Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 34 OF 2006

Mahendra Pratap Singh ..... Appellant

Versus

State of Uttar Pradesh .....

Respondent

J U D G M E N T

Lokeshwar Singh Panta , J.

1.]This appeal is filed by Mahendra Pratap Singh- appellant herein under Section 2

(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970

against the final judgment and order dated 29.07.2005 passed by the High Court of

Judicature at Allahabad in Appeal No. 142 of 1981. By the impugned judgment, the High

Court has set aside the order of acquittal dated 09.10.1980 of the appellant passed by the

Sessions Judge, Jhansi, in Sessions Trial No. A-135 of 1975 under Section 304 Part-II,

under Section 307 and Section 324 of the Indian Penal Code (for short the “IPC”) and

under Section 25 of the Arms Act and as a result thereof he has been sentenced to

undergo rigorous imprisonment for 10 years under Section 304 Part-II, 7 years R.I. under

Section 307 IPC, 6 months R.I. under Section 324 IPC and 2 years R.I. under Section 25

of the Arms Act.

2.1]The incident leading to the prosecution of the appellant

occurred on 12.02.1975 at about 1.00 P.M. at bus stand

Lalitpur. According to the prosecution case, on the day of the

incident one passenger Bus No. MPR 5393 on its route from

Madanpur to Jhansi was stopped by its driver Sukhnandan

(CW-3) at bus stand Lalitpur. The departure time of the said

bus from the bus stand Lalitpur was 1.00 P.M., but it

remained parked till 1.10 P.M. beyond schedule time fixed by

the Road Transport Authority. One more Bus No. USG 5519

came from Jammi Dem and reached bus stand Lalitpur at

about 1.15 P.M. as per schedule time which was to proceed

from Lalitpur bus stand at 1.20 P.M. for Jhansi. Matin Khan

(PW-8) driver of Bus No. USG 5519 stopped the vehicle at bus

stand Lalitpur at 1.00 P.M. Laxman Dass (PW-4) and his

brother Prahlad Babu (PW-9) the owners of the said bus

reached at bus stand Lalitpur for settlement of fare accounts

with PW-8 Matin Khan-Driver. They noticed some passengers

boarding Bus No. MPR 5393 in place of their bus. They asked

2

Sukhnandan (CW-3) driver of Bus No. MPR 5393, to drive his

vehicle out of the parking place in order to provide halting

place for their bus. The appellant allegedly was standing

behind the bus armed with a rifle and was supervising his

luggage being unloaded by the conductor from the bus-roof

top. PW Prahlad Babu told the appellant that he would lose

his passengers and the appellant could get the luggage

unloaded after the bus moved ahead of the halting place. On

this, the appellant allegedly threatened to shoot PW Prahlad

Babu with his rifle if such request would be repeated. PW

Prahlad Babu retorted saying that like the appellant, he has

seen many shooters in his lifetime. The case of the

prosecution further was that the appellant raised his rifle and

fired single bullet shot causing injuries to four persons,

namely, PW Prahlad Babu, Dhanna Lal (CW-1), Ram Ratan

Joshi (CW-2) and Devendra Singh (Deceased) who allegedly

were all standing behind PW Prahlad Babu. The appellant

tried to re-load the rifle, but was over-powered by the

passengers present at the place of occurrence. In the melee,

someone hurled a stone which hurt the head of PW Laxman

Dass.

2.2]The prosecution proceeded to allege that PW Laxman

Dass handed over the appellant on spot to the custody of

PW Matin Khan, Vimal Kumar Tewari (PW-10) and Shikhar

Chand Naik (PW-13), etc. asking them to wait at the spot till

his return. PW Laxman Dass carried injured PW Prahlad

Babu, CW-1 Dhanna Lal and Devendra Singh on a Thela to

the adjoining District Hospital at Lalitpur. CW-2 injured Ram

Ratan Joshi walked himself to the hospital. Dr. S.P. Singh

(PW-3) who medically examined the injured persons between

2.00 P.M. and 3.15 P.M. requested Shri B.D. Sharma (PW-19)

Sub- Divisional Magistrate of District - Lalitpur to reach at the

hospital where PW-19 recorded the statements of the injured.

PW Vimal Kumar Tiwari left the place of occurrence and went

to the hospital to take PW Laxman Dass with him to the police

station. PW Vimal Kumar Tiwari recorded the statement (Ex.

Ka-22) of PW Laxman Dass and handed over the same to the

Police at Police Station; on the basis of the said statement,

First Information Report came to be registered. PW Vimal

Kumar Tiwari and other persons took the appellant to the

Police Station. Constable Sukhram Singh (PW-15) lodged the

appellant in police lock up. He sealed the rifle and four live

cartridges found inside it. PW Prahlad Babu and Devendra

Singh were taken to the Medical College, Jhansi, but on the

way Devendra Singh died. PW Prahlad Babu remained indoor

patient in the Medical College for more than three weeks.

2.3]The investigation of the case was conducted by

K.P. Singh (PW-17), Station Officer, Police Station Girwar,

District Lalitpur. He recorded the statement of PW Constable

Sukhram Singh. He also recorded the statement of PW Vimal

Kumar Tiwari at the Police Station and then left to the scene

of occurrence where statement of PW Laxman Dass was

recorded and Site Plan (Ex. K-42) of the spot was prepared.

He collected blood-stained earth and plain earth from the spot

and sealed them in separate packets (Exs. 16 and 17). He

recorded the statements of CW Ram Ratan Joshi and CW

Dhanna Lal, injured persons. On 15.02.1975, he handed over

the investigation of this case to Shri Chottey Lal Tewari (PW-

18) who, at the relevant time was Station Officer at Kotwali,

Lalitpur.

