S.R. Singh vs State

Chanda, J.—The Appellant S.R. Singh was charged under Sections 302/34, Indian Penal Code, along with one Purushottam Dikshit on the allegations that on October 14,1970, in furtherance of their common intention did commit murder by intentionally or knowingly causing the death of an Airman M.R. Jadav attached to the Air Force Station at Barrackpore. The learned Judge of the trial Court has acquitted the co-accused Purushottam Dikshit and convicted the Appellant u/s 302, Indian Penal Code. In view of the provision in the Code of Criminal Procedure (new) before inflicting the sentence, the learned Judge heard the Appellant who, as it appears from order No. 14 dated September 11, 1974, stated that he committed the offence in self-defence and prayed for mercy. The exact words used by him are ''apne jan bachane ke Uye mara''. On a consideration of the statement the learned Judge has sentenced him to imprisonment for life. It is a trite proposition that when several persons are charged with any offence read with Section 34 of the Indian Penal Code, the conviction of one only of the offence itself apart from Section 34 is legal even when all the rest are acquitted.

In October 1970 the deceased M.R. Jadav was an Airman of non-commissioned rank of the Air Force Station, Barrackpore and he was staying at the Air Force Camp having the facilities of bachelor''s mess. The Appellant S.R. Singh was a clerk of the equipment accounts section and he was also staying in a billet at the said Air Force Camp. In the morning of October 15, 1970, M.R. Jadav was found dead near billet No. A(6) within the Air Force Camp. It was in evidence that after the deadbody was detected the medical officer and other officers of the Air Force--P.Ws. 1, 2, 3, 4, 5, 6 and others went there. The medical officer examined the deadbody, but he has not been examined. The post-mortem examination was held by one Dr. A.K. Dasgupta, a medical officer in charge of the Police Case Hospital, Barrackpore, on October 15, 1970. Dr. Dasgupta-being dead, P.W. 13 Dr. Deb, his srccessor-in-chief, deposed with reference to the carbon copy of the post-mortem report. Mr. Banerjee, appearing on behalf of the Appellant has submitted that on account of non-examination of Dr. Dasgupta the post-mortem report could not go into evidence. In developing his contention Mr. Banerjee has submitted that the post-mortem report of the doctor is his previous statement based on his examination of the deadbody and it is not substantive evidence. The doctor''s statement in Court could alone be the substantive evidence. He has, further, submitted that the post-mortem report could be used only to corroborate the statement of the doctor u/s 157 or to refresh his memory u/s 159 or to contradict his statement in the witness-box u/s 145 of the Evidence Act. In this connection, Mr. Banerjee has referred to a decision of this Court in Roghuni Singh v. Empress ILR 9 Cal. 455. We are aware of two other cases, one of the Allahabad High Court and the other of the Madras High Court, Bechan Prasad Vs. Jhuri and Others, and Rangappa Goundan Vs. Emperor, , holding identical view. In all these cases the doctor was available but was not examined. Their Lordships held that the post-mortem report or a letter giving opinion of the doctor was not admissible without the examination of the doctor. But in the present case, the doctor who held post-mortem examination being dead, those cases must however be distinguished from a case where the applicability of Section 32(2) of the Evidence Act is in point.

The injury report or the post-mortem report of the doctor, who is dead or cannot be found, is admissible and relevant u/s 32 of the Evidence Act. In Mohan Singh Vs. Emperor, the Court dealt with a case where the Civil Surgeon, who conducted the postmortem, examination, had since died. The Bench consisting of Sulaiman and Mukherjee JJ. held that the post-mortem report was admissible under this section. In another case, The State Vs. Rakshpal Singh and Another, , the attendance of a medical officer could not be procured without delay and expense. The injury report submitted by him was held to be admissible and relevant after it was proved by his compounder. The same view has been taken by a Division Bench of the Patna High Court in Ram Balak Singh and Others Vs. The State, 2 without any discussion of the principle. In that case, the doctor, who performed the autopsy over the deadbody, was abroad at the time of the trial and his handwriting and signature having been proved by another doctor, the post-mortem report was found admissible. In Mellor v. Walmsley (1905) 2 Ch. 164 C.A. it was held that the doctor was a professional man. It was his duty to record facts. These records were, therefore, admissible after his death as having been made in the course of duty. From the provisions of Section 32 of the Evidence Act and the relevant enunciation of the principle in different case laws, cited earlier, it seems to emerge that if the doctor is available for examination in Court, the injury report or the post-mortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or refreshing memory or for contradiction of his evidence in Court. If, however, the doctor is dead or is not available for examination in Court under the circumstances mentioned in Section 32 of the Evidence Act, the injury report or the post-mortem report is admissible and relevant. What weight it would carry with a Court of fact is altogether a different question. Its probative value would depend on the facts and circumstances of each case. It is well-known that the Court has come to an independent conclusion as to whether or not the murder had been committed from other evidence on record regarding injuries de hors medical evidence. Mr. Banerjee has submitted that no value should be attached to the post-mortem report which has not been counter-signed by the Chief Medical Officer. It has transpired that Dr. Deb deposed with reference to the carbon copy of the post-mortem report and as such, counter-signature of the Civil Surgeon could not be expected in it. We have no reason to doubt the genuineness of the post-mortem report with reference to which Dr. Deb deposed before the Court.

