Holding

The High Court erred in disturbing the trial court’s acquittal; the prosecution failed to prove the case beyond reasonable doubt, so the appellant’s acquittal is restored.

Summary

The incident occurred on 12 February 1975 at Lalitpur bus stand where the appellant Mahendra Pratap Singh was alleged to have fired a single bullet from a rifle, causing the death of Devendra Singh and injuries to three others. The trial court acquitted him, but the Allahabad High Court convicted him under IPC sections 304(Part II), 307, 324 and Arms Act section 25, imposing a total of 19.5 years' rigorous imprisonment. On appeal, the Supreme Court held that the prosecution failed to prove the identity of the weapon and the appellant’s participation beyond reasonable doubt, noting serious inconsistencies between eyewitness accounts, medical reports and ballistic expert testimony, as well as an erroneous conviction under section 25 of the Arms Act. Applying the rule of judicial prudence, the Court restored the trial court’s acquittal and set aside the High Court’s conviction. The appeal was allowed.

Issues considered

Whether the High Court can overturn an order of acquittal on appeal under Section 378 of the Cr.P.C. when the evidence permits two reasonable conclusions.
Whether the prosecution proved beyond reasonable doubt that the appellant fired the bullet and that the weapon seized was the one used in the offence.
Whether conviction under Section 25 of the Arms Act is appropriate when the appellant was charged under Section 27 for using the firearm.
Whether the inconsistencies in eyewitness testimony, medical evidence and ballistic report create reasonable doubt sufficient to sustain the acquittal.

Legislation cited

Arms Act, 1950s. 25, s. 27
Code of Criminal Procedure, 1973s. 378
Indian Penal Code, 1860s. 304(Part II), s. 307, s. 324

Subjects

acquittalconvictionreasonable doubtrule of prudenceballistic evidenceeyewitness testimonyArms ActIPCcriminal appealevidence appraisal

Judgment

[2009] 2 S.C.R. 1033

MAHENDRA PRATAP SINGH A
·-.....(
V.
STATE OF U.P.
Criminal Appeal No. 34 of 2006

FEBRUARY 24, 2009
B
[LOKESHWAR SINGH PANTA AND 8. SUDERSHAN
REDDY, JJ.]
,---1 Penal Code, 1860- ss. 304 (Part II), 307 and 324 -Arms
Act, 1950 - s. 25 - Single bullet shot by appellant causing
fatal injuries to one and grievous injuries to others - Order of c
acquittal by trial court - Conviction by High Court -
Correctness of - Held: Prosecution failed to prove its case
beyond reasonable doubt- Evidence of eye-witnesses as also
injured witnesses inconsistent with medical evidence and
). ballistic expert's report in regard to weapon of offence - High D
Court disregarded rule of prudence in converting order of
acquittal to conviction - Hence, order of High Court set aside
and that of trial court restored.
Criminal law - Administration of Criminal Justice - Held:
E
If two views are possible one for acquitfing the accused and
other for convicting the accused, the rule of prudence should
guide High Court not to disturb order of acquittal made by trial .
}t
court.
"
The question which arose for consideration in this F
appeal was whether the High Court was justified in
convicting and sentencing the appellants under sections
304 (Part II), 307 and 324 IPC and s. 25 of the Arms Act and
setting aside the order of acquittal passed by the trial
court.
G
.)
Allowing the appeal, the Court

HELD: 1.1 The findings of the High Court in setting
aside the order of acquittal of the appellant passed by the
1033 H
1034 SUPREME COURT REPORTS [2009] 2 S.C.R.