2.4]The second Investigating Officer sent the weapon of

offence (rifle) and recovered bullets to Ballistic Expert for

examination and comparison. He took the licence of the

seized rifle from Raghunath Singh - father of the appellant and

later on entrusted the same to him vide supurdarinama (Ex. K-

46). He produced documents before the District Magistrate for

initiating prosecution against the appellant for an offence

under Section 25 of Arms Act. The requisite permission was

placed on record as Ex. K-47. After completion of the

investigation of the case, he prepared charge sheet against the

appellant and filed the same in the Court of Chief Judicial

Magistrate, Lalitpur, under Section 304 Part-II, 307 and 324

IPC and Section 25 of the Arms Act. The learned Chief

Judicial Magistrate, Lalitpur, on 07.08.1975 committed the

case to the Sessions Judge for trial. The trial of the case has

been re-transferred by the High Court of Allahabad to the

Court of Sessions Judge of Jhansi.

2.5] The appellant pleaded not guilty to the charges and

claimed to be tried. The prosecution, in order to substantiate

its case, examined as many as 19 witnesses, out of whom PW

Laxman Dass, PW Matin Khan, injured Prahlad Babu, PW

Vimal Kumar Tiwari and PW Shikhar Chand Naik are the

eyewitnesses. PW Dr. S.P. Singh examined the injured at the

Lalitpur Hospital and certified their mental fitness to enable

them to make statements to PW Shri B.D. Sharma, Sub-

Divisional Magistrate. Kashi Ram (PW-5) and Gaya Singh

Chauhan (PW-7) are the formal witnesses who have produced

time-table and the way bills dated 12.02.1975 in regard to the

route of passenger Bus No. MPR 5393 and Bus No. USG 5519

plying on Lalitpur-Jhansi road. Sh. Radhey Shyam Mishra

(PW-11) is the Ballistic Expert of the Forensic Sciences

Laboratory; U.P. Dr. Radha Mohan Aggarwal (PW-12)

performed the autopsy on the dead body of Devendra Singh.

PW K.P. Singh and PW Chottey Lal Tewari are the

Investigating Officers. Dr. S.R. Gupta (PW-1), Harnam Singh

(PW-2), Dr. Kulbir Singh Handa (PW-6), Head Constable

Raghuvansh Singh (PW-14), Head Constable Sukhram Singh

(PW-15) and Chandrabhan (PW-16) are the formal witnesses.

Besides, the oral evidence of the aforesaid witnesses, formal

evidence was also tendered on affidavits of compounder Uma

Shanker Tewari (Ex.Ka-54), Head Constable R.S. Gautam

(Ex.Ka-55), constable Gyan Singh (Ex. Ka-56), constable Ram

Chhabila (Ex.Ka-57), Head Constable Mohammad Sabir Khan

(Ex.Ka-58), constable Shyam Deo Upadhya (Ex.Ka-59), Head

Constable Virjan Rai (Ex.Ka-60), Dr. Shiv Shanker Lal

Agarwal, a reader in surgery at the Medical College, Jhansi

(Ex.Ka-65), constable Bhika Prasad (Ex.Ka-68), S.I. Brij Raj

Singh (Ex.Ka-69) and retired Head Constable Shital Singh

(Ex.Ka-71). Reports of the Chemical Examiner (Ex.Ka-52) and

the Serologist (Ex.Ka-53) were also tendered in evidence. The

prosecution had given up injured Dhanna Lal on the ground

that he had joined hands with the appellant. Ram Ratan

Joshi injured and Sukhnandan driver of Bus No. MPR 5393

were also given up being unnecessary witnesses. However,

later on, the Court examined Dhanna Lal, Ram Rattan and

Sukhanandan as CW-1, CW-2 and CW-3 respectively.

2.6] The appellant in the statement recorded under Section

313 of the Criminal Procedure Code (for short ‘Cr.P.C’) denied

the incriminating evidence appearing against him. He

examined Chandan Singh (DW-1) in his defence. His plea was

that he was not present at the scene of occurrence on the

alleged day of incident. He pleaded that at the relevant time

his father Raghunath Singh was sitting MLA of Jansangh

Party who did not have good relations with Shri Maurya the

then Superintendent of Police, who was Ex-officio member of

Nehru College Committee. He pleaded that two student

leaders of Nehru College were got terminated by Shri Maurya

the Superintendent of Police and were locked in jail under his

order. He stood surety for those persons. Pamphlets of the

said incident were also published against Shri Maurya, who

was forced to withdraw the case against those boys and due to

that reason Shri Maurya has implicated him in this false case.

He pleaded that on the day of incident at about 2.00 or 2.30

P.M., the police arrested him from his house and also seized

rifle and four bullets from there. The seized rifle was later on

returned to his father and another rifle (Ex.2) was taken into

possession by the Police.

3.]Before we proceed to deal with the evidence of the

witnesses, it would be appropriate to extract the injuries

found by Dr. S.P. Singh on the persons of PW Prahlad Babu,

deceased Devendra Singh, Dhanna Lal (CW-1) and Ram Ratan

Joshi (CW-2) which find recorded in the Statement of Injuries:

Prahlad Babu:

1)One gunshot wound ½” X ¼” on the lower part of left

side chest, 6-½ below the nipple. Wound was

bleeding, margins were inverted. There was no

blackening and tattooing around the wound. It was a

wound of entry.

2)One gunshot wound ¾” X ½” on left side of back, 2”

away from the middle line wound was bleeding.

Margins were averted no blackening or tattooing

around the wound of exit.

