MAHENDRA SINGH versus STATE OF UTIARANCHAL

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 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 lwo 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 1.2 The trial court relying on convicted the appellant on a charge Arms Act and sentenced him accordingly. taken in appeal to the Hi!~h Court confirmed the judgment of the trial appeal.

pp. 1062–1063, margin D

Before us, Mr. P.S. Narasimha, Counsel for the appellant, has not conviction of the appellant and has of the prosecution evidence itself appellant had first been attacked and injuries and that during the course of a scuffle the rifle had accidentally gone off and the most guilty of having exceeded the and was, therefore, liable to be punished culpable homicide not amounting counsel has focused on th1~ fact that been caused to the deceased from from a distance of 12 or 1fi feet as witnesses and the prosecution.

p. 1063, margin A

Mr. S.S. Shamshery, the learned of Uttaranchal has, however, supported court as WE~ll as the High Court and appellant, being a police official, was in order to get away from a case of murder defence and for that reason had self-suffered lodged a report in Police Station, Rudrapur Station Lal Kuan.

p. 1063, margin E

We have considered the arguments learned counsel for the parties.

p. 1063, margin G

It has to be borne in mind that an exception lies on an accused but 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 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 1 cm 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."

pp. 1063–1064, margin G

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 ems. Obviously, in this situation the rifle could not have been fired from 15 to 18 feet. A 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 prominemce) size 2cm X 2cm. Fresh oozing pn~sent. (ii) Transveme incised wound lower part of right deltoid muscle 4crn X Y4 cm X skin deep. Oozing present. (iii) Vertical lacerated wound left chest between right nipple and sternum 7cm X Y4 cm skin deep. Oozing pmsent. (iv) Lacerated wound left deltoid muscle (transversely oblique) 4 cm X 1/:3 cm X skin deep. Oozing present."

pp. 1064–1065, margin G

It is, therefore, possible in the light of the aforesaid evidence, that the appellant had indeed been attacked and that he had caused one inju~v 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 rangH, his obvious intention was to cause death. He is, accordingly, convicted for an offence punishable under Section 304 Part I of the IPC.

p. 1065, margin D

\Ne, 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(1) of the IPC. R.P. Appeal allowed. I •

p. 1065, margin E