IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.70 of 2003. Date of Decision: 19th May, 2010. _______________________________________________________ Tilak Chand ….Petitioner. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner: Pt. Om Parkash, Advocate. For the respondent : Mr. Anshul Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). This revision petition has been directed by the petitioner against the judgment of learned Sessions Judge, passed in Criminal Appeal No.2-B/X of 2001, decided on 24th February, 2003, whereby the conviction and sentence, by the learned trial Court under Section 304A of the Indian Penal Code, sentencing him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- was awarded. 2. In short, the prosecution case can be stated thus. During intervening night of 6th/7th October, 1995, convict/ petitioner and his brother were guarding the maize crop from Whether reporters of the Local papers are allowed to see the judgment? - 2 - wild bear, who destroyed their crop earlier. At about 4.00 a.m. there was some disturbance in the field. The petitioner mistook it to be a wild animal and fired a shot from his gun. It hit Ghungri Devi wife of PW-2 Bushahri Ram, which killed her on the spot. Realizing the mistake, petitioner went to the house of deceased and informed her husband Bushahri Ram. Someone apprised PW-1 Bhawani Singh, President of the Gram Panchayat. He reported the matter to the police which culminated into FIR. 3. Police reached the spot, prepared the site plan, photographs of the dead body were also taken and sent the dead body for its autopsy and also took into possession the gun of the petitioner which was sealed and sent for the opinion of the expert. 4. PW-11 Dr. Baldev Kumar, Medical Officer posted in Sub Divisional Hospital, Palampur conducted the postmortem of the dead body and issued report Ext.PW-11/A and also X-rayed the injuries. He confirmed the fact that the deceased had died by the gun-shot injuries. 5. The gun in question was Single Barrel Machine Loading (SBML), it was examined in the Central Forensic Science Laboratory, Chandigarh. As per their report, gun was found in working order and fired through. 6. After completing Challan, it was presented in the trial Court for trial of the petitioner. He was accordingly - 3 - charge-sheeted for the offences under Sections 286, 304A and 336 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 7. At the end of trial, petitioner was acquitted for the other offences, but convicted under Section 304A of the Indian Penal Code and sentenced as aforesaid, which was maintained in appeal by the learned Sessions Judge. 8. Pt. Om Parkash, learned Counsel for the petitioner forcefully argued that the Courts below have erred in holding the guilt of the petitioner on the basis of alleged extra judicial confession and also the fact that the gun in question owned by the petitioner is not connected with the gun-shot injuries of the deceased. According to him, the petitioner at the relevant time was protecting his crop and there was no reason to believe that any human being would disturb or destroy the crop in the wee hours of the morning. It was neither a case of rash act nor negligence act attributed to the petitioner. Further, when the gun shot injuries were received by the deceased, he immediately informed the husband of the deceased. Therefore, no criminal act can be attributed to him. 9. Contra, Shri Anshul Bansal, learned Additional Advocate General, while relying upon the judgments of conviction and sentence passed by the learned Courts below, vehemently argued that extra judicial confession - 4 - coupled with the fact that the act of the petitioner was overhasty and without taking any due care and caution he had opened a fire which itself is an act of negligence falling within the ambit of Section 304A of the Indian Penal Code. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record in order to find out the legality, propriety and correctness of the judgments passed by the Courts below. 11. Section 304A of the Indian Penal Code deals with homicide by negligence. It carves out a specific offence where death is caused by doing a rash or negligent act, does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. In other words, Section 304A excludes all the ingredients of Section 299 and Section 300 of the Penal Code. Where intention or knowledge is the motivating force of the act complained of Section 304A will have to make a room for the graver and more serious charge of culpable homicide. Thus, the case has to be examined very cautiously in the light of peculiar facts and circumstances attending upon it. 12. The prosecution must prove (i) death of the person in question, (ii) that the accused caused such death and (iii) for such act of the accused was rash or negligent, although it did not amount to culpable homicide. - 5 - 13. In the instant case, death of Smt. Ghungri Devi wife of Bushahri Ram, with gun shot injuries stands proved. It also stands proved on record that the SBML gun of the petitioner was fired through. In so far as the third ingredients of offence is concerned, according to PW-13 Jahlu Ram, the petitioner told him that he was guarding maize crop from bear as earlier it was destroyed by the wild animal and by mistake taking Ghungri Devi to be a wild animal, fired a gun shot on hearing the sound of plucking the maize from its plant. PW-2 Bushahri Ram although stated that the petitioner had admitted in these words that “MERE SE GHUNGRI DEVI PER FIRE HO GAYA HAI”, meaning thereby that gun shot fire on Ghungri Devi was by mistake. 14. Where the person believed in good faith the object of his assault was not a human being, but a wild animal, caused fatal injuries on the other which resulted into later. Against the aforesaid background Section 79 of the Indian Penal Code will come into play for the act done by a person justified by mistake of fact, which exonerates the offender from the rigour of Section 304A of the Indian Penal Code. 15. Further, there is nothing on record to show that in the wee hours of the morning villagers or for that matter any human being would have entered into the fields in the manner deceased had entered. In my opinion, such act of - 6 - the petitioner can neither be called as an overhasty act nor reckless or different to consequences which have ensued under the mistaken facts as aforesaid. 16. Thus, criminal negligence cannot be attributed to the petitioner against the above factual background. Therefore, after considering the legality of the impugned judgment passed by the learned trial Court and also the standard of evidence, which does not meet the requirement of offence charged, petitioner could not have been convicted and sentenced by the Courts below as aforesaid. Thus, the impugned judgment of conviction and sentence passed by the learned trial Court and affirmed in Criminal Appeal No.2-B/X of 2001 by the learned Sessions Judge on 24th February, 2003, both are quashed and set aside. Consequently, the petitioner is acquitted and the criminal revision petition stands allowed. 17. In case, the fine amount is deposited by the petitioner, the same be returned to him. The petitioner is discharged from the bail bonds entered upon by him at any time during the proceedings of this case. 18. The matter stands disposed of. May 19, 2010. (Surinder Singh), J. (rc)