Holding

The appellant’s indiscriminate firing constitutes culpable rashness under Section 304A of the Indian Penal Code, not murder under Section 302.

Summary

Balwant Singh, a police constable, fired his service rifle during a clash with villagers who were assaulting police officers. He fired two shots in the air to scare the assailants, but two by‑standers (Karnail Singh and Pahalwan Ram) were struck and died. The trial court acquitted him, the High Court convicted him of murder under Section 302 IPC and sentenced him to life imprisonment. On appeal, the Supreme Court held that Singh had no intention to kill nor knowledge that his shots would hit anyone, but his indiscriminate firing was a rash and negligent act. Consequently, the conviction under Section 302 was set aside and he was convicted under Section 304A IPC, attracting a sentence of two years’ rigorous imprisonment.

Issues considered

Whether the appellant's act amounts to culpable homicide (Section 302 IPC) or to rash/negligent homicide (Section 304A IPC).
Whether the firing was intentional, accidental or done in self‑defence, and if the right of private defence applies against innocent by‑standers.
Whether the appellant can be held liable for murder despite claiming the rifle discharged accidentally while firing in the air.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 370
Criminal Appellate Jurisdiction Act, 1970
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304A, s. 311

Subjects

Indian Penal CodeSection 304Aculpable rashnesspolice firingaccidental deathmurderprivate defencecriminal negligencehomicide

Judgment

BALWANT SINGH A
) v.
STATE OF PUNJAB AND ANR.

FEBRUARY 18, 1994

{K JAYACHANDRA REDDY AND G.N. RAY, JJ.) B

Indian Penal Code, !~Section 304A-l'olice pally on d11ty-Clash-
Constable firing without any aim to scare away people includi11g attack-
e~Shots hitting by-standers-Death-Nature of offence-Held guilty of of-
fence under Sectio11 304-A and 11ot under ~ctio11 2® or 300. C
'Rash Act'-W/1at is.

The appellant, A-2, a Police Constable, was .tried under Section 302
1.P.C. and alongwith him two other Constables A·l and A·3, were also tried
under Sections 302(34 I.P.C. on the basis of a.Complaint filed by P.W.S, D
brother of one of the deceased. The complainant's case was that on 13.9.93
at 9 P.M. he heard the alarm of lleceased No.1 and 2 from the side of a
nearby Dour mill of his house. On going to the scene of occurrence he saw
that A·l and A-3, who were beating PW-11, instigated the appellant to
shoot the deceased saying that they had come to help PW-11. Immediately E
thereafter the appellant fired two shots from his service riOe, first of which
hit cleCeased No.1 and the second hit deceased No.2 resulting in their
death. The third shot fired by the appellant did not hit anyone. In the
meantime PW-10 reached the spot and when PW·S and PW·lO tried to
overpower the appellant, A·3 attacked them with a danda and in self·
defence PWs 5, 10 and 11 lnOicted Injuries on the accused with sotas. The F
appellant also received Injuries at the hands or the complainant.

- The version of the accused was that they went to the place of
octurrence in connection with law and order problem and they bad also
to serve a challan on PW·ll and bis brother They met PW·ll, near the
Dour mill, who was armed with Gandasa. An altercation took place between G
them and in the meantime brother of PW-11 also came there armed with
Gandasa and assaulted A-3, while PW-11 assaulted A·l. Thereafter the
appellant fired a shot in the air in order to scare them away but when they
did not stop assaulting be fired another shot In the air and then brother
or PW-11 gave a blow on appellant's bead while PW·ll grappled with him. H
9
10 SUPREME COURT REPORTS [1994) 2 S.C.R.

A In that process a shot went ofl' from the rlOe which bit two persons who
were coming tOWQrds the place of occurrence in line one behind the other. (

The Trial Court acquitted all the three accused. On appeal the High
Court confirmed the acquittal of A·l and A·3 but set aside the order of
acquittal of the appellant and convicted him under Section 302 and sen·
tenced him to undergo imprisonment for life holding that (i) there was no
probability of accidental firing; (ii) both tht; by-standers-deceased were hit
by two separate shots and; (iii) the right of private defence was not
r
available to the appellant as against innocent by-standers.

