Ram Dass v. State — 1967 DIGILAW 272 (ALL)

JUDGMENT K.B. Asthana, J. - I have heard Sri S.N. Mulla for the Appellant, Ramdas alias Hart Das alias Hari Kishan and Sri Jitendra Kumar, Assistant Government Advocate, for the State. 2. The appeal is allowed and the conviction and sentence of the Appellant are set aside. The Appellant is on bail; he need not surrender and his bail bonds are discharged. 3. The reasons for allowing the appeal will be given by me later on. 4. On 24-7-1967 I had passed an order allowing the appeal and setting aside the conviction and sentence passed upon the Appellant. Now I proceed to give the reasons for acquitting the Appellant of the offence levelled against him. 5. The Appellant, Ramdas aliasHari Das alias Hari Kishan, was tried and convicted as a equal to an incident which occurred at about 12 o'clock in the noon on 14-5-1964 in which one Agya Ram died as a result of gun-shot wounds. The Appellant holds a licence for a rifle. The Appellant resides in village Kanasi and he was the treasurer of the Cooperative Society of Kanasi. The Appellant's case was that early in the forenoon of 14-5-1964 he started on a bicycle carrying a sum of Rs. 1300/- or Rs. 1400/- with him belonging to the Co-operative Society for depositing it in the Cooperative Bank at Kaimganj and for his protection he carried his rifle. He had also received an invitation to attend a marriage in village Bakhtawarpur. He had planned that on his way he would stop for a while in the said village and after joining the marriage feast in the forenoon proceed to Kaimganj for making the deposit. When the Appellant reached Bakhtawarpur he found that in a grove a Nautch performance was being held for entertaining the bridegroom's party. The Appellant left his bicycle resting by the trunk of a tree in the grove, removed the magazine from the rifle, came and sat cross-legged on the ground to see the nautch and kept his rifle resting on his knees. According to the Appellant when he tried to remove his towel for wiping his face it got entangled and accidentally the trigger of the rifle was touched and to his utter surprise the rifle fired, the bullet fatally injuring one Agya Ram who was sitting nearby. 6. According to the Appellant when he tried to remove his towel for wiping his face it got entangled and accidentally the trigger of the rifle was touched and to his utter surprise the rifle fired, the bullet fatally injuring one Agya Ram who was sitting nearby. 6. A report of the incident was lodged at about 2-45 P.M. at police Station Kaimganj by Deo Datt, brother of Agya Ram who was also in the marriage party watching the Nautch. The time of the incident given in the report was 12 o'clock in the noon. Deo Datt in this report however, accused the Appellant of deliberately killing Agya Ram by shooting with a rifle due to previous enmity. As a result of the investigation by the Station Officer Kaimganj the Appellant was charged with the offence of murder u/s 302 IPC and was committed to stand his trial before the court of the Sessions Judge, Farrukhabad. The Appellant in the committal proceedings and as well as in the sessions trial denied the charge of intentional or deliberate shooting of Agya Ram. His plea was that the death of Agya Ram was purely accidental, the rifle having been triggered by the movement of his hand when disentangling the towel and he had absolutely no knowledge that there was any stray bullet in the chamber of the rifle or that its safety device was not working. The learned Sessions Judge on a consideration of the entire evidence and circumstances of the case recorded a finding to the effect that the prosecution case against the Appellant that the Appellant deliberately or intentionally shot at Agya Ram with a view to kill him was not established. The learned Sessions Judge acquitted the Appellant of the charge of murder, but convicted him for the minor offence u/s 304-A, IPC for causing the death of Agya Ram by rash and negligent act and awarded a sentence of two years' rigorous imprisonment. 7. In this appeal I am concerned only with the question whether the Appellant has rightly been convicted for an offence u/s 304-A of the IPC. 8. 7. In this appeal I am concerned only with the question whether the Appellant has rightly been convicted for an offence u/s 304-A of the IPC. 8. In the course of his judgment learned Sessions Judge observed as follows: In the instant case even though the deceased cannot be accredited with the intention or knowledge of causing the death of Agya Ram or deliberately shooting him to death, it seems to me the act was not a pure accident, i.e., to say, an act without any criminal rashness or negligence and it was an act where criminal rashness or negligence has to be attributed to the accused. The learned Sessions Judge then enumerated certain circumstances which according to his judgment showed rashness and culpable negligence on the part of the Appellant. He summarised these circumstances thus: (1) The Appellant went into a crowd or assemblage of 300 or 400 persons with his rifle. (2) The Appellant must be presumed to have known the fact that the chamber of the rifle was loaded. (3) The Appellant as a man of ordinary care and prudence did not take the precaution of checking the safety device of the rifle before taking it to the place of occurrence. (4) The Appellant was thoroughly reckless or indifferent to the consequences flowing from any stray cartridge remaining in the chamber of the rifle, he not having taken the precaution of putting out the magazine of the rifle before actually entering the crowd and seating himself beside Agya