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 1/3rd 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 1/3rd 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.