SATYAVIR SINGHversusSTATE OF U.P.

                     [2010] 2 S.C.R. 729

                       SATYAVIR SINGH                               A
                               v.
                       STATE OF U.P.
             (Criminal Appeal No. 295 of 2010)

                     FEBRUARY 11, 2010
                                                                    B
   [ALTAMAS KABIR AND SWATANTER KUMAR, JJ.]

      Penal Code, 1860 - s. 307 - Accused, armed with
 licensed gun of his brother, allegedly fired bullet shots at
 informant's brother and injured him - Trial Court convicted        C
 accused uls 307, /PC and u/s 27 of Arms Act - First Appellate
 Court held that the firing was accidental and acquitted
 accused of both the offences - High Court reversed the
judgment of acquittal by convicting accused uls.307, /PC -
Justification of - Held: Justified - The First Appellate Court      o
 founded its judgment of acquittal on surmises and suspicion,
 which were not supported by evidence on record - Statement
of eye witnesses, medical evidence and investigation
conducted by Investigating Officer clearly show that
prosecution proved its case beyond reasonable doubt - The           E
act of firing gun shots at the victim shows that accused had
knowledge that by such an act he may even cause death of
the victim, though it is a matter of co-incidence that the gun
shots did not injure the victim at any of his vital organs - Arms
Act, 1959 - s.27.
                                                                    F
     Appeal - Appeal against acquittal - Scope for
interference - Discussed.

     According to the prosecution, the appellant-accused,
armed with the licensed gun of his brother, fired bullet            G
shots at PW3 and injured him as he was enraged with the
fact that the farmers in the village had started irrigating
their fields from the tubewell of PW1-informant instead of
appellant's father. The occurrence WlS allegedly
                              729                                   H
    730      SUPREME COURT REPORTS             [2010] 2 S.C.R.


A witnessed by PW1, PW-4 and two other witnesses. PW1
  is brother of PW3.

         The trial court convicted the appellant u/s. 307 IPC
    and u/s 27 of Arms Act, 1959. The first Appellate Court
    held that the firing was accidental and acquitted the
8
    appellant of both the said offences. The High Court partly
    allowed the appeal of the State by convicting him u/s. 307
    IPC.

         In appeal to this Court, it was contended that a) that
C   the High Court erred in law in setting aside the judgment
    of acquittal recorded by the First Appellate Court, which
    was reasoned one and based on a proper appreciation
    of evidence and thus the High Court ought not to have
    upset the judgment of acquittal; (b) that no motive was
D   proved and in absence of a specific motive, the High
    Court erred in holding the appellant guilty of offence
    under Section 307 IPC; (c) that the expert evidence being
    at variance and the medical evidence not supporting the
    injuries allegedly found on the person of the victim, the
E   benefit of doubt should have been given to the accused
    as the prosecution had failed to prove its case beyond
    reasonable doubt and (d) that the High Court should have
    appreciated that it was an accidental firing and the
    prosecution had not put forth any explanation on record
F   as to how the weapon (double barrel gun) was broken.

          Dismissing the appeal, the Court

       HELD:1. The judgment of acquittal can be interfered
  by the appellate court. However, it is neither permissible
G nor possible to enunciate any straightjacket formula
  which can universally be applied to all the cases. The
  court will have to exercise its discretion keeping in view
  the facts and circumstances of a given case. [Para 15]
  [748-8-D]
H
        SATYAVIR SINGH v. STATE OF U.P.              731


     Ganesh Bhavan Patel & Anr. vs. State of Maharashra, A
1978 (4) SCC 371; Sheo Swarup v. King Emperor AIR 1934
PC 227; Mathai Mathews v. State of Maharashtra (1970) 3
SCC 772; Khedu Mohton & Ors. v. State of Bihar 1970 (2)
SCC 450; Kunwar Bahadur Singh v. Shiv Baran Singh & Ors.
2001 9 SCC 149; Arulvelu & Anr. v. State represented by the B
Public Prosecutor & Anr. 2009 (10) SCC 2006 and Ghurey
Lal v. State of U.P. 2008 (10) SCC 450, referred to.

     2.1. In the present case, the trial court d!scussed
ocular as well as documentary evidence produced by the
prosecution. The version stated by the eye witnesses, the C
medical evidence as well as the veracity of the statement
made under Section 313 CrPC formed the basis of the
judgment of conviction passed by. the trial court. The
court examined in its right perspective one of the most
important feature of the case that why the accused was D
carrying gun of his brother and discarded the narration
and the explanation for keeping the gun with him. [Para
16] [748-E-G]

    2.2. The First Appellate Court, however, held that it E
was an accidental firing and the prosecution failed to
prove its case. The benefit was given to the accused
primarily on certain surmises and conjectures and
doubting the presence of the witnesses particularly PW4
whose presence had been admitted by the accused F
himself in the report lodged by him and even in his
explanation before the Court. [Para 18] [749-8-C]

    2.3. Definite doubts or lacunae in the case of the
prosecution may result in benefit of doubt being given to
the accused and consequential acquittal. However, such G
doubts and lacunae must be clearly distinguished from
doubts or lacunae based upon certain assumptions. In
such cases what appears to be loop-hole in the case of
the prosecution at the first glance, on appropriate
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    732     SUPREME COURT REPORTS               [2010] 2 S.C.R.


