infirmities not explained - resulted in acquittal = did not mention the name of the accused and instead mentioned therein "some sardars"; the weapon used in commission of offence was recovered from the pocket of the accused the next day, it looked improbable; 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; weapon (Pistol) was not produced before the 8 concerned Magistrate, as was admitted by the Investigating Officer.; 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.- 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.

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
8
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
9
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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