With reference to the evidence of P.W. 13, Dr. Deb, based oh the post-mortem report, we notice the following injuries in the person of the deceased M.R. Jadav:

(i) One lacerated wound 1/4th inch into 1/6th into skin all the mastoid process just behind the right ear.

(ii) One 1/8th inch circular lacerated wound at the lateral aspect of left side of abdomen.

(iii) 34 pin-shaped penetrating injuries at different parts of back of chest and abdomen--each of circular with blackening of skin in and around them, on dissection tissues underneath were seen lacerated--on tracing eight pellets were found from different parts of the body--two of them were found in the apical region of the heart with perforation of pericardium and accumulation of both liquid and clotted blood in the pericardial cavity--two pellets were found lodged on the right upper lobe of lung--the lung was seen to have been perforated at the infra-scapular region in fourth inter-costal space packet (posteriorly) with profused accumulation of blood--liquid and clotted in the right pleural cavity. Two pellets were seen to have been lodged in the liver--the peritoneal cavity contained liquid and clotted blood. Two pellets seem to have been lodged in the left lateral lobe of lung. The lung was seen to have been perforated in the body.

It was noted by Dr. Dasgupta to which Dr. Deb concurred that the death was due to shock and haemorrhage resulting from the above-noted injuries which were ante-mortem and homicidal in nature. Having regard to the injuries in the person of M.R. Jadav there can be little doubt that the assailant or assailants intended to cause his death. In the case of Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, the Supreme Court quoted with approval the word''s used by Coleridge J. in Reg v. Monkhouse (1849) 4 Coxee (55) C.

The inquiry as to intent is far less simple than that as to whether an act has been committed, because we cannot look into a man''s mind to see what was passing there at any given time. What he intends can only be judged by what he does or says and if he says nothing, then his act alone must, guide you to a decision.

The intention in the instant case was clearly one of murder.

There is no eye-witness to the occurrence. Prosecution case rests on circumstantial evidence. In Mahmood Vs. State of U.P., the Supreme Court held that in a case dependent wholly on circumstantial evidence the Court before recording a conviction on the basis thereof must be firmly satisfied:

(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt

(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused;

(c) that the circumstances, taken collectively, are incapable of explanation of any reasonable hypothesis, save that of the guilt sought to be proved against him.

