REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 295 OF 2010

(@ SLP (Crl.) No. 3207 of 2009)

Satyavir Singh Appellant

Vs.

State of U.P. Respondent

JUDGMENT

Swatanter Kumar, J.

1.Leave granted.

2.Satyavir Singh, appellant-accused was tried for an offence under

Section 307 of the Indian Penal Code, 1860 (hereinafter referred

to as the 'Code') and Section 25/27 Arms Act, 1959 (for short the

'Act') in the Court of Assistant Sessions Judge, Bulandshahr,

and was found guilty for both the offences. After hearing the

accused on the question of sentence, the Court awarded him

three years R.I. under Section 307 of the Code and one year R.I.

under Section 27 of the Act. Both the sentences were ordered to

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run concurrently. Upon appeal by the accused, the learned 1st

Additional Sessions Judge at Bulandshahr set aside the judgment

and sentence and while partly allowing the appeal by its

judgment dated 06.11.1980 acquitted him of both the charges

for which he was convicted by the learned Assistant Sessions

Judge, Bulandshahr and only convicted him for offence u/s

25(1)(a) of the Act and sentenced him to imprisonment till the

rising of the Court. With the leave of the High Court, the State

preferred an appeal against the judgment of acquittal. The High

Court of Judicature at Allahabad vide its judgment dated

20.10.2008 set aside the order of acquittal and while allowing

the appeal partly, it convicted the appellant under Section 307

of the Code and declined to interfere with the sentence awarded

by the First Appellate Court in relation to an offence under

Section 25 of the Act.

2. It will be useful to refer to the findings and

conclusions recorded by the High Court of the State.

“On the basis of evidence on record, the charge

under Section 307 IPC is proved beyond all

reasonable and probable doubt.

The impugned judgment and order passed in

Criminal Appeal No. 99 of 1979, 'Satyavir Singh

vs. State of U.P.' is thus found to be

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unsustainable as far as acquittal of accused-

respondent under Section 307 IPC is concerned.

We do no find any illegality or irregularity in the

impugned judgment and order dated 6.11.1980

regarding acquittal of accused-respondent under

Section 27 Arms Act and his conviction under

Section 25(1)(a) Arms Act.

The criminal revision filed by Bhanu Prakash

Sharma is thus partly allowed. We are not

inclined to enhance the sentence awarded under

Section 307 IPC passed by learned Assistant

Sessions Judge, Bulandshahr in S.T. No. 328 of

1976, State vs. Satyavir Singh. No prayer for

the enhancement of the sentence under Section

307 IPC has been made in the criminal revision

by Bhanu Prakash Sharma. The occurrence is

dated 9.2.1975. We are also not inclined to

enhance the sentence awarded to accused-

respondent under Section 25(1)(a) Arms Act.

Keeping in view the date of occurrence of this

case, we are not inclined to enhance the sentence

as awarded by learned Assistant Sessions Judge,

Bulandshahr in S.T.No. 328 of 1976 in

government appeal as well.

We thus confirm the sentence of three years R.I.

Awarded under Section 307 IPC by learned

Assistant Sessions Judge, Bulandshahr vide

judgment and order dated 21.5.1979 passed in

S.T. No. 328 of 1976, State vs. Satyavir Singh.

Government Appeal is thus partly allowed. The

judgment and order dated 6.11.1980 passed by

1st Additional Sessions Judge, Bulandshahr is

partly set aside to the extent referred above. The

accused-respondent Satyavir Singh having been

found guilty under Section 307 IPC is sentenced

to three years R.I.

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We decline to interfere with the order of acquittal

passed under Section 27 Arms Act and instead

convicting the accused-respondent under Section

25(1)(a) Arms Act and sentencing him to

imprisonment till the rising of the Court.

The judgment and order passed today is certified

to the Court of 1st Additional Sessions Judge,

Bulandshahr and such court shall thereupon

make such orders as are conformable to the

judgment and order of this Court and if necessary

the record shall be amended in accordance

therewith.”

3.Legality and correctness of the judgment and order of

sentence passed by the High Court is questioned by the appellant-

accused in the present appeal under Article 136 of the Constitution

of India inter alia but primarily on the following grounds :

(a) The High Court has erred in law in setting aside the judgment

of acquittal recorded by the First Appellate Court, which was

reasoned one and based on a proper appreciation of evidence. Thus

the High Court ought not to have upset the judgment of acquittal.

