Full Judgment Text
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PETITIONER:
SALIM ZIA
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT24/11/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 391 1979 SCR (2) 394
1979 SCC (2) 648
ACT:
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970,. Sec. 2(a) & Indian Penal Code,
1860 (Act 45 of 1860), Sec. 302-Accused firing at the
deceased resulting in instant death-Accused claiming right
of private defence of person, property-Onus 15 on accused
may be discharged ’by establishing a mere preponderance of
probabilities either in the cross-examination of prosecution
witnesses or by adducing defence evidence.
Appeal against. acquittal-Reversing the order of
acquittal Principles, criteria and guidelines.
HEADNOTE:
The appellant’s father one Jaffar Ali leased out an
acre of paddy growing land to the deceased. The prosecution
alleged that while the deceased was harvesting the crop, the
appellant and his brothers went to the field armed with a
gun. There had Been some exchange of words between the
appellant and the deceased as regards the share of the
produce as agreed to between the deceased and the
appellant’s father. The appellant was alleged to have fired.
at the deceased killing him on the spot.
Accepting the appellant’s version contained in a report
stated to have been lodged by him at the police station ten
minutes before the First Information Report was lodged, the
Sessions Judge acquitted the appellant. The report stated
that on the day of the occurrence the deceased was stealing
paddy bags from the appellant’s field and on seeing him (the
appellant) the deceased fired from a revolver which hit the
appellant on the right thigh and that finding that the
deceased was determined to kill him the appellant fired two
or three rounds with his gun which hit the deceased.
On appeal by the State, the High Court set aside the
acquittal of the appellant and convicted and sentenced him
to imprisonment for life.
On Further appeal to this Court under s. 2 (a) of the
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 it was contended on behalf of the
appellant that the High Court had acted with material
irregularity in ignoring the guidelines laid down by this
Court for interfering ’with the judgment and order of
acquittal and convicting the appellant without referring to
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the conclusions correctly arrived at by the Sessions Judge
and secondly the appellant was fully justified in opening
fire in exercise of the right of private defence.
Dismissing the appeal,
^
HELD: 1 (a) The High Court was fully justified in
reversing the order of acquittal of the appellant which was
erroneously made by the Sessions Judge on the basis of
surmises, and conjectures and in convicting him specially
395
when the prosecution story that the appellant fired at the
deceased without any justifiable provocation was
established to the hilt by the evidence of a number of
prosecution witnesses who even according to the Sessions
Judge gave a true account of the occurrence. [404D]
(b) The legal position emerging from a long line of
decisions starting with Sheo Swarup v. king Emperor. 61 I.A.
398 is:
"The High Court in an appeal against an order of
acquittal under s. 417 of the Code of Criminal
Procedure, 1898 has full power to review at large, the
evidence on which the order of acquittal was founded
and to reach the conclusion that upon the evidence, the
order of acquittal should be reversed." [403B-D]
2. The different pharaseology used in the judgments of
this Court such as (a) substantial and compelling reasons;
(b) good and sufficiently cogent reasons; (c) strong
reasons; are not intended to curtail or place any limitation
on the undoubted power of an appellate court in an appeal
against acquittal to review the entire evidence and to come
to its own conclusion as stated above but in doing so it
should give proper consideration to such matters as (i) the
views of the trial judge as to the credibility of the
witnesses (ii) the presumption of innocence in favour of the
accused, a presumption certainly not weakened by the fact
that he had been acquitted at his trial, (iii) the right of
the accused to the benefit of any real and reasonable doubt
and (iv) the slowness of an appellate court in disturbing la
finding of fact arrived at by a judge who had the advantage,
of seeing the witnesses. [403E-404A]
Nur Mohammad v. Emperor. AIR 1945 PC 151; Sanwat Singh
v. State of Rajasthan, [1961] 3 SCR 120, Ramaphupala
Reddy & Ors. v. State of A.P., [1970] 3 SCC 474; Gopi
Nath Ganga Ram Ram Surve & Ors. v. State of 11
Maharashtra, [1970] 3 SCC 627; Dharam Das & Ors. v.
State of U.P., [1973] 2 SCC 216: Lekha Yadav v. State
of Bihar, [1973] 2 SCC 424: Samson Hyam Kemkar v.