The deadbody of Jadav, as earlier noticed, was detected in the early morning of October 15, 1970. The Appellant was found missing at the roll-call which took place at about 7-30 a.m. on October 15, 1970. It was in evidence that S.R. Singh was arrested in connection with another case in his home district Unao in U.P. and was produced before the learned Magistrate of the Alipore Court on August 25, 1972, i.e. after a lapse of about two years. The Appellant wanted to say that he left the Barrackpore Camp at 3 or 4 p.m. on October 14, 1970, after submitting an application for leave in the department to which he was attached. The accused nowhere has suggested that leave was granted on that application. If he left at 3 or 4 p.m. on October 14, 1970, it was certainly a case of desertion. From the evidence on record, it will however appear that the Appellant took his dinner at about 8 in the night of October 14, 1970, in the mess of the Air Force Camp and he indulged in a quarrel at the dinner table and that completely rules out his defence that he left the camp at about 3/4 p.m. on October 14, 1970. P.W. 5 Uma Sankar Pandey, who was a Corporal posted at Barrackpore at the relevant time, had deposed to the effect that at about 8-15 or 8 p.m. he along with his friend P.W. 6 Dharampal Singh, a Corporal of the Indian Air Force, who was also posted at Barrackpore, went to the dining hall of the mess. His evidence was that M.R. Jadav (deceased) and Omprokash joined them when they were going to the dining hall. At the dinner table M.R. Jadav had altercations with the Appellant S.R. Singh who charged Jadav for removing his plate. After the dinner P.W. 6, P.W. 7 and M.R. Jadav went out for a walk. P.W. 6 was putting up at billet No. 5(8) where the deceased M.R. Jadav was also staying. Like P.W. 5, P.W. 6 has also said about the presence of the Appellant at the dinner table at about 8-20 p.m. on October 14, 1970. He has also spoken about the quarrel between the Appellant and the deceased over the removal of plate from the table. The evidence of P.W. 7 Omprokash Jadav, another Corporal of the Indian Air Force, who was with P.W. 6 and the deceased M.R. Jadav, was also in the same key. P.W. 14 Madan Gopal Saha seized among other from room No. 6 of billet A/50 which the Appellant was sharing with another Airman a gun licence in the name of the Appellant S.R. Singh and 1312 bore live cartridges and a handkerchief with stains of blood. Exhibit 5/1 is the relevant seizure list. The Police officer also seized some fired cartridges from a place about 10 cubits from the deadbody and another fired cartridge lying on the road in front of billet No. A/72 at a distance of about 10 yds. from the deadbody. The witness sent two live cartridges and pellets to P.W. 9, the Arms expert. On examination of the special cartridges of 12 bore one loaded with number four pellets and other loaded with number two pellets with the two fired K.F. special cartridge cases, the expert has given the following opinion:

(i) Both the cartridges were live 12 bore ammunition meant for use in 12 bore gun. One of the cartridges was loaded with No. 2 pellets and the other with No. 4 pellets.

(ii) The cartridge cases were found to have been fired from the same barrel of a 12 bore shot gun.

(iii) The lead pellets were found to be of number two size from their individual weight and size (3-6 grains/135 inch). The expert could not say if these pellets were loaded in any of the two fired cartridges marked B1 and B2 by him, Cartridge cases were lying scattered at different places and as such, it was not possible for him to say if the pellets came out from any particular cartridge case.

The question whether omission to examine or want of adequate examination vitiates the trial was also considered earlier in several cases and the Supreme Court held that a judgment was not to be set aside merely because of inadequate compliance of Section 342 , Code of Criminal Procedure (old), (Section 313, Code of Criminal Procedure (new)). An error of this type falls within curable irregularities. The question in each case depends upon the degree of the error and upon whether prejudice has been occurred. Real prejudice to the accused must be Shown and not a possibility of prejudice. In this connection, reference may be made to the Supreme Court decisions in Makan Jivan and Others Vs. The State of Gujarat, , Ajit Kumar Chowdhry Vs. The State of Bihar, , Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal, , Ram Shankar Singh and Others Vs. State of West Bengal, and Ajmer Singh Vs. The State of Punjab, . We are not persuaded to say that any prejudice has been caused to the accused in the instant case. We have not been shown by Mr. Banerjee what explanation the accused could have offered in this respect. The contention of Mr. Banerjee looses its force in view of Qs. 24 and 25 put to the accused. By Q. 24 the attention of the accused was drawn to the fact that two fired cartridges were recovered from a place of a little distance from the deadbody and by Q. 25 his attention was drawn to the prosecution evidence that 13 live cartridges and a gun licence were seized from his room. In answer to Q. 24 the Appellant said that ''these are false''. His answer to Q. 25 was ''I do not know''. He did not offer any explanation why he left behind the gun licence if he left for his home with the gun at 4 p.m. on the date of occurrence without any leave and permission of his superior officer, A person deserting an Air Force Camp, it is difficult to believe, would carry the gun leaving the gun licence and cartridges in the billet. On the other hand, it appears that he left the camp in an unseemly hurry and it speaks of a mind that wanted to avoid detection of his crime. We have no hesitation in saying that defence set up by the Appellant that he left the camp at about 4 p.m. on the date of occurrence is false. Indeed, among the circumstances which go against the accused''s innocence is the falsity of the plea that he put forward. It is not illegal to take into consideration this circumstance also, if there are other compelling materials bringing home the guilt of the accused: Mohan Lal Pangasa Vs. The State of U.P., . In an earlier case, Aher Raja Khima Vs. The State of Saurashtra, , the Supreme Court observes that when a strong prima facie case has been made out against the accused person, it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and he cannot say that law entitles him to keep his lips sealed. In Shri Ram Vs. The State of U.P., the Supreme Court says that the burden is on the prosecution to establish its case and no adverse inference can be raised against the accused for her failure to explain her utterence. Besides, an accused cannot, while being examined u/s 342, Code of Criminal Procedure, be subjected to cross-examination and a bald assertion to explain a piece of conduct almost always fails to convince.

