Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No…………….of 2017 (Arising out of S.L.P.(Crl.)No. 1651 of 2015)

State of Uttarakhand          ……..Appellant(s)

VERSUS

Jairnail Singh         .……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2)      This appeal is filed by the State against the final

judgment  and  order  dated  22.05.2014  passed  by  the

High Court of Uttarakhand at Nainital in Criminal Appeal

No.33 of 2005 whereby the High Court allowed the appeal

filed by the respondent(accused) herein and set aside the

order  of  conviction  and  sentence  dated  01.03.2005

passed by the Trial Court in Session Trial Nos.319 & 320

of 2000 by which the respondent(accused) was convicted

under  Section  307  of  the  Indian  Penal  Code,  1860

(hereinafter referred to as “IPC”) and Section 25(1-A) of

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the  Arms  Act,  1959  and   sentenced  him  to  undergo

rigorous  imprisonment  for  ten  years  and  a  fine  of

Rs.5000/-  under  Section  307  of  IPC,  in  default  of

payment  of  fine,  to  further  undergo  imprisonment  for

three months and to undergo rigorous imprisonment for

five years and a fine of Rs.1000/- under Section 25(1-A)

of the Arms Act, in default of payment of fine, to further

undergo  imprisonment  for  one  month.   Both  the

sentences were directed to run concurrently.

3) The prosecution case is that on 12.12.1999 at 17.45

hrs.,  the  First  Information Report  (FIR)  was  lodged by

Asgar  Ali,  son  of  Allah  Diya,  resident  of  Mohalla

Naudhauna, Kasba and Police Station Sherkot, District

Bijnore in Police Station Nanakmatta, Dist. Udham Singh

Nagar,  Uttarakhand.   As  per  the  contents  of  the  FIR

lodged by Asgar Ali-the Complainant, on 08.12.1999, he

along with his brother Akbar Ali and 10-12 other persons

were  doing  the  trading  of  sale  purchase  of  paddy  of

Village Devipura.  On 12.12.1999, at around 11.00 hrs.,

when Akbar Ali  (injured victim) was weighing paddy of

Jairnail Singh(accused) in his village at Devipura, at that

time,  Jairnail  Singh  came  and  made  an  allegation  on

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Akbar Ali that more paddy has been weighed while it had

been  shown  less.   Akbar  Ali  denied  the  allegation.

Therefore, Jairnail Singh started abusing Akbar Ali and

when Akbar Ali objected, the quarrel erupted and Jairnail

Singh took out a 12 bore country made pistol from his

right pocket of his pant and fired on the temple of Akbar

Ali, due to which Akbar Ali fell down at the spot.  Asgar

Ali(complainant) and other companions of Akbar Ali tried

to grab Jairnail Singh but he succeeded to escape from

the  spot  with  the  pistol  in  south  direction.   The

Complainant and his companions took the injured Akbar

Ali to the Government Hospital, Nanamatta on his tractor

trolley  where no doctor  was available.   Therefore,  they

went  to  Government  Hospital,  Khatima  where  doctor

referred the injured to the Government Hospital, Pilibhit

where the injured was examined.   

4) During the investigation, the Investigating Officer on

13.12.1999 at about 12.30 p.m. arrested Jairnail Singh

from Nanak Sagar Dam and recovered the pistol, which

was  without  license.   After  completion  of  the

investigation,  the  Investigating  Officer  filed  the

charge-sheet under Section 307 IPC and Section 25 of

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the Arms Act against Jairnail Singh (accused).

5) The  Judicial  Magistrate,  Khatima,  Dist.  Udham

Singh Nagar, committed the case for trial to the Session

Court.  After committal of the case to the Session Court,

Udham  Singh  Nagar,  Rudrapur,  the  Sessions  Judge,

framed charges against the accused-Jairnail Singh under

Section  307  IPC  and  Section  25  of  the  Arms  Act  in

Session  Trial  Case  No.320  of  2000  for  the  offence

punishable  under  Section  307  IPC  and  Session  Trial

Case No.319 of  2000 for  the offence punishable  under

Section 25 of the Arms Act.    The accused denied the

charges.

