Decided on August 25,1979

STATE Respondents


D.C.GHEEWALA, M.K.SHAH - (1.) This ease has got rather peculiar facts. A police constable entrusted with a rifle to perform duties assigned to him for patrolling after the duty was over it is alleged by the prosecutions went to a place in the company of friends and without rhyme or reason or any apparent motive or previous enmity between him and the deceased aimed the rifle at the chest of the deceased an utter strangers and in the twinkling of an eye fired a shot therefrom which went through and through the body of the deceased with the result that a young life just ushered into the youthful arena was extinguished in no time.
(2.) Mr. A. D. Shah the learned Advocate appearing for the appellant fairly concedes that he is not in a position to challenge the findings of the trial court with regard to the possession of the rifle with the accused at the time of the incident and with regard to the fatal bullet having emerged from the said rifle and having pierced through the chest of the deceased causing his death. In view of the voluminous evidence of a number of witnesses including documentary evidence on record with regard to the patrolling duty assigned to the accused from 13th May 1978 onwards at Ranavav railway track; his being entrusted with the rifle from which the gunshot was fired and his being found with the rifle in police uniform with his two companions at the scene of the incident on the night of 18th and morning of 19th May 1978 and the gunshot from the very rifle having caused the death of the deceased the bullet having pictured through and through from his chest and back there is no doubt in our mind that the learned Judge was fully justified with regard to the findings arrived at by him in this connection.
(3.) But Mr. Shah attacks the order of the trial court on the ground that in spite of sufficient material on record the learned Judge failed to appreciate the evidence in proper perspective and in arriving at the conclusion which is inescapable in view of the evidence on record that the act of the accused was not an intentional one and that the bullet from the rifle carried by the accused emerged out of the rifle accidentally killing the deceased. At the most further submits Mr. Shah the offence if any committed by the accused would be one punishable under section 304 or 304 II of the I. P. Code.;

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