SUKHDEV SINGHversusDELHI STATE (GOVT. OF NCT OF DELHI)

A                          SUKHDEV SINGH
                                 v.
                 DELHI STATE (GOVT. OF NCT OF DELHI)

                              SEPTEMBER 1, 2003

B            [D0RAISWAMY RAJU AND ARIJIT PASA YAT, JJ.]

         Perla! Code, 1860.

       Sections 300,304 and BO-Accused shooting deceased with pistol in
  the course of sudden quarrel-On facts, held, no case ofgrave and sudden
C provocation made out-Exception 4 to Section 300 held applicable instead
  ofException I-Section 80 not applicable--Conviction altered to one under
  Section 304 Part II instead of under Section 304 Part I.

         Practice & Procedure-Appellant contending that High Court failed
    to consider plea-High Court Judgment noting that on other argument
D   advanced-Scope ofinterference-Held, Supreme Court cannot accept plea
    about non-consideration.

         Words & Phrases-"Accident"-Meaning of                                      L

         Accused-appellant was attached to PW-3 as Personal Security
E Officer. Prosecution alleged that one 'G' parked his vehicle opposite
    the gate of office of PW-3 which was objected to by the accused. There
    was an altercation followed by scuffle between the accused and 'G'. The
    accused boarded the vehicle and asked 'G' to take vehicle to Police
    Station and on the way again scuffle.took place between them. During
    the course of scuffle the accused took out his pistol and fired at 'G' in
F   which 'G' was killed and a passer-by injured. Defence of the accused
    was that the deceased, his companion and other drivers assaulted him
    and snatched his pistol and when he grappled with them to recover
    pistol, it went off. Trial court convicted the accused of offences punishable
    under Sections 302 and 307 of Indian Penal Code, 1860. In appeal, High
    Court held that Exception I to Section 300 was applicable and altered
G   conviction from Section 302 to Section 304 Part I IPC and from Section
    307 to Section 308 IPC and reduced sentence. Aggrieved by the judgment
    of High Court, the accused has filed the appeal.
           Appellant contended that the High Court failed to consider that
    Section 80 IPC was applicable; and that prosecution version was not
H   established by any witness examined on record.
                                     224
     SUKHDEV SINGH v. DELHI STATE (GOVT. OF NCT OF DELHI) 225

     Partly allowing the appeal, the Court                                      A
     HELD: 1.1. The High Court has rightly contended that the accused
- appellant was the assailant. But the High Court was not justified in
holding that Exception 1 to Section 300 of the IPC was applicable. The
said exception deals with homicide committed in the heat of passion or
by way of sudden provocation. The test of grave and sudden provocation          B
is whether a reasonable man belonging to the same class of society as
the accused, placed in the situation in which the accused was placed
would be so provocated as to Jose self-control. In this case the gunshots
cannot be said to be the result of grave and sudden provocation.
                                                        (230-F, G, 231-BI

     Philips v. R, (1969) AC 100 (Privy Council), referred to.
                                                                                c
       1.2. In the instant case, in course of sudden quarrel, the offender
fired the shots. The case is covered by Exception 4 to Section 300 IPC.
Four requirements are to be satisfied to bring in application of Exception
4. These are: (i) It was a sudden fight; (ii) There was no premeditation;       D
(iii) The act was in a heat of passion; and (iv) The assailant had not
taken any undue advantage or acted in a cruel manner. The cause of
quarrel is not relevant nor is it relevant who offered the provocation or
started the fight. (231-E, B-D)

     2.1. As regards appellants plea of accident covered under Section          E
80 IPC, the only point which appears to have been urged before the
High Court is the non-applicability of Section 302, and applicability of
Section 304 Indian Penal Code, 1860. In the High Court's judgment it
was clearly noted that no other argument was advanced. It is not for
this Court to accept the plea about non-consideration.
                                                  (228-C, H, 229-A, Bl          F
      2.2. Even otherwise, Section 80 IPC has no application to the facts
of the case. Section 80 exempts the doer of an innocent or lawful act in
an innocent and lawful manner from any unforeseen result that may
ensue from accident or misfortune. If either of these elements is wanting
the act will not be excused on the ground of accident. An accident is not       G
the same as an occurrence, but something that happens out of the
normal or ordinary course of things. An effect is said to be accidental
when the act is not done with the intention of causing it, and its occurrence
as a consequence of such act is not rn probable that a person of ordinary
prudence ought, under the circumstances in which it is done, to take
reasonable precautions against it. The idea of something fortuitous and         H
    226                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A unexpected is involved in the word "accident". In the instant case the
    accused deliberately used the gun during the scuffle as is evident from
    the evidence of PW-3, an independent witness. The appellant specifically
    told him that as the deceased tried to snatch the pistol, he fired at him.
    The evidence of PW-3 clearly shows that the accused-appellant had not
B   told him that the bullet went off on in the process of struggle and
    snatching. 1229-C-F, 230-D, E)