Therefore, the High Court has acted beyond the limitations on such

exercise of power and heavy reliance is placed on the case of

Ganesh Bhavan Patel & Anr. vs. State of Maharashra : 1978

(4)SCC 371.

(b) No motive was proved and in absence of a specific motive,

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the High Court has erred in holding that the appellant is guilty of

offence under Section 307 of the Code.

(c) The expert evidence being at variance and the medical

evidence not supporting the injuries allegedly found on the person

of the victim, the benefit of doubt should have been given to the

accused as the prosecution had failed to prove its case beyond

reasonable doubt.

(d) The Court should have appreciated that it

was an accidental firing and the prosecution had not put forth any

explanation on record as to how the weapon (double barrel gun)

was broken.

4. In order to appreciate the merit or otherwise of the

submissions made before us reference to the case of prosecution

would be necessary :

5.Facts

Bhanu Prakash Sharma, (PW-1) was taking tea at Hamid

Khan's Hotel at about 2.30 P.M. His brother Dharam Prakash (PW-

3) arrived at the crossing towards Narora Bus Stand. Dharam

Prakash aged about 18 years was a student of Khurja Polytechnic.

Satyavir Singh, accused is the resident of village Niwari. Vijay

Singh is his elder brother and owned a double barrel gun under a

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valid licence. It is the case of the prosecution that the fields of

farmers in village Niwari were irrigated by tubewell of Prem

Shankar Thakur. A road was constructed for the power house due

to which some farmers of village Niwari started irrigating their

fields from the tube well of Bhanu Prakash Sharma (PW-1),

resident of village Jairampur Bangar. This caused some displeasure

to Prem Shankar Thakur, father of Satyavir Singh, the accused. At

about 2.30 P.M. on 09.02.1975 said Bhanu Pratap sharma was

taking tea in the Hotel of Hamid Khan at Chauraha of the village.

Dharam Prakash came from the side of Narora Bus Stand. The

accused on seeing Dharam Prakash, who ultimately examined as

PW-3, challenged him by saying that how he was irrigating the

fields of villagers from his tube-well. The accused, as already

noticed, was armed with a licenced gun of his brother. The accused

thereupon fired two bullets from that gun on Dharam Prakash.

Dharam Prakash was medically examined on that very day by Dr.

Suresh Chandra Singh (PW-5) and the following injuries were

noticed on his person:

'INJ: (1) Lacerated wound 1 c.m. X 1

c.m. X thickness of the left upper

arm, on the left upper arm front

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aspect in upper part. There are four

abrasions each 1/4c.m. X 1/4c.m. on its lower and

outer aspect. Suspected underneath Adv. X-ray.

The margines of the wound are inverted.

(2)

Lacerated wound 1.5c.m. X 1.5c.m. X thickness of

the left upper .. on the back aspect of the left upper

arm 2c.m. Above the elbow... Suspected

underneath. Adv. X-ray. The margines of the

wound are inverted.

(3) Lacerated wound 7.5 c.m. X 3.5 c.m.on the

left forearm upper half-inner aspect. It is bone

deep. Suspected fracture underneath. Adv. X-ray.'

6.The occurrence was witnessed by Bhanu Prakash Sharma

informant, Rama Shanker (PW-4); Brij Bhushan and others.

Bhanu Prakash Sharma reported the matter to the police, the first

information report was registered being Exh.Ka-1 at about 16.05

hours and the case under Section 307 of the Code and under

Section 25 of the Act was registered against the accused. The

accused was arrested. The accused was also medically examined

on that very day and on his person the following injuries were

noticed:

'INJ: (1) Swelling 5c.m. X 5 c.m on the right side

of front of face and nose. There is clotted blood

in both nostrils. Red in colour Adv. X-ray.

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(2)Swelling 2c.m. X 1/2c.m. on the left

cheek lower jaw. Adv. X-ray in colour.

(3)Abrasion 1/5 c.m. X 1/5 c.m. on the front

of the right knee joint. Oozing stopped.'