A examination and appreciation of evidence, may fall in the
  other class. The First Appellate Court founded its
  judgment of acquittal more on surmises and suspicion
  and the views of the Court were not supported by
  evidence on record. The First Appellate Court proceeded
s on the basis of certain presumptions which in the
  opinion of the Court could be the correct approach. But
  such approach may be guided by the doctrine of
  perversity. If findings are neither supported by evidence
  nor such approach could be adopted by the person of
C common prudence or behaviour, then the court may
  interfere in a judgment of acquittal. The First Appellate
  Court is a court of both fact and law and as such has
  jurisdiction to entirely re-appreciate the evidence. Thus,
  while setting aside the order of conviction it has to equally
  ensure that no injustice is done and on certain
0
  assumptions of facts, guilty may not go scot free. A
  person otherwise proved to be guilty by the prosecution
  by leading cogent and reliable evidence, normally would
  not be given the benefit of doubt on the basis of certain
  assumptions or presumptions of facts. The Court may
E have to notice and rely upon behaviour of the person of
  a common prudence only where the direct evidence have
  been produced. The assumptions raised by the First
  Appellate Court are not supported on record. The High
  Court did not err in setting aside the order of acquittal and
F affirming the judgment of conviction rendered by trial
  court. [Paras 19 and 20) [749-D-H; 750-A-H]

       2.4. The High Court noticed that the fields of farmers
  in the village were irrigated from the tubewell of
G appellant's father which was installed in that village. It was
  because of construction of the ,road for the Power House
  that the farmers of the village started irrigating from the
  tubewell of PW1. This was not bearable to the appellant.
  Thus, this may not be exactly a motive but was a reason
H
         SATYAVIR SINGH v. STATE OF U.P.               733


enough for the accused to take an offensive step against      A
the injured. [Para 22] [751-8-C]

     2.5. The first information retJort was lodged by PW1
without any delay and PW3 had been challenged by the
accused saying that how he was irrigating the fields of       8
the villagers from his tubewell. Armed with a licensed gun
of his brother, he opened fire on PW3 and shot two
bullets. The occurrence was seen by PW-1, who was
present there as well as PW-4 and some others. The
accused was arrested and the gun was also deposited.          C
[Para 23] [751-D-E]

     3.1. PW3 was medically examined and according to
Dr. (PW-5), three injuries were found on the person of the
injured, who was then subjected to X-ray by PWB. The
medical evidence clearly reflected that the _injuries could   D
be caused by gun shots. However, there was little
difference of opinion between two doctors but both the
doctors were not the ballistic experts so as to provide
any expert opinion which could safely be relied upon by
the Court while deciding the case. [Para 25] [751-E-H; 752-   E
A-8]

    3.2. The difference of opinion between experts
necessarily may not persuade the Court to adopt one
approach or the other particularly when none of the
experts are persons competent to express opinion on           F
that subject. The difference of opinion between two
doctors which, in the facts and circumstances of the
present case, does not have any material bearing on the
case of the prosecution is not such a formidable
submission which has to be accepted by the Court to           G
grant necessarily the benefit of doubt to the accused.
[Paras 24 and 26] [751-E-G; 752-8-C]

    Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors.
(2009) 9 SCC 22 - referred to.                                H
    734    SUPREME COURT REPORTS              [2010] 2 S.C.R.


A      4. It was stated by PW-5 that the injuries on PW3
  could be caused by gun shots. The trial court and the
  High Court expressed in unambiguous language the view
  that it was possible that no gun powder was traced
  around the wounds of the injuries as he was wearing
s clothes. This finding cannot be said to be erroneous. PW-
  8 clearly stated that' the pellets of the fire shots were
  found in the wounds and were duly seen in the X-Ray of
  the injured. In fact the major part of the occurence is not
  even disputed by the accused in his statement under
c Section 313 CrPC and in any case the report lodged by
  him clearly shows that the incident occurred and the
  injured besides, other tWo witneses, PW-1 and PW-2 were
  present at the spot. In fact according to the accused it was
  an accidental fire which occurred as a result of snatching
  of the gun by the injured and other persons
0
  accompanying him at that time. While, according to the
  prosecution he had fired two shots which injured the
  victim and thereafter the gun was snatched. PW-5
  examined the injuries of the injured and stated that
E injuries would have been caused 2-3 hours earlier and
  that when the injured was brought to the hospital he was
  bleeding and such injuries could be sustained by gun
  shots. This statement of the doctor had fully supported
  the case of the prosecution and chain of events as stated
  therein. [Para 28] [752-E-H; 752-A-C]
F
       5. The contention that as no explanation was
  rendered by the prosecution as to how the gun had
  broken, this would straightaway cause serious dent in
  the case of the prosecution and entitles the accused for
G an acquittal, has no merit. It was for the accused to prove
  his defence as the prosecution is liable to prove the case
  as stated in the first information report and the report
  filed by it under Section 173 CrPC. The eye witnesses had
  actually seen ·the victim being injured by the shots fired
H
         SATYAVIR SINGH v. STATE OF U.P.               735


by the accused. In fact the accused was apprehended at A
the spot with the gun. The gun in question was admittedly
a ·double barrel gun and the same was used by the
accused while firing two shots. The gun with the spent ·
cartridges were taken into custody. The accused himself
had lodged the report under Section 394 IPC against the B
eye-witnesses. The report lodged by the accused, itself
shows as to how the gun was broken. But the breaking
incident took place after the two shots had been fired by
the accused upon the injured. There appears to be no
justifiable reason as to why the eye witnesses PW-1 and c
PW-4, who even according to the accused were present
at the place of occurrence, should be disbelieved. It
could be safely construed from the evidence on record
that the accused may not have any strong motive to kill
the victim, however, the loss of revenue on account of
                                                              0
the fact that water for irrigation was being provided by
the father of the injured, was reason enough for the
accused to show his anger or it was not acceptable to
him, as stated by the witnesses, thus he fired two shots
which resulted in causing injuries to PW3. The gun and
the utilized bullets were given at the police station itself. E
This evidence clearly shows that prosecution has not
failed in proving its case in accordance with law. [Paras
29, 30] [753-D-H; 754-A-C]

     6. The statement of the eye witnesses, medical F
evidence and the investigation conducted by the
Investigating Officer clearly show that the prosecution
has been able to prove its case beyond reasonable doubt.
The act of firing gun shots at the injured obviously
shows that the accused had the knowledge that by such G
an act he may even cause the death of the injured and
actually caused hurt to victim. It is a matter of co-
incidence that the gun shots did not injure PW3 at any
of his vital organs. [Para 31] [754-D-F]
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    736      SUPREME COURT REPORTS               [2010] 2 S.C.R.