C In appeals to this Court it was contended on-behalf of the appellant
that under the circumstances the appellant was only discharging his duty
and he cannot be held guilty of any offence or at the most he was punish·
able under Section 304·A I.P.C. On behalf of the complainant it was
contended that the appellant must atleast be attributed knowledge that the
act committed by him was imminently dangerous; therefore, the offence
D committed by him was punishable under Section 302 I.P.C.

Allowing the appeals in part, this Court

HELD : 1. The appellant had no cause to intentionally shoot at the
E deceased persons. As found by the High Court the appellant started firing
indiscriminately only after the clash took place between PW-11 and .the
A·l. The accused Including the appellant were also attacked by PW-11 and
his brother and they received Injuries at their hands. If, in such a situation,
the appellant as ordered by A·l fired it cannot be said that he intentionally
did so nor he could be attributed definite knowledge that be was likely to
F shoot some by-standers. In such a situation any of the clauses of Section
2119 or300 I.P.C. Is not clearly attracted. (15-G, 17-A·B·CJ

2. The provisions of Section 304·A apply to cases where there Is no
intention to cause death and no knowledge that the act done in all prob·
G abilities will cause death. Therefore, this provision is directed at offences
outside the range of Sections 2119 and 300 I.P.C. 11nd ob•iously con·
templates those cases into which neither intention nor knowledge enters.
The words 'not amounting to culpable homicide' in the Section are very
significant and it must therefore be understood that intentionally or
knowingly lnOlcted violence directly and wilfully caused is excluded. The
H Section applied only to such acts which are rash or negligent and are
BALWANTSINGH v. STATEOFPB. 11

directly the cause of death of another person. [17-D-E] A
2.1. A rash act is primarily an over hasty act as opposed to a
deliberate act but done without due care and caution. (17-F)

3. The appellant did not aim at the two deceased persons who were
away. It was night time and it cannot definitely be. said that the appellant B
could have seen them. In fact PW-11 and his brother who started assault-
ing A-1 and the appellant were not hit by the shots fired by the appellant.
That Itself ·shows that the appellant fired his rifle without any aim and
obviously to scare away the people including PW-11 and his brother and
he did so as directed by A-1 who was in command of the police party. C
However, even in such a situation, he had to act in a prudent manner. But
when he acted in such a haste, rashly and without circumspection and due
care and caution with regard to the safety of other lnno,ent people, then
the only inference is that his rash act amounted to culpable rashness
attracting the provisions of Section 304-A IPC. [18-H, 19-A·B)
D
Sadl:u Singh Hamam Singh v. State of Pepsu, A.I.R. (1954) S.C. 727;
Mrs. Meera Puri v. State of Nagaland, 1971 Crl. LJ. 539; In Nga San Win,
A.I.R. (1933) Rangoon 326 and Emperor v. Morgan and Anr., (1909) 9 Crl.
W. 393, referred to.
E
3.1. The conviction of the appellant under Section 302 IPC and
sentence of imprslonment for life awarded thereunder are set aside. In-
stead be is convicted under Section 304-A IPC, and is sentenced to undergo
two years' rigorous imprisonment. (19-C]

- CRIMINAL APPELLATE JURISDICTION
Nos. 8 and 9 of 1984.
Criminal Appeal F

From the Judgment and Order dated 12.10.83 of the Punjab &
Haryana High Court in Cr!. A. Nos. 664-DBA & 356-DBA of 1981.
G
M.S. Gujral, Ms. Mana Chakraborty and R.K. Mehta for the Appel-
!ant.

Ranbir Yadav, R.S. Suri and P.N. Puri for the Respondents.

The Judgment of the Court was delivered by H
12 SUPREME COURT REPORTS (1994] 2 S.C.R.

