MAHENDRA SINGHversusSTATE OF UTIARANCHAL

                        [2011] 9 S.C.R. 1062


A                       MAHENDRA SINGH                                   '.
                                 v.
                     STATE OF UTIARANCHAL
                 (Criminal Appeal No. 889 of 2006)
                         AUGUST 09, 2011
B
    [HARJll" SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

        PENAL CODE, 186'0:

c      s. 304 (Part-I) - Gunshot injury causing death of victim
  - Conviction u/s 302 cind sentence of life imprisonment
  awarded by courts below - Plea that the injury was caused
  during scuffle - HELD: Tl1e evidence of prosecution witnesses
  and the site plan indicating the shot to have been fired from                .
D a distance of 14-18 feet not supported by medical evidence .
  which sf1ows gunshot injuries one of entry with tattooing marks '
  around it and the other of exit - Further, the accused also
  sustained injuries - It is, therefore, possible in the light of the
  evidence, that the accused had indeed been attacked and
  that he had caused onie injury in self-defence from a short
E
  distancE~ - Therefore, his involvement in a case of murder is
  not spelt out but as hE1 has used a rifle from a very close
  range, his obvious intention was to cause death - He is
  acquitted of the offence punishable u/s 302 - Accused
  convicted u/s 304 (Part-I) and sentenced to ten years rigorous
F imprisonment - Medic<JI Jurisprudence - Evidence.

        EVIDENCE:
       Proving of an exc19ption - Burden of proof - Held: The
G obligation to prove an eixception 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          1' "

  which has to prove its case beyond doubt - If the prosecution
  evidence itself shows that the defence taken by accused is
H                               1062
                MAHENDRA SINGH v. STATE OF UTTARANCHAL 1063

         >•
              probable, he is entitled to claim the benefit of that evidence     A
              as well - Penal Code, 1860 - 304 (Part-I)

                  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
              No. 889 of 2006.
'i ./
                  From the Judgment & Order dated 22.03.2006 of the High         B
              Court of Uttaranchal at Nainital in Criminal Appeal No. 848 of
              2001.

                  P.S. Narasimha, K. Parameshwar, Shakeel Ahmed,
              Sadiya Shakeel for the Appellant.                                  c
                  S.S. Shamshery, Jatinder Kumar Bhatia for the
     }
              Respondent.
.•
         ..        The following order of the Court was delivered
                                                                                 D
                                          ORDER

                   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           E
              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               F
              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,          G
     , \
              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     H
    1064    SUPREME COURT REPORTS                  [2011] 9 S.C.R.

A 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 Hi!~h Court and the High Court has
8
  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
C 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
D 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 th1~ fact that the gun shot injury had
  been caused to the deceased from a very close range and not
E from a distance of 12 or 1fi 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 WE~ll as the High Court and has pointed out that the
F 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.
G
       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
H an exception lies on an accused but at the same time the onus
              MAHENDRA SINGH v. STATE OF UTTARANCHAL 1065

    '   \

             of proof which the accused has to discharge is not as strict as      A
             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          B
             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         c
             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       D
            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           E
                 of right thumb bleeding. Margins irregular.
}
                      2. Contusion 4cm X 2cm over bed of right shoulder.
                 Colour was reddish.
                                                                                  F
                      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."
     'f I
                                                                                  G
                  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 ems. Obviously, in this
            situation the rifle could not have been fired from 15 to 18 feet.     H
    1066       SUPREME COURT REPORTS                  [2011] 9 S.C.R

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.
B
                 (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
c          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."
D      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 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
E 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.

      8. \Ne, accordingly, allow the appeal in the above limited
F 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 •