Ram and there being no explanation why the Appellant was not reminded that the deficient cartridge remained in the chamber of the rifle. (5) The Appellant did not take the precaution of even keeping the rifle in an erect position with the barrel directed upwards and kept it over his knees with the barrel directed towards the deceased. The learned Sessions Judge then made the following concluding observations: In the absence of the precautions enumerated under Nos. 2 to 5 and while the accused was dealing as stated earlier, with such a dangerous lethal weapon as a rifle and a rifle whose safety device was also not in order and took it to a huge public assemblage--whatever his purpose, personal safety or display in taking it there--it cannot be said that he acted as a man of ordinary prudence should have. In fact he must be deemed to have acted regardless and indifferent as to the consequences and without due deliberation and it must be found that he failed to exercise that care and take those precautions which as a reasonable and prudent man he should have exercised or taken. In other words he must be deemed to have acted rashly and negligently within the meaning of Section 304-A IPC. The plea of "Accident" i.e. pure accident in terms of Section 80 IPC is, therefore, not validly open to him. In contrast, he has rendered himself liable for an offence u/s 304-A IPC. 9. The learned Counsel for the Appellant contended that the evidence on record and circumstances of the case did not establish that the cause of death of Agya Ram was any rash or negligent act of the Appellant and the learned Sessions Judge fell into a serious error in holding that the offence u/s 304-A was made out against the Appellant because he took the rifle in an assemblage of 300 or 400 persons and kept it on his knees with the barrel pointing towards the deceased and that the Appellant being the licencee will be presumed to have knowledge of the defect in the safety device and of the presence of a stray cartridge in the chamber of the rifle. It was pointed out by the learned Counsel that the observations of the learned judge that the Appellant did not remove the magazine from the rifle before sitting down in the assemblage was incorrect as the Appellant had stated that he had taken the precaution of removing the magazine before sitting down to witness the Nautch and there was no evidence on record to rebut it. It was submitted that merely taking a gun, even loaded, in an assemblage of men and keeping it there, though it may be characterised as an improper act against the licensing rules, would not by itself be the cause of death of any person unless something more was done to fire the bullet by triggering which could only be accomplished by an overt act of a physical nature on the part of a person handling the gun. 10. 10. It was next contended that the "actus reus" of the crime in Section 304-A is the doing of a rash or negligent act which is the direct or proximate cause of death and the guilt cannot be brought home to a person whose rash or negligent act is not the direct cause of death but is a remote cause of death. The submission was that the fundamental basis of punishment for all crimes is that the person accused of a crime must have mensrea, that is, a blameworthy state of mind or a foresight of evil consequences when doing the prohibited act. The learned Counsel pointed out that the evidence on record shows that the Appellant was a licence holder. He bonafide carried the rifle with him when he started from his house for self protection as he had a large sum of money with him. There was nothing wrong nor abnormal in his conduct in thinking of attending the marriage feast on his way. He acted like a man of ordinary prudence in removing the magazine from the rifle before sitting down in the assemblage of 300 or 400 men to witness the Nautch. He also acted like any man of ordinary prudence under the belief that there was no cartridge left in the chamber of the rifle when he kept the rifle on his kees without taking any extra care of its barrel pointing upwards as the rifle in those circumstances would no longer be a source of danger and it would be like any ordinary piece of iron rod. It was then submitted that on the above stated circumstances no blameworthy state of mind or foresight of evil consequences can be attributed to the Appellant as far from doing any prohibited act he was acting within his rights under the law. 11. It was then submitted that on the above stated circumstances no blameworthy state of mind or foresight of evil consequences can be attributed to the Appellant as far from doing any prohibited act he was acting within his rights under the law. 11. My attention was drawn by the learned Assistant Government Advocate to Rule 5 of the Indian Arms Rules which enjoined that a licencee shall not ordinarily take his licenced weapon in a crowd of assemblage without the permission of the District Magistrate and it was urged that an element of unlawfulness entered into the conduct of the Appellant when he took his rifle in the breach of Rule 5 to the Nautch party during the marriage celebration and thus it would be a rash act on his part within the meaning of Section 304-A IPC. This was controverted by the learned Counsel for the Appellant by the argument that even if the Appellant can be said to have committed the breach of Rule 5 of the Arms Rules, at worst he will make himself liable for any penalty under the Arms Act, but for the purposes of Section 304-A, IPC it cannot be said that a licensee of a fire-arm would be acting rashly or recklessly in carrying the fire-arm in a