A K. JAYACHANDRA REDDY, J. The appellant Balwant Singh, Police
Constable No. 822, Police Lines, Ferozepur (original accused no.2) was
,
tried for offence punishable under Section 302 I.P.C. and alongwith him
two other Constables (original accused nos. 1 and 3) were also tried for
offence punishable under Sections 302134 I.P.C. on the basis of a complaint
B filed by Sohawa Ram, P.W. 5, brother of Pahalwan Ram, one of the
deceased in the case. The police, however, challanged the appellant under
Section 304-A l.P.C.. The trial court acquitled all of them. The State of
Punjab as well as the complainant filed two separate appeals in the High r

Court against the order of acquittal. The High Court by a common judg-
ment in the two appeals set aside the order of acquittal of the appellant
C and co~victed him under Section 302 I.P.C. and sentenced him to undergo
imprisonment for life. The acquittal of the other two accused was con-
firmed. Hence the present appelas under Section 2 of the Supreme Court
(Enlargment of Criminal Appellate Jurisdiction) Act, 1970 re.id with Sec-
tion 370 Cr. P.C.
D
The complainant'~ case is as follows :

On 13.9.83 at about 9 P.M. Sohawa Ram, P.W.5 was ptesent in his
house in Village Sajhrana. He heard an alarm from the side of a nearby
flour mill and he went towards that side and found that Pahalwan Ram
E (deceased No. 1) and Karnail Singh (deceased no. 2) were running towards
the flour mill raising alarm of 'Na Maro, Na Maro'. At that. time Head
Constable Sat Pal, A-1 and Constable Nirmal Singh, A-3 were beating
Bhagwan Singh, P.W.11 in front of the flour mill. Then, according to the
complainant, both of them instigated the appellant Balwant Singh to shoot
F the deceased saying that they had come to help P.W.11. The appellant
immediately fired two shots from his service rifle. The first shot hit
deceased no. 1 and the second shot hit deceased no. 2 Both of them fell
down and died. It is alleged that the appellant fired another shot bul it did
not hit anyone. P.W.10 Mehtab Singh and Bhagwan Ram, a member of the
I
G Panchayat also reached the spot and witnessed the occurrem.e and when
P.Ws. 5 and 10 tried to over-power the appellant, Nirmal Singh, A-3
attacked them with a danda and in self-defence P.Ws. 5 and 10 and
Bhagwan Ram inflicted injuries on the accused wi.th Solas. The appellant
also received injuries at the hands of the complainant party. P.W. 10
accompanied by the Sarpanch went to the Police Station and lodged a
H report before S.I. Jagir Singh, P.W.13, who registered the crime, went to
BALWANTSINGH v.STATEOFPB.[KJ.REDDY,J.] 13

the place of occurrence at 12.45 A.M. on the same night and found the A
dead bodies of deceased nos. 1 and 2. He also found the appellant having
injuries who gave a report against P. W.11 and his brother Fauja Singh. The
rifle of the appellant was seized. P.W.13 held the inquest and sent the dead
bodies for post-motem. He also recovered empty rounds from the spot and
seized them. The Doctor, P.W.l, who conducted the post-mortem on the B
two dead bodies found fire-arm injuries and he opined that both of them
died because of those injuries. P.W .• 2, another Doctor, examined the
appellant and found 10 injuries on him including an incised injury. On
Nirmal Singh, A-3 the same Doctor found 11 injuries. When examined
under Section 313 Cr.P.C. the accused denied the prosecutioe version and
gave their own version of the occurrence which is as under : C