A trial judge cannot be agreed. On independent analysis of
the evidence of the material witnesses, the High Court
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
B minor in nature which, are vital for disbelieving and
discrediting their evidence. The High Court discarded the
important pieces of evidence on the basis of surmises
and conjectures. It appears that the prosecution
suppressed the genesis of the evidence. The discrepancy
c 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 failed to prove that the
same weapon of offence was sent to the Ballistic Expert
0 which allegedly was handed over by the prosecution
witness to Head Constable in the Police Station. [Paras
·21 and 22] [1053-A-B; 1054-H; 1056-E-F]
1.2 The High Court clearly fell in error while
convicting the appellant under section 25 of the Arms Act
E without caring to go through the provisions of the Act.·
'·
Section 25 of the Act deals with punishment for
manufacturing, selling, transferring, converting, repairing,
possessing of any arms or ammunition in contravention
of section 5 of the Act. As per the prosecution version the
F 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
Act for using the said fire arm. The appellant could not
have been convicted and punished by the High Court for
G committing an offence under section 25 of the Act. [Paras
25 and 26] [1058-D-F]
1.3 Having regard to the entire evidence and having
carefully and closely considered the judgments of the trial
court and the High Court, it appears that the view taken
H by the trial court was reasonable and plausible. If, on
: ....
MAHENDRA PRATAP SINGH V STATE OF UP. 1035

.• ----..( appraisal of the evidence and on considering relevant A
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 B
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 The evidence of the
eye-witnesses including injured witnesses does not at all c
inspire confidence and their evidence is running in conflict
t
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 disregarded the rule of judicial prudence in D
converting the order of acquittal to conviction. [Para 27]
[1058-F-H; 1059-A-C]
1.4 In view of the facts and circumstances, the
prosecution failed to prove its case beyond all reasonable
doubt and the High Court committed error in interfering E
with the trial court's order of acquittal. The order of the
High Court convicting the appellant is set aside, the order
t,> of the trial court is restored and the appellant is acquitted.
[Paras 29 and 30] [1059-F-G]
Awadesh & Anr v. State of Madhya Pradesh (1988) 2 F
SCC 557; G B. Patel Vs. State of Maharashtra (1979) 2 SCR
94; Shea Swarup vs. King Emperor AIR 1934 PC 227;
Mohinder Singh v. The State (1950) SCR 821; lnder Singh
and Anr v. The State (Delhi Administration) (1978) 4 SCC 161;
Ram Narain Singh v. State of Punjab (1975) 4 SCC 497; Puran G
Singh v. State of Uttaranchal (2008) 3 SCC 795; Ram Kumar
v. The State of Haryana JT 1994 (6) S. C. 502; Bharwada
Bhoginbhai v. State of Gujarat (1983) 3 SCC 217; Rajesh
Thakur v. State (1988) Cr/. J. 1477; State of H. P v. Lekh Raj
and Anr (2000) 1 SCC 247 - referred to. H
1036 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Case Law Reference '
"!---'
(1~88) 2 sec 557 Referred to. Para 12 '

(1979) 2 SCR 94 Referred to. Para 12
AIR 1934 PC 227 Referred to. Para 12
B
(1950) SCR 821 Referred to. Para 12.3
(1978) 4 sec 161 Referred to. Para 12.4
(1975) 4 sec 497 Referred to. Para 12.5
r
c (2008) 3 sec 795 Referred to. Para 12.6
JT 1994 (6) S.C. 502 Referred to. Para 12.7 ~

·'
(1983) 3 sec 211 Referred to. Para 12.8

D (1988) Crl. J. 1477 Referred to. Para 12.9 ...
l
(2000) 1 sec 247 Referred to. Para 12:10
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 34 of 2006
E From the Judgement and Order dated 29.07.2007 of the
High Court of Judicature at Allahabad in Government A. No.
142 of 1981.
Sushil Kuma, J.C. Gupta, Rajesh, Dharam Singh,· Aditya -~

Kumar, Anmol Thakral, for the Appellant. '
F
Ratnakar Dash, Fuzail Khan, Anil Kumar Jha, for the
Respondent.
The Judgement of the Court was delivered by