market place or public place or in an assemblage after taking necessary precautions for safety of others. It was strenuously contended for the Appellant that the learned Sessions Judge put too great a burden on the "ordinary prudent man" in laying down a standard of conduct that as a licensee of a firearm he ought to every time check when handling the weapon that its safety device was in working order. Further it was urged that the learned Judge legally erred in attributing culpable negligence to the Appellant on a presumption that he ought to have known that there was a stray cartridge in the chamber of the rifle. Further it was urged that the learned Judge legally erred in attributing culpable negligence to the Appellant on a presumption that he ought to have known that there was a stray cartridge in the chamber of the rifle. The learned Assistant Government Advocate in reply argued that the Appellant must be held responsible for the death of Agya Ram as it was caused on account of rash or negligent handling by the Appellant of the rifle which is a dangerous weapon and the every consequence which resulted in a fatality demonstrated that the Appellant's conduct was balmeworthy and since he brought the dangerous weapon with himself in the marriage party without checking its safety device and without taking due care and caution for the safety of others it must be held that he must have foreseen the happening of a harmful incident but he took the risk and the law must tell him that he did so at his peril. 12. Learned Counsel for the parties have placed before me a number of decided cases of this Court and of other superior Courts. So far as these cases are concerned, they serve as illustrations how the law has been applied to the facts and circumstances established on evidence in determining when the, act of the accused amounted to rash or negligent act within the meaning of Section 304-A. Since no case can be exactly similar on facts with another, it is hardly possible to draw much assistance from the cases cited. Essentially the question whether the death has been caused by the rash or negligent act of the accused is a question of fact to be determined in each case. I have already observed that the learned Sessions Judge did not find the evidence of the prosecution adduced for establishing a deliberate or intentional killing, worthy of reliance and rejected it. The conviction of the Appellant for the minor offence u/s 304-A, as the record shows, is based on the own statement of the Appellant u/s 342, Code of Criminal Procedure which finds substantial corroboration from the evidence of Sita Ram (DW 1). The conviction of the Appellant for the minor offence u/s 304-A, as the record shows, is based on the own statement of the Appellant u/s 342, Code of Criminal Procedure which finds substantial corroboration from the evidence of Sita Ram (DW 1). Question No. 6 which was put to the Appellant u/s 342, Code of Criminal Procedure was to the effect whether it was correct that after three or four minutes of his sitting down in the Nautch party the Appellant loaded the chamber of his rifle with a cartridge and then raised the rifle from his knees and fired at Agya Ram who was killed at the spot? The Appellant in answer to this question denied the allegation that he loaded a cartridge in the chamber of the rifle after he sat down to see the Nautch and to have deliberately fired at Agya Ram. He said that when he wanted to pick his towel, in that movement it somehow got entangled, the trigger was accidentally touched and the rifle fired, the bullet injuring Agya Ram who died at the spot. In answer to question No. 15 which was to the effect whether he had to say any thing further, the Appellant made the statement describing how he started from his village with rupees thirteen hundred or fourteen hundred belonging to the Cooperative Society of which he was the treasurer for being deposited in the Cooperative Bank Kaimganj and how he stopped on the way to attend the marriage feast and sat down to witness the Nautch performance. It was in reply to this question that the Appellant further stated that he had taken out the magazine from the rifle but he did not take care to check whether all the cartridges had come out and that the firing was purely accidental, a cartridge having remained lodged inadvertently in the chamber of the rifle. DW 1 Sita Ram who was attending on the bridegroom's party on behalf of the bride's party and was present at the Nautch in the grove stated that he did not see the Appellant loading his rifle and raising it to shoot Agya Ram. DW 1 Sita Ram who was attending on the bridegroom's party on behalf of the bride's party and was present at the Nautch in the grove stated that he did not see the Appellant loading his rifle and raising it to shoot Agya Ram. He stated that as soon as the Appellant sat down and he had kept his rifle after removing it from his shoulder, it suddenly fired when the Appellant was attempting 10 wipe his face with the towel he was carrying and the bullet struck Agya Ram who was sitting close by killing him at the spot. It was elicited from this witness in his cross-examination that he had not seen the Appellant unfixing his rifle and taking out the magazine. Sita Ram (DW 1) appears to me to be a truthful witness. In saying that he did not see the Appellant unfixing his rifle to take out the magazine he amply demonstrates that he is not a got up witness out to support the defence case throughout. He has stated that he saw. This witness must have been busy looking after the comforts of the bridegroom's party and naturally he was not