Satyavir Singh vs State Of U.P

2. Satyavir Singh, appellant-accused was tried for an offence under Section 307 of the Indian Penal Code, 1860 (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 Code and one year R.I. under Section 27 of the Act. Both the sentences were ordered to 1 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 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 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 appellant under Section 307 of the Code and declined to interfere with the sentence awarded by the First Appellate Court in relation to an offence under Section 25 of the Act.

5. Facts Bhanu Prakash Sharma, (PW-1) was taking tea at Hamid Khan's Hotel at about 2.30 P.M. His brother Dharam Prakash (PW-

3) arrived at the crossing towards Narora Bus Stand. Dharam Prakash aged about 18 years was a student of Khurja Polytechnic. Satyavir Singh, accused is the resident of village Niwari. Vijay Singh is his elder brother and owned a double barrel gun under a 5 valid licence. It is the case of the prosecution 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 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 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. 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:

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 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 following injuries were noticed:

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 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, 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-1, Criminal case 87/75 under Section 307 of the Code and Section 8 25 of the Act respectively was registered.

16.The trial court in its lengthy judgment have discussed occular as well as documentary evidence produced by the prosecution. The version stated by the eye witnesses, the medical evidence as well as the veracity of the statement made under Section 313 16 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 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, 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.

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 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 awarding him the punishment of imprisonment till rising of the court. This judgment of acquittal which was set aside by the High Court practically restored the judgment of the trial court and partly allowed the appeal of the State and convicted the accused of an offence under Section 307 of the Code and maintained the conviction under Section 25 (1) (a) of the Act.

36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very 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 justi- fied in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the en- tire evidence on record that the judgment of the trial court is either `perverse' or wholly unsus- tainable in law."

According to medical evidence the very seat of the injuries discloses that the shots would have been fired during snatching. "

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.

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