Devendra Singh:

1)One gunshot wound ¾” X ½” X abdominal cavity deep,

on right side of abdomen, 2½” above the anterior

superior iliac spine. Omentum was coming out of the

wound. Blood was coming out of the wound. Margins

were inverted. There was no blackening or tattooing

around the wound. Wound of entry.

2)One wound of gunshot, 1½” X ¾”, 1” below the

anterior superior iliac spine, bleeding. Margins were

averted. One piece of metal which was projecting from

the wound was taken out and sent to S.P. Lalitpur

under seal. This was exit wound.

Dhanna Lal:

1) One lacerated wound 7½” X 21/2” X bone

deep on the turn of right upper arm in the

upper part with commuted fracture of

humerous bone and severance of the blood

vessels and nerves of the arm bleeding.

2) A lacerated wound 4½” X 1½” on the

posterior side of the right arm. Wound is

through and through and communicating

with injury no.1. Bleeding

Ram Ratan Joshi:

1) A gunshot wound ¼” X 1/8” lower 1/3

rd portion

on right arm lateral side 1” above the elbow.

Margins inverted. Bleeding. Wound of entry.

2) A gunshot wound ¼” X 1/8” 1½” below the

injury no. 1 on the lateral side in the upper 1/3rd

right fore arm. Bleeding. Margins inverted

wound of entry.

3) A gunshot wound ¼” X 1/8” on the left fore arm

middle 1/3

rd 5” below the elbow in the posterior

part lateral side. Margins inverted. Wound of

entry.

4) A gunshot wound ½” X ¼”, 1½” above the

highly part of iliac crest left side abdomen,

margins inverted. Wound of entry.

4.]According to Dr. S.P. Singh, all the injuries were found

fresh and without any blackening and tattooing. The injuries

were caused from fire arm. Dr. S.P. Singh examined

PW-Laxman Dass and found injury on his head caused by a

blunt weapon like a stone. He stated that on 14.02.1975 at

about 6.00 P.M. injured Ram Ratan Joshi (CW-2) slipped away

from the hospital without informing him or any other staff

member of the hospital. It is his evidence that when PW-

Prahlad Babu, Devendra Singh (deceased) and Dhanna Lal

(CW-1) were brought to the hospital, their physical conditions

were serious. Dhanna Lal’s arms had to be amputated on the

same day. On their request, PW-Prahlad Babu and Devendra

Singh (deceased) were referred to the Medical College of

Jhansi at about 4.30 P.M. and 9 P.M. respectively.

5.]It is the evidence of Dr. Kulbir Singh Handa (PW-6) that

on 12.02.1975 at about 11.45 P.M. Devendra Singh was

brought dead to Medical College, Jhansi. Dr. S.L. Aggarwal in

his affidavit (Ex.Ka-65) proved that PW-Prahlad Babu had to

suffer two abdominal operations at the Medical College where

he remained as indoor patient from 12.02.1975 to 26.02.1975

and for the second time from 30.07.1975 to 27.08.1975.

6.]Dr. Radha Mohan Agarwal (PW-12) on 13.02.1975 at

about 3.45 P.M. performed autopsy on the dead body of

Devendra Singh at Medical College of Jhansi. He noticed the

above-extracted ante mortem injuries on his body. Damage

was detected by him to the omentum and to the intestine and

the fourth lumber vertebrae. Two metal pieces (Exts. 10 and

11) embedded in the vertebrae were extracted. As per the

opinion of the doctor, the cause of death of the deceased was

due to shock and haemorrhage as a result of injuries to the

intestine and fracture to the vertebrae.

7.]On examination of the oral and documentary evidence

produced on record, the learned Sessions Judge by his order

dated 09.10.1980 found the appellant not guilty of the charges

under Section 304 Part-II, 307 and 324 IPC and Section 25 of

the Arms Act and accordingly acquitted him. The findings and

reasonings of the trial court can be summarized thus:

i) That the incident did not occur in the

manner as alleged by the prosecution,

ii) That the very foundation of the

prosecution story that the firing was

made because Bus No. MPR 5393 had

over-stayed beyond its scheduled

departure time to the detriment of the

vehicle of PW-4 and PW-9, who insisted

that the bus should leave Lalitpur, was

liable to be thrown over-board as any

incident of shooting before 1.00 P.M.

could neither be related to Bus No. MPR

5393 nor had taken place in the manner

as alleged by prosecution witnesses and

real facts have been concealed.

iii) That the identity of the accused was not

established beyond doubt because:-

(a)The Magistrate who was

present in the hospital

recorded the statements Ex.

Ka17, Ka18 and Ka19 as

Dying Declarations truthfully

and they cannot be ignored

wherein the accused was not

named.

(b)The prosecution assertion of

the visit of the S.D.M to the

police station was fictitious

and the Dying Declarations

were recorded without being

influenced by any body.

(c)There were vital

inconsistencies in the

statements of the witnesses,

which led to the inference

that the accused named by

PW-Prahlad Babu and

Dhanna Lal (CW-1) in the

court was an innovation and

an after thought on which no

reliance could be placed.

(d)The accused was not named

in the statements recorded as

Dying Declarations although

the accused was known to

the injured eye-witnesses

much before the incident.

iv) That the prosecution story that

Sukhnandan (CW-3) actually moved the

bus was an innovation and should be

rejected and consequently it must be

held that there was no objection from the

accused against the movement of Bus

No. MPR 5393.

v) That the evidence of Sukhanandan (CW-

3) would cut at the very root of the

prosecution story.

vi) That it was doubtful that the accused

was arrested during the course of the

incident of shooting.

vii) That it could not be said with certainty as

to what were the circumstances or the

exact facts of this incident, but if it did

not take place in the manner and under

the circumstances suggested by the

prosecution or even if it was doubtful

that it took place in such manner and

circumstances, the benefit thereof must

go to the accused.

viii) That the time wasted in the alleged wait

at the bus stand after the injured had

been taken to the hospital and the delay

in inviting the police to the scene of

occurrence also assume importance for

making the story of the prosecution

suspicious.

ix) That it could not be ruled out that the

accused was apprehended on some

misplaced suspicion and then involved in

this case.