expected to mark each and every movement of the Appellant. He must have noticed him only when he came and sat down, in the assemblage. The statement of the Appellant that he took out the magazine from the rifle but failed to check that one stray cartridge had remained in the chamber of the rifle appears to be true. Its truth could have been doubted had the prosecution brought out the fact that Sita Ram (DW 1) had watched the Appellant from the moment he arrived on his cycle in the grove where the marriage party was enjoying the Nautch performance as then it would have been possible to argue that the statement of the Appellant to the effect that he took out the magazine from his rifle before sitting down in the assemblage to watch the Nautch did not find corroboration from the statement of Sitaram (DW 1). I am, therefore, in agreement with the learned Counsel for the Appellant in holding that the learned Sessions Judge was wrong in inferring that the Appellant did not take the precaution of even pulling out and unloading the magazine. I am, therefore, in agreement with the learned Counsel for the Appellant in holding that the learned Sessions Judge was wrong in inferring that the Appellant did not take the precaution of even pulling out and unloading the magazine. Thus it is established from the evidence on record that the Appellant actually took out the magazine from the rifle before he sat down in the assemblage to see the Nautch. 13. It is obvious that had one stray cartridge not remained in the chamber the rifle would not have fired ejecting the cartridge howsoever recklessly or negligently the rifle may have been handled by any person. The question that arises is how far the learned Sessions Judge was justified in law in raising a presumption against the Appellant that he must have known as owner of the rifle that its chamber was loaded and having drawn that presumption against the Appellant then attributing to him thorough recklessness or indifference to consequences flowing from his conduct in taking the loaded rifle in an assemblage of 300 or 400 persons without taking care which any prudent man would have done in checking its safety device. 14. I think no presumption can be drawn against the Appellant from the mere circumstances of his being the owner of the rifle to the effect that the Appellant had knowledge of the rifle being loaded. Even if such a presumption could be drawn it stood rebutted on the evidence that the Appellant had already taken the precaution of removing the magazine from the rifle. Having removed the magazine from the chamber of the rifle the owner of the rifle would be justified in his belief that the chamber of the rifle was no longer loaded and it would be a bonafide belief on his part. The question that arises is whether the owner of the rifle after removing the magazine must again check the chamber of the rifle to remove any stray cartridge left stuck up therein? Standard of due care and caution for attributing negligence in conduct in such matters, I think, is that expected of an ordinary man of prudence or what normally a man of prudence would do in the circumstances. The standard is not that of a man who is extra-careful or fastidious in his conduct. Standard of due care and caution for attributing negligence in conduct in such matters, I think, is that expected of an ordinary man of prudence or what normally a man of prudence would do in the circumstances. The standard is not that of a man who is extra-careful or fastidious in his conduct. Ordinarily the removal of the magazine from the chamber of the rifle would, in my opinion, amount to taking sufficient care or caution to make the rifle safe. The prosecution has not adduced any evidence to show that mechanically it is ordinarily possible and it frequently happens that a cartridge can slip out of the magazine and remain lodged in the chamber and normally the removal of magazine containing the cartridges is not sufficient to engender an belief that the weapon has become safe. Howsoever one may describe the standard of negligence for criminality u/s 304-A, whether as gross negligence, or culpable negligence or criminal negligence, in my view, want of due care and caution in doing the act must be such as to betray a blameworthy state of mind or a high degree of heedlessness to the consequences and it will be then that the act so done can be said to satisfy the test of criminality involved in Section 304-A. Applying the test laid down above it cannot be said that the Appellant in not checking the chamber of his rifle after he took out the magazine can be said to have a blameworthy mind or showed a high degree of heedlessness to the consequences. The evidence on the record shows that the Appellant had full awareness of his responsibilities and that is why he took the step of removing the magazine from the chamber of his rifle before sitting down in the assemblage. It shows that he acted like a man of ordinary prudence. It is not uncommon that persons who possess licensed firearms do take their guns or rifles or revolvers or pistols with them and the ordinary precaution which they take is to remove the cartridges or bullets from the chambers to avoid any accidental firing. It has come in evidence in this case that in the assemblage watching the Nautch there were many others who had guns and rifles. It has come in evidence in this case that in the assemblage watching the Nautch there were many others who had guns and rifles. It may be that taking the firearms in an assemblage of a large number of persons may not be recommended by the Arms Rules, but disregard of that rule ought not to be considered as a circumstance for attributing mens rea for the purpose of finding out whether the actus reus for the crime u/s 304-A has been committed. I do not think the learned Session Judge was on sound grounds when for basing' the conviction he took into consideration this circumstance also that the Appellant carried a dangerous weapon in the assemblage of 300 or 400 persons. 