(i) Something is done by accident or misfortune.
(ii) There is absence of criminal intention or knowledge.
(iii) The act done must be a lawful act.
(iv) It must be done in a lawful manner.
(v) It must be done by lawful means.
(vi) It must be done with proper care and caution.
If any of the above mentioned six elements is absent, the defence under this section will fail. The words ‘accident’ and ‘misfortune’ used in this section have not been defined under the Code. There is normally an element of unforeseeability in these and intention and knowledge are absent while the consequence will generally be harmful or bad. All kinds of accident or misfortune do not provide protection under this section. The defence is available only when all the six requirements as indicated above are fulfilled.
The accused and the deceased were wrestler friends. On the day of the incident when they were having a wrestling bout in an ‘akhara’ the deceased was thrown on the ground. His head came into contact accidentally with a nearby ‘chabutra’ and he died. There were no foul means employed by the accused wrestler. It was held that all the essential requirements of the section were met and consequently the accused was entitled to the benefit of this section.
The accused was attacked by a person. To save himself he fired on his assailant who managed to escape but in the process four other persons were accidentally hit one of whom died later. It was held that the accused was entitled to the protection of this section in addition to his right of private defence.
The accused along with a few companions went to shoot a pig. He took his position while the others proceeded to beat the pig towards him. A boar was driven in that direction and he shot at it. The shot missed the animal but hit one of the beaters resulting in his death. It was held that this section applied and the accused was not liable under section 304-A of the Code.
Two brothers were sleeping with a ‘dao’ kept nearby. In a state of semi-sleep one of them felt that someone was strangling him. He caught hold of the ‘dao’ and gave a blow which fell on his sleeping brother who was killed in the process. The accused was so ashamed of his act that he even thought of taking his own life. It was held that he was protected under this section.
The Nagpur High Court has held that shooting by an unlicensed gun does not deprive one of this defence if the essential elements of this defence are proved.
The accused was beating a person with fists. The wife of the man being beaten intervened with her baby in arms with a view to rescue her husband. The accused gave a blow to her also which accidentally fell on the baby as a result of which it died two days later. The Court rejected the defence primarily because the accused’s act of beating was not a lawful act, a basic condition required under this section.
In Bhupendra Sinh A. Chudasama v. State of Gujarat, the accused constable who had killed a head constable pleaded that the deceased got killed at the hands of the accused in performance of his duty. It was proved that the accused had fired from close range without knowing the identity of his target. The Supreme Court held that this fact showed that the act was done without any care and caution and the accused was not entitled to the benefit of section 80 of the Code.