State of Maharashtra, [1974] 3 SCC 494; Barati v. State
of U.P., [1971] 4 SCC 258; referred to.
(c) In the present case it cannot be said that the High
Court has lost sight of the principles laid down by this
Court with regard to the disposal of appeals against
acquittal. [404A]
2.(a) on the basis of expert medical evidence the High
Court come to the conclusion that the injuries on the person
of the appellant were not gun shot injuries and could not
be caused with a revolver but were fabricated to look like
gun shot wounds for the purpose of creating a defence. [400]
(b) The burden on the accused to establish the plea of
self-defence is not as onerous as the one which lies on the
prosecution. It is the prosecution which is required to
prove its case beyond reasonable doubt and the accused need
not establish the plea to the hilt and may discharge his
onus by establishing a mere preponderance of probability
either by laying basis for that plea in cross-examination
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of prosecution witnesses or by adducing defence evidence
[401H-402B]
396
In the instant case, however the appellant has not
discharged that burden either by adducing any defence
evidence or by eliciting from the prosecution witnesses the
existence of facts and circumstances satisfying the
requisite test of preponderance of probability entitling him
to exercise the right of private defence either of person or
property. [402C]
Pratap v. State of U.P., AIR 1976 SC 966. Munshi
Ram & Ors. v. Delhi Administration, [1968] 2 SCR 455;
referred to.
(c) The appellant has not been able to establish that
the paddy field belonged to him or that it had not been
leased out by him to the deceased on ’Ahdhiya ghalla batai’
basis or that the deceased committed theft or attempted to
commit theft of paddy, to which he i.e. the appellant was
lawfully entitled. [402D]
(d) The appellant has also not established that it was
the deceased who fired any shot at him from the revolver and
it was only in self-defence that he fired the shots from the
gun in his possession which resulted in the death of the
deceased. [402E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
213, 237 and 238 of 1977.
Appeal under Section 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970
and by Special Leave from the Judgment and order dated 13-4-
77 of the Allahabad High Court in Govt. Appeal Nos. 637/71
and Cr. A. No. 14/71 and Govt. A. No. 621/71.
Frank Anthony, B. P. Maheshwari, P. Basu and Suresh
Sethi for the Appellant.
O. P. Rana for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. The above noted three appeals, the
first two out of which viz. Criminal Appeal No. 213 of 1977
under section 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 and Criminal
Appeal No. 237 of 1977 by special leave challenge the
reversal of acquittal and conviction of Salim Zia alias
Fodi, appellant under section 302 of the Indian Penal Code
and section 27 of the Arms Act and the last one whereof viz.
Criminal Appeal No. 238 of 1977 by special leave challenges
the affirmance of conviction of the appellant under section
25 of the Arms Act will be disposed of by this judgment as
they are all directed against the judgment and order dated
April 13, 1977 of the Allahabad High Court.
Briefly stated, the case as put forth by the
prosecution was that Jaffar Ali, the father of the appellant
who migrated to Pakistan and is now a Pakistani national,
owned a big farm measuring approximately
397
250 acres in villages Hamid Nagar and Parbatbans within the
jurisdiction of Police Station, Bilaspur, District Rampur.
Out of the said area of the farm, Jaffar Ali had leased out
one acre of paddy growing land to Habib, deceased, the son
of Bandu (P.W. 17) who was a Mistri or Mechanic by
profession on ’Ahdhiya ghalla batai’ basis in lieu of his
services for maintaining in working order the hand pumps
installed by the former for irrigating the farm. On November
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11, 1969, the appellant armed himself with a 12 bore double
barrel gun belonging to his uncle, Hamid Ali, and
accompanied by his younger brothers, Mohd. Jaffar and Salim
Jaffar who have since been acquitted, went to the aforesaid
field where the deceased was harvesting and thrashing the
crop raised by him and told the latter that this time he
would be allowed only one third and not one half of the
produce. Thereupon the deceased protested asserting that he
was entitled to half of the produce as agreed to between him
and the appellant’s father and that cruelty and injustice
should not be perpetrated on him. Annoyed at the audacity of
the deceased, the appellant’s aforesaid brothers started
hurling abuses at the deceased and exhorted the appellant to
finish the deceased without being deterred by the
consequences which they right have to face Thereupon, the
appellant fired four shots at the deceased from his
aforesaid gun as a result whereof the deceased fell down and
died on the spot. Intimation of the incident was sent by
Azmat Ali (P.W. 1) to Bandu (P.W. 17), the father of the
deceased through Muzammil (P.W. 7). On his return after
apprising Bandu of the incident, Mozammil was deputed by
Azmat Ali to carry the report (Exh. Ka. 1) which he got
written by Abrar Hussain (P.W. 11 ) to the Police Station,
Bilaspur where it was lodged at 5.10 P.M. When Muzammil
reached the Police Station, he found the appellant already
present over there. On receipt of Exhibit Ka. 1,S.I. Narain
Singh Negi (P.W. 18) registered a case under section 302 of
the Penal Code and repaired to the scene of occurrence after
sending the appellant to the Government Dispensary at
Bilaspur for examination of the injuries on his person and
recording his statement. On arrival at the place of
occurrence, Narain Singh Negi prepared the inquest report
and sent the dead body of the deceased for postmortem
examination to the District Hospital at Rampur where Dr. R.