"On the day of occurrence Nirmal Singh, H.C. Sat Pal and myself
left the police station under the instructions of S.H.O., who had
requisitioned our services, for patrolling Fazilka-Abohar Road as
there was agitation of farmer.s relating to short supply of diesel. In D
the evening, on our way back, we went to Village Sanjhrana as I
was to intimate Bhagwan Singh and his brother Fauja Singh against
presentation of challans against them in the court on the next day.
Santa Singh was also to be intimated about this fact. We first of
all went to the house of Santa Singh. After having our meals there
when we were going to the house of Bhagwan Singh and Fauja E
Singh, Bhagwan Singh and Balvinder Singh were seen standing
near the flour mill of Madan Lal. Bhagwan Singh was armed with
a ga11dasa at that time. H.C. Sat Pal asked Bbagwan Singh that he
should either accompany them to the police station or give some
surety for appearance in court on the following day as challan F
under the Excise Act was to be presented in Court against him
and bis brother Fauja Singh. Bhagwan Singh refused to accompany
to the police station and to give surety. He rather started quarrell-
ing with Sat Pal. We tried to apprehend him as a result of which
my turban as well as that of Nirmal Singh fell down on the ground. G
In the meantime, Fauja Singh, brother of Bhagwan Singh also came
there, armed with a gandasa. Fauja Singh gave a gandasa blow
from its reverse side on the head of Nirmal Singh. Bhagwan Singh
wielded his ga11dasa towards H.C. Sat Pal but he escaped the blow
by retracing his steps. I fired one round from my service rifle in
the air in order to scare them away but Bhagwan Singh and his H
14 SUPREME COURT REPORTS (1994] 2 S.C.R.
A companions did not stop assaulting us upon which I fired another
shot in the air. Fauja Singh them gave a ga11dasa blow from its
sharp side on my head. Bhagwan Singh then grappled with me. In
that process a shot went off from my rifle which hit tv:o persons who
were coming towards the place of occurrence in a line, one behind
the other. Later on, I came to know the names of those persons
B
as Karnail Singh and Pahalwan Ram. I again operated the bolt of
the rifle as a result of which the empty round also fell down. My
rifle was snatched by Bhagwan Singh and I was given more injuries
by Bhagwan Singh ·and his companion. In the meantime, Sarpanch
also came there. He rescued me from my assailants. Hp look me
to the house of Guranditta along with my rifle. The S.I. oame there
and I narrated the whole occurrence to him."

In defence they examined D.W.1, A.S.I. Mukhtiar Singh and D.W.2, Har-
nam Singh, Sarpanch, It can therefore be seen that there are two rival
D versions.

The version of the complainant party is given by P.Ws.5 and 11.
According to them three shots were fired by the appellan~ and the first
shot hit deceased no. 1, second shot hit deceased no. 2 and the third shot
did not hit anyone and the said shots were fired at the instigation of other
E two accused and that the appellant was apprehended on the spot and in
the scuffle he received injuries at their hands and that Nirmal Singh, A-3
fell down and received some injuries in the process. According to the
defence version H.C. Sat Pal, A-1, Constable Nirmal Singh, A-3 and the
appellant, A-2 left the police station under the instructions of the S.H.O.
F on the day of occurrence for patrolling as there was agitation of farmers
and they went to Village Sanjhrana to intimate P.W.11 and his brother
Fauja Singh regarding the presentation of challan against them in the court
on the next day and when the accused were going to their houses they saw
P.W.11 armed with a gandasa standing near the flour mill. H.C. Sat Pal
asked P.W.11 either to accompany them to the police station or to give
I
G some surety for appearance in the court on the following day. He refused
to accompany them or to give surety and when they tried to apprehend
him, the turbans of A-2 and A-3 fell on the ground. In 'the meantime, Fauja
Singh, brother of P.W.11 armed with a gandasa also arrived there. He gave
gandasa blow from its reverse side on the head of Nirmal Singh, A-3 and
H P.W.11 wielded his gandasa towards H.C. Sat Pal but he escaped. At that
BALWANTSINGH v. STATEOFPB.[KJ.REDDY,J.] L5

juncture the appellant fired one round from his service rifle in the air in A

- order to scare them away but P.W.11 and Fauja Singh did not stop
assaulting them upon which the appellant fired another shot in the air and
Fauja Singh gave a gandasa blow on the head of the appellant and P.W.11
grappled with them. In that process a shot went off from the rifle which
hit two persons who were coming towards the place of occurrence in a line
one behind LI c other. From these two rival versions it can be seen that the
B
place and time of occurrence are not in dispute and that the shots emnated
• from the rifle of the appellant resulted in the death of two persons. But
the question is which of the versions is true namely whether it was acciden-
tal as pleaded by the defence or whether the deaths were caused intention-
ally as alleged by the complainant ? c
The High Court ruled out the possibility of accidental firing as
alleged by the defence and also held that the right of private defence is not
available to the appellant as against innocent by- standers. The High Court,
in other words, accepted the defence version to the extent that the accused
received injuries at the hands of P.W. H and his brother Fauja Singh. One
D
• of the findings given by the High Court reads as under :

'It seems that some altercation took place between Bhagwan Singh
(P.W.11) and Head Constable Sat Pal responde.nt and thereafter
Balwant Singh respondent started firing indiscriminately at the E
by-standers also, which is not permissible under the law."

