IMPORTANT POINT
No person can claim immunity from culpable homicide merely on ground that he killed another person in discharge of his official duties unless such killing would fall within the ambit of any exception in chapter IV of the Indian Penal Code.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 80-Appellant, an armed Constable of Special Reserved Police, shot his superior a Head Constable during dusk hours of a cloudy day-Victim was perambulating around Dam site which was then in danger on account of heavy rainfall-Defence plea of mistaken identity and right of private defence of property-Victim was shot from a close range without his identity smacked of dearth of any care and caution-No plea by appellant that he had any apprehension of death or grievous hurt-To no witness appellant put defence that he fired for protecting the tower-Belated claim of right of private defence was far from contemplation of appellant when he opened the fire-Appellant had no right of private defence of property-Conviction was liable to be upheld. (Paras 8 to 16)
       (ii) Indian Penal Code, 1860-Sections 103 and 104-Evidence Act, 1872-Section 106-Right of private defence-Burden is on accused-Standard of proof is not akin to that of prosecution to prove the guilt-Burden can be discharged showing preponderance of probabilities.
       Held : No doubt, right of private defence would commence when a reasonable apprehension of danger to property commences and such right can extend to the killing another person even if there was only an attempt to commit any of the offences mentioned in the section. The right subsumed in the section is an expansion of the basic right of private defence founded in Section 97. When the two sections are telescoped with each other the right of private defence can be stretched up to the extent of killing another person in defending the property of not only his own but even of another person. Such right would be available to a public servant if the property sought to be protected is a public property. But there is a condition for claiming such an extended right if the property sought to be protected is a building. It should be a building used for human dwelling or for custody of property. If it is not a building of that type the person exercising right of private defence cannot go to the farthest extent of killing another person unless the threatened mischief has caused a reasonable apprehension that death or grievous hurt would otherwise be the consequence. (Para 11)
       Further held : The accused who pleads any of the exceptions under Chapter IV has to prove it since law has cast the burden on him in such situation. Under Section 106 of the Evidence Act the court will presume the absence of it. Of course, the standard of such proof is not akin to that of the prosecution to prove the guilt of the accused. It is trite law that such burden can be discharged by the accused showing a preponderance of probabilities. (Para 15)

JUDGMENT

Thomas, J.-One armed constable of Special Reserved Police (SRP) shot at his immediate superior (Head Constable) while the latter was perambulating around Khampla Dam site (in Gujarat State) during dusk hours of a cloudy day in July 1983. The victim died on the spot. Appellant was charged and tried for murder, but the trial Judge entertained doubt about his complicity and acquitted him. However, a Division Bench of the High Court of Gujarat, while re-appraising the whole evidence on an appeal filed by the State, felt no speck of doubt that it was a cold-blooded murder perpetrated by the appellant. Accordingly, the acquittal was reversed and the appellant was sentenced to imprisonment for life. Appellant thus became entitled to file his appeal, as of right, under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

The victim of the gun shot was Ukadbhai Radvabhai, Head Constable of S.R.P. who was posted along with other police personnel at Khampla Dam site which was then in danger on account of heavy rainfall. Appellant was allotted to the same platoon and was placed below the deceased. Some skirmishes developed and deceased had taken the appellant to task on the ground of dereliction in the discharge of the work allotted to him.

2. Prosecution case is that appellant was of a truculent temperament and as he did not lightly take the diatribe hurled against him by the deceased he was groping for a suitable opportunity to retaliate. On the evening of 2.7.1983 he noted the appellant walking near the tower of the Dam. He aimed his rifle at the deceased and pumped four bullets into his vital parts which caused his end in a trice.

3. Post-mortem examination of the dead body revealed, inter alia, one fire arm wound on the back of the right shoulder with blackening of the skin and its exit wound was on the left axilla with a big hollow cavity through which lung tissues protruded; another entry wound on the right scapula, its exit wound on the 5th vertebra with treating of skin and muscle over an area of 3" x 3"; another entry wound below the left gluteal fold with blackening of the skin and its exit would was on the upper gluteal fold. There was no dispute that death of deceased was due to piercing of bullets from a fireman.

4. In this case appellant did own the act of firing the rifle. He adopted the following defence which he submitted in writing before the trial Court when he was examined under Section 313 of the Code of Criminal Procedure, the material portions of which the extracted below:

"I was doing patrolling duty with the service rifle, and at about 7.45 P.M. when it was absolute dark I came near the bridge for proceeding towards the valve tower. Then I saw a flame near the tower and saw somebody moving. I suspected that some miscreant was about to commit mischief with fire on the valve tower. As I could not identify the moving person due to want of light I shouted at him to stop. But there was no reply. So I proceeded further and repeated the shout, and still there was no reply. I had to open fire in discharge of my duties. I fired first in the open air and then fired two more rounds. I heard the sound of something falling down. I then reported the incident to the persons who were in the office. When constable Laxmansinh (PW-2) and Jayantrajsinh (PW-3) arrived after seeing the body of the victim they informed me that it was Ukadbhai Radvabhai who received bullet injuries."

5. Trial Court felt that the defence version is quite probable and hence he is entitled to the benefit of doubt. High Court found that the trial Court went perversely wrong in entertaining such a doubt on the facts of the case. High Court took particular note of certain circumstances which showed that appellant was nurturing grouse against the deceased.

6. Ext. B-15 is a report prepared by the deceased containing a complaint that appellant committed acts of dereliction of duties and that when appellant was warned abou

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1997 Supreme(SC) 1417

IMPORTANT POINTNo person can claim immunity from culpable homicide merely on ground that he killed another person in discharge of his official duties unless such killing would fall within the ambit of any exception in chapter IV of the Indian Penal Code.

IMPORTANT POINT
No person can claim immunity from culpable homicide merely on ground that he killed another person in discharge of his official duties unless such killing would fall within the ambit of any exception in chapter IV of the Indian Penal Code.