K. Misra, M. O. In-charge of the Hospital conducted the
autopsy and found the following injuries on the body of the
deceased:-
"1. Multiple lacerated gun shot wounds of entry
in an area 2"x1/2" on front and outer side of
right thigh lower part. The wounds are oval
and congested and margins are inverted. Size
1/2x1/2x depth to wounds of exit near hip.
398
2. Multiple lacerated gun shot wounds of exit in
an area 2 1/2"x2"" on back of right thigh
lower part and back of right knee joint. The
margins of wound are averted. Size 1/2x1/2,
There is fracture of thigh bone in its lower
part in injuries 1 and 2.
3. Lacerated gun shot wound of entry with
inverted and tattooed margins 1 1/4"x1 1/4" x
depth wound of exist in abdominal wall near
it right side upper joint abdominal wall.
4. Lacerated gun shot wound of entry 1/2"x1/4"x
depth upper from abdominal wall 1 1/2" to
margin injury No. 3. Inverted and tattooed
margins.
5. Lacerated gun-shot wound of exit with averted
margins right side of abdominal wall 1 1/4"
to injury No. 4 with a loop of small
intestine coming out.
6. Lacerated gun shot wound exit with averted
margins on right side abdominal wall 11 above
and behind injury No. 5 size 1/4"x1/4"x
abdominal vacity deep.
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7. Lacerated gun-shot would 4 1/4"x2 1/4"x
thickness of right palm. Entry palmer side
with inverted margins and exit on back of
hand with averted margins with fractures of
matacarpals of little and ring fingers.
8. Multiple gun-shot wounds in an area 7 1/2x4"
on front and outer side of right shoulder and
right arms, wounds of entry. With a central
wound 1 1/4"x1/4"x2" surrounded by many small
wounds 1/10"x1/10" and varying depths. 16
shots recovered.
9. Lacerated gun-shot wound of entry 1 1/4"x1"x
cranial cavity deep on right side back of
head 11" behind right ear brain flowing out".
On internal examination of the dead body, the Doctor
found all bones of the vault and base of skull fractured. He
also found not only the brain membranes but the brain itself
lacerated and flowing out of the surface injury. He took out
15 pellets and one piece of wad out of the brain. He also
found the membrane of the abdomen ruptured. According to the
Doctor, the death of the deceased was due to coma as a
result of gun-shot injury on the head. On the basis of
dispersal of shot and tattooing and the shape of wounds the
Doctor opined that the aforesaid injuries were not caused
from a distance of 15 to 20 paces but were caused from a
close distance.
