Tunda v. Rex, AIR 1950 All 95

Parties

Tunda, Appellant

Rex, Respondent

Facts of Tunda vs. Rex

The prosecution claimed that the appellant and Munshi enjoyed wrestling and that on the morning of May 13, 1947, the appellant invited Munshi to the akhara in Kanhaiya’s bagichi for a wrestling match. They fought there. It is claimed that after a while, the dead declared that he would no longer struggle and proceeded to an adjacent chabutra, where he began to put on his dhoti. The prosecution goes on to claim that the appellant then grabbed him and slammed him down on the hard ground with his head down, fracturing Munshi’s skull and killing him. The appellant and Munshi were said to have had a history of animosity.

Issue

Whether or not the appellant was guilty of a rash and negligent act within the meaning of S. 304A.

Rule of Law

Causing death by negligence. —Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Judgement of Tunda v. Rex

It ruled that there had been no prior animosity between the parties. That is an appropriate conclusion. If there had been such animosity, it is extremely unlikely that the dead would have gone to the akhara with the appellant. The appellant’s intention to cause Munshi’s death was clearly lacking. Mr. David, who was carrying the learned Government Advocate’s brief, maintains that if the appellant flung Munshi down on the hard chabutra, then the appellant was guilty of a hasty and careless act within the meaning of Section 301.

The investigating officer noted that the chabutra is adjacent to the akhara. The fracture was undoubtedly caused by the collision of the skull with the edge of the chabatra. But, contrary to what the prosecution would have us think, this influence was unintentional. Section 80 of the Penal Code states: “Nothing is an offense which 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.”

And Section 87 states, “Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offense because of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent whether express or implied, to suffer that harm; or because of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

The position, in this case, is that the appellant and dead were friends who enjoyed wrestling, and Munshi was injured by accident. When they agreed to grapple with each other, they both impliedly consented to incur unintentional injury. There was no evidence of the appellant’s wrongdoing. The court cited the case of Basant Singh v. Emperor, A. I. R. (14) 1927 Lah. 880: (29 Cr. L. J. 487). Basant Singh and his friends went into the woods to kill pigs in that case. He took his place and waited as his comrades began to beat the pigs towards him.

After a while, a boar was brought in his way, and Basant Singh opened fire on it. He, however, missed the boar and collided with Amar Singh, injuring him and killing him. It was determined that Basant Singh’s firing was not negligent nor hasty in violation of Penal Code Section 304A.

Conclusion

Sections 80 and 87 of the Penal Code applied in this instance. Section 304A found the appellant not guilty.

The appeal was granted, and the appellant’s conviction and sentencing were reversed, and he was not required to surrender to his bail.

Edited by Megha Jain.

Authors/Editors

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