Person Shooting At Another Without Knowing His Presence & Believing Him To Be Wild Fowl Cannot Be Held Liable For Murder: Himachal Pradesh High Court

The petitioner approached the High Court seeking regular bail in a case registered under Sections 103(1) and 238 read with Section 3(5) of the Bhartiya Nyaya Sanhita, 2023 (BNS) and Sections 25 & 27 of the Arms Act.

The Single Bench of Justice Rakesh Kainthla referred to a report made by the framers of the Indian Penal Code, titled “A Penal Code prepared by The Indian Law Commissioners, and published by command of The Governor General of India in Council, Calcutta: 1837” and held, “Therefore, the framers provided that a person shooting at another without knowing about his presence and believing him to be a wild fowl can be held liable for his negligence in omitting to take care that a person was concealing himself behind the bushes, but cannot be held liable for murder because the hunter never intended to kill a man but a wild animal.”

M/s Kshitij Sharma represented the Petitioner, while Additional Advocate General Lokender Kutlehria represented the Respondent.

Factual Background

As per the prosecution, the deceased was found missing, and the police found that Sonu, Bhutto (petitioner) and Ajay had gone to the forest carrying guns. Subsequently, Sonu’s dead body was found. The police arrested the petitioner and filed the charge sheet.

Reasoning

On a perusal of the facts of the case, the Bench noticed that the petitioner and Sandeep had gone to the jungle for hunting. The deceased had also gone to the jungle for hunting, and he had concealed himself in the bushes. The petitioner and co-accused thought that a wild fowl was behind the bushes, and the co-accused shot towards the bushes, causing the death of Som Dutt.

Reference was made by the Bench to illustration (c) to Section 299 of the Indian Penal Code (IPC) and Section 100 of the BNS, which talks about a similar situation. Referring to the Report made by the framers of the Code, the Bench stated that the framers observed that if an act is innocent, the person cannot be punished because it leads to bad consequences and if a person causes death by negligence or rashness without intending to cause death, he should be liable to punishment for the offence which he was engaged in committing.

The Bench took note of the fact that the petitioner and co-accused decapitated the head of the dead body. They tried to burn the dead body and its head. The autopsy report specifically mentioned that decapitation was postmortem and not antemortem. Hence, the police filed the charge-sheet for the commission of an offence punishable under Section 238 of the BNS.

“The legislature, in its wisdom, has made this offence bailable, even if an attempt is made to destroy the evidence in an offence punishable with capital punishment. Therefore, there is a force in the submission of Mr. Kshitij Sharma, learned counsel for the petitioner, that the gruesome nature of the act and disapproval of the Court will have to give way to the wisdom of the legislature, which decided to make it bailable”, it held.

The Bench thus found insufficient material to conclude that the accused had committed a non-bailable offence justifying his further detention. Allowing the Petition, the Bench ordered the petitioner to be released on bail subject to his furnishing personal bonds for Rs 1,00,000 with one surety of the like amount to the satisfaction of the Trial Court.

Cause Title: Bhutto Ram v. State of Himachal Pradesh (Neutral Citation: 2025:HHC:32543)

Appearance

Petitioner: M/s Kshitij Sharma, Advocates Prashant Sharma, Shobhit Sharma

Respondent: Additional Advocate General Lokender Kutlehria

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