399
After usual investigation, the appellant and his
aforesaid two brothers were proceeded against in the Court
of Additional District Magistrate (J), Rampur, who committed
them to the Court of Section to stand their trial under
section 32 and section 302 read with section 34 of the
Indian Penal Code respectively. At the said trial, the
prosecution examined 18 witnesses including Azmat Ali, Abrar
Hussain, Muzammil, Dulah Khan, Mst. Altafi and Khairati who
claimed to be the eye witnesses of the occurrence. By his
judgment and order dated December 23, 1970, the Sessions
Judge while observing that he was inclined to think that the
prosecution story was true accepted the appellant’s version
contained in Exhibit Ka-13 said to have been lodged by him
at the Police Station, Bilaspur about ten minutes prior to
the report (Exh. Ka 1) to the effect that he had gone on a
round of his Father’s farm at about 4.00 P.M. carrying with
him his uncle’s double barrel 12 bore gun; that on reaching
his field in Parbatbans, he saw Hahib deceased and Asmat Ali
stealing his paddy bags; that at that time Shabban of
Rampur, Bhonda alias Anis and Amir Daulat of village Koela
were working in the vicinity of that place; that seeing
this, he challenged Habib and Azmat Ali whereupon Habib
fired at him from a revolver hitting him on the right thigh;
that he remonstrated with Habib who fired another shot at
him which grazed past his left thigh and that finding that
Habib was determined to kill him and there was no hope of
escape, he fired two or three shots from his uncle’s gun
which he was carrying in consequence whereof Habib fell down
and Azmat Ali ran away and that taking away the revolver
from Habib’s hand, he had reached the Police Station in the
tractor driven by his brother, Jaffar. The Sessions Judge
acquitted the appellant and his brothers giving them the
benefit of doubt observing that the prosecution had failed
to adequately demolish the defence version which left a
reasonable doubt that the prosecution might have suppressed
the revolver used by Habib and that the appellant had fired
in the exercise of the right of private defence. On appeal,
the High Court set aside the acquittal of the appellant
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rejecting the defence version and convicted him as stated
above and sentenced him to life imprisonment under section
302 of the. Indian Penal Code and three years rigorous
imprisonment under section 27 of the Arms Act maintaining
his conviction and sentence of one year’s rigorous
imprisonment under section 25 of the Arms Act. It is against
this judgment and order of the High Court that the present
appeals are directed
Appearing in support of the appeals, Mr. Frank Anthony
has vehemently urged that the High Court has acted with
material irregularity in ignoring the guidelines repeatedly
laid down by this Court for interfering with the judgment
and order of acquittal and convicting the appel-
400
lant without referring to the conclusions, which in the
proved circumstances of the case, had been correctly arrived
at by the Sessions Judge. He has further urged that the
genesis of the prosecution story not having been established
and the deceased who was seen stealing the bags of paddy
having opened fire at the appellant, the latter was full
justified in firing back at the deceased in exercise of the
right of private defence. He has also urged that the F.I.R.
(Exh. Ka. 1) which was unduly delayed (and could not have
reached the Police Station at 5.10 P.M. as sought to be made
out by the prosecution) threw a grave doubt on the veracity
of the prosecution story.
We have given our anxious consideration to the
submissions of the counsel for the appellant but find
ourselves unable to accede to the same. Two inextricably
linked up questions that fall for consideration in this case
in view of the stand of the appellant are whether the two in
juries viz. (1) lacerated wound 1 cm x 1 cm x muscle deep on
medial side of left thigh in its middle with inverted
margins but without any scorching, tattooing or blackening
and (2) lacerated wound 1/4cmx1/4cm x muscle deep on the
middle and back of left thigh, inner side with averted
margins but without any scorching, tattooing or blackening
stated by D.W. 1, Dr. K. L. Verma. Medical officer, I/C
Bilaspur Dispensary, to have been observed by him on the
person of the appellant at 6.00 P.M. On November 11,1969
were caused as a result of shots fired from revolver (Exh.
4) in the course of the same occurrence which resulted in
the death of the deceased and whether the appellant was
protected by the right of private defence of person or
property.
In regard to the first question, the High Court has
after careful scrutiny of the, depositions of D.W. 1, Dr. K.
L. Verma, and Dr. B. C. Joshi, Chief Medical officer,
Lucknow whom it examined as an expert under section 391 of
the Code of Criminal Procedure come to the conclusion that
the above noted injuries were not gun shot injuries and
could not be caused with revolver (Exh. 4) and were
fabricated to look like gun shot wounds for the purpose of
creating a defence. It has rightly pointed out that there is
no mention in the injury report (Ex. Kha. II) prepared by
Dr. Verma after examination of the person of the appellant
that the said injuries were through and through or
communicating wounds and that since Dr. Verma admittedly did
not try to as certain by use of probe whether they were
communicating injuries or not, he could not be expected to
give a categoric opinion about their character merely on
the basis of the condition of their margins or edges. The
High Court has also correctly pointed out that the aforesaid
injuries on the person of the appellant were not gun shot
wounds as usually the
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401
entrance wound in fire arm injuries is smaller and the exit
wound is bigger but curiously enough this was not the case
here. The High Court has also rightly found that the
aforesaid injuries on the person of the appellant could not
be gun shot wounds as the exit wound was not only smaller in
dimension than the entry wound but was also smaller in
dimension than the size of the cartridge (Exh. 7) taken out
of the revolver (Exh. 4) which according to the appellant
was used by the deceased for causing injuries on his person.