A        7. The appellant while referring to certain
   discrepancies appearing in the statements of the
   witnesses including the doctors, contended that it was
   a case of acquittal and there was no intention on the part
  .of the accused to kill the injured otherwise he would have
B fired the gun shots at the vital parts of the body of the
   injured, particularly when according to the prosecution,
   it is stated that the firing took place from a close distance.
   This contention has no merit inasmuch the tattooing and
   charring shall always depend upon the constituents of
C the propellant charge and it is in that context only
   wounds are classified by their external appearance as
   close contact. [Para 32] [754-F-H; 755-A]

        Bano Prasad & Ors. v. State of Bihar 2006 (12) SCALE
    354, referred to.
D
       8. Some discrepancies per se would not prove fatal .
  to the case of the prosecution particularly when there is
  no reason before the Court to doubt the statement of PW-
  1. There has been no delay in registration of the case and
E in fact even a counter case was registered which did not
  result in favourable culmination for the accused. Also the
  statement of the accused recorded under Section 313
  CrPC to some extent falls in line with the case of the
  prosecution. [Para 33] [755-B-D]
F       9. The High Court did not exceed its jurisdiction in
    law and with reference to the evidence on record while
    reversing the judgment of acquittal to one that of
    conviction. [Para 34] [755-D-F]

G                       Case Law Reference:
          1s1a (4) sec 371         referred to          Para 3
          AIR 1934 PC 227          referred to          Para 11
          (1970) 3 sec 112         referred to          Para 12
H
           SATYAVIR SINGH v. STATE OF U.P.                    737


     1910 (2) sec 450             referred to           Para 12      A

     2001 9 sec 149                referred to ·        Para 12
     2009 (1 O) sec 2006           referred to          Para 13
     2ooa (1 O) sec 450            referred to          Para 13      B
     (2009) 9 sec 22              referred to           Para 27
     2006 (12) SCALE 354          referred to           Para 32

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 295 of 2010.                                                     c
    From the Judgment & Order dated 20.10.2008 of the High
Court of Judicature at Allahabad in Govt. Appeal No. 390 of
1981.
                                                                     D
    N.S. Gahlout, R.K. Singh and Sanjeev Malhotra for the
Appellant.

     Ratnakar Dash, Rajeev K. Dubey, Kamlendra Mishra for
the Respondent.
                                                                     E
     The Judgment of the Court was delivered by

     SWATANTER KUMAR, J. 1. Leave granted.

      2. Satyavir Singh, appellant-accused was tried for an
 offence under Section 307 of the Indian Penal Code, 1860            F
 (hereinafter referred to as the 'Code') and Section 25/27 Arms
Act, 1959 (for short the 'Act') in the Court of Assistant Sessions
Judge, Bulandshahr, and was found guilty for both the offences.
After hearing the accused on the question of sentence, the
Court awarded him three years R.I. under Section 307 of the          G
Code and one year R.I. under Section 27 of the Act. Both the
sentences were ordered to run concurrently. Upon appeal by
the accused, the learned 1st Additional Sessions Judge at
Bulandshahr set aside the judgment and sentence and while
partly allowing the appeal by its judgment dated 06.11.1980          H
    738       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A acquitted him of both the charges for which he was convicted
  by the learned Assistant Sessions Judge, Bulandshahr and only
  convicted him for offence u/s 25(1 )(a) of the Act and sentenced
  him to imprisonment till the rising of the Court. With the leave
  of the High Court, the State preferred an appeal against the
B judgment of acquittal. The High Court of Judicature at Allahabad
  vide its judgment dated 20.10.2008 set aside the order of
  acquittal and while allowing the appeal partly, it convicted the
  appeUant under Section 307 of the Code and declined to
  interfere with the sentence awarded by the First Appellate Court
c in relation to an offence under Section 25 of the Act.

        2. It will be useful to refer to the findings and conclusions
    recorded by the High Court of the State.

          "On the basis of evidence on record, the charge under
D         Section 307 IPC is proved beyond all reasonable and
          probable doubt.

          The impugned judgment and order passed in Criminal
          Appeal No: 99 of 1979, 'Satyavir Singh vs. State of U.P.'
          is thus found to be unsustainable as far as acquittal of
E
          accused-respondent under Section 307 IPC is concerned.

          We do no find any illegality or irregularity in the impugned
          judgment and order dated 6.11.1980 regarding acquittal
          of accused-respondent under Section 27 Arms Act and his
F         conviction under Section 25(1)(a) Arms Act.

          The criminal revision filed by Bhanu Prakash Sharma is
          thus partly allowed. We are not inclined to enhance the
          sentence awarded under Section 307 IPC passed by
          learned Assistant Sessions Judge, Bulandshahr in S.T. No.
          328 of 1976, State vs. Satyavir Singh. No prayer for the
          enhancement of the sentence under Section 307 IPC has
          been made in the criminal revision by Bhanu Prakash
          Sharma. The occurrence is dated 9.2.1975. We are also
          not inclined to enhance the sentence awarded to accused-
           SATYAVIR SINGH v. STATE OF U.P.                    739
               [SWATANTER KUMAR, J.]

     respondent under Section 25(1 )(a) Arms Act.                     A
     Keeping in view the date of occurrence of this case, we
     are not inclined to enhance the sentence as awarded by
     learned Assistant Sessions Judge, Bulandshahr in S.T.No.
     328 of 1976 in government appeal as well.
                                                                      B
     We thus confirm the sentence of three years R. I. Awarded
     under Section 307 IPC by learned Assistant Sessions
     Judge, Bulandshahr vide judgment and order dated
     21.5.1979 passed in S.T. No. 328 of 1976, State vs.
     Satyavir Singh.                                                  c
     Government Appeal is thus partly allowed. The judgment
     and order dated 6.11.1980 passed by 1st Additional
     Sessions Judge, Bulandshahr is partly set aside to the
     extent referred above. The accused-respondent Satyavir
                                                                      0
     Singh having been found guilty under Section 307 IPC is
     sentenced to three years R. I.

