LexSHANKAR NARAYAN BHADOLKAR versus STATE OF MAHARASHTRA
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A B SHANKAR NARAYAN BHADOLKAR v. ST A TE OF MAHARASHTRA MARCH 9, 2004 [Y.K. SABHARWAL AND ARIJIT PASAYAT, JJ.] Penal Code, 1860-Sections 80, 201, 299, 300, 302, 304 Part II, 304A- Killing of the deceased by accused by shooting him with a gun at close range C and throwing the body of the deceased in a well after wrapping it in a gunny bag-Trial Court convicting the accused under Section 302 and 201 IPC- High confirming the conviction-Correctness of-Held, on facts and evidence, the offence is covered by Section 304 Part II !PC-Arms Act, 1959; Section 25 (IA). D Appellant-accused invited the deceased for dinner along with complainant PW 2 and others. After the dinner, the deceased, along with others, was standing on the threshold of the appellant's house for catching a bus. At that time, the appellant took a gun, loaded it with cartridges and shot the deceased from a close range resultin·g in instantaneous death. The complainant ran from the scene of occurrence and lodged a complaint E with the police, after informing to the relatives of the deceased. Police visited the spot along with the complainant. In the meantime, the appellant wrapped the body of the deceased in a gunny bag and threw it in a well. The dead body of the deceased was retrieved from the well. The prosecution framed charges against the appellant and three co-accused F under Section 302, 201 and Section 25 (lA) of the Arms Act, 1959. The appellant contended before the trial court that the deceased was heavily drunk and was unable to control himself; that he picked up a gun to scare the deceased; that the deceased tried to snatch the gun from the appellant and that in the ensuing scuffle, the deceased accidentally pulled G the barrel of the gun and sustained injuries which resulted in the death of the deceased; and that the offence committed falls under Section 80 IPC or in the alternative under Section 304 Part II IPC. The trial Court convicted the appellant under Sections 302 and 201 IPC and under Section 25 of the Arms Act, 1959 and sentenced him to undergo life imprisonment and imprisonment for two years and six months respectively with fines H 868 -- - - -- S.N. BHADOLKAR "·STATE OF MAHARASHTRA 869 and default stipulations. A In appeal before High Court, the appellant contended that the case falls under Section 304A IPC. The High Court confirmed the conviction and sentences imposed by the trial court holding that the case is covered under clauses Firstly and Thirdly of Section 300 IPC. B In appeal before this Court, the appellant contended that the case falls under Section 80 IPC since the act was merely accidental and that there was no motive to kill the deceased as they were both friends; that in the alternative, it would be a case under Section 304 part II IPC since the prosecution failed to make out a case under Section 302; c The respondent State contended that the case was not accidental and appellant deliberately fired at the deceased with clear intention to kill the deceased; and that if it was accidental, the appellant should have saved the deceased and not cause disappearance of the body of the deceased by putting it in a gunny bag and throwing it in a well. D Partly allowing the appeal, the Court HELD: 1.1. The primordial requirement of Section 80 IPC is that the act which killed the other person must have been done "with proper care and caution". The amount of care and circumspection taken by an E accused must be one taken by a prudent and reasonable man in the circumstances of a particular case. Where the act of the accused is itself criminal in nature, the protection under Section 80 IPC is not available. If the accused pleads exception within the meaning of Section 80 IPC, there is a presumption against him arid the burden to rebut the presumption lies on him. (875-G-H; 875-B-C] F 1.2. The evidence on record, as substantiated by the testimony of PWs 2 and 3, show that the accused picked up the gun, unlocked it, loaded it with cartridges and shot the deceased from a close range of about 4/5 ft. aiming at his chest. In view of unimpeachable evidence of PWs 2 and 3, Section 80 IPC has no application. (876-C-D] G Bhupendra Singh A. Chaudasama v. State of Gujarat, (1998] 2 SCC 603 and K.M Nanavati v. State of Maharashtra, AIR (1962) SC 605, referred to. 2. When the intent or knowledge is the direct motivating force of H 870 SUPREME COURT REPORTS [2004] 2 S.C.R
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