Mahendra Singh vs State Of Uttaranchal

Crl.A. No. 889 of 2006 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 889 OF 2006

MAHENDRA SINGH ..... APPELLANT

VERSUS

STATE OF UTTARANCHAL ..... RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

1.1 Janardhan Pathak, the deceased, was a Gate Keeper

with the Peepal Parao Forest Range which fell within the

jurisdiction of Police Station Lal Kuan. As the deceased

was coming out from his hut and proceeding towards the

tea shop, the appellant, Mahendra Singh, who was a Police

Constable, fired a shot at him with his service rifle

killing him instantaneously. The murder was apparently

committed because the deceased had complained to the Head

Constable at Police Station Lal Kuan about the nefarious

activities of the appellant. The appellant then ran away

from the spot and got a case registered at Police Station

Rudrapur against the deceased for offences punishable

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under Sections 342, 353, 332 of the Indian Penal Code

and also deposited his rifle in Police Station Rudrapur

vide Exhibit Ka 5 instead of P.S. Lal Kuan where the

incident had happened. The post mortem revealed the

presence of two gun shot injuries on the person of the

deceased - one of entry and the other of exit, with the

wound of entry having tattooing marks around it.

1.2 The trial court relying on the prosecution evidence

convicted the appellant on a charge of murder and under

the Arms Act and sentenced him accordingly. The matter

was then taken in appeal to the High Court and the High

Court has confirmed the judgment of the trial court and

dismissed the appeal.

2. Before us, Mr. P.S. Narasimha, the learned Senior

Counsel for the appellant, has not seriously challenged

the conviction of the appellant and has pointed out that

in the light of the prosecution evidence itself it was

apparent that the appellant had first been attacked and

had also suffered several injuries and that during the

course of a scuffle which followed the rifle had

accidentally gone off and that the appellant was at the

most guilty of having exceeded the right of private

defence and was, therefore, liable to be punished for an

offence of culpable homicide not amounting to murder.

The learned counsel has focused on the fact that the gun

Crl.A. No. 889 of 2006 REPORTABLE

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shot injury had been caused to the deceased from a very

close range and not from a distance of 12 or 15 feet as

was the case of the eye witnesses and the prosecution.

3. Mr. S.S. Shamshery, the learned counsel for the

State of Uttaranchal has, however, supported the judgment

of the trial court as well as the High Court and has

pointed out that the appellant, being a police official,

was conscious of the fact that in order to get away from

a case of murder he had to create a defence and for that

reason had self-suffered some injuries and lodged a

report in Police Station, Rudrapur instead of Police

Station Lal Kuan.

4. We have considered the arguments advanced by the

learned counsel for the parties.

5. It has to be borne in mind that the obligation to

prove an exception lies on an accused but at the same

time the onus of proof which the accused has to discharge

is not as strict as in the case of the prosecution which

had to prove its case beyond doubt. It has also to be

borne in the mind that it is very difficult, and often

suicidal, for an accused to raise a plea whereby he

admits his presence but if the prosecution evidence

itself shows that the defence taken by him is probable,

the accused is entitled to claim the benefit of that

evidence as well. It will be seen that the case of the

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appellant, as projected by Mr. Narasimha, during the

course of the arguments, is that the appellants had first

been attacked and some injuries had first been caused to

him and in the scuffle that followed one shot had been

fired. He has also pointed out that the presence of

tattooing around the wound was clearly indicative that

the prosecution story that the gun shots had been fired

from a distance of 12 to 14 feet was obviously wrong and

it was, therefore, plausible to suggest that shot had

been fired from a much closer range. We notice from the

evidence of P.Ws. 2,5 and 8, as also from the site plan,

that the shot had been fired from 15 to 18 feet. The

injuries found on the dead body are produced herein

below:

"1. Lacerated wound 1cm X .5cm X .5cm on dorsum of right thumb bleeding. Margins irregular.

2. Contusion 4cm X 2cm over bed of right shoulder. Colour was reddish.

3. Complaint of pain on back of neck but no external mark of injury and no tenderness was there.

4. Complaint of pain on right leg below knee joint. No external mark of injury. Shows tenderness."

6. Dr. Modi in his book, "A Text Book of Medical

Jurisprudence and Toxicology" (24th Edition, page 543) has

referred to the fact that signs of tattooing in the case

of a rifle shot would NORMALLY be upto 75 cms.

Obviously, in this situation the rifle could not have

Crl.A. No. 889 of 2006 REPORTABLE

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been fired from 15 to 18 feet. It is also clear that the

appellant has sustained some injuries though simple in

nature and they too are reproduced below:

"(i) Abraded contusion just below the right eye (maxillary prominence) size 2cm X 2cm. Fresh oozing present.

(ii) Transverse incised wound lower part of right deltoid muscle 4cm X < cm X skin deep. Oozing present.

(iii) Vertical lacerated wound left chest between right nipple and sternum 7cm X < cm skin deep. Oozing present.

(iv) Lacerated wound left deltoid muscle (transversely oblique) 4 cm X 1/3 cm X skin deep. Oozing present."

7. It is, therefore, possible in the light of the

aforesaid evidence, that the appellant had indeed been

attacked and that he had caused one injury in self-

defence from a short distance. We are, therefore, of the

opinion that the appellant's involvement in a case of

murder is not spelt out but as he has used a rifle from a

very close range, his obvious intention was to cause

death. He is, accordingly, convicted for an offence

punishable under Section 304 Part I of the IPC.

8. We, accordingly, allow the appeal in the above

limited terms acquit him of the offence under Section 302

of the IPC and award him a sentence of ten years rigorous

imprisonment under Section 304(I) of the IPC.

..................J [HARJIT SINGH BEDI]

Crl.A. No. 889 of 2006 REPORTABLE

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..................J [GYAN SUDHA MISRA]

NEW DELHI AUGUST 09, 2011.