellant-Guard accidentally fired five rounds using the SAF Carbine, resulting in the death of the Constable.

3) That an FIR No.476/94 was registered against the Accused initially under Section 304A of the Indian Penal Code 1860 (IPC) (Causing death by negligence), but upon further investigation, Section 302 IPC (Punishment for Murder) was invoked by the Police.

Trial Court Observations:

That the case was filed before the Ld. Additional Sessions Judge, Delhi (Trial Court) in Sessions Case No.119/2005, wherein, the Trial Court passed an Order dated 08-07-2009 and directed the Appellant Accused to undergo life sentence under Section 302 IPC.

Aggrieved by the Trial Court Order dated 08-07-2009, the Accused filed Criminal Appeal No. 605/2009 before Delhi High Court. The High Court, vide Order dated 02-07-2010, convicted the Accused and made the following observations:

High Court Observations:

i) That the Prosecution’s version that the Deceased had seen the Appellant-Accused and PW-12 Shashi Bala in a compromising position, hence, the Accused had killed the Deceased, was unconvincing. Thus, the Prosecution failed to establish any motive for intentional firing against the Accused.

ii) However, the High Court observed that absence of proof of motive does not break the link in the chain of circumstances connecting the Accused with the crime, as there was strong circumstantial evidence against the Accused.

Supreme Court Observations:

Aggrieved by the High Court Order dated 02-07-2010, the Appellant-Accused filed Criminal Appeal No. 2390 of 2010 before the Supreme Court. The Apex Court vide Order dated 17-07-2023 held as follows:

(1) That the motive alleged by the Prosecution was that the Deceased had observed PW-12 Shashi Bala (Sub-Inspector) and the Appellant in a compromising position. According to the allegation, this discovery annoyed PW-12 and the Appellant, prompting them to threaten the Deceased. The High Court, however, disbelieved the Prosecution’s case regarding the existence of a motive. Hence, the Bench did not dig into the issue of motive, and proceeded on the basis that the motive was not proven.

(2) Further, another eyewitness, PW-25 Satbir Singh Sherawat, who was not a member of the Police force but was a part of CISF and on internal security duty at the Police Station, stated that he was present at PS I.P. Estate around 6 p.m. and observed the Constable on duty making a phone call from the control room’s telephone. He waited to make a call himself when the duty officer and Santri / Accused-Guard asked the Constable to end the call, but he ignored their requests. A scuffle ensued during which the Constable accidentally fired the SAF, injuring himself. PW-12 Shashi Bala was also present and had warned the Constable about the danger of SAF prior to the incident.

(3) Moreover, the versions provided by PW-12 and PW-25, the alleged eyewitnesses, fully support the Appellant’s defense of accidental firing by the Deceased-Constable, and they have not deposed that the Appellant intentionally fired bullets at the Deceased. On the other hand, PW-22, the Deceased’s father, who was not an eyewitness, deposed in support of the Prosecution’s case that the Appellant intentionally fired. However, the High Court disbelieved his testimony regarding the motive, and his second statement with the allegation was recorded several months after the incident, whereas his earlier statement did not contain such an assertion, as evident from his cross-examination.

(4) The Apex Court noted that the motive alleged by the Prosecution was not proven and had been disbelieved by the High Court. Additionally, the Appellant’s claim of accidental firing was emphasized by the Court, which was supported by both eyewitnesses. It is beyond dispute that the Deceased was the victim of five bullets fired from the SAF carbine held by the Appellant, and these bullet injuries led to his death. The defense of ‘accidental’ firing was rejected by the Trial Court and the High Court, with both Courts deeming the act of firing bullets by the Appellant as intentional based on ‘circumstantial evidence’ and not ‘motive’, as no motive had been established to suggest a premeditated act of murder..

(5) The Hon’ble Supreme Court reiterated that the High Court’s findings were concurred with, affirming that the Prosecution’s theory of ‘intentional’ firing backed by alleged motive lacked credibility, rather the theory of ‘intentional’ firing based on ‘circumstantial evidence’ was more plausible. Further, the Appellant’s actions were impulsive and would also be liable for his negligence in not keeping the firearm’s safety position.

Conclusion:

Thus, based on the aforesaid observations, the Apex Court partly allowed the Appeal and held the Appellant guilty of rash and negligent act under Section 304A of IPC and set aside the Appellant’s conviction for murder under Section 302 of the IPC. As a result, the High Court Order dated 02-07-2010 was partly upheld to the extent of conviction under Section 304A of IPC.

 

Sakshi Raghuvanshi

Associate

The Indian Lawyer