7.Accused also lodged a report with Police Station, Dibai,

District Bulandshahr on 09.02.1975 at about 5.00 P.M. stating

that Pandit Raghunandan Prasad resident of village Jairampur

Bangar had a tube-well in the village. Later on the appellant-

accused installed a tube-well in his own village Niwari and

started giving water for irrigation at lesser price. This affected

the income of Pandit Raghunandan Prasad. On 09.02.1975

when he was carrying the gun of his brother Vijay Pal Singh to

Narora and reached at the shop of Hamid Khan situated in

Village Jairampur Bangar, Bhanu Prakash, Dharam Prakash,

Rama Shankar and other unknown person met him and started

snatching his gun. The fire accident happened due to snatching

and caused injuries to Dharam Prakash. The accused was

beaten and his gun was snatched. This came to be registered as

Criminal Case No. 27A/75; whereas on the complaint of PW-1,

Criminal case 87/75 under Section 307 of the Code and Section

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25 of the Act respectively was registered.

8.As the various contentions raised on behalf of the appellant are

interconnected and common evidence would have to be

examined to record a finding, it will be appropriate for us to

have a common discussion on these arguments.

9.As is evident from the record before us, the learned trial court

vide its judgment dated 21.05.1979 had convicted the accused

of both the offences under Section 307 of the Code as well as

27 of the Act, which judgment of the trial court was set aside

and the accused was acquitted of both these offences and was

convicted for the offence under Section 25 (1) (a) of the Act

while awarding him the punishment of imprisonment till rising

of the court. This judgment of acquittal which was set aside by

the High Court practically restored the judgment of the trial

court and partly allowed the appeal of the State and convicted

the accused of an offence under Section 307 of the Code and

maintained the conviction under Section 25 (1) (a) of the Act.

10.The reliance placed by the learned counsel upon the judgment

of this Court in the case of Ganesh Bhavan Patel’s case (supra),

is to buttress his submission that a judgment of acquittal should

not be interfered by the High Court, as on facts and overall view

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of the evidence recorded by the First Appellate Court, the

findings were reasonable and, therefore, no interference was

called for. It is true that in this case the court observed that

where two reasonable conclusions can be drawn on 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. To put it simply, if the order acquitting the

accused is reasonable and plausible and cannot be entirely or

effectively dislodged or demolished, the High Court should not

disturb the order of acquittal. The principles with regard to

exercise of judicial discretion by the High Court while hearing

an appeal against a judgment of acquittal have been well settled

and are hardly open to any expansion.

11.Right from the case of Sheo Swarup v. King Emperor : AIR

1934 PC 227, the principles governing exercise of discretion

were well stated by the court with a specific note that there was

no occasion for placing limitations upon the power unless it

was so expressly stated in the code itself. It will be useful to

reproduce the dictum of the court at this stage :

“Sections 417, 418 and 423 of the Code give to the

High Court full power to review at large the

evidence upon which the order of acquittal was

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founded, and to reach the conclusion that upon that

evidence the order of acquittal should be reversed.

No limitation should, 'be placed, upon that power,

unless , it be found expressly stated in the Code.

But in exercising the power conferred by the Code

and before reaching its conclusions upon fact, the

High Court should and will 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

his 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. To state this however is only to say that

the High Court in its conduct of the appeal should

and will act in accordance with rules and principles

well known and recognized in the administration

of justice.”

The above stated principles have been reiterated with approval

and wider dimensions by this Court from time to time.

12.In the case of Mathai Mathews v. State of Maharashtra : 1970 (3)

SCC 772, the court while reiterating the said principle stated that

it is now well settled that order of an appellate court to review

evidence in appeals against acquittal is as extensive as its power

in appeals against convictions. It is also well settled that before

an appellate court can set aside the order of acquittal, it must

carefully consider the reasons given by the trial court in support

of its order and must give a reasoning to reject those reasons. In

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brief, the appellate court should not disturb the order of acquittal

except on very cogent grounds and on examination of the entire

material. Before the appellate court, where the judgment of

acquittal is recorded, two important aspects emerge from such

judgment. Firstly, there is presumption of innocence of the

accused person in our criminal jurisprudence and secondly, the

concerned court has recorded the finding in favour of the accused

and disbelieved the prosecution and has founded as a matter of

fact that the prosecution has failed to prove its case beyond

reasonable doubt, thus giving benefit to the accused. Both these

presumptions – jurisprudential and in regard to the factual matrix

– must be kept in mind and unless the conclusions reached by the

court were palpably erroneous or contrary to law or it is likely to

result in injustice, the High Court may be reluctant in interfering

with the judgment of acquittal. Reference in this regard can also

be made to the case of Khedu Mohton & Ors. v. State of Bihar :

1970 (2) SCC 450.