After the dinner was over, as the evidence of P.Ws. 5, 6 and 7 reveals, the Appellant left the dining hall. P.W. 5 Uma Sankar and the deceased went to their billets and thereafter came out for a walk. It appears that P.W. 6 and P.W. 7 subsequently joined them and when they were proceeding along the road M.R. Jadav (deceased) stopped near the junction of 38 Squadron for urination. When all of them proceeded a little they found A.C. Dixit, acquitted accused, going on cycle. Jadav stopped him and enquired about S.R. Singh. At that time S.R. Singh arrived there on a cycle. M.R. Jadav stopped him and as the evidence of P.W. 6 goes, demanded an apology for abusing him. As he refused to apologise, M.R. Jadav dealt a blow and S.R. Singh fell down and Jadav stood upon him. P.W.6 ordered Corporal Pandey (P.W. 5) and Dixit to seperate them. It further appears from the evidence that P.W. 6 along with the deceased while proceeding along the road were ahead of P.Ws. 5 and 7. At that time S.R. Singh, the Appellant, shouted ''Jadav kaha hai'' and fired a shot from the gun, which he had with him, at M.R. Jadav. M.R. Jadav turned and ran away. By that time P.W. 6 saw the accused again loading his gun and chasing Jadav. While chasing Jadav the Appellant threatened P.W. 6 saying ''D.P. Singh, tomebhi dekhenga''. The witness did not see what happened thereafter as he returned to his billet. He heard sound of gun-fire. P.W. 5 who was a Corporal at the relevant time has spoken about the altercation on the road between Jadav and the Appellant whose name was not known to him. His evidence also reveals that M.R. Jadav was sitting on the accused and Dixit separated them. P.W. 5 asked the Appellant and Jadav to listen to his words, but the Appellant while leaving the place refused to pay any heed to them and held out the threat that he would see Jadav. While P.W. 6 was going towards his billet he heard a shout ''where is M.R. Jadav''. The witness saw the Appellant with a gun in his hand and immediately heard a sound of gun-fire. He, thereafter, ran to his billet. P.W. 6 Dharampal and P.W. 7 Omprokash also went there. Their evidence also reveals that M.R. Jadav caught S.R. Singh, the accused, on the waist and there was exchange of words over the incident in the dining hall, that M.R. Jadav sat on the accused and P.W. 5 asked Dixit to separate them which Dixit did. Thereafter, S.R. Singh and Dixit proceeded on their cycle towards the billet. It is in evidence that when P.W. 5, P. W. 6 and P.W. 7 went in front of G.T. Section, they heard a sound of firing and a shout ''where is Jadav''. At this, P.Ws. 5, 6 and 7 ran away. P.W. 7 has said that as he was by the side of Pandey he could not recognise the man who shouted and fired from the gun. If the witness entered into any unholy conspiracy to falsely implicate the Appellant, then it was not difficult for the prosecution to make him say that it was the Appellant who shouted and fired from the gun. The contradictions referred to by the Appellant with reference to the statements made by P.Ws. 5, 6 and 7 before the Police are on matters of details and do not affect the main story given in examination-in-chief. It has transpired in evidence that on the night of occurrence P.Ws. 5, 6 and 7 contacted P.W. 2, the orderly sergeant and the material part of the incident commencing from the quarrel at the dining hall was disclosed to P.W. 2. P.W. 5 also reported the incident to the orderly officer. P.W. 6 and P.W. 7 informed the duty officer over the phone and on the instruction of the duty officer over the phone P.W. 8 went to the spot along with P.Ws 5, 6 and 7, but none was found. Mr. Banerjee has submitted that P.Ws. 5, 6 and 7 were taken into custody by the Air Force authority along with Dixit, the acquitted arcused and as such the learned Judge of the trial Court was not justified in placing reliance on their evidence. If we have been able to understand the contention of Mr. Banerjee, he has invited this Court to treat these three witnesses as accomplices. These witnesses were temporarily taken into custody not by any Court Martial but for the purposes of holding enquiry under the Air Force Act the incident having taken place within the Air Force campus and by no stretch of imagination it can be said that their position was like that of an accomplice. An accomplice is one who has either been convicted of or has confessed guilt connected with the charge on trial. P.Ws. 5, 6 and 7 could not be jointly indicated with the accused. Immediately after the incident they disclosed what they had seen to the officers of the Air Force. They never confessed having participated in the crime and there is no evidence that they were directly or indirectly connected with the crime. The fact that these three persons were taken into custody for the purpose of fact-finding by the commission indicates that they were in a position to throw light on the incident. Dixit who was also taken into custody was subsequently made over to the Police and P.Ws. 5, 6 and 7 were given a clean bill. Immediately after the incident and before they were taken into custody, these witnesses disclosed to the officers of the Air Force what they had seen. We are unable to say that with a view to avoid trial these three witnesses falsely implicated the accused Appellant with whom no enmity has been suggested. We are not prepared lb accept the contention of Mr. Banerjee in this respect.

