Swatanter Kumar, J. - (1.) Leave granted.
(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 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 Under Section 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. 3. It will be useful to refer to the findings and conclusions recorded by the High Court of the State. On the basis of evidence on record, the charge under Section 307 IPC is proved beyond all reasonable and probable doubt. The impugned judgment and order passed in Criminal Appeal No. 99 of 1979, 'Satyavir Singh v. State of U.P.' is thus found to be unsustainable as far as acquittal of accused-respondent under Section 307 IPC is concerned. We do no find any illegality or irregularity in the impugned judgment and order dated 6.11.1980 regarding acquittal of accused-respondent under Section 27 Arms Act and his conviction under Section 25(1)(a) Arms Act. The criminal revision filed by Bhanu Prakash Sharma is thus partly allowed. We are not inclined to enhance the sentence awarded under Section 307 IPC passed by learned Assistant Sessions Judge, Bulandshahr in S.T. No. 328 of 1976, State v. Satyavir Singh. No prayer for the enhancement of the sentence under Section 307 IPC has been made in the criminal revision by Bhanu Prakash Sharma. The occurrence is dated 9.2.1975. We are also not inclined to enhance the sentence awarded to accused-respondent under Section 25(1)(a) Arms Act. Keeping in view the date of occurrence of this case, we are not inclined to enhance the sentence as awarded by learned Assistant Sessions Judge, Bulandshahr in S.T. No. 328 of 1976 in government appeal as well. We thus confirm the sentence of three years R.I. Awarded under Section 307 IPC by learned Assistant Sessions Judge, Bulandshahr vide judgment and order dated 21.5.1979 passed in S.T. No. 328 of 1976, State v. Satyavir Singh. Government Appeal is thus partly allowed. The judgment and order dated 6.11.1980 passed by 1st Additional Sessions Judge, Bulandshahr is partly set aside to the extent referred above. The accused-respondent Satyavir Singh having been found guilty under Section 307 IPC is sentenced to three years R.I. We decline to interfere with the order of acquittal passed under Section 27 Arms Act and instead convicting the accused-respondent under Section 25(1)(a) Arms Act and sentencing him to imprisonment till the rising of the Court. The judgment and order passed today is certified to the Court of 1st Additional Sessions Judge, Bulandshahr and such court shall thereupon make such orders as are conformable to the judgment and order of this Court and if necessary the record shall be amended in accordance therewith.
(3.) Legality and correctness of the judgment and order of sentence passed by the High Court is questioned by the appellant-accused in the present appeal under Article 136 of the Constitution of India inter alia but primarily on the following grounds: (a) The High Court has erred in law in setting aside the judgment of acquittal recorded by the First Appellate Court, which was reasoned one and based on a proper appreciation of evidence. Thus the High Court ought not to have upset the judgment of acquittal. Therefore, the High Court has acted beyond the limitations on such exercise of power and heavy reliance is placed on the case of Ganesh Bhavan Patel and Anr. v. State of Maharashra, (1978) 4 SCC 371. (b) No motive was proved and in absence of a specific motive, the High Court has erred in holding that the appellant is guilty of offence under Section 307 of the Code. (c) The expert evidence being at variance and the medical evidence not supporting the injuries allegedly found on the person of the victim, the benefit of doubt should have been given to the accused as the prosecution had failed to prove its case beyond reasonable doubt. (d) The Court should have appreciated that it was an accidental firing and the prosecution had not put forth any explanation on record as to how the weapon (double barrel gun) was broken. ;