     We decline to interfere with the order of acquittal passed
     under Section 27 Arms Act and instead convicting the
     accused-respondent under Section 25(1)(a) Arms Act and           E
     sentencing him to imprisonment till the rising of the Court.

     The judgment and order passed today is certified to the
     Court of 1st Additional Sessions Judge, Bulandshahr and
     such court shall thereupon make such orders as are               F
     conformable to the judgment and order of this Court and
     if necessary the record shall be amended in accordance
     therewith."

     3. Legality and correctness of the judgment and order of
sentence passed by the High Court is questioned by the                G
appellant-accused in the present appeal under Article 136 of
the Constitution of India inter alia but primarily on the following
grounds:

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    740        SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A         (a) The High Court has erred in law in setting aside the
          judgment of acquittal recorded by the First Appellate Court,
          which was reasoned one and based on a proper
          appreciation of evidence. Thus the High Court ought not
          to have upset the judgment of acquittal. Therefore, the High
B         Court has acted beyond the limitations on such exercise
          of power and heavy reliance is placed on the case of
          Ganesh Bhavan Patel & Anr. vs. State of Maharashra :
           1978 (4)SCC 371.

          (b) No motive was proved and in absence of a specific
c         motive, the High Court has erred in holding that the
          appellant is guilty of offence under Section 307 of the
          Code.

          (c) The expert evidence being at variance and the medical
D         evidence not supporting the injuries allegedly found on the
          person of the victim, the benefit of doubt should have been
          given to the accused as the prosecution had failed to prove
          its case beyond reasonable doubt.

          (d) The Court should have appreciated that .it was an
E         accidental firing and the prosecution had not put forth any
          explanation on record as to how the weapon (double barrel
          gun) was broken.

        4. In order to appreciate the merit or otherwise of the
F   submissions made before us reference to the case of
    prosecution would be necessary :

    5. Facts

       Bhanu Prakash Sharma, (PW-1) was taking tea at Hamid
G Khan's Hotel at about 2.30 P.M. His brother Dharam Prakash
  (PW-3) arrived at the crossing towards Narora Bus s'tand.
  Dharam Prakash aged about 18 years was a student of Khutja
  Polytechnic. Satyavir Singh, accused is the resident of village
  Niwari. Vijay Singh is his elder brother and owned a double
H
          SATYAVIR SINGH v. STATE OF U.P.                     741
              [SWATANTER KUMAR, J.]

barrel gun under a valid licence. It is the case of the prosecution   A
that the fields of farmers in village Niwari were irrigated by
tubewell of Prem Shankar Thakur. A road was constructed for
the power house due to which some farmers of village Niwari
started irrigating their fields from the tube well of Bhanu Prakash
Sharma (PW-1), resident of village Jairampur Bangar. This             B
caused some displeasure to Prem Shankar Thakur, father of
Satyavir Singh, the accused. At about 2.30 P.M. on 09.02.1975
said Bhanu Pratap sharma was taking tea in the Hotel of
Hamid Khan at Chauraha of the village. Dharam Prakash came
from the side of Narora Bus Stand. The accused on seeing              c
Dharam Prakash, who ultimately examined as PW-3,
challenged him by saying that how he was irrigating the fields
of villagers from his tube-well. The accused, as already noticed,
was armed with a licenced gun of his brother. The accused
thereupon fired two bullets from that gun on Dharam Prakash.          0
Dharam Prakash was medically examined on that very day by
Dr. Suresh Chandra Singh (PW-5) and the following injuries
were noticed on his person:

    'INJ: (1) Lacerated wound 1 c.m. X 1 c.m. X thickness of
    the left upper arm, on the left upper arm front aspect in         E
    upper part. There are four abrasions each 1/4c.m. X 1/
    4c.m. on its lower and outer aspect. Suspected underneath
    Adv. X-ray. The margines of the wound are inverted.

    (2) Lacerated wound 1.5c.m. X 1.5c.m. X thickness of the          F
    left upper .. on the back aspect of the left upper arm 2c.m.
    Above the elbow... Suspected underneath. Adv. X-ray. The
    margines of the wound are inverted.

    (3) Lacerated wound 7.5 c.m. X 3.5 c.m.on the left forearm
    upper half-inner aspect. It is bone deep. Suspected               G
    fracture underneath. Adv. X-ray.'

    6. The occurrence was witnessed by Bhanu Prakash
Sharma informant, Rama Shanker (PW-4); Brij Bhushan and
others. Bhanu Prakash Sharma reported the matter to the               H
    742      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A police, the first information report was registered being Exh. Ka-
  1 at about 16.05 hours and the case under Section 307 of the
  Code and under Section 25 of the Act was registered against
  the accused. The accused was arrested. The accused was also
  medically examined on that very day and on his person the
B following injuries were noticed:

          "INJ: (1) Swelling 5c.m. X 5 c.m on the right side of front
          of face and nose. There is clotted blood in both nostrils.
          Red in colour Adv. X-ray.

C               (2) Swelling 2c.m. X 1/2c.m. on the left cheek lower
          jaw. Adv. X-ray in colour.

                 (3)Abrasion 1/5 c.m. X 1/5 c.m. on the front of the
          right knee joint. Oozing stopped.'
D
        7. Accused also lodged a report with Police Station, Dibai,
  District Bulandshahr on 09.02.1975 at about 5.00 P.M. stating
  that Pandit Raghunandan Prasad resident of village Jairampur
  Bangar had a tube-well in the village. Later on the appellant-
  accused installed a tube-well in his own village Niwari and
E started giving water for irrigation at lesser price. This affected
  the income of Pandit Raghunandan Prasad. On 09.02.1975
  when he was carrying the gun of his brother Vijay Pal Singh to
  Narora and reached at the shop of Hamid Khan situated in
  Village Jairampur Bangar, Bhanu Prakash, Dharam Prakash,
F Rama Shankar and other unknown person met him and started
  snatching his gun. The fire accident happened due to snatching
  and caused injuries to Dharam Prakash. The accused was
  beaten and his gun was snatched. This came to be registered
  as Criminal Case No. 27A/75; whereas on the complaint of PW-
G 1, Criminal case 87/75 under Section 307 of the Code and
  Section 25 of the Act respectively was registered.