15. A rifle, gun, revolver or pistol and for the matter of that, any other kind of firearm, without any bullet or cartridge or | other missile in its chambers from where it can be ejected or discharged is no more dangerous than a mere lump of metal and it cannot be said in that state to be a dangerous weapon. The firearm only becomes dangerous when it is mechanically ready for discharging the missile and that can only be when the missile is inside the chamber ready for ejectment. When the Appellant had taken all the precaution which an ordinary man in that circumstance would have taken and bonafide believed that there was no cartridge or bullet in the chamber of the rifle, then in taking it in the assemblage and sitting down there on the ground to watch that Nautch, it cannot be said that the Appellant was acting in a rash or negligent manner. Thus the Appellant had an honest belief in the existence of certain facts and had those facts really existed the act of taking the rifle in an assemblage of 300 or 400 persons and keeping it on his knees with the barrel pointing towards the deceased would be an innocent one. 16. Now considering the question whether the conduct of the Appellant was rash or reckless, as the learned Sessions Judge thinks it to be, because the Appellant carried a loaded rifle into a crowd of 300 or 400 persons and kept it on his knees with the barrel towards another persons. 16. Now considering the question whether the conduct of the Appellant was rash or reckless, as the learned Sessions Judge thinks it to be, because the Appellant carried a loaded rifle into a crowd of 300 or 400 persons and kept it on his knees with the barrel towards another persons. In my judgment the act of carrying the rifle and keeping it on the knees with the barrel pointing towards the deceased even if reckless by itself was not the cause of the death. The cause of death was the injury caused by the bullet which was ejected from the rifle. The bullet could not be ejected from the rifle unless it was triggered. The trigger of the rifle being a mechanical device meant for striking that part of the cartridge which causes explosion required a certain amount of physical force to move it for bringing about the mechanical impact. Merely carrying the loaded firearm by itself would not cause the death of any person unless it is handled in a manner so as to move the trigger. The movement of the trigger may be caused deliberately or inadvertently. In case it is deliberate it may be moved with the intention of causing injury to a person or it may be moved without any intention to cause any injury to another person. When the trigger is moved deliberately to cause injury and the death results of the person who was intended to be shot, the act will amount to murder. In the latter case where the trigger is moved deliberately but without any intention to shoot at any particular person, but the bullet does strike a person and he dies, the act may amount to a rash or negligent act causing death. It is the cases of inadvertent triggering by accident or mishap which are difficult of solution when death is caused. 17. In this appeal before me on facts established on record the triggering of the rifle was inadvertent. While the Appellant was lifting his towel for wiping his face the trigger was inadvertently touched and the rifle fired. It must have come as a surprise to the Appellant for he was under the belief that there was no cartridge in the chamber of the rifle. The Appellant never intended to move the trigger. Whatever happened was simply an unfortunate accident. It must have come as a surprise to the Appellant for he was under the belief that there was no cartridge in the chamber of the rifle. The Appellant never intended to move the trigger. Whatever happened was simply an unfortunate accident. The death caused was by a misadventure and was accidental. The learned Sessions Judge incriminated the Appellant for the accidental triggering on the ground that the safety device of the rifle was defective and the Appellant had failed to check it which any prudent man would have done. No doubt had the safety device been in proper order and had been put in the locking position even the accidental touching of the trigger would have been with out any affect. The safety device is a mechanical device. It may fail to work at any given time. Any person who handles a gun even if he checks the safety device and finds it in locked position and playfully touches the trigger and the rifle which is loaded to his knowledge fires causing death of another person, would be guilty of rashness because here he deliberately moves the trigger. If it is in his knowledge that the safety device is not working and he playfully moves the trigger, in this case also he will be guilty of recklessness or rashness. In either case it is the overt physical act which results in the movement of the trigger discharging the bullet causing fatal injury. In such cases whether the safety device was in proper working order or the safety device had failed would not matter much. Therefore, I think where the triggering is inadvertent and the bullet is discharged hitting and fatally injuring another person, the safety device being good or bad would hardly matter. 