MAHENDRA SINGH Vs STATE OF UTTARANCHAL
Bench: HARJIT SINGH BEDI,GYAN SUDHA MISRA, , ,
Case number: Crl.A. No.-000889-000889 / 2006
Diary number: 16528 / 2006
Advocates: SHAKEEL AHMED Vs
JATINDER KUMAR BHATIA
Crl.A. No. 889 of 2006 REPORTABLE 1
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
Crl.A. No. 889 of 2006 REPORTABLE 2
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 3
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
Crl.A. No. 889 of 2006 REPORTABLE 4
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 5
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 ¼ cm X skin deep. Oozing present.
(iii) Vertical lacerated wound left chest between right nipple and sternum 7cm X ¼ 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 6
..................J [GYAN SUDHA MISRA]
NEW DELHI AUGUST 09, 2011.