G LOKESHWAR SINGH PANTA, J.
1. This appeal is filed by Mahendra Pratap Singh- appellant ~

herein under Section 2(a) ofJhe Supreme Court (Enlargement
of Criminal .Appellate Jurisdiction) Act, 1970 against the final
judgment and order dated 29.07.2005 passed by the High Court
H of Judicature at Allahabad in Appeal No. 142 of 1981. By the ~
MAHENDRA PRATAP SINGH V. 1037
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

impugned judgment, the High Court has set aside the order of A
.
- t ~----'.
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, und~r 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 B
sentenced to undergo rigorous imprisonment for 10 years under
Section 304 Part-II, 7 years R.I. under Section 307 IPC, 6 months
• 1
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 appellantc
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 D
stand Lalitpurwas 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. E
for Jhansi. Matin Khan (PW-8) driver of Bus No. USG 5519
stopped the vehicle at bus stand L,alitpur 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 F
passengers boarding Bus No. MPR 5393 in place of their bus.
They asked 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
G
; 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
H
1038 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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,
B Dhanna Lal (C\N-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
c 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.
D PW Laxman Dass carried injured PW Prahlad Babu, CW-1
Dhanna Lal and Devendra Singh on a The/a 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
E 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
F Kumar Tiw9ri 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
G 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.
H
MAHENDRA PRATAP SINGH V 1039
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

2.3] The investigation of the case was conducted .by K.P. A
'~-4
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 B
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 c
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 D
~
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 E
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
.., 4
Section 304 Part-II, 307 and 324 IPC and Section 25 of the
Arms Act. The learned Chief Judicial Magistrate, Lalitpur, on F
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 G
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 H

"
1040 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
,B 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
c (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
D 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),
E 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. BrijRaj Singh (Ex.Ka-69) and retired Head Constable
Sh ital 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
F 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.
G
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 hint He examined
Chandan Singh (DW-1) in his defence. His plea was that he
H was not present at the scene of occurrence on the alleged day
-
MAHENDRA PRATAP SINGH V. 1041
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

of incident. He pleaded that at the relevant time his father A
"~ 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 B
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 c
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 D
i
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:
E
Prahlad Babu:
(1) One gunshot wound %" X ~,, on the lower part of left
side chest, 6-% below the nipple. Wound was
~ ,,, ,4
bleeding, margins were inverted. There was no
blackening and tattooing around the wound. It was a F
wound of entry.
(2) One gunshot wound %" X %" 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. G

Devendra Singh:
(1) One gunshot wound %" X %" X abdominal cavity
deep, on right side of abdomen, 2%" above the
.... anterior superior iliac spine. Omentum was coming H
1042 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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, 1%" X %", 1" below the
anterior superior iliac spine, bleeding. Margins were
B
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:
c ·(1) One lacerated wound 7%" 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.

D (2) A lacerated wound 4%" X 1%" 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 %" X 1/8" lower 113rd portion on
E
right arm lateral side 1" above the elbow. Margins
inverted. Bleeding. Wound of entry.
(2) A gunshot wound%" X 1/8" 1%'' below the injury no. ·~
...
1 on the lateral side in the upper 113rd right fore arm.
F Bleeding. Margins inverted wound of entry.

(3) A gunshot wound %" X 1/8" on the left fore arm middle
113rd 5" below the elbow in the posterior part lateral
side. Margins inverted. Wound of entry.

G (4) A gunshot wound%" X %", 1%" 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
H caused from fire arm. Dr. S.P. Singh examined PW-Laxman
MAHENDRA PRATAP SINGH V. 1043
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

Dass and found injury on his head caused by a blunt weapon A
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 B
hospital, their physical conditions were serious. Dharina 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.
c
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 D
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 E
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 F
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 G
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, H
1044 SUPREME COURT REPORTS [2009] 2 S.C.R.

'·
A (ii) That the very foundation of the prosecution story that I

the firing was made because Bus No. MPR 5393
+" -r,
\.