8.]Being aggrieved against the order of acquittal, the State

of Uttar Pradesh filed appeal before the High Court. The High

Court allowed the appeal by the impugned judgment holding

the appellant guilty of the charged offences. The High Court

sentenced the appellant 10 years R.I. under Section 304 Part-

II, 7 years R.I. under Section 307 IPC, 6 months R.I. under

Section 324 IPC and 2 years R.I. under Section 25 of the Arms

Act respectively.

9.]Feeling aggrieved thereby and dissatisfied with, the

appellant has filed this appeal.

10.]Mr. Sushil Kumar, Senior Advocate appearing on behalf

of the appellant vehemently contended that the judgment of

the High Court reversing the order of acquittal passed by the

trial court is erroneous in law being against the well-

established principles with regard to interference in appeal

under Section 378 of the Criminal Procedure Code. He then

contended that the trial court on appraisal of the evidence and

consideration of circumstances has recorded well-reasoned

order which cannot be regarded as preferably wrong or

perverse; therefore, the interference by the High Court in the

order of acquittal of the appellant is wholly unwarranted and

unjustified. He next contended that testimony of the injured

eye-witnesses is totally inconsistent with the medical evidence

and report of the Ballistic Expert in regard to the use of the

weapon of offence, which is the most fundamental defect in

the prosecution case and it is sufficient ground to discredit

the entire case of the prosecution. Lastly, he contended that

as the evidence of the prosecution is not satisfactory and

consistent, therefore, the benefit of doubt has to be given to

the accused, but in the present case the High Court has failed

to appreciate this basic principle and convicted the appellant

on surmises and conjectures. In support of the contentions,

reliance has been placed on some decisions of this Court,

which shall be referred to and dealt with hereinafter in later

part of the judgment.

11.]Mr. Ratnakar Dash, Senior Advocate appearing on behalf

of the State, has canvassed correctness of the views taken by

the High Court in the impugned judgment. He submitted that

the approach of the High Court in re-appreciating the evidence

led by the prosecution cannot be found faulty. He then

contended that the evidence of the eye-witnesses

PW-Laxman Dass; PW-Matin Khan; injured Prahlad Babu;

PW-Vimal Kumar Tiwari; PW-Shikhar Chandra and injured

Dhanna Lal (CW-1) is concise, cogent and satisfactory on the

point that it was the appellant alone, who fired a single bullet

shot from a rifle hitting Prahlad Babu; Dhanna Lal (CW-1);

Ram Ratan Joshi (CW-2) and Devendra Singh, as a result

thereof Devendra Singh later on succumbed to the injuries

sustained by him and if some minor discrepancies have come

in the evidence of the witnesses, they are all of insignificant

nature and immaterial and the case of the prosecution, which

is otherwise proved beyond reasonable doubt, cannot be

disbelieved and discredited on such discrepancies. In support

of the submissions, reliance is placed on the decisions of this

Court.

12.]Before considering the evidence and rival contentions of

the learned counsel for the parties, we may consider the ratio

of law laid down in the cases relied upon by the appellant.

12.1] In Awadesh & Anr. v. State of Madhya Pradesh

(1988) 2 SCC 557], this Court held that if on appraisal of the

evidence and on considering relevant attending circumstances

it is found that two views are possible, one as held by the trial

court for acquitting the accused and the other for convicting

the accused, in such a situation the rule of prudence should

guide the High Court not to disturb the order of acquittal

made by the trial court. The judgment proceeded to hold that

unless the conclusions of the trial court drawn on the

evidence on record are found to be unreasonable, perverse or

unsustainable, the High Court should not interfere with the

order of acquittal. In G. B. Patel Vs. State of Maharashtra

(1979) 2 SCR 94; (1978) 4 SCC 371; AIR 1979 SC 135, this

Court quoted with approval the principles laid down by Privy

Council in Sheo Swarup Vs. King Emperor [AIR 1934 PC 227],

wherein it was held that although in an appeal from an order

of acquittal the power of the High Court to reassess the

evidence and reach its own conclusions, yet, as a rule of

prudence, it should – to use the words of Lord Russel of

Killowen – “always give proper weight and consideration to

such matters as (1) the views of the trial judge as to the

credibility of the witnesses; (2) the presumption of innocence

in favour of the accused, a presumption certainly not

weakened by the fact that he has been acquitted at the trial:

(3) the right of the accused to the benefit of any doubt; and (4)

the slowness of an appellate court in disturbing a finding of

fact arrived at by a judge who had the advantage of seeing the

witnesses.”

12.2) It was further observed [Para 13 SCC p.376]:

“Where two reasonable conclusions can be

drawn on the evidence on record, the High Court

should, as a matter of judicial caution, refrain

from interfering with the order of acquittal

recorded by the court below. In other words, if the

main grounds on which the court below has based

its order acquitting the accused, are reasonable

and plausible, and cannot be entirely and

effectively dislodged or demolished, the High Court

should not disturb the acquittal.”