The High Court having examined the medical evidence also held that both
the deceased were hit by two separate shots fired by the appellant. We
agree with the High Court that the two deceased persons died as a result F
of two separate shots fired by the appellant and that the two deceased were
only by-standers. The actual quarrel and fight was \Jetween P.W.11 and
his brother Fauja Singh on one hand and H.C. Satpal as well as appellant
and Nirrnal Singh, A-3 on the other and the appellant had no cause to
intentionally shoot at the deceased persons. Jn. this context one other
finding given by the High Court is very significant which reads. as under : G

''Therefore, it is clear from the eviden~e on the record that Balwant
• Singh respondent had deliberately indulged in reckless firing there-
by causing the death of two innocent persons, namely Kamai! Singh
and Pahalwan Ram." H

•
16 SUPREME COURT REPORTS [1994) 2 S.C.R.

A Having given these fmdings the High Court, however, convicted the appel-
lant under Section 302 l.P.C. ,
Learned counsel for the appellant submits that under these cir-
cumstances the appellant was only discharging his duty and he can not be
B held guilty of any offence or at the most as challaned by the police he shall
be deemed to have committed only an offence punishable under Section
304-A I.P .C. The learned counsel appearing for the complainant, on the
other hand, contended that the accused had no right of self-defence and
having regard to the fact that two persons were killed, it can not be held
C to he a rash and negligent act on the part of the appellant. The learned
counsel for the complainant or for the State, however, did not contend that
the appellant intentionally caused the death of these two persons but added
that he must atleast be attributed knowledge that such an act committed
by him was imminently dangerous. Therefore from that point of view also
the offence committed by him would be punishable under Section 302
D l.P.C.

Though the appellant has taken a specific plea tha~ during the
grappling the rifle went off accidently, in view of the medical e\>idence and
also in view of the fact that three empty cartridges that were found, the
E theory of accident can not be accepted. However, the presence of injuries
on the accused supports part of the defence version namely that P.W.11
and his brother Fauja Singh inflicted injuries on them. Even in the earliest
bail application filed by the appellant, he mentioned that he received
injuries at the hands of these two persons. It can therefore be seen that the
F accused who belong to the police force went to the Village in connection
with Jaw and order problem and also had to serve the challan on P.W. 11
and his brother and it was in that process that this unfortunate occurrence
took place. They had no animosity against P.W. 11 and his brother.
However, it is clear that P.W. 11 and his brother defied the accused and
G also inflicted injuries on them but neither of the accused tried to shoot at
P.W. 11 or his brother. Admittedly the two deceased persons had nothing
to do with the occurrence and as held by the High Court they were ortly
by-standers and if they were hit by the shots fire by the appellant it ortly
shows that there was rash and reckless shooting by the appellant into the
air or side-wards without aiming against anybody and must have been with
•
H a view to scare away P.W. 11 and his brother or their other supporters.
BALWANT SINGH v. STATE OF PB. [K.J.REDDY,J.) 17

As noted above the High Court found that the appellant started A
) firing indiscriminately only after the clash took place between P.W.11 and
the H.C. Sat Pal and he must have done it only to scare away th~ villagers
from the point of view of maintaining law and order. Added to that, the
accused including the appellant also we.re attacked by P.W. 11 and his
brother and they received injuries at the hands of P.W. 11 and his brother.
If, in such a situation, the nppcllant ac ordered by H.C. Sat Pal fired, it rnn
B

-- '
:10L be said that he intent ionaliy did so nor he could )Je attributed definite
knowledge that he was likely to shoot some by-standers. It mJst be remem-
b~red that the occurrence itself took place at about 9 P.M. when it was
dark. Though, according to the prosecution, there was an electric bulb
burning at some distance, however, since it was night time, the appellant c
could not have noticed clearly whether there wern any by-standers. In such
a situation any of the clauses of Sections 299 or 300 l.P.C. is not clearly
attracted.