The evidence of P.W. 3, S.R. Das, is to the effect that seeing the deadbody in the morning of October 15, 1970, at about 5-30 a.m. he reported it to the orderly officer over phone and thereafter the orderly officer visited that place. P.W. 4 was the warrant officer in charge of No. 6 P and S Unit which was in front of billet No. A/50. It may be remembered that the Appellant S.R. Singh and one M.R. Singh were occupying a room in that billet. The witness proves the seizure of some articles belonging to S.R. Singh from the room and among the seized articles there were a gun licence, 13 live cartridges and one handkerchief with stains of blood. All these articles have been marked Exs. III, IV and V. We also know from him that some empty cartridge cases and fired cartridge were lying at a distance of about 10 ft. and 100 yds. respectively from the deadbody which was found behind the billet No. A/62. The Police also seized some mud. This witness in cross-examination reveals that at the bathroom of dhobi ghat which was about 330 yds. away from billet No. A/61 some stains of blood were detected. P.W. 11, the Sub-Inspector of Police attached to Noapara P.S., received a telephone message from P.W. 1, the Security Officer, that the deadbody of an unknown person was floating in a pond near West Guard Group within the Air Force premises. The witness made the G.D. Ex. 7. Within a short time thereafter, he received from P.W. 1 the letter, Ex. 8, which did not disclose any cognizable offence. Subsequently, Ex. 1 was received by him and on a scrutiny of Ex. 1, we find that P.W. 1 reported about the existence of the deadbody inside the Air Force Camp behind the billet No. A/61 and that Airman S.R. Singh was absconding since the previous night. P.W. 14 Madan Gopal Saha, S.I. of Police attached to the Noapara P.S., also found the deadbody on the north-eastern corner of billet No. A/61 on a land full of water and mud. He held inquest on the deadbody. While at the spot he received from P.W. 1 the written complaint, Ex. 1, which has been treated as F.I.R. and sent it through a constable to the O.C. for starting a case. He submitted the final report in the U.D. case which was started prior to his departure from the Police Station for the Air Force Camp. This witness seized some fired cartridges from a place at about 10 cubit from the deadbody and another fired cartridge from a place in front of the billet No. A/72 on the road, at about 100 yds. from the deadbody. He seized the gun licence in the name of the Appellant from the room where the Appellant was residing. Search was made by the witness for the Appellant, but he could not be found. After getting the address of the accused S.R. Singh he sent a message for his arrest. It has been elicited in cross-examination that at the time of the inquest the witness noticed a blood-stained injury on the head of the deceased at some height above the right ear and signs of ''kalshita'' on two sides of his chest. Mr. Banerjee has contended that this indicates that the incident did not take place in the way as alleged by the prosecution. Injuries noticed by the witness do not certainly rule out the prosecution case that the death of M.R. Jadav was due to gun-shot injury as earlier noticed. As regards kalshita, we may refer to the observations of Modi in his book Medical Jurisprudence and Texicology (19th ed., p. 121) that post-mortem lividity or staining has sometimes been mistaken for bruises caused by violence during life. On receipt of the gun-shot injuries M.R. Jadav might have come in contact with the nearby stone or the tree and that might have caused the head injury above the right ear and that may also explain kalshita on the two sides of the chest. Mr. Banerjee appearing on behalf of the Appellant has criticised the conduct of this witness for not examining P.W. 1, B. Kalyanram, the orderly officer N.C.O.I.C. and other persons occupying the billets A/72 and A/73 which are situate near G.T. Section. It does not appear from the evidence on record that the orderly officer and the occupants of billets A/72 and A/73 were in a position to throw any light as to the occurrence itself and the participation of the Appellant in it. The prosecution is not bound to examine any person irrespective of the question whether he could unfold the prosecution story. Absence of their evidence could not cause prejudice to the accused. It is unreasonable to suggest that the prosecution had any oblique motive in suppressing their evidence. As regards non-examination of P.W. 1 during investigation, it cannot be said that because he was not examined by the I.O., his statement in the Court is unbelievable. Except stating that the Appellant was missing from the camp in the morning following the incident, P.W. 1 has not said anything about the incriminating circum stances standing against the Appellant. Even on showing of the Appellant, he was not in the camp in the morning following the incident.