          Atmendra v. State ofKarnataka, 11998) 4 SCC 256 and K.M Nanavati
    v. State of Maharashtra, AIR (1962) SC 605, relied on.

C         Hamilton Frazor & Co. v. Pandorf. (1887) 12 App. Cases 518,
    referred to.

         3. The conviction is altered to one under Section 304 Part II instead
    of under Section 304 Part l IPC. 1231-FI

D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    54 of 2003.

        From the Judgment and Order dated 24.4.2002 of the Delhi High
    Court in Crl. A. No. 473 of 1999.

E         Ms. Rachana Joshi Issar for the Appellant.

          Ms. Kiran Bharadwaj and Ms. Anil Katyar for the Respondent.

          The Judgement of the Court was delivered by

F       ARIJIT PASAYAT, J. : Appellant faced trial for alleged commission
  of offem.~ punishable under Sections 302 and 307 of the Indian Penal
  Code, 1860 (for short '!PC'). Learned Additional Sessions Judge, Delhi
  found him guilty of the aforesaid offences and sentenced him to undergo
  imprisonment for life and fine of Rs. 300, and for two years imprisonment
G and a fine of Rs. 200 respectively for the aforesaid offences. The matter
  was carried in appeal before the Delhi High Court. By the impugned
  judgment the High Court held that the case was not one covered by Section
  302 !PC, but Section 304 Part-I !PC was attracted. Similarly, instead of
  Section 307 it was held that SectioQ. 308 !PC was appropriate. Sentences
H of I 0 years and 2 years respectively' were awarded.
      SUKHDEV SINGH v. DELHI STATE(GOVT. OF NCT OF DELHI) [PASAYAT, J.]   227

     Prosecution version as unfolded during trial is as follows:                A

      Appellant was attached to Mangat Ram, a Municipal Councillor and
Chairman, Works Committee of the municipality as a Personal Security
Officer. On 14.6.1989 there was an altercation followed by scuffle between
the accused-appellant and one Devender Singh (hereinafter referred to as        B
'the deceased'). On the date of occurrence, deceased had parked his three-
wheeler scooter opposite the gate of Mangat Ram's office. He opened lid
of the engine. This was objected to by the accused-appellant who asked
him to take away the vehicle. The deceased ignored the objection which
led to further altercations. Accused-appellant threatened the deceased that     C
he would take the vehicle to the police station. Thereupon, the deceased
retorted that he would see as to what the accused-appellant could do. On
hearing this accused-appellant boarded the scooter, and asked the deceased
to take the scooter to the police station at Adarsh Nagar. The deceased
did not take the correct route and tried to proceed in a wrong direction.       D
Accused-appellant asked him to stop and again a scuffle took place.
During the course of scuffle, accused-appellant took out his pistol and fired
at the deceased. The bullet missed the target, and instead hit the thigh of
one Vijay Kumar (PW 7) who was standing nearby. The accused-appellant
fired again and the bullet hit the deceased and he collapsed. The deceased      E
and Vijay Kumar were taken to Hindu Rao Hospital. The deceased was
declared to be dead, but doctor examined Vijay Kumar (PW 7) and he was
admitted to the hospital. On the basis of information lodged, investigation
was undertaken and charge sheet was placed. Accused claimed trial. His
defence was that besides the deceased there was another person and when
he asked them to remove the vehicle for security reasons, the deceased and      F
his companion picked up quarrel with the accused-appellant and dragged
him about 20 feet. Thereafter three or four drivers joined the deceased and
his companion. They assaulted him and his shirt was torn. They snatched
away his pistol, and he grappled with them to recover his pistol. In this
process the pistol went off. He told the incident to Mangat Ram (PW-3).         G
The Trial Court held that the case would not fall within the Exceptions I,
2 and 4 of Section 300 !PC and it was clearly covered under Section 302.