In the case of Kunwar Bahadur Singh v. Shiv Baran Singh & Ors. :

2001 9 SCC 149, this Court introduced the caution of exercise of such

discretion by the court and observed that interference while hearing an

appeal against judgment of acquittal, the court should not hesitate to

12

examine the matter on merits merely because there is a judgment of

acquittal in favour of the accused. Undue benefit need not be given

particularly if acquittal is based on surmises and conjectures and not

substantiated by law and evidence on record. Usefully, reference can

be made to the relevant findings recorded by the court in para 24 of the

judgment :

“In the former case declining to go into the merits

may be justifiable but in the latter case it is

impermissible. There can be no doubt that

jurisprudentially an accused is presumed to be

innocent till he is found to be guilty by a

competent court. In giving its verdict the Court

will give benefit of doubt arising on consideration

of evidence brought on record by the prosecution

or on account of absence of material evidence

which ought to have been adduced but is not

brought on record, to the accused persons and

acquit him of the offence charged against. But a

doubt arising on the basis of surmises and

conjectures should never be allowed to influence

the verdict of the Court as in such cases giving

benefit of doubt to the accused but will be counter

productive and destructive of system of delivery of

justice in criminal cases having repercussions on

existence of every civilised and peaceful society.

The Courts will have to be cautious and prudent to

secure the ends of justice.”

13.In a very recent judgment a Bench of this Court in the case of

Arulvelu & Anr. v. State represented by the Public Prosecutor &

Anr. : 2009 (10) SCC 2006, while referring with approval the

judgment of another equal (Division) Bench in the case of

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Ghurey Lal v. State of U. P. : 2008 (10) SCC 450 and relying

upon various judgments of the court stated the following

principles :

“34In Ghurey Lal v. State of Uttar Pradesh

[(2008) 10 SCC 450] a two Judge Bench of this

Court of which one of us (Bhandari, J.) was a

member had an occasion to deal with most of the

cases referred in this judgment. This Court provid-

ed guidelines for the Appellate Court in dealing

with the cases in which the trial courts have acquit-

ted the accused. The following principles emerge

from the cases above:

1. The accused is presumed to be innocent until

proven guilty. The accused possessed this pre-

sumption when he was before the trial court. The

trial court's acquittal bolsters the presumption that

he is innocent.

2. The power of reviewing evidence is wide and

the appellate court can re-appreciate the entire evi-

dence on record. It can review the trial court's con-

clusion with respect to both facts and law, but the

Appellate Court must give due weight and consid-

eration to the decision of the trial court.

3. The appellate court should always keep in mind

that the trial court had the distinct advantage of

watching the demeanour of the witnesses. The trial

court is in a better position to evaluate the credibil-

ity of the witnesses.

4. The appellate court may only overrule or other-

wise disturb the trial court's acquittal if it has "very

substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be

reached - one that leads to acquittal, the other to

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conviction - the High Courts/appellate courts must

rule in favour of the accused.

36. Careful scrutiny of all these judgments lead to

the definite conclusion that the appellate court

should be very slow in setting aside a judgment of

acquittal particularly in a case where two views are

possible. The trial court judgment can not be set

aside because the appellate court's view is more

probable. The appellate court would not be justi-

fied in setting aside the trial court judgment unless

it arrives at a clear finding on marshalling the en-

tire evidence on record that the judgment of

the trial court is either ‘perverse’ or wholly unsus-

tainable in law.”

14.In addition to the above re-statement of principles, the court also

referred to what findings could be termed as ‘perverse’ so as to

call for interference by the higher court hearing the appeal

against judgment of acquittal. ‘perverse’ was stated to be a

behaviour which most of the people would take wrong,

unacceptable, unreasonable and a ‘perverse’ verdict may

probably be defined as one that is not only against the weight of

the evidence but is altogether against the evidence. Besides, a

finding being ‘perverse’, it could also suffer from the infirmity of

distorted conclusions and glaring mistakes. In addition thereto

there can be cases where for substantial and compelling reasons,

15

good and sufficient grounds, very strong circumstances and to

avoid the ends of justice being defeated, the higher courts have to

interfere with the judgment of acquittal recorded by the lower

court.