Mr. Banerjee has argued with reference to the evidence of P.W. 14 who held inquest on the deadbody that at the time of the inquest the name of the Appellant did not transpire and this throws doubt on the honesty of the prosecution case during the trial implicating the Appellant. In this connection he has referred to a decision of the Supreme Court in Balaka Singh and Others Vs. The State of Punjab, . In Balaka Singh''s case the inquest report was made on the basis of a brief statement made to the Police by the informant who claimed to be an eye-witness to the occurrence. In the instant case, P.W. 14 Madan Gopal Saha held inquest on October 14, 1970. It does not appear from his evidence that P.Ws. 5, 6 and 7 were present at the time of the inquest or that they made any statement at the time of the inquest or prior to it. In fact, no question was put to this Police officer, P.W. 14, or any other witness with reference to the inquest report as was done in Balaka Singh''s case to contradict the prosecution case. In the case of Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, the Supreme Court observed:

It is questionable how far an inquest report is admissible except u/s 145 of the Evidence Act.

Mr. Banerjee has also drawn our attention to the evidence of P.W. 14 in cross-examination to the effect that he did not examine the medical officer of the Air Force who had occasion to see the deadbody in the early morning prior to the arrival of the Police. It was suggested to the witness that the medical officer of the Air Force gave a report to the effect that the death of M.R. Jadav was due to head injury by a blunt substance and for that reason he was not examined. This suggestion is negatived by the post-mortem examination. The medical officer of the Air Force could not give the details of the injuries and state his opinion about the cause of the death merely by external examination. These could only be ascertained from the result of the post-mortem examination. It is true that P.W. 15 did not pray for warrant of arrest against the accused Appellant. P.W. 15 and P.W. 14, Police officers attached to the Noapara P.S. at the relevant time, have deposed to the effect that they tried to apprehend S.R. Singh, the Appellant, but subsequently they received information from the S.P. of Unao (in U.P.) through the Air Force authority that the accused had been arrested in connection with another case. On receipt of this information the Police made a prayer to the Court for issuing production of warrant. The fact remains that the Appellant made himself scarce after the incident. The failure to put forward an explanation of absconding after the occurrence particularly from a military camp is a point in favour of the prosecution.

Motive for the crime has been well-established by the prosecation in that the accused Appellant took insult hurled at him by the deceased on the road too seriously to heart.

Mr. Banerjee has submitted that if the gun was fired it was natural that the officers of the camp would come out to ascertain what was the matter about and this casts doubt on the prosecution case about the time and manner of the incident. The evidence of P.W. 8 is that he did not take notice of the sound, which was similar to that of a gun-fire as Dewali was approaching, is a plausible explanation to the contention raised by Mr. Banerjee.

The circumstantial evidence adduced by the prosecution is not only consistent with the guilt but inconsistent with the innocence of the Appellant.

Considering the evidence on record and the probability and circumstances, we have no hesitation in saying that the Appellant inflicted gun-shot injury that caused the death of M.R. Jadav. Right of private defence was not suggested by the accused Appellant in cross-examination of the prosecution witnesses and in his statement u/s 342, Code of Criminal Procedure. It cannot be laid down as a general proposition that a Court cannot and should not consider a case in favour of the accused which he has not raised. In view of his statement before the learned Judge of the trial Court in connection with the sentence, we think it proper to consider whether any such right was available to him. Sufficient time had elapsed since the incident on the road. There is no evidence that the deceased was armed when the gun was fired at him by the Appellant or that the Appellant was attacked by the deceased and he apprehended personal injury. We hold in the facts and circumstances of the case that right of private defence was not available to the accused Appellant.

In the circumstances and for the reasons noted above, there can be no escape from the conclusion that the conviction of the Appellant is well-founded and we find no reason to interfere with the decision of the learned Judge of the trial Court.

The appeal is dismissed. If the sentence of life imprisonment is reduced by the Government to a definite term, the Appellant will have the benefit of set off as contemplated by Section 428, Code of Criminal Procedure (new).

Sudhamay Basu J.

I agree.