     In appeal, the High Court came to the following conclusions (as noted
in Para 18 of the judgment)                                                     H
    228                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A                 "The conclusions are obvious (a) the appellant had no enmity
             with the three wheeler scooter driver (b) there was an altercation
             and (c) it was followed by a scuffle between the two ... "

          Therefore, Exception I to Section 300 !PC was held to be applicable.
    Accordingly the conviction was altered and so also the sentence. The
B   appellant as noted supra was directed to undergo sentence of I 0 years under
    Section 304 Part-I !PC and 2 years sentence under Section 308 !PC with
    a fine of Rs. 200 for each count.

          Said judgment is impugned in this apreal. In support of the appeal,
C learned counsel for the accused-appellant submitted that the High Court
    has not considered the case in its proper perspective. It did not consider
    the plea of the accused-appellant that this was a case of accident covered
    under Section 80 !PC. The prosecution version was not established by any
    witness examined and on the contrary version given by the accused-
D   appellant was more than probable and materials on record accord with the
    defence version. Great emphasis was laid on the evidence of the Principal
    Scientific Officer ((PW 27) who stated that weapon used by the accused-
    appellant was semi-automatic; when trigger is pressed, the bullet is fired
    and the pistol is automatically reloaded; the possibility of the pistol being
    pressed unintentionally second time during the course of a scuffle cannot
E   be ruled out. With reference to this evidence, it was submitted that the
    defence version is probabilised. Reference was also made to the evidence
    of PW 8 who was posted in PCR as Constable. She was informed by some
    unknown person on telephone regarding shooting by 3 persons at Shastri
    Market, Azadpur, Delhi. With reference to this evidence, leaned counsel
F   submitted that 3 persons were involved in the scuffle and, therefore, the
    version of ti1~ accused-appellant that the deceased had snatched away the
    pistol is established.

        Per contra learned counsel for the State submitted that the High
    Court's judgment is in order and needs no interference.
G
          When it was pointed out to Learned Counsel for the appellant that
    the only point which appears to have been urged before the High Court
    is the non-applicability of Section 302, and applicability of Section 304
    !PC, learned counsel for the appellant submitted that in the grounds of
H   appeal other pleas were also taken. When it was pointed out that in
      SUKHDEV SINGH v. DELHI STATE (GOVT. OF NCT OF DELHl)[PASAYAT,J.]   229

paragraph 22 of the High Court's judgment it was clearly noted that no         A
other argument was advanced, she gave an evasive reply and submitted that
the High Court has not correctly reflected the arguments. To say the least
this argument does not appeal to us an(} on the contrary surprise us. If in
reality the High Court had failed to consider the argument or any other plea
or wrongly recorded that no other plea was urged the course to be adopted      B
is well known. It is not for this Court to accept the plea about non-
consideration.

     Even otherwise, Section 80 !PC has no application to the fact of the
case. The said provision reads as follows:

         "80. Accident in doing a lawful act. - Nothing is an offence which
                                                                               c
         is done by accident or misfortune, and without any criminal
         intention or knowledge in the doing of a lawful act in a lawful
         manner by lawful means and with proper care and caution."

      The section exempts the doer of an innocent or lawful act in an          D
innocent and lawful manner from any unforeseen result that may ensue
from accident or misfortune. If either of these elements is wanting the act
will not be excused on the ground of accident. An accident is not the same
as an occurrence, but something that happens out of the normal or ordinary
course of things. An effect is said to be accidental when the act is not       E
done with the intention of causing it, and its occurrence as a consequence
of such act is not so probable that a person of ordinary prudence ought,
under the circumstances in which it is done to take reasonable precautions
against it. The idea of something fortuitous and unexpected is involved in
the word "accident". [Per Lord Halsbury LC in Hamilton Frazor & Co.
v. Pandorf & Co., (1887) 12 App. Cases 518].                                   F
      As was observed by this Court in Atmendra v. State of Karnataka,
[1998] 4 SCC 256, to claim the benefit of the provisions of Section 80,
it has to be shown (1) that the act in question was without any criminal
intention or knowledge; (2) that the act was being done in lawful manner       G
and by lawful means; (3) that the act was being done with proper care and
caution. In the said case it was observed that the evidence established that
the accused unintentionally fired the gun and, therefore, the question of
applying Section 80 did not arise.