15.From the above enunciated principles it is clear that judgment of

acquittal can be interfered by the appellate court. However,

exercise of judicial discretion would be guided by these

principles. It is neither permissible nor possible to enunciate any

straightjacket formula which can universally be applied to all the

cases. The court will have to exercise its discretion keeping in

view the facts and circumstances of a given case. The court

within the stated parameters will well be within its jurisdiction to

interfere with the judgment of acquittal. Thus, we will have to

examine the matter from the point of view whether in the facts

of the present case and evidence on record, High Court was

justified in reversing the judgment of acquittal and convicting

the accused of an offence under Section 307 of the Code.

16.The trial court in its lengthy judgment have discussed occular as

well as documentary evidence produced by the prosecution. The

version stated by the eye witnesses, the medical evidence as

well as the veracity of the statement made under Section 313

16

Code of Criminal Procedure (for short the 'Cr.P.C.') formed the

basis of the judgment of conviction passed by the learned trial

court. The court examined in its right perspective one of the

most important feature of the case that why the accused was

carrying gun of his brother and discarded the narration and the

explanation for keeping the gun with him. According to the

accused his brother Vijay Pal (DW-1) demanded his gun at

Narora. According to report Exh. Kh-2, Vijay Pal stated to

bring his licensed gun to Narora as he would come late in the

evening and the Court was not satisfied with the explanation

and held that prosecution has been able to bring home the guilt

of the accused.

17.The Court while noticing the statement made by the eye-

witnesses PW-1 and PW-3 noticed as under :

“Accused Satyavir himself admits the presence of

Ramashankar. Therefore, despite three persons

could not explain satisfactory reason of their

presence, their presence cannot be denied. ”

18.These findings were set aside by the learned First Appellate

Court which stated that it was an accidental firing and the

prosecution has failed to prove its case. The benefit was given to

the accused primarily on certain surmises and conjectures and

17

doubting the presence of the witnesses particulaly Ram Shankar

whose presence had been admitted by the accused himself in the

report lodged by him and even in his explanation before the Court.

19.Definite doubts or lacunae in the case of the prosecution may

result in benefit of doubt being given to the accused and

consequential acquittal. However, such doubts and lacunae must be

clearly distinguished from doubts or lacunae based upon certain

assumptions. In such cases what appears to be loop-hole in the

case of the prosecution at the first glance, on appropriate

examination and appreciation of evidence, may fall in the other

class. The following observations of the learned First Appellate

Court clearly demonstrates that Court has founded its judgment of

acquittal more on surmises and suspicion and the views of the

Court which were not supported by evidence on record.

Illustratively, the following observations can usefully be noticed:

“ (a)It is evident that left arm is not a vital part. If

the appellant was fired from a close range within 4

feet, he could have easily aimed at the chest of

the victim, which could have killed him at the

spot.

(b)But when the motive alleged is the very

genesis or commencement of the prosecution

story, it would not be possible to discard the

defect relating to motive or genesis in the

prosecution story.

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(c)The third important feature of the case is

simultaneous presence of Bhanu Prakash,

Dharam Prakash and Ram Shanker at the crossing.

(d)Then the only possible inference is that they

were together at the crossing or at the tea stall for

some other reason and as soon as they saw

appellant Satyavir Singh, a youngman alongwith a

gun, they were tempted to snatch the gun.

According to medical evidence the very seat of the

injuries discloses that the shots would have been

fired during snatching. ”

20.The above observations demonstrate that the learned First

Appellate Court has proceeded on the basis of certain presumptions

which in the opinion of the Court could be the correct approach. But

such approach may be guided by the doctrine of perversity. If

findings are neither supported by evidence nor such approach could

be adopted by the person of common prudence or behaviour, then

the court may interfere in a judgment of acquittal. The First

Appellate Court is a court of both fact and law and as such has

jurisdiction to entirely re-appreciate the evidence. Thus, while

setting aside the order of conviction it has to equally ensure that no

injustice is done and on certain assumptions of facts, guilty may not

go scot free. A person otherwise is proved to be guilty by the

prosecution by leading cogent and reliable evidence, normally

would not be given the benefit of doubt on the basis of certain

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assumptions or presumptions of facts. The Court may have to

notice and rely upon behaviour of the person of a common prudence

only where the direct evidence have been produced. As we shall

shortly proceed to discussion that the assumptions raised by the

First Appellate Court are not supported on record. We find that the

High Court has not fallen in error of law in setting aside the order

of acquittal and affirming the judgment of conviction rendered by

learned trial court.