       8. As the various contentions raised on behalf of the
  appellant are interconnected and common evidence would have
H to be examined to record a finding, it will be appropriate usfor
          SATYAVIR SINGH v. STATE OF U.P.                    '   743
              [SWATANJER KUMAR, J.]
to have a common discussion on these arguments.                         A

       9. As is evident from the record before us, the learned trial
 court vide its judgment dated· 21.05.1979 had convicted the
 accused of both the.offences
                      . - .....   under Section 307 of the Code
 as well as 27 of the Act, which judgment of the trial court was
                                                                        B
.set aside and the accused was acquitted of both these offences
 and was .convicted for the offence under Section 25 (1) (a) of
 the Act while awc;lrding him the P\:lnishmerit ofimprisonment till
 rising of the co.urt. This judgment of acquittal which was set
 aside by the High Court practically restored the judgment of the
 trial court and p_artly allowed the appeal of the State and            C
 convicted the accused of an offence under Section 307 of the
 Code and maintained the conviction under Section 25 (1) (a)
 of the Act.

      10. The reliance placed by the learned colinsel upon the          o
judgment of this Court in the case.a·; Ganesh Bhavan Patel's
case (supra), is to buttress his submission that a judgment of
acquittal should not be interfered by the High Court, as on facts
and overall view of the evidence recorded by the First Appellate
Court, the findings were reasonable and, therefore, no                  E
interference was called for. It is true that in this case the court
observed that where two reasonable conclusions can be drawn
on evidence on record, the High Court should, as a matter of
judicial caution, refrain from interfering with the order of
acquittal recorded by the court below. To put it simply, if the order
                                                                        F
acquitting the accused is reasonable and plausible and cannot
be entirely or effectively dislodged or demolished, the High
Court should not disturb the order of acquittal. The principles
with regard to exercise of judicial discretion by the High Court
while hearing an appeal against a judgment of acquittal have            G
been well settled and are hardly open to any expansion.

     11. Right from the case of Sheo Swarup v. King Emperor
: AIR 1934 PC 227, the principles governing exercise of
discretion were well stated by the court with a specific note that
there was no occasion for placing limitations upon the power            H
    744       SUPREME COURT REPORTS                  [2010] 2 S.C.R. .


A   unless it was so expressly stated in the code itself. It will be
    useful to reproduce the dictum of the court at this stage :

          "Sections 417, 418 and 423 of the Code give to the High
          Court full power to review at large the evidence upon which
          the order of acquittal was founded, and to reach the
B         conclusion that upon that evidence the order of acquittal
          should be reversed. No limitation should, 'be placed, upon
          that power, unless , it be found expressly stated in the
          Code. But in exercising the power conferred by the Code
          and before reaching its conclusions upon fact, the High
c         Court should and will always give proper weight and
          consideration to such matters as ( 1) the views of the trial
          Judge as to the credibility of the witnesses; (2) the
          presumption of innocence in favour of the accused, a
          presumption certainly not weakened by the fact that he has
D         been acquitted at his trial; (3) the right of the accused lo
          the benefit of any doubt; and (4) the slowness of an
          appellate Court in disturbing a finding of fact arrived at by
          a Judge who had the advantage of seeing the witnesses.
          To state this however is only to say that the High Court in
E         its conduct of the appeal should and will act in accordance
          with rules and principles well known and recognized in the
          administration of justice."

        The above stated principles have been reiterated with
F   approval and wider dimensions by this Court from time to time.

        12. In the case of Mathai Mathews v. State of Maharashtra
  : 1970 (3) sec 772, the court while reiterating the said principle
  stated that it is now well settled that order of an appellate court
  to review evidence in appeals against acquittal is as extensive
G as its power in appeals against convictions. It is also well
  settled that before an appellate court can set aside the order
  of acquittal, it must carefully consider the reasons given by the
  trial court in support of its order and must give a reasoning to
  reject those reasons. In brief, the appellate court should not
H disturb the order of acquittal except on very cogent grounds
           SATYAVIR SINGH v. STATE OF U.P.                        745
               [SWATANTER KUMAR, J.]

and on examination of the entire material. Before the appellate           A
court, where the judgment of acquittal is recorded, two important
aspects emerge from such judgment. Firstly, there is
presumption of innocence of the accused person in our criminal
jurisprudence and secondly, the concerned court has recorded
the finding in favour of the accused and disbelieved the                  B
prosecution and has founded as a matter of fact that the
prosecution has failed to prove its case beyond reasonable
doubt, thus giving benefit to the accused. Both these
presumptions - jurisprudential and in regard to the factual
matrix - must be kept in mind and unless the conclusions                  c
reached by the court were palpably erroneous or contrary to law
or it is likely to result in injustice, the High Court may be reluctant
in interfering with the judgment of acquittal. Reference in this
regard can also be made to the case of Khedu Mohton & Ors.
v. State of Bihar : 1970 (2) SCC 450.                                     D
    In the case of Kunwar Bahadur Singh v. Shiv Baran Singh
& Ors. : 2001 9 SCC 149, this Court introduced the caution of
exercise of such discretion by the court and observed that
interference while hearing an appeal against judgment of
acquittal, the court should not hesitate to examine the matter            E
on merits merely-·because there is a judgment of acquittal in
favour of the accused. Undue benefit need not be given
particularly if acquittal is based on surmises and conjectures
and not substantiated by law and evidence on record. Usefully,
reference can be made to the relevant findings recorded by the            F
court in para 24 of the judgment :

    "In the former case declining to go into the merits may be
    justifiable but in the latter case it is impermissible. There
    can be no doubt that jurisprudentially an accused is                  G
    presumed to be innocent till he is found to be guilty by a
    competent court. In giving its verdict the Court will give
    benefit of doubt arising on consideration of evidence
    brought on record by the prosecution or on account of
    absence of material evidence which ought to have been
                                                                          H
    746       SUPREME COURT REPORTS                    [2010] 2 S.C.R.


