BHAGWAN SINGHversusSTATE OF UTTARAKHAND

                         [2020] 4 S.C.R. 957                            957


                        BHAGWAN SINGH                                   A
                                 v.
                   STATE OF UTTARAKHAND
                 (Criminal Appeal No. 407 of 2020)
                                                                        B
                         MARCH 18, 2020
  [S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
      Penal Code, 1860: ss. 304-II and 308 – Culpable homicide
not amounting to murder – In a marriage ceremony, father of the
groom-appellant aimed the gun towards the roof and then fired –         C
Gun shot firing resulting in death of two and injuries to others –
Conviction of appellant u/ss. 302 and 307 and sentenced to life
imprisonment and 5 years’ rigorous imprisonment along with a fine
– Upheld by the High Court, however, acquitted for offence u/s.
25 of the Arms Act – On appeal, held: Appellant cannot escape           D
the consequences of carrying the gun with live cartridges with
the knowledge that firing at a marriage ceremony with people
present there was imminently dangerous and was likely to cause
death – Appellant is guilty of causing fatal injuries which are
attributable to him – Appellant had the requisite knowledge
essential for constituting the offence of ‘culpable homicide’ u/s.299   E
and punishable u/s.304- II – Thus, he is guilty u/s.304-II and not
u/s.302 and sentence of life imprisonment awarded to appellant is
reduced to 10 years’ rigorous imprisonment – Appellant is liable
to be punished for ‘attempt to commit culpable homicide’ not
amounting to murder u/s.308, in place of s.307 for the injuries         F
caused to other three victims and sentence is substituted
accordingly.
      Partly allowing the appeal, the Court
      HELD: 1.1 The prosecution version to the extent that the
appellant aimed at A and then fired the shot(s) is rejected. The        G
evidence on record contrarily shows that the appellant aimed the
gun towards the roof and then fired. It was an unfortunate case
of mis-firing. The appellant of course cannot absolve himself of
the conclusion that he carried a loaded gun at a crowded place
where his own guests had gathered to attend the marriage                H
                                957
958            SUPREME COURT REPORTS                      [2020] 4 S.C.R.


A     ceremony. He did not take any reasonable safety measure like
      to fire the shot in the air or towards the sky, rather he invited
      full risk and aimed the gun towards the roof and fired the shot.
      He was expected to know that pellets could cause multiple gun-
      shot injuries to the nearby persons even if a single shot was
      fired. The appellant is, thus, guilty of an act, the likely
B
      consequences of which including causing fatal injuries to the
      persons being in a close circuit, are attributable to him. The
      offence committed by the appellant, thus, would amount to
      ‘culpable homicide’ within the meaning of Section 299, though
      punishable u/s. 304 Part 2 IPC. [Para 16] [963-G-H; 964-A-C]
C           1.2 Incidents of celebratory firing are regretfully rising, for
      they are seen as a status symbol. A gun licensed for self-
      protection or safety and security of crops and cattle cannot be
      fired in celebratory events, it being a potential cause of fatal
      accidents. Such like misuse of fire arms convert a happy event
D     to a pall of gloom. Appellant cannot escape the consequences
      of carrying the gun with live cartridges with the knowledge that
      firing at a marriage ceremony with people present there was
      imminently dangerous and was likely to cause death. [Para 17]
      [964-C-D]
E           1.3 The appellant had the requisite knowledge essential
      for constituting the offence of ‘culpable homicide’ under Section
      299 and punishable under Section 304 Part-2 of IPC. He is thus
      held guilty under Section 304 Part-2 and not under Section 302
      IPC. On the same analogy, the appellant is liable to be punished
      for ‘attempt to commit culpable homicide’ not amounting to
F     murder under Section 308, in place of Section 307 IPC for the
      injuries caused to the other three victims. [Para 19] [965-A-B]
            1.4 The conviction of the appellant under Section 302 IPC
      is modified to Section 304 Part-2 IPC and that under Section 307
      IPC is altered to Section 308, IPC. As a necessary corollary, the
G     sentence of life imprisonment awarded to the appellant for
      committing the offence under Section 302 IPC, is reduced to 10
      years’ rigorous imprisonment and the sentence awarded to him
      under Section 307 IPC is substituted with Section 308 IPC,
      without any alteration in the fine imposed by the trial court. [Para
H     20] [965-C-D]
       BHAGWAN SINGH v. STATE OF UTTARAKHAND                                959