21.Now we may proceed to examine the appreciation of

evidence on record by the First Appellate Court acquitting the

accused as well as that of the High Court reversing the judgment of

acquittal.

22.The High Court noticed that the fields of farmers in village

Niwari were irrigated from the tubewell of Prahalad Singh Thakur

which was installed in that village. It was because of construction

of the road for the Power House that the farmers of village Niwari

started irrigating from the tubewell of Bhanu Prakash Sharma

resident of Village Jairampur Bangar. This was not bearable to the

accused who is the son of Prahlad Singh Thakur. Thus, this may

not be exactly a motive but was a reason enough for the accused to

take an offensive step against the injured.

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23.The first information report was lodged by Bhanu Prakash

Sharma without any delay and as already noticed Dharam Prakash

(PW-3) had been challenged by the accused saying that how he was

irrigating the fields of the villagers of his village from his tubewell.

Armed with a licensed gun of his brother, he opened fire on Dharam

Prakash and shot two bullets. The occurrence was seen by Bhanu

Prakash Sharma (PW-1), who was present there as well as Rama

Shankar (PW-4) and some others. The accused was arrested and

the gun was also deposited. Ext.Ka-1 report to the police station

was lodged by Bhanu Prakash Sharma (PW-1).

24.Dharam Prakash was medically examined on 9th February,

1975 at about 4.35 p.m. and according to Dr. Suresh Chandra Singh

(PW-5), three injuries were found on the person of the injured who

was then subjected to X-Ray by Dr. A.K. Agarwal (PW-8), who

was posted as Radiologist in District Hospital, Bulandshahr. It has

been proved on record by Dr. Jitendra Singh Sharma (PW-7) that

Dharam Prakash remained in the hopsital from 9th Febraury, 1975

to 20th March, 1975.

25.The medical evidence clearly reflected that the injuries could

be caused by gun shots. However, there was little difference of

opinion between two doctors but both these doctors are not the

21

ballistic experts so as to provide any expert opinion which could

safely be relied upon by the Court while deciding the case.

26.The difference of opinion between experts necessarily may

not persuade the Court to adopt one approach or the other

particularly when none of the experts are persons competent to

express opinion on that subject. The difference of opinion between

two doctors which, in the facts and circusmtances of the present

case, does not have any material bearing on the case of the

prosecution is not such a formidable submission which has to be

accepted by the Court to grant necessarily the benefit of doubt to

the accused.

27.In the case of Malay Kumar Ganguly v. Dr. Sukumar

Mukherjee & Ors. : (2009) 9 SCC 22, this Court has, while noticing

the difference of opinion between the doctors on the basis of the

evidence on record and the literature produced, preferred one view

over the other without commenting on any expert opinion expressed

by either of them.

28.It was stated by Dr. Suresh Chandra Singh (PW-5) that such

injuries could be caused by gun shots. The trial court and the High

Court expressed in unambiguous language the view that it was

possible that no gun powder was traced around the wounds of the

22

injuries as he was wearing clothes. This finding cannot be said to

be erroneous. Dr. A.K. Agarwal (PW-8) clearly stated that the

pellets of the fire shots were found in the wounds and were duly

seen in the X-Ray of the injured. Thus such view taken by the

courts cannot be faulted. In fact the major part of the occurence is

not even disputed by the accused in his statement under Section 313

of Cr.P.C. and in any case the report lodged by him bearing

No. 27A/75 clearly shows that the incident occurred and the injured

besides, other two witneses, PW-1 and PW-2 were present at the

spot. In fact according to the accused it was an accidental fire

which occurred as a result of snatching of the gun by the injured

and other persons accompanying him at that time. While, according

to the prosecution he had fired two shots which injured the victim

and thereafter the gun was snatched. Dr. Suresh Chandra Singh

(PW-5) examined the injuries of the injured and stated that injuries

would have been caused 2-3 hours earlier and that when the injured

was brought to the hosptial he was bleeding and such injuries could

be sustained by gun shots. This statement of the doctor had fully

supported the case of the prosecution and chain of events as stated

therein.