12.3) In Mohinder Singh v. The State (1950) SCR 821: AIR

1953 SC 415, this Court observed:

“In a case where death is due to injuries or

wounds caused by a lethal weapon, it has always

been considered to be the duty of the prosecution

to prove by expert evidence that it was likely or at

least possible for the injuries to have been

caused with the weapon with which and in the

manner in which they are alleged to have been

caused. It is elementary that where the

prosecution has a definite or positive case, it is

doubtful whether the injuries which are

attributed to the appellant were caused by a gun

or by a rifle.”

12.4) In Inder Singh & Anr. v. The State (Delhi

Administration) (1978) 4 SCC 161, this Court while dealing

with the appreciation of evidence in a criminal case, held that

creditability of testimony, oral and circumstantial, depends

considerably on a judicial evaluation of the totality, not

isolated scrutiny. While it is necessary that proof beyond

reasonable doubt should be adduced in all criminal cases, it is

not necessary that it should be perfect.

12.5) In Ram Narain Singh v. State of Punjab (1975) 4

SCC 497, it was held that where the evidence of the witnesses

for the prosecution is totally inconsistent with the medical

evidence or the evidence of the ballistic expert, this is a most

fundamental defect in the prosecution case and unless

reasonably explained, it is sufficient to discredit the entire

case. Further, it was observed that where the direct evidence

is not supported by the expert evidence, then the evidence is

wanting in the most material part of the prosecution case and

it would be difficult to convict the accused on the basis of

such evidence.

12.6) In Puran Singh v. State of Uttaranchal (2008) 3

SCC 795, the relevant question for consideration was

whether the weapon used by the accused for causing death

of the deceased Rajpal Singh and two empty cartridges

were the same which were recovered from the accused. The

mudamal gun as also empty cartridges were sent to the

Forensic Science Laboratory, Lucknow, which were

examined in the laboratory. On the basis of the

examination, a conclusion was given which is in the form of

result which reads as under:

“Result.- (A) The cartridge in question EC1 was not

fired from the single-barrelled 12 bore no. 319

marked 1/79 gun.

(ii) The cartridge in question EC 2 has no

comparative feature with shot fired from Gun No.

1319 12 bore marked 1/79.

(B) On the chemical examination of fouling

matter from the gun the nitrate was found from

the gun so it is concluded that after last shot the

gun was not cleaned but on 03.08.1979 whether

or not shot was fired from gun designative

scientific opinion is not a possibility.”

(emphasis supplied)

12.7) On the basis of the ballistic expert’s opinion,

cartridge EC1 was not fired from the single-barrelled 12 bore

no. 1319 said to have been used by the accused. In that view

of the matter, it was held that the appellant-accused was

entitled to benefit of doubt. In Ram Kumar v. The State of

Haryana [JT 1994 (6) S.C. 502], it is held:

“It is settled law if the main ground on which

trial court has based its order acquitting the

accused, are reasonable and plausible, and the

same cannot entirely and effectively be

dislodged or demolished, the High Court should

not disturb the order of acquittal. Interference

is only when the conclusions recorded by the

trial court are such which could not have been

possibly arrived at by any court acting

reasonably and judiciously, which may in other

words be characterized as perverse or devoid of

force.”

12.8) In Bharwada Bhoginbhai v. State of Gujarat (1983)

3 SCC 217, relied upon by the learned counsel for the State,

this Court while dealing with the case of accused who was

found guilty by the trial court as well as by the High Court for

committing sexual intercourse with a minor girl, held that

discrepancies which do not go to the root of the matter and

shake the basic version of the witnesses cannot be annexed

with undue importance. More so, when the all important

‘probabilities factors’ echoes in favour of the version narrated

by the witnesses. Further, it was observed that it was neither

appropriate nor permissible to enter upon a re-appraisal or

re-appreciation of the evidence in the context of the minor

discrepancies in exercise of the power under Article 136 of the

Constitution of India.

12.9) In Rajesh Thakur v. State (1988) Crl. J. 1477,

learned Single Judge of the Calcutta High Court found the

story in the First Information Report regarding the time, place

and manner of the occurrence, the name of assailant, the

testimony of eye-witnesses corroborated by medical evidence

and the fact of apprehension of the accused by the people of

the locality immediately after the occurrence with a knife in

hand, recovery of blood-stained knife which was the likely

weapon of offence and the blood-stained wearing apparel of

the accused, coupled with true and reliable testimony of eye-

witnesses which could not be rejected merely because there

were some discrepancies, deviations and embellishments in

the prosecution case in some minor details. In that case, the

accused was found guilty by the trial court and his conviction

was affirmed by the High Court in appeal.

12.10)In State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC

247], this Court while appreciating the evidence of the victim

of rape who was widow aged about 55 years having two grown

up children emphasizes that minor discrepancies or variance

in evidence does not make the prosecution case doubtful and

in such circumstances the duty of the Courts is to adopt a

rational approach and hyper technicalities and figments of

imagination should not prevent sifting and weighing of

evidence.

13.] In the light of the above settled propositions of law, we

have made independent scrutiny of the evidence in the

present case to find out whether the High Court’s order of

conviction of the appellant can be sustained or not. PW-

Laxman Dass and injured PW-Prahlad Babu are owners of

Bus No. USG 5519 which on the day of incident, i.e.