      Kunwar Pal v. State of Uttarakhand (2014) 12 SCC                      A
      434 : [2013] 10 SCR 239 - referred to.
                        Case Law Reference
[2013] 10 SCR 239                   referred to            Para 10
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                                                                            B
No. 407 of 2020.
      From the Judgement and Order dated 26.07.2017 of the High
Court of Uttarakhand at Nainital in Criminal Appeal No. 304 of 2013.
     Siddharth Luthra, Sr. Adv., Ms. Supriya Juneja, Aditya Singla,
Ms. Mehaak Jaggi, Cheshta Jetley, Ms. Akansha Mehta, Harsh Yadav,
                                                                            C
Aryan Dev Uniyal, Advs. for the Appellant.
     Jatinder Kumar Bhatia, Krishnan Mishra, Advs. for the
Respondent.
      The following Judgment of the Court was delivered:
                            JUDGMENT                                        D
      1. Leave granted.
       2. This Criminal Appeal is directed against the judgment dated
26th July, 2017 passed by the High Court of Uttarakhand whereby the
appellant’s criminal appeal against the judgment and order dated 11th/
12 th July, 2013 rendered by Learned Sessions Judge, Bageshwar              E
convicting the appellant under Sections 302 and 307 of Indian Penal
Code (for short, ‘IPC’) and sentencing him to undergo life imprisonment
(under Section 302, IPC) and 5 years’ rigorous imprisonment (under
Section 307, IPC) along with a fine of Rs. 20,000/- in default whereof
he was directed to undergo 6 months’ additional rigorous imprisonment,
was dismissed. The appellant was, however, acquitted for offence            F
punishable under Section 25 of the Arms Act for want of the requisite
sanction.
       3. It may be mentioned at the outset that notice of the special
leave petition was issued on the limited question to determine the nature
of offence committed by the appellant i.e. whether it falls under the       G
ambit of Section 302 or 304 of IPC. To determine this question the facts
may be briefly noted.
      Facts:
     On 21st April, 2007, the marriage ceremony of the Appellant’s
son was taking place at village Dafaut, Uttarakhand, when around            H
960            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A     5:30 pm as soon as the marriage procession reached the Appellant’s
      courtyard - he suddenly fired celebratory gunshots. The pellets struck
      5 persons standing in the courtyard namely, Smt. Anita W/o Chanchal
      Singh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt. Vimla
      W/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh
      (P.W.7). The injured were taken to the hospital where two of them –
B
      Anita and Khushal Singh @ Sonu succumbed to their injuries. Later at
      about 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali,
      Bageshwar, narrating in full detail the incident of which he himself was
      a witness.
            5. After the conclusion of investigation, initially a charge sheet
C
      under Section 304, IPC was filed but later on the appellant was charged
      under Sections 302 and 307, IPC along with Section 25 of the Arms
      Act.
             6. The Ld. Sessions Judge held the appellant guilty of offences
      under Sections 302 and 307, IPC based on testimonies of eye witnesses
D
      and injured witnesses. It was noted that Appellant fired shots from his
      son’s licensed gun causing fatal injuries to Smt. Anita and Khushal Singh
      and injuring three others. He was consequently sentenced in the manner
      as briefly noticed in the opening paragraph of the order.

E            7. The appellant went in appeal before the High Court. His
      primary contention was that he had no intention to cause anyone’s
      death. He stated that the firing was accidental and was caused by a
      ball with which some children were playing. The ball struck against the
      gun in his hand and led to the firing of shots. The occurrence was an
      admitted fact and the only plea taken was that it being a case of
F     accidental firing, Section 300 punishable under Section 302, IPC was
      not attracted.
            8. The High Court rejected the appellant’s plea and held as
      follows:

G           “There is no merit in the submission put forth by learned
            Advocates appearing for the appellant. PW2 Chanchal Singh
            has categorically deposed that the appellant has aimed at
            his wife Smt. Anita and fired. The bullet hit on her chest. She
            was taken to the hospital and declared dead. In his cross-
            examination, he has denied the suggestion that the ball has
H           struck against the gun which led to accidental fire. PW3
       BHAGWAN SINGH v. STATE OF UTTARAKHAND                               961