29.With considerable emphasis, learned counsel for the appellant

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aruged that as no explanation was rendered by the prosecution as to

how the gun had broken, this would straightaway cause serious dent

in the case of the prosecution and entitles the accused for an

acquittal.

30.We find no merit in the aforesaid contention. It was for the

accused to prove his defence as the prosecution is liable to prove

the case as stated in the first information report and the report filed

by it under Section 173 of Cr.P.C. The eye witnesses had actually

seen the victim being injured by the shots fired by the accused. In

fact the accused was apprehended at the spot with the gun. The gun

in question was admittedly a double barrel gun and the same was

used by the accused while firing two shots. The gun with the spent

cartridges were taken into custody vide Ext Ka-3. The accused

himself had lodged the report bearing No. 27A/75 under Section

394 of the Indian Penal Code against the eye-witnesses including

Bhanu Prakash Sharma, Dharam Prakash, Rama Shankar and one

unknown person. The report lodged by the accused, itself shows

as to how the gun was broken. But the breaking incident took place

after the two shots had been fired by the accused upon the injured.

There appears to be no justifiable reason as to why the eye

witnesses PW-1 and PW-4, who even according to the accused were

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present at the place of occurrence, should be disbelieved. It could

be safely construed from the evidence on record that the accused

may not have any strong motive to kill the victim, however, the loss

of revenue on account of the fact that water for irrigation was being

provided by the father of the injured, was reason enough for the

accused to show his anger or it was not acceptable to him, as stated

by the witnesses, thus he fired two shots which resulted in causing

injuries to Dharam Prakash. Both the reports were lodged by the

informant as well as the accused at 2.30 p.m. on 9th February, 1975.

The gun and the utilized bullets were given at the police station

itself. This evidence clearly shows that prosecution has not failed

in proving its case in accordance with law.

31.As already noticed, part of the occurence stands admitted and

it is only the limited aspect of the case as to whether the firing was

accidental or the accused had intentionally fired on the injured.

Statement of the eye witnesses, medical evidence and the

investigation conducted by the Investigating Officer clearly show

that the prosecution has been able to prove its case beyond

reasonable doubt. The act of firing gun shots at the injured

obviously shows that the accused had the knowledge that by such

an act he may even cause the death of the injured and actually

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caused hurt to victim. It is a matter of co-incidence that the gun

shots did not injure Dharam Prakash at any of his vital organs.

32.Learned counsel appearing for the appellant while referring to

certain discrepancies appearing in the statements of the witnesses

including the doctors, vehemently contended that it was a case of

acquittal and there was no intention on the part of the accused to kill

the injured otherwise he would have fired the gun shots at the vital

parts of the body of the injured, particulary when according to the

prosecution, it is stated that the firing took place from a close

distance. If that was so, such injuries would not have been caused.

This contention also does not impress us inasmuch the tattooing and

charring shall always depend upon the constituents of the propellant

charge and it is in that context only wounds are classified by their

external appearance as close contact. Reference can be made to

Bano Prasad & Ors. v. State of Bihar : 2006 (12) SCALE 354.

33.Some discrepancies per se would not prove fatal to the case

of the prosecution particularly when there is no reason before the

Court to doubt the statement of the eye witnesses, PW-1. There has

been no delay in registration of the case and in fact even a counter

case was registered which did not result in favourable culmination

for the accused. It may also be noticed that the learned trial court as

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well as the High Court has referred to the statement of the accused

recorded under Section 313 of Cr.P.C. which to some extent falls in

line with the case of the prosecution.

34.The cumulative effect of the above discussion is that we do

not see any reason to interfere with the judgment of the High Court.

The High Court has not exceeded its jurisdiction in law and with

reference to the evidence on record while reversing the judgment of

acquittal to one that of conviction. So far as the conviction of the

accused under Section 25(1) of the Act is concerned, no arguments

were addressed. In any case we see no reason to interfere with the

said finding of the courts below.

35.In the result, the appeal fails and is dismissed.

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

[ ALTAMAS KABIR ]

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

[ SWATANTER KUMAR ]

New Delhi.

February 11, 2010

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