Judgment

THAKKAR, J. :- Whether the offence committed by the appellant, a Constable of Haryana Police Force who fired his rifle at another Constable, Kaptan Singh of the same Force, as a result of which Kaptan Singh succumbed to the injuries sustained by him on the spot would fall under Section 302 of the Indian Penal Code or would constitute a lesser offence is the limited question which is posed in this appeal by special leave.

2. The learned Sessions Judge at Rohtak convicted the appellant for an offence under Section 302 of the Indian Penal Code in connection with the on the spot death of Constable Kaptan Singh on September 23, 1979 at about 8.30 P.M. by gun shot injuries inflicted by the appellant. By his judgment and order dated June 14, 1980 the learned Sessions Judge convicted the appellant and sentenced him to suffer imprisonment for life. The High Court of Punjab and Haryana confirmed the order of conviction and sentence rendered by the learned Sessions Judge and dismissed the appeal preferred by the appellant on April 30, 1980.

3. This Court granted special leave "confined to the question of nature of offence and sentence" by an order passed on January 18, 1982.

4. The only question that arises before us is, therefore, whether having regard to the facts and circumstances of the case the offence would fall under Section 302 of the Indian Penal Code as held by the learned Sessions Judge and confirmed by the High Court or whether it would constitute a lesser offence. In a sense the question is merely academic. Having regard to the facts and circumstances of the case even if the offence does not fall under Section 302 I.P.C. as held by the Sessions Court and the High Court but falls under Section 304(1) I.P.C. as contended by the learned counsel for the appellant, the sentence of imprisonment for life imposed by the lower courts deserves to be maintained. That is why the question as regards the nature of the offence loses its importance. Even so since we are seized of the matter we propose to deal with the said question briefly.

5. The following facts have been established by overwhelming evidence and are incapable of being disputed :

(i) That appellant was armed with a 303 rifle in his capacity as a Constable of the Haryana Police Force;

(ii) When the victim of the assault, Kaptan Singh, who was also a member of Police Force, came out from his office at the Police Post at about 8 p.m., the appellant fired at him with his rifle;

(ii) He fired several shots at Kaptan Singh who was trying to run away towards his office in order to save his life;

(iv) One shot hit him just beneath the knee of his right leg and Kaptan Singh collapsed on the floor inside the office;

(v) Even after Kaptan Singh collapsed in the office the appellant fired another shot at him though the shot did not hit him;

(vi) The total number of used cartridges which were recovered from the scene of offence were five;

(vii) The Ballistic Expert has expressed his opinion that all the five cartridges were fired from the rifle which was seized from the appellant;

(vii) Evidence revealed that the victim had sustained ten injuries which have been described by the Medical Officer as under :-

(1) An oval lacerated wound with inverted margins running obliquely in its width through and through the tissues of the right leg on the medial surface of the right leg 2" below the right knee joint, measuring 1-1/4" x 3/4". There was an abraided area around the wound and up to 1 per cent above the wound which was black in colour.

(2) An irregular verticle lacerated wound on the posterior surface of the right leg in the middle 1/3rd running through and through the leg, measuring 7-1/2" x 4", all deeper muscles, facia, blood vessels, nerves were torn. There was comminuted fracture of the right fibula at the middle of the shaft.

(3) A verticle lacerated wound on the outer surface of the right leg in the middle 1/3rd measuring 5" x 1-1/2" muscle deep.

(4) A through and through verticle lacerated