The observations of the High Court receive ample
confirmation from the statement of Dr. B. C. Joshi which
appears to have been based on his personal experience and
notable works on Medical Jurisprudence and Toxicology by
celebrated authors like Sydney Smith, John Gallister, Taylor
and others that in case of a bullet injury except where the
bullet gets fragmented after entering the body and only a
portion thereof passes out of the exit wound or the bullet
remains embedded in the body and does not pass out in the
normal course and is subsequently taken out or except in
case of a point blank wound (which is not the case of
defence), it is practically and usually not possible that
the size of the wound of exit may be smaller than the
diameter of the bullet. On being shown the aforesaid bullet
(exh. 7) Dr. Joshi stated that if the diameter of the bullet
is .8 cm it could not usually cause the exit wound described
as injury No. 2 in Exhibit Kha. II unless the bullet got
fragmented inside the body or only a small length thereof
pierced and made the exit wound. Dr. Joshi has also
expressly stated that considering the data as given in
Exhibit Kha. II it is doubtful that the aforesaid two
injuries claimed by Dr. Verma to have been observed by him
on the person of the appellant were bullet injuries. Thus
the forensic medicine expert evidence in respect of the
characteristics of the wounds said to have been observed on
the person of the appellant rules out the case of the
infliction of the injuries on the person of the appellant by
revolver (Exh. 4).
That these injuries were caused in the course of the
same incident which resulted in the death of the deceased
also seems to be highly improbable in view of the statement
of Narayan Singh Negi, Investigating Officer, who reached
the scene of occurrence within an hour of the lodging of the
report (Exh. Ka. I) that he did not even on search find any
blood at any place except in front of or underneath the body
of the deceased.
This takes us to the consideration of the other crucial
question viz. whether the appellant was protected by the
right of private defence of person or property. It is true
that the burden on all accused person to establish the plea
of self defence is not as onerous as the one which lies
402
on the prosecution and that while the prosecution is
required to prove its case beyond reasonable doubt, the
accused need not establish the plea to the hilt and may
discharge his onus by establishing a mere preponderance of
probabilities either by laying a basis for that plea in the
cross-examination of prosecution witnesses or by adducing
defence evidence. (See Partap v. The State of Uttar
Pradesh(1) and Munshi Ram & Ors. v. Delhi Administration(2).
In the instant case, however, the appellant has not
discharged that burden either by adducing any defence
evidence or by eliciting from the persecution witnesses the
existence of facts and circumstances satisfying the
requisite test of preponderance of probabilities entitling
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him to exercise the right of private defence either of
person or of property.
In relation to the right of private defence of
property, it may be observed that the appellant has not been
able to establish by producing any witness in defence or by
eliciting from the prosecution witnesses the aforesaid
paddy field belonged to him or that it had not, as stated by
Bandu (P.W.17), Azmat Ali (P.W.1) and Muzammil (P.W.7), been
leased out by the appellant’s father to the deceased on
’Ahdhiya ghalla batai’ basis or that the deceased and Azmat
Ali (P.W.1) committed theft or attempted to commit theft of
the paddy to which he was lawfully entitled.
The appellant has also not established by examining any
of the three witnesses alleged by him in his report (Exh.
Ka. 13) to be working in the vicinity of the place of
occurrence or by eliciting from the eye witnesses produced
by the prosecution or summoned and examined by the Court
that Habib deceased-fired any shot at him from revolver
(Exh. 4) and that it was only in self defence that he fired
the shots from the gun in his possession which resulted in
the death of the deceased. Muzammil (P.W.7) has in answer to
a question put to him in cross-examination emphatically
denied that Habib deceased was armed with a revolver or that
he fired any shot in the course of the incident which
resulted in his death. Azmat Ali (P.W.1) has also
unequivocally stated in cross-examination that Habib
deceased did not use any revolver at the spot and that
neither he nor Habib committed any theft of the paddy as
alleged by the appellant. Even Athar Ali and Mst. Shafiqan
who were examined as Court witnesses have clearly stated
that Habib did not fire any pistol at the spot. It is,
therefore, crystal clear that the Sessions Judge grossly
erred in assuming that the appellant was fired at by Habib
and that it was in exercise of the right of private defence
that he in turn fired at Habib to save his own life.