15.02.1975, was going from Jammi Dem to Jhansi via

Lalitpur. It is the evidence of PW-Laxman Dass that on the

day of the incident Bus No. MPR 5393 was

parked at bus stand Lalitpur beyond the schedule time which

had caused obstruction to the parking of their bus at the

allotted place and as a result thereof he could not carry the

passengers on his vehicle. PW-Prahlad Babu asked the

appellant to let Bus No. MPR 5393 move ahead so that the

passengers of his bus could board the bus, but the appellant

threatened Prahlad Babu that he would be killed if he again

repeat the words of taking the bus out of the bus stand till the

appellant’s luggage was not unloaded. The appellant allegedly

fired a single bullet shot from the rifle from a distance of about

5-7 steps which first hit PW-Prahlad Babu and the bullet

passed through his body and then hit Dhanna Lal (CW-1) and

in the same process the same bullet hit Ram Ratan Joshi

(CW-2) and Devendra Singh one after the other. He stated

that the appellant tried to reload the rifle and wanted to fire

second shot, but he alongwith Shambu Dayal Chaurasia (not

examined), PW-Vimal Kumar Tiwari; PW-Shikar Chand Naik,

Mangal (not examined) and PW-Matin Khan driver, over-

powered the appellant and snatched the rifle (Ex-2) from his

hands. He clearly deposed that one more person, whose name

he did not know caused stone injury on his head. The

appellant was handed over to the custody of PW-Matin Khan

whereas he took injured PW-Prahlad Babu, injured Dhanna

Lal (CW) and Devender Singh to Lalitpur hospital while Ram

Ratan Joshi (CW) who had suffered lesser injuries, reached

the hospital on foot. PW- Vimal Kumar Tiwari recorded report

(Ex.-Ka22) at his instance which later on was handed over to

Police Officer at the Police Station, on the basis of which First

Information Report was recorded. PW-Prahlad Babu was

taken from Lalitpur Hospital to Medical College, Jhansi,

whereas Devendra Singh was left in Lalitpur Hospital for

getting treatment. In cross-examination, this witness has

admitted that one Kamaldin had filed a criminal case against

him. One more case under Sections 147/323/504/506 IPC

was pending in the court of C.J.M, Lalitpur, against him,

Prakash Chand Lohia, PW-Vimal Kumar Tewari and his

brother Ashok Kumar Tiwari.

14.]PW Matin Khan driver of the Bus No. USG 5519 owned

by PW-Laxman Dass and PW-Prahlad Babu has corroborated

the testimony of PW-Laxman Dass. This witness also deposed

that when PW-Shikhar Chand Naik, Shambhu Dayal

Chaurasia (not examined), Mangal (not examined) were

grappling with the appellant, someone hit PW-Laxman Dass

with a stone on his head. It is his evidence in the

cross-examination that at the time of incident there were one

or two more persons with the appellant who after collecting

the luggage had left the place of occurrence. It is his evidence

that from the scene of occurrence Shambhu Dayal Chaurasia

had carried the rifle and deposited the same in the Police

Station.

15.]PW-Prahlad Babu narrated the same facts which were

noticed in the evidence of PW-Laxman Dass. It is his evidence

that the appellant fired single bullet shot from his rifle which

first entered into his abdomen and then came out from his

back side and the same bullet thereafter hit Dhanna Lal

(CW-1), Ram Ratan Joshi (CW-2) and Devendra Singh

(deceased) one after the other in the same process. He stated

that he did not notice whether the other three injured persons

were standing behind him nor he knew Devendra Singh prior

to this incident. It is his evidence that he did not notice

whether the appellant on the day of occurrence had travelled

by Bus No. MPR 5393 nor he saw him getting down from it,

nor he came to know whether the Conductor was unloading

the appellant’s luggage from the rooftop of the bus. He

admitted that PW Shri B.D. Sharma, Sub-Divisional

Magistrate, recorded his statement (Ex.Ka-17) in the hospital

in the presence of the doctor in which he did not mention the

name of the appellant to be an assailant.

16.]PW-B.D. Sharma was posted as Sub-Divisional

Magistrate, Lalitpur. On the day of the incident, he was called

by the doctor, who medically examined injured Devendra

Singh, to the District Hospital. He recorded dying declaration

(Ex.-Ka18/1) of Devendra Singh after the doctor certified him

to be fit for making the statement. In the

dying declaration, deceased had not named the appellant to

be an assailant. He recorded the dying declaration of PW-

Prahlad Babu (Ex.-Ka17) and Dhanna Lal (Ex.-Ka19) on the

same day. They too have not named the appellant who as per

prosecution story fired single bullet shot from his rifle hitting

all the four injured persons one after the other in the process.

17.]PW-Vimal Kumar Tiwari deposed that on the day of

incident the appellant fired one single bullet shot, which first

hit Prahlad Babu and then Dhanna Lal and the bullet came

out of the body of Dhanna Lal and in the process hit two other

persons whom he did not know. It has come in his evidence

that he could not tell whether all the injured persons were

standing in a queue when they received bullet shot.

18.]Radhey Shyam Singh (PW-11) a Fire Arms Expert,

Forensic Science Laboratory, C.I.D., Lucknow, U.P., examined

one rifle number 243 of 0.302 bore on 07.04.1975. He also

scientifically examined three live cartridges and one missed

fire round. It is his opinion that two pieces of metal marked

EB2 and EB3 could have been fired from rifle number 243.

He placed on record copy of the test report (Ex.K-29). In

cross-examination this witness stated that he could not

definitely point out whether pieces of metals i.e. EB2 and EB3

were the pieces of same bullet which was fired from rifle

number 243. It is his opinion that rifle (Ex.2) was of .302 bore

and not of .315 bore. He also categorically stated that one

bullet could cause only one entry wound to a person.