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 shouid leave Lalitpur, was
B liable to be thrown over-board as any incident of
s~ooting 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. r
c (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
D 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
E 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-
F 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
G recorded as Dying Declarations although the
accu.sed 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
.J
H be rejected and consequently it must be held that
~
\,
I
':}_

MAHENDRA PRATAP SINGH V. . 1045
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.] ·

,.... there was no objection from the accused against the A
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 B
during the course of the incident of shooting.
(vii) That it could not be said with certainty as to what
... -1 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 c
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 D
... 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 F:i
apprehended on some misplaced suspicion and then
involved in this case.
.Ji 8.] Being aggrieved against the order of acquittal .. the State
, r
of Uttar Pradesh filed appeal before the High Court. The High
Court allowed the appeal by the impugned judgment holding F
the appellant guilty of the charged offences. The High Court
sentenced the appellant 10 years R. I. under Section 304 Part-I I,
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. G
~
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 H
'
1046 SUPREME COURT REPORTS [2009] 2 S.C.R.
f
A 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
B 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 'I
)----
contended that testimony of the injured eye-witnesses is total.ly
c 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
D 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
E
in later part of the judgment. •-i
'
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 "
F 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 KumarTiwari; PW-
Shikhar Chandra and injured Dhanna Lal (CW-1) is concise,
G 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
H
I
'
MAHENDRA PRATAP SINGH V. 1047
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

are all of insignificant nature and immaterial and the case of the A
'~ 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.
B
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 c
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
...t the High Court not to disturb the order of acquittal made by the D
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
E
SCC 371; AIR 1979 SC 135, this Court quoted with approval
the principles laid down by Privy Council in Shea 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 F
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: G
~ (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."
H
,
1048 SUPREME COURT REPORTS [2009] 2 S.C.R.

A · 12.2) It was further observed [Para 13 SCC p.376J:
"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
demolis.hed, the High Court should not disturb the
acquittal."
c 1-
\
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
D . 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 l.

in which they are alleged to have been caused. It is
elementary that where the prosecution has a definite or
E positive case, it is doubtful whether the injuries which are
attributed to the appellant were caused by a gun o.r by a
rifle."

12.4) In lnder Singh & Anr. v. The State (Delhi
F 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
G 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
sec 497, it was held that where the evidence of the witnesses
for the prosecution is totally inconsistent with the medical
H evidence or the evidence of the ballistic expert, this is a most
MAHENDRA PRATAP SINGH V. 1049
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

fundamental defect in the prosecution case and unless A
) '.~
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. B
12.6) In Puran Singh v. State of Uttaranchal (2008) 3
sec 795, the relevant question for consideration was whether
> -1 the weapon used by the accused for causing death of the
deceased Rajp.al Singh and two empty cartridges were the same
which were recovered from the accused. The mudamal gun as c
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:
t D
~ . "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 E
. 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 F
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 G
~~ 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 H
1050 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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,
C 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
D 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
E under Article 136 of the Constitution of India.

12.9) In Rajesh Thakur v. State (1988) Cr/. J. 1477,
learned Single Judge of the Calcutta High Court found the story
in the First Information Report regarding the time, place and j..
...
manner of the occurrence, the name bf assailant, the testimony
F 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
G 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
H appeal.
MAHENDRA PRATAP SINGH V. 1051
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

12.10) In State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC A
'.'\ '-+ 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 B
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 c
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-
.. t Laxman Dass that on the day of the incident Bus No. MPR 5393 D
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 E
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
r- ~
unloaded. The appellant allegedly fired a single bullet shot from
the rifle from a distance of about 5-7 steps which first hit PW- F
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
G
Chaurasia (not examined), PW-Vimal KumarTiwari; 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
H
1052 SUPREME COURT REPORTS [2.009] 2 S.C.R.

