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TMI Blog2010 (2) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Under Section 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. 3. 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 v. State of U.P.' is thus found to be unsustainable as far as acquittal of accused-respondent under Section 307 IPC is concerned. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoned 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 and Anr. v. State of Maharashra 1978 (4) SCC 371. (b) No 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 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. 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 abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rested. The accused was also medically examined on that very day and on his person the following injuries were noticed: INJ: (1) Swelling 5cm. X 5 cm on the right side of front of face and nose. There is clotted blood in both nostrils. Red in colour Adv. X-ray. (2) Swelling 2cm. X 1/2c.m. on the left -cheek lower jaw. Adv. X-ray in colour. (3) Abrasion 1/5 cm. X 1/5 cm. 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 Prakas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse' or wholly unsustainable 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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. (c) The third important feature of the case is simultaneous presence of Bhanu Prakash, Dharam Prakash and Ram Shanker at the cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akur. Thus, this may not be exactly a motive but was a reason enough for the accused to take an offensive step against the injured. 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 hospital from 9th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 hospital 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 argued 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cularly 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 and 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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