19.]PW-Shikhar Chandra Naik also tried to support the

version of PW Laxman Dass and PW Prahlad Babu. It is his

evidence that it was Shambhu Dayal Chaurasia who had

taken the rifle to the Police Station. He stated that

PW-Prahlad Babu, on receiving the rifle shot, had fallen down

on the spot. Head Constable Sukhram Singh (PW-15), on the

basis of the complaint (Ex.K-22) handed over to him by PW-

Vimal Kumar Tiwari recorded the First Information Report. It

is his evidence that rifle and cartridges were deposited by PW-

Vimal Kumar Tiwari in the Police Station and memo (Ex.K-27)

in this regard was prepared by him and the seized articles

were also sealed and deposited in the Malkhana. On

13.02.1975 he received information on telephone from

Nawabad Police Station in regard to the death of injured

Devendra Singh and thereafter Section 302 IPC was added in

the First Information Report. This witness categorically stated

that rifle handed over to him by PW VimalKumar Tiwari and

sealed by him was of .315 bore.

20.]PW K. P. Singh, Station Officer, visited the spot, prepared

Site Plan (Ex.K-42) and collected blood-stained earth from the

spot.

21.]The High Court has found the evidence of PW-Laxman

Dass, PW-Matin Khan, PW-Prahlad Babu, PW-Vimal Kumar

Tiwari and PW-Shikhar Chand Naik believable and

satisfactory on all material aspects and observed that as few

contradictions appearing in their evidence were of very trivial

nature, therefore, the appellant could not be given benefit of

doubt on the basis of those minor contradictions. Three dying

declarations recorded by Sub-Divisional Magistrate were

rejected by the High Court on the ground that they were not

recorded correctly and honestly. We are afraid to agree with

the findings of the High Court in setting aside the order of

acquittal of the appellant passed by the trial judge. On

independent analysis of the evidence of the material witnesses

discussed hereinabove, we find that the High Court has failed

to appreciate the same in proper perspective. The

discrepancies coming on record in the evidence of PWs 4, 8, 9,

10 and 13 in no circumstances can be termed to be minors in

nature which in our view, are vital for disbelieving and

discrediting the evidence of the eye-witnesses. The High Court

discarded the important pieces of evidence on the basis of

surmises and conjectures. On the day and time of the

incident none of the eye-witness including injured witnesses

had seen the appellant travelling on Bus No. MPR 5393. It is

their evidence testimony that there were some more persons

present at the bus stand, who took the luggage of the

appellant after the same was unloaded from the rooftop of the

bus. It has come in the evidence of these witnesses that one

person hit PW-Laxman Dass. The Investigating Officer has

not cared to find out the identity of those persons who were

accompanying the appellant on the scene of occurrence and

took his luggage or out of those persons who hit PW Laxman

Dass with a stone. It appears that the prosecution has

suppressed the genesis of the evidence. PW- Matin Khan,

driver of the bus owned by PWs 4 and 9, clearly deposed that

Shambhu Dayal Chaurasia handed over the rifle, the alleged

weapon of offence to the police official at Police Station,

Lalitpur. It is the evidence of PW-H.C. Sukhram Singh that

rifle and cartridges were handed over to him by PW-Vimal

Kumar Tiwari. The evidence of injured Prahlad Babu would

show that he did not see the other three injured persons

standing behind him nor he knew Devendra Singh (deceased)

prior to the incident. His statement was recorded by the

Investigating Officer in the Police Station after about 20-22

days from the day of incident. It is his evidence that on the

day of incident he did not see the appellant travelling in Bus

No. MPR 5393. He admitted that the dying declaration

(Ex.Ka-17) was recorded by Sub-Divisional Magistrate at the

hospital at about 1.38 P.M. on the day of the incident. The

evidence of PW-Vimal Kumar Tiwari, the other eye-witness,

does not support the testimony of PW-Matin Khan and injured

PW-Prahlad Babu on material and vital aspects of the matter.

It has come in the evidence of PW Vimal Kumar Tiwari that he

went to the hospital where PW Laxam Das made statement

(Ex.K-22) to him which was handed over to the Police for

lodging the FIR. It is his evidence that by the time he reached

the Police Station, PW Matin Khan and Shambhu Dayal

Chaurasia, etc. had already reached at the Police Station and

it was Shambhu Dayal Chaurasia who handed over rifle (Ex.-

2) to H.C. Sukhram Singh, but Sukhram Singh’s version was

that the weapon of offence, i.e. rifle of .315 bore and live

cartridges, were handed over to him by PW-Vimal Kumar

Tiwari which were sealed by him in the Police Station.

22.] PW-Chhotey Lal Tripathi - Inspector, despatched rifle and

bullets to Ballistic Expert for their comparison. It is the

evidence of PW-11 Radhey Shyam Singh, Fire Arm Expert,

that he examined rifle no. 243 of .302 bore which was

deposited with the Scientific Branch of the Forensic Science

Laboratory on 07.04.1975 by Constable Ram Chhabile. It is

clear from the evidence of the Ballistic Expert that the rifle of .

302 bore was sent to him for scientific analysis and not rifle of

.315 bore which allegedly was used by the appellant at the

time of commission of the offence and which later on was

handed over to H.C. Sukhram Singh, who sealed the same in

the Police Station. This discrepancy and inconsistency in

regard to the use and recovery of the weapon of offence from

the possession of the appellant is very vital to discard the

truthfulness of the prosecution case. The Prosecution has

failed to prove that the same weapon of offence was sent to the

Ballistic Expert which allegedly was handed over by PW-Vimal

Kumar Tiwari or Shambhu Dayal Chaurasia to Head

Constable in the Police Station. The contentions of the

learned counsel appearing for the State that such type of

minor discrepancy has to be ignored from consideration

cannot be accepted.