18. However, the guilt still could not be brought home unless it were shown that it was in the knowledge of the person handling the rifle that the chamber was loaded and the safety-catch was not functioning or was not in a locked position. There is no satisfactory evidence on record to show that the Appellant when he sat down with his rifle in the assemblage to see the Nautch knew that the safety device of the rifle was not in working order or that he knew that the chamber of the rifle was loaded. There is no satisfactory evidence on record to show that the Appellant when he sat down with his rifle in the assemblage to see the Nautch knew that the safety device of the rifle was not in working order or that he knew that the chamber of the rifle was loaded. It was only when the gun fired that the Appellant must have known that there was a cartridge inside the chamber and the safety device had failed. The cause of the death, therefore, was the accidental triggering which was brought about inadvertently by movement of the hand when lifting the towel because the safety device was not functioning in the locked position and there happened to be a cartridge in the chamber of the rifle. Had there been no cartridge in the chamber of the rifle even if the safety device was defective, the accidental triggering would not have resulted in any mishap. In case the safety device was in proper working order and was in a locked position, even if the cartridge was inside the chamber of the rifle, the accidental touching of trigger could not have resulted in any movement of the trigger and the mishap would not have happened. The presence of the bullet and the failure of the safety device were the two factors in this episode, which by human endeavour, no doubt, could be avoided. If they could be avoided by precautions which an ordinary man would normally take, certainly the Appellant will deserve to be blamed, but if the Appellant did take ordinary precautions which normally a prudent man would take in the circumstances and yet the mishap took place the Appellant could not be blamed. I have already held above that the Appellant had taken the precaution of removing the magazine which is the normal practice to empty the chamber of the rifle but if one cartridge remained stuck up in the chamber the Appellant could not be criminally blamed for it. The Appellant was justified in his belief that there was no cartridge in the chamber. The Appellant was justified in his belief that there was no cartridge in the chamber. Once the Appellant was under such a belief and in the circumstances it was a bonafide and reasonable belief, the safety device of the rifle being in order or out of order would hardly be of any consequence and in that view of the matter also no blame will attach to the Appellant if he did not check the safety device of the rifle. The existence of a belief as to the state of things in one's mind is not a physical act but a mere mental process of thinking and a person cannot be held criminally guilty for mere intellectual defect or for mere mistake of judgment. The Appellant never intended to do any harm. He could not have even foreseen any harmful consequences in carrying the rifle after emptying its chamber by removing the magazine of cartridges and sitting down in the assemblage with his rifle resting on his knees with the barrel pointing towards the deceased. 19. In my view the learned Sessions Judge in attributing knowledge of the presence of the cartridge in the chamber on a presumption as also in attributing negligence for not checking the safety device that again on some sort of presumption put too great a burden on the Appellant in coming to the conclusion that the Appellant was guilty of reckless and negligent conduct as he failed to take the necessary steps as an owner of the rifle to render it safe. The illustration u/s 80 of the IPC shows that while a man is at work with a hatchet, the head flies off and kills another man who is standing near by, then if there is no want of proper caution then the act is excusable and is not an offence. Suppose the head of the hatchet has been secured to the handle by a metallic wedge and the man at work with that hatchet had checked and found that the head was securely fastened, but the wedge which secured the head during the work breaks or loosens and the head flies off, then the question will arise whether the man working with the hatchet failed to take proper caution as he did not check the wedge so thoroughly as to eliminate all possibility of its breaking or getting loosened during the course of working. A thorough check certainly can reveal to an expert that the wedge needed a change or the head had to be properly fixed and secured before the hatchet could be used. However, I think if the hatchet was normally checked and then its head appeared to the user as securely fixed by the wedge which was found to be in normal position, I think, the test of taking proper care and caution is fulfilled. I do not think the user is under any duty to take out the wedge, thoroughly examine it and then insert it again to eliminate the possibility that it had not rusted inside or had not broken inside. It is the ordinary care and caution which the criminal law takes notice of and not extraordinary care or caution. 20. On a consideration of all the facts and circumstances of the case, I have no doubt in my mind that the death of Agya Ram was caused as a result of a misadventure or misfortune. It was accidental in nature. I hold that provisions of Section 80 of the IPC are attracted and no offence has been committed by the Appellant.