A        adduced but is not brought on record, to the accused
       · persons and acquit him of the offence charged against.
         But a doubt arising on the basis of surmises and
         conjectures should never be allowed to influence the verdict
         of the Court as in such cases giving benefit of doubt to the
B        accused but will be counter productive and destructive of
         system of delivery of justice in criminal cases having
         repercussions on existence of every civilised and peaceful
         society. The Courts will have to be cautious and prudent
         to secure the ends of justice."
c         13. In a very recent judgment a Bench of this Court in the
    case of Arulvelu & Anr. v. State represented by the Public
    Prosecutor & Anr. : 2009 (10) SCC 2006, while referring with
  approval the judgment of another equal (Division) Bench in the
  case of Ghurey Lal v. State of U. P.: 2008 (10) sec 450 and
D relying upon various judgments of the court stated the following
  principles :

          "34 In Ghurey Lal v. State of Uttar Pradesh [(2008) 10
          SCC 450] a two Judge Bench of this Court of which one
E         of us (Bhandari, J.) was a member had an occasion to
          deal with most of the cases referred in this judgment. This
          Court provided guidelines for the Appellate Court in
          dealing with the cases in which the trial courts have
          acquitted the accused. The following principles emerge
F         from the cases above:

          1. The accused is presumed to be innocent until proven
          guilty. The accused .possessed this presumption when he
          was before the trial court. The trial court's acquittal bolsters
          the presumption that he is innocent.
G
          2~ The power of reviewing evidence is wide and the
          appellate court can re-appreciate the entire evidence on
          record. It can review the trial court's conclusion with
          respect to both facts and law, but the Appellate Court must
H         give due weight and consideration to the decision of the
          SATYAVIR SINGH v. STATE OF U.P.                       747
              [SWATANlER KUMfo:R. J.]
     trial court.                                                      A

     3. The appellate court should always keep in mind that the
     trial court had the distinct advantage of watching the
     demeanour of the witnesses. The trial court is in a better
     position to evaluate the credibility of the witnesses.            8
     4. The appellate court may only overrule or otherwise
     disturb the trial court's acquittal if it has "very substantial
     and compelling reasons" for doing so.                       '

     5. If two reasonable or possible views can be reached -           C
     one that leads to acquittal, the other to conviction - the High
     Courts/appellate courts must rule in favour of the accused.

     36. Careful scrutiny of all these judgments lead to the
     definite conclusion that the appellate court should be very
                                                                       0
     slow in setting aside a judgment of acquittal particularly in
     a case where two views are possible. The trial court
     judgment can not be set aside because the appellate
     court's view is more probable. The appellate court would
     not be justified in setting aside the trial court judgment
     unless it arrives at a clear finding on marshalling the entire    E
     evidence on record that the judgment of the trial court is
     either 'perverse' or wholly unsustainable in law."

     14. In addition to the above re-statement of principles, the
court also referred to what findings could be termed as                F
'perverse' so as to call for interference by the higher court
hearing the appeal against judgment of acquittal. 'perverse' was
stated to be a behaviour which most of the people would take
wrong, unacceptable, unreasonable and a 'perverse' verdict
may probably be defined as one that is not ·only against the           G
weight of the evidence but is altogether against the evidence.
Besides, a finding being 'perverse', it could also suffer from the
infirmity of distorted conclusions and glaring mistakes. In
addition thereto there can be cases where for substantial and
compelling reasons, good and sufficient grounds, very strong
                                                                       H
    748      SUPREME COURT REPORTS                  [2010) 2 S.C.R.


A circumstances and to ~void the ends of justice being defeated,
  the higher courts have to interfere with the judgment of acquittal
  recorded by the lower court.

       15. From the above enunciated principles it is clear that
  judgment of acquittal can be interfered by the appellate court.
8
  However, exercise of judicial discretion would be guided by
  these principles. It is neither permissible nor possible to
  enunciate any straightjacket formula which can universally be
  applied to all the cases. The court will have to exercise its
  discretion keeping in view the facts and circumstances of a
C given case. The court within the stated parameters will well be
  within its jurisdiction to interfere with the judgment of acquittal.
  Thus, we will have to examine the matter from the point of view
  whether in the facts of the present case and evidence on record,
  High Court was justified in reversing the judgment of acquittal
D and convicting the accused of an offence under Section 307
  of the Code.

       16. The trial court in its lengthy judgment have discussed
  occular as well as documentary evidence produced by the
E prosecution. The version stated by the eye witnesses, the
  medical evidence as well as the veracity of the statement made
  under Section 313 Code of Criminal Procedure (for short the
  'Cr.P.C.') formed the basis of the judgment of conviction
  passed by the learned trial court. The court examined in its right
F perspective one of the most important feature of the case that
  why the accused was carrying gun of his brother and discarded
  the narration and the explanation for keeping the gun with him.
  According to the accused his brother Vijay Pal (DW-1)
  demanded his gun at Narora. According to report Exh. Kh-2,
G Vijay Pal stated to bring his licensed gun to Narora as he would
  come late in the evening and the Court was not satisfied with
  the explanation and held that prosecution has been able to bring
  home the guilt of the accused.

      17. The Court while noticing the statement made by the
H eye-witnesses PW-1 and PW-3 noticed as under:
          SATYAVIR SINGH v. STATE OF U.P.                    749
              [SWATANTER KUMAR, J.]

     "Accused Satyavir himself admits the presence of               A
     Ramashankar. Therefore, despite three persons could not
     explain satisfactory reason of their presence, their
     presence cannot be denied. "

      18. These findings were set aside by the learned First        8
Appellate Court which stated that it was an accidental firing and
the prosecution has failed to prove its case. The benefit was
given to the accused primarily on certain surmises and
conjectures and doubting the presence of the witnesses
particulaly Ram Shankar whose presence had been admitted            C
by the accused himself in the report lodged by him and even
in his explanation before the Court.