Then the question would be whether an offence under Section.304-A D
l.P.C. is made out? The provisions of this section apply to cases where
there is no intention to cause death and no knowledge that the act done
in all probablities will cause death. Therefore this provision is directed at
offences outside the range of Sections 299 and 300 I.P.C. and obviously
contemplates those cases into which neither intention nor knowledge
enters. The words "not amounting to culpable homicide" in the Sr,ction are E
very significant and it must therefore be unde1·stood that intentionally or
knowingly inflicted violence directly and wilfully caused is excluded. The
Section applies only to such acts which are rash or negligent and are
' directly the cause of death of another person. In other words, a rash act is
primarily an over hasty act as opposed to a deliberate act but done without F
due care and caution. Th~n the question whether the conduct of the
accused amounted to culpable rashness or negligence depends on the
1 amount of care and circumspection which a prudent and reasonable man
would consider it to be sufficient and this depends on the circumstances
~·
in each case.
G
. Sadhu Singh Hamam Singh v. The State of Pepsu, AIR(1954)SC W
' is a case where a Mahan! went to the house of the accused wl\.o was having
4.
a drink party and the accused was respectful to him and was very anxious
-. to show all hospitality to him. He wanted that the Mahan! should not go
\
away from his house without taking meals and spending the night with him. H
18 SUPREME GOURTREPORTS [1994) 2 S.C.R.

A But seeing that the Mahant was going away, the accused fired his gun
(
without aimipg at the Mahant just to prevent him from leaving his place by
terrifying him to some ei.'!ent but unfortunatr.ly the shot hit the Mahan! and
he died. This Cout held that on the materials placed it was not proved that
the accused had an intention of firing at the Mahan! but it was a wholly
rash and negligent act on the part of the accused and accordingly convicted
B
him under Section 304-A I.P.C. InM1~. Meera Puri v. The State of Nagaland,
1971 Cr!. LJ. 539, the facts were that the accused fired a rifle with
knowledge that the children and others were near about and it unfortunate-
ly resulted in the death of a child. The Court also noted that the accused
>-
-
did not aim at the child or fired at the party. Goswami, CJ., as he then
c was, who spoke for the Bench, held as under :

"By her act in firing form the rifle in the way she did with the full
knowledge of the children and others nearabout, she has done a
rash and negligent act, which, although does not amount to cul-
pable homicide, brings her within the mischief of S. 304-A, Penal
D
Code. We consider her rash and negligent act in firing in that way
as culpable rashness and negligence and act merely an error of
judgment or defect of (sic) intelligence."

In Nga San Wm, AIR(1933)Rangoon 326, the accused, a Sub Inspector of
E Police while pursuing a party of gamblers fired four shots in the air but a
person was injured and died. Noting that the Sub Inspection frred from a
short distance from the crowd, the Court observed that if he had only taken
sufficient care and caution he would not have fired the four shots, while
running, even into the air from such a short distance and that he acted with
..
>'

F overhastiness and held him guilty under Section 304-A I.P.C. In Emperor
v.Morgan and another, (1909) 9 Crl LJ. 393 two accused belonging to light
infantry were practising at target shooting at a place by the side of a public
road and a man was fatally wouded. A Division Bench of the Calcutta High
Court found them guilty under Section 304-A l.P.C. holding that they fired ..••
the rifles without having taken any precaution or use of slightest cir-
G cumspection with regard to the safety of others.

In the instant case, as held above the appellant did not aim at the
two deceased person who were away. It was night time and it can not
definitely be said that the appellant could have seen them. In fact P.W. 11
. !
H and his brother Fauja Singh who started assaulting H.C. Sat Pal and the
BALWANTSINGH v. STATE OFPB. (K.J. REDDY, J.] 19

appellant were not hit by the shots fired by the appellant. That itself shows A
1 that the appellant fired his rifle without any aim and obviously to scare
a\Vay the people including P.W. 11 and his brother and he did so as
directed by H.C. Sat Pal who was in command of the police party. How-
ever, even in such a situation, he had to act in a prudent manner. But when
he acted in such a haste, rashly and without circumspection and due care B
and caution with regard to the safety of other innocent people, then the
only inference is that his rash act amounted to culpable rashness attracting
the provisions of Section 304-A l.P.C.

!n the result, the conviction of the appellant under Section 3021.P.C.
and sentence of imprisonment for life awarded thereunder are set a.side. C
Instead he is convicted under Section 304-A l.P.C. and is sentenced to
undergo two years' R.I. The appeals are partly allowed to the extent
indicated above.
T.NA. Appeals allowed.