(1) A.I.R. 1976 S.C. 966.
(2) [1960] 2 S.C.R. 455.
403
Let us now examine the contention of counsel for the
appellant that in reversing the order of acquittal and
convicting the appellant under section 302 af the Indian
Penal Code and section 27 of the Arms Act, the High Court
ignored the principles laid down by this Court for
interference with the orders of acquittal. The scope and
powers of the appellate court in an appeal against acquittal
were clearly defined by the Privy Council in Sheo Swarup v.
King Emperor(1) and Nur Mohammed v. Emperor(2) which
received the stamp of approval of this Court in Sarlwat
Singh v. State of Rajasthan(3) Ramaphupala Reddy & Ors. v.
The State of Andhra Pradesh(4) Gopi Nath Ganga Ram Surve &
Ors. v. State of Maharashtra(5) Dharam Das & Ors. v. State
of U.P.(6) Lakha Yadav v. State of Bihar(7) Samson Hyam
Kemkar v. State of Maharashtra(5) and Barati v. State of
U.P.(9). The legal position emerging from these decisions
may be summarised thus:
"1. The High Court in an appeal against an order
of acquittal under section 417 of the Code of
Criminal Code, 1898 has full power to review
at large the evidence on which the order of
acquittal was founded and to reach the
conclusion that upon the evidence, the order
of acquittal should be reversed.
2. The different phraseology used in the
judgments of this Court such as-
(a) ’substantial and compelling reasons’;
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(b) ’good and sufficiently cogent reasons’;
(c) ’strong reasons’,
are not intended to curtail or place any
limitation on the undoubted power of an
appellate court in an appeal against
acquittal to review the entire evidence and
to come to its own conclusion as stated above
but in doing so it should give proper
consideration to such matters as (i) the
views of the trial Judge as to the
credibility of the witnesses; (ii) the
presumption of innocence in favour of the
accused, a presumption certainly not weakened
by the fact that he: has been acquitted at
his trial, (iii) the
(1) 61 I.A.398.
(2) A.I.R.1945 P.C.151.
(3) [1961] 3 S.C.R.120.
(4) [1970] 3 S.C.C.474.
(5) [1970] 3 S.C.C.627.
(6) [1973] 2 S.C.C.216.
(7) [1973] 2 S.C.C.424.
(8) [1974] 3 S.C.C.494.
(9) [1974] 4 S.C.C.258.
404
right of the accused to the benefit of any
real and reasonable doubt; and (iv) 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."
We have perused the impugned judgment with care but do
not think that the principles laid down by this Court in the
above mentioned decisions with regard to disposal of
acquittal appeals were lost sight of by the High Court
The appellant’s version that the injuries observed on
his person by Dr. K. L. Verma on November 11, 1969 were the
result of shots fired by the deceased from revolver (Exh. 4)
not having been established and the appellant having
admitted that he fired two or three shots at the deceased,
the High Court was fully justified in reversing the trial
court’s order of acquittal of the appellant which was
erroneously made by the Sessions Judge on the basis of
surmises and conjectures and convicting him specially when
the prosecution story that the appellant fired at the
deceased without any justifiable provocation was established
to the hilt by the evidence of a number of prosecution
witnesses who even according to the Sessions Judge gave a
true account of the occurrence.
In the result, we do not find any merit in these
appeals which are dismissed. As the appellant appears to be
on bail, he will surrender himself to his bail bond to
undergo the unexpired portion of his sentence.
Before parting with the file,, we would like to observe
that since the appellant’s statement under section 342 of
the Code of Criminal Procedure shows that he is a novelist
and has made valuable contribution to enrich the Urdu
literature, the Government may consider the desirability of
giving him a special class and entrusting such work to him
during his incarceration as may help sustain his aforesaid
interest, promote his creative genius and result in his
emancipation.
N.V.K. Appeal dismissed.
405
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