      19. Definite doubts or lacunae in the case of the
prosecution may result in benefit of doubt being given to the
accused and consequential acquittal. However, such doubts           D
and lacunae must be clearly distinguished from doubts or
lacunae based upon certain assumptions. In such cases what
appears to be loop-hole in the case of the prosecution at the
first glance, on appropriate examination and appreciation of
evidence, may fall in the other class. The following observations   E
of the learned First Appellate Court clearly demonstrates that
Court has founded its judgment of acquittal more on surmises
and suspicion and the views of the Court which were not
supported by evidence on record. Illustratively, the following
observations can usefully be noticed:                               F

    "(a) It is evident that left arm is not a vital part. If the
    appellant was fired from a close range within 4 feet, he
    could have easily aimed at the chest of the victim, which
    could have killed him at the spot.
                                                                    G
    (b) But when the motive alleged is the very genesis or
    commencement of the prosecution story, it would not be
    possible to discard the defect relating to motive or genesis
    in the prosecution story.                            "'
                                                                    H
    750      SUPREME COUR~ HE PORTS                 [2010] 2 S.C.R.


A         (c) The third important feature of the case is simultaneous
          presence of Bhanu Prakash, Dharam Prakash and Ram
          Shanker at the crossing.

          (d) Then the only possible inference is that they were
          together at the crossing or at the tea stall for some other
B
          reason and as soon as they saw appellant Satyavir Singh,
          a youngman alongwith a gun, they were tempted to snatch
          the gun. According to medical evidence the very seat of
          the injuries discloses that the shots would have been fired
          during snatching. "
c
        20. The above observations demonstrate that the learned
  First Appellate Court has proceeded on the basis of certain
  presumptions which in the opinion of the Court could be the
  correct approach. But such approach may be guided by the
D doctrine of perversity. If findings are neither supported by
  evidence nor such approach could be adopted by the person
  of common prudence or behaviour, then the court may interfere
  in a judgment of acquittal. The First Appellate Court is a court
  of both fact and -law and as such has jurisdiction to entirely re-·
E appreciate the evidence ..Thus, while setting aside the order of
  conviction it has to equally ensure that no injustice is done and
  on certain assumptions of facts,· guilty may not go scot free. A
  person otherwise is proved to be guilty by the prosecution by
  leading cogent and reliable evidence, normally would not be
F given the benefit of doubt on the basis of certain assumptions
  or presumptions of facts. The Court may have to notice and rely
  upon behaviour of the person of a common prudence only
  where the direct evidence have been produced. As we shall
  shortly proceed to discussion that the assumptions raised by
G the First Appellate Court are not supported on record. We find
  that the High Court has not fallen in error of law in setting aside
  the order of acquittal and affirming the judgment of conviction
  rendered by learned trial court.


H
                                                                       .   \   ..   ~ ,




          SATYAVIR SINGH v. STATE OF U.P.                   751
              [SWATANTER KUMAR, J.]

     21. Now we may proceed to examine the appreciation of         A
evidence on record by the First Appellate Court acquitting the
accused as well as that of the High Court reversing the judgment
of acquittal.

      22. The High Court noticed that the fields of farmers in
                                                                   B
village Niwari were irrigated from the tubewell of Prahalad
Singh Thakur which was installed in that village. It was because
of construction of the road for the Power House that the farmers
of village Niwari started irrigating from the tubewell of Bhpnu
Prakash Sharma resident of Village Jairampur Bangar. This          C
was not bearable to the accused who is the son of Prahlad
Singh Thakur. Thus, this may not be exactly a motive but was
a reason enough for the accused to take an offensive step
against the injured.

     23. The first information report was lodged by Bhanu          D
Prakash Sharma without any delay and as already noticed
Dharam Prakash (PW-3) had been challenged by the accused
saying that how he was irrigating the fields of the villagers of
his village from his tubewell. Armed with a licensed gun of his
brother, he opened fire on Dharam Prakash and shot two bullets.    E
The occurrence was seen by Bhanu Prakash Sharma (PW-1),
who was present there as well as Rama Shankar (PW-4) and
some others. The accused was arrested and the gun was also
deposited. Ext.Ka-1 report to the police station was lodged by
Bhanu Prakash Sharma (PW-1).                                       F

     24. Dharam Prakash was medically examined on 9th
 February, 1975 at about 4.35 p.m. and according to Dr. Suresh
Chandra Singh (PW-5), three injuries were found on the person
of the injured who was then subjected to X-Ray by Dr. AK.-
Agarwal (PW-8), who was posted as Radiologist in District          G
 Hospital, Bulandshahr. It has been proved-on record by Dr.
Jitendra Singh Sharma (PW-7) that Dharam Prakash remained
in the hopsital from 9th Febraury, 1975 to 20th March, 1975.

    25. The medical evidence clearly reflected that the injuries   H
    752     SUPREME COURT REPORTS                  (2010] 2 S.C.R.


A could be caused by gun shots. However, there was little
  difference of opinion between two doctors but both these
  doctors are not the ballistic experts so as to provide any expert
  opinion which could safely be relied upon by the Court while
  deciding the case.
B
       26. The difference of opinion between experts necessarily
  may not persuade the Court to adopt one approach or the other
  particularly when none of the experts are persons competent
  to express opinion on that subject. The difference of opinion
  between two doctors which, in the facts and circusmtances of
C the present case, does not have any material bearing on the
  case of the prosecution is not such a formidable submission
  which has to be accepted by the Court to grant necessarily the
  benefit of doubt to the accused.

D      27. In the case of Malay Kumar Ganguly v. Dr. Sukumar
  Mukherjee & Ors. : (2009) 9 SCC 22, this Court has, while
  noticing the difference of opinion ~etween the doctors on the
  Qasis of the evidence on record and the literature produced,
  preferred one view over the other without commenting on any
E expert opinion expressed by either of them.