      Dharam Singh has also admitted that the injuries were                A
      caused by the accused with the firearm. The injured were
      taken to the hospital. He has also denied that it was a case
      of accidental fire. PW4 Tejpal Singh is another eyewitness.
      According to him the appellant fired. The pellets had hit Anita
      and his son Khushal @ Sonu. He has also denied the
      suggestion that it was an accidental fire. PW5 Vimla Devi            B
      W/o Devendra Singh has also corroborated the statements
      of eyewitnesses PW2 Chandchal (sic.) Singh and PW4 Tejpal
      Singh. According to her also, the appellant has fired and she
      suffered the pellet injuries and was taken to the hospital.
      PW6 Ummed Singh is another eye witness. According to him             C
      also, the appellant was seen holding a gun. He also received
      the injuries. He was taken to the hospital for treatment. He
      has also denied that it was a case of accidental fire. PW7
      Vimla Devi W/o Bhupal Singh is also the eye witness.
      According to her, the appellant fired his gun and she along
      with others had received the pellet injuries. She was also           D
      taken to the hospital. He has admitted in the cross-
      examination that the appellant fired aiming Anita Devi and
      Khushal Singh.”
      The High Court has further held that:
      “Appellant was standing on the roof. He aimed at Anita               E
      Devi. The bullet struck Anita Devi on her chest. Khushal
      Singh @ Sonu also received firearm injuries. Other persons
      also suffered the pellet injuries by firearm. Appellant was
      seen shooting by PW2 Chanchal Singh, PW4 Tejpal Singh,
      PW5 Smt. Vimla Devi W/o Devendra Singh, PW6 Ummed
      Singh and PW7 Vimla Devi W/o Bhupal Singh. It cannot be              F
      termed as the case of negligence. The accused had
      knowledge throughout that if the bullet is fired aiming at a
      particular person, it would result in his/her death.”
      9. As stated earlier, this Court issued notice restricted to the
nature of the offence. The appellant’s culpability of causing the death    G
of Smt. Anita and Khushal Singh by way of gunshot injury as
concurrently established was thus neither intended to be interfered with
nor the same has been seriously re-agitated before us.
      Contentions:
      10. Learned senior counsel for the appellant very passionately       H
962               SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A     contended that this is a case of celebratory firing which unfortunately
      caused unintentional death of two persons and injuries to three others.
      It is not ‘culpable homicide’ because the appellant had, while firing
      towards roof, no knowledge that the act was likely to cause death. He
      contended that such an act amounts to negligence of the nature as
      defined under Section 304-A, IPC. Learned senior counsel alternatively
B
      submitted that the appellant’s act at best would constitute culpable
      homicide not amounting to murder punishable under Section 304
      Part-2, IPC, for the appellant can be said to have the knowledge that
      his act was likely to cause death but he had no intention to cause death
      or such bodily injury likely to cause death. Reliance was placed on the
C     decision of this Court in Kunwar Pal vs. State of Uttarakhand1.
             11. Conversely, learned State Counsel reiterated that the appellant
      was rightly convicted under Section 302, IPC as the evidence on record
      does suggest that while standing on the roof he aimed at Smt. Anita
      and fired the gunshot and the bullet struck her chest. Similarly, Khushal
D     Singh @ Sonu received firearms injuries. Both Anita and Khushal Singh
      admittedly died of those injuries.
               Analysis:
             12. We have heard learned counsel for the parties and perused
      the record. From the contents of FIR read with the statements of injured
E     and eye-witnesses, it emerges out that there was a marriage function
      of son of the appellant and no sooner did the rituals of marriage were
      performed at about 5.30 p.m., the appellant fired from a licensed gun
      pointing towards the roof and caused injuries to 5 persons. Smt. Anita
      W/o Chanchal Singh and Khushal Singh @ Sonu were grievously injured
      who eventually succumbed to their respective injuries. Smt. Anita as
F     well as Khushal Singh were present there in order to participate in the
      marriage celebrations which suggests that neither they nor their families
      had any animosity with the appellant. Similarly, Dharm Singh (P.W.3)
      – complainant, too had no axe to grind against the appellant. The eye-
      witness account further reveals that the shots were fired towards the
G     roof and not aiming at any of the victims. It may thus be difficult to
      accept that the appellant had any intention to kill Smt. Anita or Khushal
      Singh.
            13. Equally unfounded is the defence plea taken by the appellant
      that he was only holding the licenced gun and a ball thrown by the
      1
H         (2014) 12 SCC 434
       BHAGWAN SINGH v. STATE OF UTTARAKHAND                                  963