6) The Trial Court conducted the trial in both the cases

together.  By judgment dated 01.03.2005, the Trial Court

convicted the accused for the offences punishable under

Section 307 of IPC and Section 25 of the Arms Act and

sentenced him to undergo rigorous imprisonment for ten

years for the charge under Section 307 IPC and a fine of

Rs.5000/-,  in  default  of  payment  of  fine,  to  further

undergo  imprisonment  for  three  months  and  also  to

undergo  rigorous  imprisonment  for  five  years  under

Section 25(1-A) of the Arms Act and a fine of Rs.1000/-,

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in  default  of  payment  of  fine,  to  further  undergo

imprisonment for one month.  Both the sentences were

directed to run concurrently.

7) Aggrieved by the judgment of  the Trial  Court,  the

respondent(accused)  filed  an  appeal  being  Criminal

Appeal No.33 of 2005 before the High Court.  The High

Court,  by impugned judgment,  allowed the appeal  and

set  aside  the  order  of  conviction  and  sentence  of  the

respondent-accused passed by the Trial Court in Session

Trial Nos.319 and 320 of 2000.   

8) Felt aggrieved, the State has filed this appeal by way

of special leave before this Court.

9) Heard  Mr.  Rajiv  Nanda,  learned  counsel  for  the

appellant  (State)  and  Mr.  Adarsh  Upadhyay,  learned

counsel for the respondent (accused).  

10) Learned  counsel  for  the  appellant  (State)  while

assailing  the  legality  and  correctness  of  the  impugned

judgment contended that the High Court was not right in

reversing  the  well  reasoned  judgment  of  the  Session

Court, which rightly held the respondent-accused guilty

of commission of offences punishable under Section 307

IPC and Section 25(1-A) of the Arms Act and accordingly

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had rightly convicted him for the said offences.  

11) It was his submission that the three eye witnesses

(PWs-1, 2 and 3), whose testimony was believed by the

Sessions  Judge  for  recording  conviction  of  the

respondent, should not have been reversed by the High

Court  in  the  appeal  filed  by  the  respondent-accused.

According to learned counsel, such findings should have

been affirmed by the High Court as the same was based

on  proper  appreciation  of  the  evidence  of  the  three

witnesses.  

12) Learned  counsel  further  submitted  that  the

discrepancies, if any, which were made basis by the High

Court  for  acquitting  the  respondent  (accused)  were

technical  in  nature  and  did  not  materially  affect  the

prosecution  case.   Such  discrepancies,  according  to

learned counsel, should have been ignored being wholly

insignificant in the light of the law laid down in Dhanaj

Singh @ Shera & Ors. vs. State of Punjab, (2004) 3 SCC

654.

13) Learned counsel then took us through the evidence

of the prosecution witnesses and argued that their ocular

evidence  deserve  acceptance  for  convicting  the

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respondent under Section 307 IPC and Section 25(1-A) of

the Arms Act.

14) In  reply,  learned  counsel  for  the  respondent

(accused)  supported  the  impugned  judgment  and

contended  that  no  case  for  any  interference  in  the

impugned judgment is made out as the same is based on

proper appreciation of evidence.  

15) It  was  also  his  submission  that  the  infirmities

noticed  by  the  High  Court  in  prosecution  case  for

reversing the judgment of the Session Court cannot be

faulted with and being material in nature deserve to be

upheld by this  Court  as was rightly  done by the  High

Court.     

16) Having  heard  the  learned  counsel  for  the  parties

and on perusal of the record of the case, we find no merit

in the appeal.  

17) In other words, in our view, the reasoning and the

conclusion  of  the  High  Court  in  acquitting  the

respondent  of  the  charges  under  Section 307 IPC and

Section 25(1-A) appears to be just and proper as set out

below and to which we concur and hence it does not call

for any interference by this Court.

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18) First, the parties involved in the case namely, the

victim,  his  brother,  who  was  one  of  the  eye-witnesses

with  other  two  eye-witnesses  and  the  accused  were

known to each other then why the Complainant-brother

of  victim in his  application (Ex-P-A)  made immediately

after the incident to the Chief  Medical  Superintendent,

Pilibhit  did not  mention the  name of  the  accused and

instead mentioned therein "some sardars".  

19) Second, according to the prosecution,  the  weapon

used in commission of  offence was recovered from the

pocket of the accused the next day, it looked improbable

as to why would the accused keep the pistol all along in

his  pocket after  the incident for  such a long time and

roam all over.

20) Third, the weapon (pistol) alleged to have been used

in the commission of the offence was not sent for forensic

examination with a view to find out as to whether it was

capable of being used to open fire and, if so, whether the

bullet/palate  used  could  be  fired  from  such  gun.

