MAHENDRA SINGH versus STATE OF UTIARANCHAL

Citation: [2011] 9 S.C.R. 1061 · Decided: 09-08-2011 · Supreme Court of India · Bench: H.S. BEDI, GYAN SUDHA MISRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2011] 9 S.C.R. 1062 
A 
MAHENDRA SINGH 
' . 
v. 
STATE OF UTIARANCHAL 
(Criminal Appeal No. 889 of 2006) 
B 
AUGUST 09, 2011 
[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 
E that he had caused onie injury in self-defence from a short 
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 
F convicted u/s 304 (Part-I) and sentenced to ten years rigorous 
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 
1' " 
discharge is not as strict as in the case of the prosecution 
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 ./ 
B 
From the Judgment & Order dated 22.03.2006 of the High 
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 
8 taken in appeal to the Hi!~h 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 
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

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