A appellant was handed over to the custody of PW-Matin Khan ~... 4".:
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.-
B 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 forgetting treatment
c 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. ·
D 14.] PW Matin Khan driver of the Bus No. USG 5519 owned 1

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
E 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.
)< ~"I
·it is his evidence that from the scene of occurrence Shambhu
F 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
G 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 \
r
H him nor he knew Devendra Singh prior to this incident. It is his
MAHENDRA PRATAP SINGH V. 1053
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

evidence that he did not notice whether the appellant on the day A
~ )t 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 B
hospital in the presence of the doctor in which he did not mention
the name of the appellant to be an assailant.

,. -·1 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, c
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 D
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.
E
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
t."" 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 F
when they received bullet shot.

18.] Rad hey Shyam Singh (PW-11) a Fire Arms Expert,
Forensic Science Laboratory, C.l.D., Lucknow, U.P., examined
one rifle number 243 of 0.302 bore on 07 .04.1975. He also G
scientifically examined three live cartridges and one missed fire
-4
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
H
1054 SUPREME COURT REPORTS [2009] 2 S.C.R.
\
A 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.
B
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
c 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
D was prepared by him and the seized articles were also sealed
_, -1
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 !PC was added in the First Information Report. This witness
E 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.
).
-,
F
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
G 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
H
MAHENDRA PRATAP SINGH V. 1055
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

setting aside the order of acquittal of the appellant passed by A
• '-t 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 B
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 c
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
evide11ce of these witnesses that one person hit PW-Laxman
,. Dass. The Investigating Officer has not cared to find out the
D
t
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.
E
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
KumarTiwari. The evidence of injured Prahlad Babu would show F
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 G
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 H
1056 SUPREME COURT REPORTS [2009] 2 S.C.R.

A PW-Matin Khan and injured PW-Prahlad Babu on material and
vital aspects of the matter. It has come in the evidence of PW +"' •
Vi ma I 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
B 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
c 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 Rad hey Shyam Singh, Fire Arm Expert, that
D he examined rifle no. 243 of .302 bore which was deposited -i
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
E 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 t .

F 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
G 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
H to four persons. Dr. S.P. Singh - Medical Officer, Civil Hospital,
'
MAHENDRA PRATAP SINGH V. 1057
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

Lalitpur, medically examined injured Prahlad Babu on the day A
of incident, i.e. 12.02.1975 at about 2.00 P.M. and found one
gun shot wound%" x %"on the lower part of left side chest, 6%"
below the nipple. It was wound of entry, whereas the wound of
exit of the bullet was%" x %" on the left side back, 2" away from
the middle line wound. On the same day he examined Devendra B
Singh who received gun shot wound %" x %" x abdominal cavity
deep on right side of the abdomen, 2-%" above the anterior
superior illiac spine which was stated to be entry wound,
whereas the exit wound was 1-%" x %", 1" below the anterior '
superior illiac spine. On the same day at about ~.00 P.M., he c
medically examined Dhanna Lal.(CW-1) and on his person one
lacerated wound 7-%" x 2-%" 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-%" x 1-%" on the ,D.
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 E
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 . F
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:- G
"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 H
·,

1058 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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:-
B 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 't--.-.
on the spot, whereas the other three injured persons had not
c 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 Cons~able in the Police Station, but his statement
was not recorded.

D 25.] The High Court clearly fell in error while convicting the
1
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.
E
26.] In this case as per the prosecution version the
appellant had used .315 bore rifle, which was owned by his father.
U ndisputedly, the appellant was charged and tried for the offence
,l_
punishable under Section 27 of the Arms Act for using the said L,
F 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
G 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
H other for convicting the accused, in such a situation the rule of
MAHENDRA PRATAP SINGH V. 1059
STATE OF U.P. [LOKESHWAR SINGH PANTA, J.]

- 1t; prudence should guide the High Court not to disturb the order A
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 B
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
'"· -..,J
weapon of offence, which was different from the one, sealed in
the Police Station. The High Court has, in our opinion, c
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
t- State Government in the year 1981 which came to be allowed
D
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 E
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 F
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 G
~· 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.

N.J. Appeal allowed.