     In K.M Nanavativ. State ofMaharashtra, AIR (1962) SC 605, it was          H
    230                   SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A observed that Section 80 exempts the doer of an innocent or lawful act,
    in an innocent or lawful manner and proper care and caution from any
    unforeseen evil result that may ensue from accident or misfortune. When
    an accused pleads an exception within the meaning of Section 80 there is
    a presumption against him and the burden to rebut the presumption lies
B on him.
        The factual position shows that the accused deliberately used the gun,
  of course during the scuffle. The evidence of PW 3 Mangat Ram is very
  significant. He is an independent witness and the accused-appellant was
  posted as his Personal Security Officer. Immediately after the occurrence,
C the accused-appellant told him (as deposed by PW 3 in Court) about the
  incident and did not tell him that the deceased snatched away the pistol,
  or that he was accompanied by 3-4 persons who were scooter drivers. He
  specifically told him that as the deceased tried to snatch the pistol, he fired
  at him. But he did not tell him as to how many shots he had fired. Even
  if PW 7 injured resiled from his statement made during investigation there
D was no departure from the statement made that the person who fired the
  shot was the accused-appellant. The hypothetical answer given by PW 27
  that the possibility about trigger being pressed unintentionally second time
  during the course of scuffle cannot be ruled out, does not in any manner
  help the accused-appellant despite the factual position in this case indicating
E use of the gun by the appellant. This was just a hypothetical answer to
  a hypothetical question. On the contrary, the evidence of PW 3 Mangat
  Ram clearly shows that Sukhdev Singh had not told him that the bullet went
  off in the process of struggle and snatching. That being the position, the
  inevitable conclusion as rightly held by the High Court, is that the accused-
F appellant is the assailant. The only other question is about the applicability
  of an exception to Section 300. In our view, the High Court was not
  justified in holding that Exception I to Section 300 of the !PC was
  applicable. The said exception deals with homicide committed in the heat
  of passion or way of sudden provocation. The test of grave and sudden
  provocation is whether a reasonable man belonging to the same class of
G society as the accused, placed in the situation in which the accused was
  placed would be so provocated as to loose self-control.

          In determining the question of provocation the objective test as was
    applied by the Privy Council in Philips v. R, (! 969) AC 100 must be
    applied. The two questions which require affirmative answers are as
H   follows:
      SUKHDEV SINGH v. DELHI STAlE(GOVT. OF NCTOFDELID) [PASAYAT, J.]     231

         (1)   Would the reasonable man have lost his self-control, and          A
         (2)   would he then have retaliated as the offender did?

     In the present case the gunshots cannot be said to be the result of grave
and sudden provocation.
                                                                                 B
     On the contrary this appears to be a case as noted above covered by
Exception 4 to Section 300. Four requirements are to be satisfied to bring
in application of Exception 4. They are as follows:

         (1)   It was a sudden fight;
                                                                                 c
         (2)   There was no premeditation;

         (3)   The act was in a heat of passion; and

         (4)   The assailant had not taken any undue advantage or acted          D
               in a cruel manner.

     The cause of quarrel is not relevant nor is it relevant who offered the
provocation or started the fight.

      The factual scenario as presented by the prosecution and the conclusions   E
of the High Court, noted supra go to show that in course of sudden quarrel,
the offender fired the shots.

     Therefore, though the High Court was justified in holding that Section
302 was not applicable, it was not correct in holding that Exception I           F
applied. In fact, Exception 4 to Section 300 applied. We, therefore, alter
the conviction by Section 304 Part II instead of Section 304 Part I, as was
held by the High Court. Custodial sentence of 8 years would suffice. So
far Section 308 IPC is concerned, we do not find any infirmity in the
conclusions of the High Court to warrant interference.                           G
     The appeal is partly allowed to the extent indicated.

A.K.T.                                               Appeal partly allowed.