        28.lt was stated by Dr, Suresh Chandra Singh (PW-5) that
  such injuries could be caused by gun shots. The trial court and
  the High Court expressed in unambiguous language the view
  that it was possible that no gun powder was traced around the
F wounds of the injuries as he was wearing clothes. This finding
  cannot be said to be erroneous. Dr. A.K. Agarwal (PW-8)
  clearly stated that the pellets of the fire shots were found in the
  wounds and were duly seen in the X-Ray of the injured. Thus
  such view taken by the courts cannot be faulted. In fact the major
G part of the occurence is not even disputed by the accused in
  his statement under Section 313 of Cr.P.C. and in any case
  the report lodged by him bearing No. 27A/75 clearly shows that
  the incident occurred and the injured besides, other two
  witneses, PW-1 and PW-2 were present at the spot. In fact
H
          SATYAVIR SINGH v. STATE OF U.P.                     753
              [SWATANTER KUMAR, J.)

according to the accused it was an accidental fire which             A
occurred as a result of snatching of the gun by the injured and
other persons accompanying him at that time. While, according
to the prosecution he had fired two shots which injured the
victim and thereafter the gun was snatched. Dr. Suresh Chandra
Singh (PW-5) examined the injuries of the injured and stated         B
that injuries would have been caused 2-3 hours earlier and that
when the injured was brought to the hosptial he was bleeding
and such injuries could be sustained by gun shots. This
statement of the doctor had fully supported the case of the
prosecution and chain of events as stated therein.                   c
     29. With considerable emphasis, learned counsel for the
appellant aruged that as no explanation was rendered by the
prosecution as to how the gun had broken, this would
straightaway cause serious dent in the case of the prosecution
and entitles the accused for an acquittal.                           D

      30. We find no merit in the aforesaid contention. It was for
 the accused to prove his defence as the prosecution is liable
 to prove the case as stated in the first information report and
 the report filed by it under Section 173 of Cr.P.C. The eye         E
 witnesses had actually seen the victim being injured by the
 shots fired by the accused. In fact the accused was
 apprehended at the spot with the gun. The gun in question was
 admittedly a double barrel gun and the same was used by the
 accused while firing two shots. The gun with the spent cartridges   F
 were taken into custody vide Ext Ka-3. The accused himself
 had lodged the report bearing No. 27A/75 under Section 394
 of the Indian Penal Code against the eye-witnesses including
 Bhanu Prakash Sharma, Dharam Prakash, Rama Shankar and
one unknown person. The report lodged bytne accused, itself          G
shows as to how the gun was broken. But the breaking incident
took place after the two shots had been fired by the accused
upon the injured. There appears to be no justifiable reason as
to why the eye witnesses PW-1 and PW-4, who even according
to the accused were present at the place of occurrence, should       H
    754 .·'\- SUPREME COURT REPORTS                 [201 O] 2 S.C.R.


A be disbelieved. It could be safely construed from the evidence         ..
  on record that the accused may not have any strong motive to
  kill the victim, however, the loss of revenue on account of the
  fact that water for irrigation was being provided by the father
  of the injured, was reason enough for the accused to show his
B anger or it was not acceptable to him, as stated by the
  witnesses, thus he fired two shots which resulted in causing
  injuries to Dharam Prakash. Both the reports were:lodged by
  the informant as well as the accused at 2.30 p.m. on 9th
  February, 1975. The gun and the utilized bullets were given at
c the police station itself. This evidence clearly shows -that
  prosecution has not failed in proving its case in accordance
  with law.

         31. As already noticed, part of the occurence stands
   admitted and it is only the limited aspect of the case as to
'o whether the firing was accidental or the accused had
   intentionally fired on the injured. Statement of the eye witnesses,
   medical evidence and the investigation conducted by the
   Investigating Officer clearly show that the prosecution has been
   able to prove its case beyond reasonable doubt. The act of
 E firing gun shots at the injured obviously shows that the accused
   had the knowledge that by such an act he may even cause the
   death of the injured and actually caused hurt to victim. It is a
   matter of co-incidence that the gun shots did not injure Dharam
   Prakash at any of his vital organs.
 F
         32. Learned counsel appearing for the appellant while
   referring to certain discrepancies appearing in the statements
   of the witnesses including the doctors, vehemently contended
   that it was a case of acquittal and there was no intention on
 G the part of the accused to kill the injured otherwise he would
   have fired the gun shots at the vital parts of the body of the
   injured, particulary when according to the prosecution, it is
   stated that the firing took place from a close distance. If that
   was so, such injuries would not have been caused. This
   contention also does not impress us inasmuch the tattooing and
 H
          SATYAVIR SINGH v. STATE OF U.P.                     755
              [SWATANTER KUMAR, J.]

charring shall always depend upon the constituents of the             A
propellant charge and it is in that context only wounds are
classified by their external appearance as close contact.
Reference can be made to Bano Prasad & Ors. v. State of
Bihar: 2006 (12) SCALE 354.
                                                                      B
      33. Some discrepancies per se would not prove fatal to
the case of the prosecution particularly when there is no reason
before the Court to doubt the statement of the eye witnesses,
PW-1. There has been no delay in registration of the case and
in fact even a counter case was registered which did not result
in favourable culmination for the accused. It may also be noticed     C
that the learned trial court as well as the High Court has referred
to the statement of the accused recorded under Section 313
of Cr.P.C. which to some extent falls in line with the case of
the prosecution.
                                                                      D
     34. The cumulative effect of the above discussion is that
we do not see any reason to interfere with the judgment of the
High Court. The High Court has not exceeded its jurisdiction
in law and with reference to the evidence on record while
reversing the judgment of acquittal to one that of conviction. So     E
far as the conviction of the accused under Section 25( 1) of the
Act is concerned, no arguments were addressed. In any case
we see no reason to interfere with the said finding of the courts
below.

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

B.B.B.                                       Appeal dismissed.