Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. In addition to the above re-statement of principles, the court also referred to what findings could be termed as 'perverse' so as to call for interference by the higher court hearing the appeal against judgment of acquittal. 'perverse' was stated to be a behaviour which most of the people would take wrong, unacceptable, unreasonable and a 'perverse' verdict may probably be defined as one that is not ·only against the weight of the evidence but is altogether against the evidence. Besides, a finding being 'perverse', it could also suffer from the infirmity of distorted conclusions and glaring mistakes. In addition thereto there can be cases where for substantial and compelling reasons, good and sufficient grounds, very strong [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 8 judgment of acquittal can be interfered by the appellate court. However, exercise of judicial discretion would be guided by these principles. It is neither permissible nor possible to enunciate any straightjacket formula which can universally be applied to all the cases. The court will have to exercise its discretion keeping in view the facts and circumstances of a 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: "Accused Satyavir himself admits the presence of 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 Appellate Court which stated that it was an accidental firing and the prosecution has failed to prove its case. The benefit was given to the accused primarily on certain surmises and conjectures and doubting the presence of the witnesses particulaly Ram Shankar whose presence had been admitted by the accused himself in the report lodged by him and even in his explanation before the Court.
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 and lacunae must be clearly distinguished from doubts or lacunae based upon certain assumptions. In such cases what appears to be loop-hole in the case of the prosecution at the first glance, on appropriate examination and appreciation of evidence, may fall in the other class. The following observations of the learned First Appellate Court clearly demonstrates that Court has founded its judgment of acquittal more on surmises and suspicion and the views of the Court which were not supported by evidence on record. Illustratively, the following observations can usefully be noticed: "(a) It is evident that left arm is not a vital part. If the appellant was fired from a close range within 4 feet, he could have easily aimed at the chest of the victim, which could have killed him at the spot. (b) But when the motive alleged is the very genesis or commencement of the prosecution story, it would not be possible to discard the defect relating to motive or genesis in the prosecution story. c SUPREME COUR~ HE PORTS (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 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. "
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.
21. Now we may proceed to examine the appreciation of evidence on record by the First Appellate Court acquitting the accused as well as that of the High Court reversing the judgment of acquittal.
22. The High Court noticed that the fields of farmers in village Niwari were irrigated from the tubewell of Prahalad Singh Thakur which was installed in that village. It was because of construction of the road for the Power House that the farmers of village Niwari started irrigating from the tubewell of Bhpnu Prakash Sharma resident of Village Jairampur Bangar. This was not bearable to the accused who is the son of Prahlad Singh Thakur. Thus, this may not be exactly a motive but was a reason enough for the accused to take an offensive step against the injured.
23. The first information report was lodged by Bhanu Prakash Sharma without any delay and as already noticed Dharam Prakash (PW-3) had been challenged by the accused saying that how he was irrigating the fields of the villagers of his village from his tubewell. Armed with a licensed gun of his brother, he opened fire on Dharam Prakash and shot two bullets. The occurrence was seen by Bhanu Prakash Sharma (PW-1), who was present there as well as Rama Shankar (PW-4) and some others. The accused was arrested and the gun was also deposited. Ext.Ka-1 report to the police station was lodged by Bhanu Prakash Sharma (PW-1).
24. Dharam Prakash was medically examined on 9th February, 1975 at about 4.35 p.m. and according to Dr. Suresh Chandra Singh (PW-5), three injuries were found on the person of the injured who was then subjected to X-Ray by Dr. AK.- Agarwal (PW-8), who was posted as Radiologist in District Hospital, Bulandshahr. It has been proved-on record by Dr. Jitendra Singh Sharma (PW-7) that Dharam Prakash remained in the hopsital from 9th Febraury, 1975 to 20th March, 1975.
25. The medical evidence clearly reflected that the injuries . \ .. ~ , (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.
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.
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. 27 A/75 clearly shows that the incident occurred and the injured besides, other two witneses, PW-1 and PW-2 were present at the spot.
In fact according to the accused it was an accidental fire which occurred as a result of snatching of the gun by the injured and other persons accompanying him at that time. While, according to the prosecution he had fired two shots which injured the victim and thereafter the gun was snatched. Dr. Suresh Chandra Singh (PW-5) examined the injuries of the injured and stated that injuries would have been caused 2-3 hours earlier and that when the injured was brought to the hosptial he was bleeding and such injuries could be sustained by gun shots. This statement of the doctor had fully supported the case of the prosecution and chain of events as stated therein. 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.
30. We find no merit in the aforesaid contention. It was for the accused to prove his defence as the prosecution is liable to prove the case as stated in the first information report and the report filed by it under Section 173 of Cr.P.C. The eye witnesses had actually seen the victim being injured by the shots fired by the accused. In fact the accused was apprehended at the spot with the gun. The gun in question was admittedly a double barrel gun and the same was used by the accused while firing two shots. The gun with the spent cartridges were taken into custody vide Ext Ka-3. The accused himself had lodged the report bearing No. 27 A/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 [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.
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 charring shall always depend upon the constituents of the propellant charge and it is in that context only wounds are classified by their external appearance as close contact. Reference can be made to Bano Prasad & Ors. v. State of Bihar: 2006 (12) SCALE 354.
33. Some discrepancies per se would not prove fatal to the case of the prosecution particularly when there is no reason before the Court to doubt the statement of the eye witnesses, PW-1. There has been no delay in registration of the case and in fact even a counter case was registered which did not result in favourable culmination for the accused. It may also be noticed that the learned trial court as well as the High Court has referred to the statement of the accused recorded under Section 313 of Cr.P.C. which to some extent falls in line with the case of the prosecution.
34. The cumulative effect of the above discussion is that we do not see any reason to interfere with the judgment of the 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 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. B.B.B. Appeal dismissed.