23.]It is the case of the prosecution that single bullet was

fired by the appellant from rifle of .315 bore which caused

injuries to four persons. Dr. S.P. Singh - Medical Officer, Civil

Hospital, Lalitpur, medically examined injured Prahlad Babu

on the day of incident, i.e. 12.02.1975 at about 2.00 P.M. and

found one gun shot wound ½” x ¼” on the lower part of left

side chest, 6½” below the nipple. It was wound of entry,

whereas the wound of exit of the bullet was ¾” x ½” on the left

side back, 2” away from the middle line wound. On the same

day he examined Devendra Singh who received gun shot

wound ¾” x ½” x abdominal cavity deep on right side of the

abdomen, 2-½” above the anterior superior illiac spine which

was stated to be entry wound, whereas the exit wound was

1-½” x ¾”, 1” below the anterior superior illiac spine. On the

same day at about 3.00 P.M., he medically examined Dhanna

Lal (CW-1) and on his person one lacerated wound 7-½” x 2-

½” x bone deep on the front upper part of the right upper

arm with commuted fracture of humerous bone and

severance of blood vessels and nerves of the arms were found

injured. The exit wound was 4-½” x 1-½” on the posterior

side of the right arm through and through and communicating

with injury no. 1. At about 3.15 P.M., he medically examined

Ram Ratan Joshi (CW-2) and found as many as four above-

extracted injuries on his person. Doctor prepared injury

reports marked Ex. K-6 to K-10 respectively. The injury

reports primarily revealed that the size of exit wounds were

larger than entry wounds found on the person of each injured

persons and the body of the deceased. Doctor’s version is that

he certified injured Prahlad Babu, Dhanna Lal (CW-1) and

Devendra Singh to be mentally fit to make dying declaration

before PW-Sub-Divisional Magistrate. It is his evidence that

injured Prahlad Babu and injured Devendra Singh were taken

to Medical College, Jhansi by their relatives from the hospital,

whereas Ram Ratan Joshi (CW-2) left the hospital on

14.02.1975 at about 6.00 P.M. without informing anybody.

This witness was put court question which reads as under:-

“Could the injuries be caused by one rifle

shot if Dhanna Lal was standing behind

Prahlad Babu, and Ram Ratan Joshi

behind Dhanna Lal and after Ram Ratan

Joshi, Devender Singh was standing by

his side and the shot had first hit Prahlad

Babu and then Dhanna Lal and their

splinters hit Ram Ratan Joshi and

Devendra Singh?

The answer to the above said question

given by Doctor reads as under:-

I am not a Ballastic Expert; therefore, I

am not in a position to give any definite

answer.”

24.]It is the evidence of PW-Shikhar Chandra Naik that after

receiving the bullet injury PW-Prahlad Babu had fallen down

on the spot, whereas the other three injured persons had not

fallen down. He stated that recovery memo (Ex.K-27) of rifle

(Ex.-2) and cartridges were prepared and got signed from him

by the Head Constable in the Police Station, but his statement

was not recorded.

25.]The High Court clearly fell in error while convicting the

appellant under Section 25 of the Arms Act without caring to

go through the provisions of the Act. Section 25 of the Arms

Act deals with punishment for manufacturing, selling,

transferring, converting, repairing, possessing of any arms or

ammunition in contravention of Section 5 of the Act.

26.]In this case as per the prosecution version the appellant

had used .315 bore rifle, which was owned by his father.

Undisputedly, the appellant was charged and tried for the

offence punishable under Section 27 of the Arms Act for using

the said firm arm. In that view of the matter, the appellant

could not have been convicted and punished by the High

Court for committing an offence under Section 25 of the Arms

Act.

27.]Having regard to the entire evidence discussed above and

having carefully and closely considered the judgments of the

trial court and the High Court, it appears that the view taken

by the trial court was reasonable and plausible. It is well

settled that, if, on appraisal of the evidence and on

considering relevant attending circumstances it is found that

two views are possible one as held by the trial court for

acquitting the accused and the other for convicting the

accused, in such a situation the rule of prudence should

guide the High Court not to disturb the order of acquittal

made by the trial court. Unless the conclusion of the trial

court drawn on the evidence on record are found to be

unreasonable and perverse or unsustainable, the High Court

should not interfere with the order of acquittal. From the

above discussion of the evidence of the eye-witnesses

including injured witnesses, their evidence does not at all

inspire confidence and their evidence is running in conflict

and contradiction with the medical evidence and ballistic

expert’s report in regard to weapon of offence, which was

different from the one, sealed in the Police Station. The High

Court has, in our opinion, disregarded the rule of judicial

prudence in converting the order of acquittal to conviction. It

is pertinent to notice that the order of acquittal of the

appellant was passed by the trial court on 09.10.1980. The

appeal against the said order was filed by the State

Government in the year 1981 which came to be allowed by the

High Court by the impugned judgment dated 29.07.2005

meaning thereby that the appeal against acquittal of the

appellant remained pending in the High Court for about 24

years.

28.]No other point has been raised by the parties. We, thus,

find no merit and substance in any of the submissions made

on behalf of the State. The ratio of the decisions relied upon

by the State as referred to above, will be of no use to the facts

and circumstances of the present case.

29.]In view of the aforesaid facts and circumstances, we are

satisfied that the prosecution has failed to prove its case

beyond all reasonable doubt and the High Court committed

error in interfering with the trial court’s order of acquittal.

30.]We, accordingly, allow the appeal, set aside the order of

the High Court and the appellant’s conviction and restore the

order of the trial court and acquit the appellant. The

appellant is in jail, he shall be set free to liberty forthwith, if

his detention is not required in any other case.

........................................J.

(Lokeshwar Singh Panta)

........................................J.

(B. Sudershan Reddy)

New Delhi,

February 24, 2009.