Singh Vs. State of U.P.  INSC 122 (11 February 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 295
OF 2010 (@ SLP (Crl.) No. 3207 of 2009) Satyavir Singh Appellant State of U.P.
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.
Section 27 of the Act. Both the sentences were ordered to 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.
will be useful to refer to the findings and conclusions recorded by the High
Court of the State.
the basis of evidence on record, the charge under Section 307 IPC is proved
beyond all reasonable and probable doubt.
impugned judgment and order passed in Criminal Appeal No. 99 of 1979, 'Satyavir
Singh vs. State of U.P.' is thus found to be 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
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.
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.
confirm the sentence of three years R.I.
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.
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.
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.
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."
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 :
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.
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.
motive was proved and in absence of a specific motive, the High Court has erred
in holding that the appellant is guilty of offence under Section 307 of 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.
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.
In order to appreciate the merit or otherwise of the submissions
made before us reference to the case of prosecution would be necessary :
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.
Singh, accused is the resident of village Niwari. Vijay Singh is his elder
brother and owned a double barrel gun under a 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.
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.
Prakash was medically examined on that very day by Dr. Suresh Chandra Singh
(PW-5) and the following injuries were noticed on his person:
Lacerated wound 1 c.m. X 1 c.m. X thickness of the left upper arm, on the left
upper arm front 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.
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...
underneath. Adv. X-ray. The margines of the wound are inverted.
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.'
The occurrence was witnessed by Bhanu Prakash Sharma informant,
Rama Shanker (PW-4); Brij Bhushan and others.
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:
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.
2c.m. X 1/2c.m. on the left cheek lower jaw. Adv. X-ray in colour.
1/5 c.m. X 1/5 c.m. on the front of the right knee joint. Oozing stopped.'
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 25 of the Act respectively was
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
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 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.
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 :
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 founded, and to reach
the conclusion that upon that evidence the order of acquittal should be reversed.
limitation should, 'be placed, upon that power, unless , it be found expressly
stated in the Code.
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."
stated principles have been reiterated with approval and wider dimensions by this
Court from time to time.
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
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.
case of Kunwar Bahadur Singh v. Shiv Baran Singh & Ors. :
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 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 :
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 counterproductive and
destructive of system of delivery of justice in criminal cases having
repercussions on existence of every civilised and peaceful society.
Courts will have to be cautious and prudent to secure the ends of
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 Ghurey Lal v. State of U. P. : 2008 (10) SCC
450 and relying upon various judgments of the court stated the following
In 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
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.
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.
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.
appellate court may only overrule or other- wise disturb the trial court's
acquittal if it has "very substantial and compelling reasons" for
5. If two
reasonable or possible views can be reached - one that leads to acquittal, the
other to conviction - the High Courtís/appellate courts must rule in favour of
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 cannot 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."
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, 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.
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
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 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.
The Court while noticing the statement made by the eye- witnesses
PW-1 and PW-3 noticed as under :
Satyavir himself admits the presence of Ramashankar. Therefore, despite three
persons could not explain satisfactory reason of their presence, their presence
cannot be denied. "
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 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.
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
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.
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.
third important feature of the case is simultaneous presence of Bhanu Prakash,
Dharam Prakash and Ram Shanker at the crossing.
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.
to medical evidence the very seat of the injuries discloses that the shots
would have been fired during snatching. "
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
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
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.
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.
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.
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).
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.
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 ballistic experts so as to
provide any expert opinion which could safely be relied upon by the Court while
deciding the case.
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.
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.
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 injuries as he was bearing 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.
With considerable emphasis, learned counsel for the appellant
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.
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
appears to be no justifiable reason as to why the eye witnesses PW-1 and PW-4,
who even according to the accused were 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 been 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.
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.
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 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.
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
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.
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 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.
The cumulative effect of the above discussion is that we do not
see any reason to interfere with the judgment of the High Court.
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.
In the result, the appeal fails and is dismissed.
........................................J.[ ALTAMAS KABIR ]
........................................J.[ SWATANTER KUMAR ]