Similarly,  other  seized  articles  such  as  blood-stained

shirt and soil were also not sent for forensic examination.

21) Fourth, weapon (Pistol) was not produced before the

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concerned  Magistrate,  as  was  admitted  by  the

Investigating Officer.

22) Lastly,  if,  according  to  the  prosecution  case,  the

shot was hit from a very short distance as the accused

and the  victim were standing very near  to each other,

then as per the medical evidence of the Doctor (PW-6) a

particular type of mark where the bullet was hit should

have been there but no such mark was noticed on the

body.    No  explanation  was  given  for  this.   This  also

raised some doubt in the prosecution case.

23) In our considered opinion, the aforesaid infirmities

were, therefore, rightly noticed and relied on by the High

Court  for  reversing the  judgment  of  the  Session Court

after  appreciating  the  evidence,  which  the  High  Court

was entitled to do in its appellate jurisdiction. We find no

good  ground  to  differ  with  the  reasoning  and  the

conclusion arrived at by the High Court.  

24) In  other  words,  it  cannot  be  said  that  the

aforementioned infirmities were either irrelevant or in any

way insignificant or technical in nature as compared only

to the ocular version of the witnesses. The prosecution,

in  our  view,  should  have  taken  care  of  some  of  the

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infirmities  noticed  by  the  High  Court  and  appropriate

steps  should  have  been  taken  before  filing  of  the

charge-sheet  to  overcome  them.  It  was,  however,  not

done.  The  benefit  of  such  infirmities  was,  accordingly,

rightly given to the respondent by the High Court.

25) In the light of the aforementioned infirmities noticed

in  the  prosecution  case  which,  in  our  opinion,  were

material, the decision cited by the learned counsel for the

appellant  (State)  cannot  be  applied  to  the  facts  of  the

case at hand.  It is distinguishable.

26)  Since  the  State  has  challenged  the  order  of

acquittal in this appeal, unless we are able to notice any

kind of illegality in the impugned judgment, we cannot

interfere  in  such  judgment.  In  other  words,  it  is  only

when we find that the impugned judgment is based on no

evidence or/and it contains no reasoning or when it is

noticed that the reasoning given are wholly perverse, this

Court  may  consider  it  proper  in  appropriate  case  to

interfere and reverse the decision of the High Court.  

27) But  when  the  High  Court  while  reversing  the

decision of the Session Court acquits the accused and

assigns the reasons by appreciating the entire evidence

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in support of the acquittal, then this Court would not be

inclined to interfere in the order of acquittal.  In our view,

it  is  necessary  for  the  High  Court  while  hearing  the

appeal arising out of the order of conviction to appreciate

the entire evidence and then come to its conclusion to

affirm or  reverse  the  order.   In a  case  of  later,  which

results in reversal, with which we are here concerned, it

is necessary for the High Court to assign cogent reasons

as to why it does not consider it proper to agree with the

reasoning of the Sessions Judge by pointing out material

contradiction  in  evidence  and  infirmities  in  the

prosecution case. Case at hand is of this nature.   

28) In view of foregoing discussion, we find no merit in

the appeal. The appeal fails and is accordingly dismissed.   

     ………...................................J. [R.K. AGRAWAL]    

                                                   …...……..................................J.

    [ABHAY MANOHAR SAPRE] New Delhi; November 13, 2017  

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ITEM NO.1502               COURT NO.8               SECTION II (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO.1918 OF 2017 (@ Special Leave Petition (Crl.)  No(s).  1651/2015)

STATE OF UTTARAKHAND                               Appellant(s)                                 VERSUS JAIRNAIL SINGH                                     Respondent(s) Date : 13-11-2017 This appeal was called on for pronouncement of  judgment today. For Petitioner(s)   Mr. Rajiv Nanda, AOR                     For Respondent(s)   Mr. Adarsh Upadhyay, AOR                      

Leave granted. Hon'ble Mr. Justice Abhay Manohar Sapre pronounced the

judgment of the Bench comprising Hon'ble Mr. Justice R.K. Agrawal and His Lordship.     

The appeal is dismissed in terms of the signed reportable judgment.

(SWETA DHYANI)                                     (CHANDER BALA) SENIOR PERSONAL ASSISTANT                          BRANCH OFFICER

(Signed reportable judgment is placed on the file)  

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