The essential ingredients to constitute justifiable plea of accident or misfortune are (1) that the act was done by accident or misfortune; (2) that it was done without any criminal intention; (3) that it was the doing of a lawful act; (4) in a lawful manner; (5) by lawful means and (6) with proper care and caution. It has been held that where two persons went out to shoot animals and agreed to take up certain position in the jungle and lie in wait, but after a while the accused heard a rustle and believing it to be an animal fired in that direction but the shot killed his companion, the case was held to be one of pure accident, although the gun used was an unlicensed one. But where the accused was engaged in a flight in which a woman intervened, whereupon the accused aimed a blow at her, but it accidentally killed the infant she was carrying, it was held that the case was not protected by the provisions of Section 80 as the assault on the woman was a wrongful act. (a) Meaning and accident: Lord Halsbury has described accident as something that is fortuitous and unexpected.
[Fruser’s case (1887)12 App. Cases 518], In Fenwick Schmelz, (1868) D.L.R. 3 C.P.
313], ‘accident’ has been said to be something that happens out of the ordinary course of things. The learned editor of Stephen’s Digest of Criminal law describes an accidental effect as when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precaution against it. (b) A has not committed the offence of culpable homicide and the man was killed by accident, A had no intention of killing that man. There is nothing to show that proper care and caution on the part of A was wanting. A having taken all sufficient care and caution and having no criminal intention to kill that person, cannot be said to be guilty of culpable homicide.
The man has been killed by accident and the benefit of Section 80, 1.P.C. would be available to A. A, however, may be convicted for another offence, viz., that of being in possession of an unlicensed gun under the Indian Arms Act. (A) (a), (b), and (c) The plea of accident is justifiable because in each case the death is accidental.
(d) The plea of accident is not available because the death is not accidental. If A had reason to believe that the gun was not loaded, the death would have been accidental but here he had not used every Indian Penal Code possible precaution to ascertain whether the gun was loaded or not. (e) It was held in Rex v. Tunda, (A.I.R.
1950 All. 95) that it could not be said that the other was guilty under Sec. 304-A of the Penal Code. It must be deemed that there was an implied understanding on the part of the each to suffer accidental injuries in the absence of foul play and the case fell completely within Sections 87 of the Code.