children who were playing with it, struck the gun causing accidental          A
firing. The version of eye-witnesses completely belies such a defence
story. Otherwise also, it does not appeal to common sense that a ball
would strike the gun in appellant’s hand resulting in an undesigned firing.
Unless the safety lock of the gun was moved forward, the gun wouldn’t
go off automatically even if its butt was hit by a play-ball. Appellant’s
                                                                              B
attempt to shelter behind Section 304-A, IPC is thus an exercise in
futility and is liable to be rejected.
       14. In this backdrop, the short question which falls for
consideration is whether the appellant’s act of causing death of
Smt. Anita and Khushal Singh tantamounts to offence of ‘murder’ as
                                                                              C
held by the trial court and the High Court or any lesser offence as urged
by Shri Siddharth Luthra, learned senior counsel for the appellant.
Sections 299 as well as 300, IPC provide for situations in which death
is caused by an act with the intention of causing death or such bodily
injury which the offender knows is likely to cause death. Both Sections
299 and 300 deal with instances in which death is caused by an act            D
with the intention of causing such bodily injury as the offender knows
to be likely to cause death of the person to whom injury is inflicted.
These provisions also deal with cases where there is no intention of
either causing death or a bodily injury which is ordinarily sufficient to
cause death. The absence of intention to cause death or bodily injury
                                                                              E
which is in the ordinary course of nature likely to cause death is,
therefore, not conclusive. What is required to be seen is whether the
act is one where the offender must be deemed to have had the
knowledge that he was likely, by such act, to cause death.
      15. The trial court as well as the High Court have proceeded on
                                                                              F
the premise that the appellant’s act by firing from the gun which was
pointed towards the roof, was as bad as firing into a crowd of persons
so he ought to have known that his act of gun-shot firing was so
imminently dangerous that it would, in all probability, cause death or
such bodily injury as was likely to cause death.
                                                                              G
       16. The facts and circumstances of the instant case, however,
do not permit to draw such a conclusion. We have already rejected
the prosecution version to the extent that the appellant aimed at Smt.
Anita and then fired the shot(s). The evidence on record contrarily
shows that the appellant aimed the gun towards the roof and then fired.
It was an unfortunate case of mis-firing. The appellant of course cannot      H
964            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     absolve himself of the conclusion that he carried a loaded gun at a
      crowded place where his own guests had gathered to attend the
      marriage ceremony. He did not take any reasonable safety measure
      like to fire the shot in the air or towards the sky, rather he invited full
      risk and aimed the gun towards the roof and fired the shot. He was
      expected to know that pellets could cause multiple gun-shot injuries to
B
      the nearby persons even if a single shot was fired. The appellant is,
      thus, guilty of an act, the likely consequences of which including causing
      fatal injuries to the persons being in a close circuit, are attributable to
      him. The offence committed by the appellant, thus, would amount to
      ‘culpable homicide’ within the meaning of Section 299, though punishable
C     under Section 304 Part 2 of the IPC.
             17. Incidents of celebratory firing are regretfully rising, for they
      are seen as a status symbol. A gun licensed for self-protection or safety
      and security of crops and cattle cannot be fired in celebratory events,
      it being a potential cause of fatal accidents. Such like misuse of fire
D     arms convert a happy event to a pall of gloom. Appellant cannot escape
      the consequences of carrying the gun with live cartridges with the
      knowledge that firing at a marriage ceremony with people present there
      was imminently dangerous and was likely to cause death.
           18. A somewhat, similar situation arose in Kunwar Pal (Supra)
E     wherein this Court held as under:
            “12. We find that the intention of the appellant to kill the
            deceased, if any, has not been proved beyond a reasonable
            doubt and in any case the appellant is entitled to the benefit
            of doubt which is prominent in this case. It is not possible
            therefore to sustain the sentence under Section 304 Part I
F           IPC, which requires that the act by which death is caused,
            must be done with the intention of causing death or with the
            intention of causing such bodily injury as is likely to cause
            death. Though it is not possible to attribute intention it is
            equally not possible to hold that the act was done without
G           the knowledge that it is likely to cause death. Everybody, who
            carries a gun with live cartridges and even others know that
            firing a gun and that too in the presence of several people
            is an act, is likely to cause death, as indeed it did. Guns must
            be carried with a sense of responsibility and caution and are
            not meant to be used in such places like marriage
H           ceremonies.”
         BHAGWAN SINGH v. STATE OF UTTARAKHAND                                 965


       19. Resultantly, we hold that the appellant had the requisite           A
knowledge essential for constituting the offence of ‘culpable homicide’
under Section 299 and punishable under Section 304 Part-2 of IPC.
He is thus held guilty under Section 304 Part-2 and not under Section
302 of IPC. On the same analogy, the appellant is liable to be punished
for ‘attempt to commit culpable homicide’ not amounting to murder
                                                                               B
under Section 308, in place of Section 307 of IPC for the injuries caused
to the other three victims. To this extent, the appellant’s contentions
merit acceptance.
        Conclusion:
       20. For the above-stated reasons, the appeal is allowed in part.        C
The conviction of the appellant under Section 302, IPC is modified to
Section 304 Part-2, IPC and that under Section 307, IPC is altered to
Section 308, IPC. As a necessary corollary, the sentence of life
imprisonment awarded to the appellant for committing the offence under
Section 302 IPC, is reduced to 10 years’ rigorous imprisonment and
the sentence awarded to him under Section 307, IPC is substituted with         D
Section 308 IPC, without any alteration in the fine imposed by the trial
court.


Nidhi Jain                                            Appeal partly allowed.
                                                                               E




                                                                               F




                                                                               G




                                                                               H