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

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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 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.