In a criminal case based on circumstantial evidence, the prosecution must prove beyond reasonable doubt that the accused committed the offense. The defense of accidental firing during scuffle can be accepted if it is supported by evidence and is not unreasonable.

Aniruddha Bose, J.

1. In this appeal, the appellant questions the legality of a judgment of his conviction on being held guilty of an offence punishable under Section 302 of the Indian Penal Code, and his consequential sentence of imprisonment for life along with fine of rupees five thousand. In default of such payment, he has been directed to undergo simple imprisonment for six more months. The judgment has been delivered by the Sessions Judge, Bankura on 14th February 2006 in Session Trial No. 12 of July 2001 arising out of Session Case No. 19 of June 2001.

2. At the material point of time the appellant accused was a constable on sentry duty at Gorabari outpost under Khatra Police Station in the district of Bankura. Charge against him is that he had caused death of one Ganesh Pal, who was on a pleasure trip to Mukutmanipur, by firing at him on 2nd January, 2000 at about 5.30 PM from his service rifle. Case was started upon filing of a First Information Report by one Mrigankar Banerjee (who was examined by the prosecution as P.W. 2) lodged on the same evening at 6.55 PM. Prior to lodging of the FIR, the officer-in-charge of the police station himself had reached the place of occurrence on receiving information from one N.V.F. member, Sukdeb Mahata. The officer-in-charge of the said police station, Dilip Kumar Roy has deposed as prosecution witness (P.W.)8 and his deposition, he has stated that on reaching the place of occurrence, he noticed that the accused was standing aiming his rifle, at the assembling crowd. Thereafter, he was overpowered by the P.W. 8 and other police officials accompanying him, arms were seized from his possession and he was taken into custody. In his written complaint, which is the basis of the formal FIR, Mrigankar has stated that a group from Durgapur were returning from Mukutmanipur in a vehicle, Tata Model No. 608A. The vehicle was being guided by the police near the place of occurence. It appears from evidence of the prosecution witnesses that because of heavy traffic, the vehicle was diverted from the regular route and instructed by the police to enter the path towards the outpost and exit. It is the prosecution case that while taking that course, a policeman came out from inside the post and fired. As a result of such firing Ganesh Pal, a passenger in that vehicle died. P.W. 2 has named four passengers who were injured, as Kajal Singha Roy, Uttam Bhuin, Kartick Mundari and the FIR maker (P.W. 2) himself. He has stated in his formal complaint:-

“The name of police constable is Nemai Hembram, Batch No. 215.”

3. The inquest report indicates that the body was found in the rear of the truck lying with the head pointing to the east with hole on the forehead. It was after the appellant was taken into custody the formal complaint was received from the P.W. 2. The service rifle of Nemai Hembram was seized along with 19 rounds of .303 ammunition and one empty cartridge. The vehicle, bearing registration No. WB 51/0889 was also seized, and has been referred to in the seizure list as “truck”. After inquest, the body was sent for postmortem examination and the autopsy surgeon opined in the postmortem report that death was due to the effect of gunshot injury which was ante-mortem and homicidal in nature. The rifle butt as also the empty cartridge were also sent for examination by the arms expert and the arms expert’s opinion was that the barrel of the rifle had sign of firing and the empty cartridge could or may be fired through the rifle. The actual bullet was not made an exhibit and does not appear to have been recovered.

4. The prosecution has altogether examined eight witnesses, four of whom were passengers of the said vehicle. The autopsy surgeon was not examined, but another medical expert, Dr. J.N. De (P.W. 5) has proved the postmortem report, concurring with the opinion of the autopsy surgeon. Another medical practitioner, Dr. Amiya Kumar Mondal was examined as P.W. 6. He has proved the injury re