PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
KRISHNA GOPAL & ANR.
DATE OF JUDGMENT12/08/1988
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 2154 1988 SCR Supl. (2) 391
1988 SCC (4) 302 JT 1988 (3) 544
1988 SCALE (2)632
ACT:
Constitution of lndia 1950: Article 136-Supreme Court
does not interfere with findings of fact reached by High
Court unless vitiated by serious errors.
HEADNOTE:
The respondents were put on trial for offences under
section 302 read with section 34, IPC. At the trial the
prosecution mainly relied on the eye-witnesses and the
statement of the deceased recorded by the Investigating
Officer, which was sought to be used as a dying declaration.
The defence assailed the credibility of the eye-witnesses as
well as the authenticity of the dying declaration. The
Sessions Judge accepted the prosecution case that
notwithstanding the somewhat serious injuries inflicted on
him, the deceased was in a position to instant the
preparation of the First Information Report and to make the
statement before the Investigating Officer. The respondents
were convicted and sentenced to imprisonment for life.
In the appeal, the High Court, on re-assessment of the
evidence, accepted the defence pleas, allowed the appeal and
ordered acquittal.
Before this Court it was urged by the State that the
High Court fell into a serious error in its assumptive
predication that injuries on the person on deceased were
such as were likely to render him unconscious immediately
and incapacitate him from making the dying declaration. It
was accordingly urged that because the High Court had
reversed the conviction on conjectures and not on sound
reasoning. this Court should interfere.
On behalf of the respondents, it was urged that this
Court should not interfere under Article 136 even if two
views were possible on the evidence and the one in favour of
the prosecution could be reached on reappreciation of the
evidence as long as the view opted for could not be said to
be altogether impossible on the evidence.
Allowing the appeal partly and remitting the case to the
High Court for disposal on merits afresh, it was,
PG NO 391
PG NO 392
HELD: (1) It was, no doubt, true that as a self-made
rule of practice, this Court did not interfere with the
findings of fact reached by the High Court, but judicial
pronouncements themselves qualify this rule and justify
interference where serious errors of assumption vitiated the
findings. [398A]
State of U.P. v. Jashoda Nandan Gupta, AIR 1974 SC 753;
State of Punjab v. Sucha Singh. AIR 1974 SC 343; State of
A.P. v. P. Anjaneyulu, AIR 1982 SC 1598; State of U.P. v.
Pussu, [l983] 3 SCR 294; Shivaji Sahebrao Bopade v. State of
Maharashtra, [1974] 1 SCR 489 referred to.
(2) The principles laid down regarding the scope of the
powers of the appellate Court in appeals against acquittal
did not detract from the platitude of the Courts powers to
review and reappreciate the evidence if the order of
acquittal on review of the evidence was found to be grossly
erroneous. These powers were not different from or
inconsistent with those that the appellate Court had in an
appeal against conviction; the difference was more in the
manner of approach and the perspective rather than in the
content of the power. The expressions "very substantial
reasons" etc. used in several pronouncements which tend to
qualify these powers did no more than to convey these
principles. There was thus no immunity to an erroneous order
from a strict appellate scrutiny. But the appellate court
wherever it found justification to reverse an acquittal must
record reasons why it found lower court wrong. [400E-H]
Sheo Swarup's case, 61 Indian Appeals 398; Noor
Mohammad's case AIR 1945 PC 151; Sanwat Singh v. State of
Rajasthan, AIR 1961 SC 715; Chandra Kanta Debnath v. State
of Tripura, AIR 1986 SC 606, referred to.
(3) Eye witnesses account would require a careful
independent assessment and evaluation for their credibility
which should not be adversely prejudged making any other
evidence, including medical-evidence, as the sole touchstone
for the test of such credibility. [403B]
(4) What degree of probability amounted to `proof' was
an exercise particular to each case. The concepts of
probability, and the degrees of it, could not obviously be
expressed in terms of units to be mathematically enumerated
PG NO 393
as to how many of such units constituted proof beyond
reasonable doubt. There was an unmistakable subjective-
element in the evaluation of the degrees of probability and
the quantum of proof. Forensic probability must, in the last
analysis, rest on a robust common-sense and, ultimately, on
the trained intuitions of the judge. [403D; 404B-C]
(5) Doubts would be called reasonable if they were free
from a zest for abstract speculation. A reasonable doubt was
not an imaginary, trivial or a merely possible doubt; but a
fair doubt based upon reason and common-sense. It must grow
out of the evidence in the case. [403H; 404A-B]
6. The appellant's submission that the judgment under
appeal was rendered infirm on several counts could not be
said to be without substance. The appeal before the High
Court must, therefore, receive a reconsideration. [401B]
Qamreeddin v. Acqeel, AIR l982 SC 12 29 adopted.
JUDGMENT:
CRlMINAL APPELLATE JURISDlCTlON: Criminal Appeal No. 891
of 1985.
From the Judgment and Order dated 30.9.1983 of the
Allahabad High Court in Crl. A. No. 1320 of 1982.
Prithvi Raj, Dalveer Bhandari and Ms. Rachna Joshi for
the Appellant.
U.R. Lalit and Shakil Ahmed Syed for the Respondents.
The Judgment of the Court was delivered by
VENKATACHALIAH, J. This appeal, by special leave, is by
the State of Uttar Pradesh preferred against the Judgment
dated 30.9.1983 of the High Court of Judicature at Allahabad
setting aside the conviction and sentence passed against the
two Respondent-accused in Sessions Trial No. 256 of 1981 on
the file of the Sessions Judge, Bareilly, for offences under
Section 302 read with Section 304, IPC. The learned Sessions
Judge had handed down a sentence of imprisonment for life,
but the High Court, in reversal of that conviction and
sentence, acquitted the respondents.
2. The case of the prosecution may briefly stated:
PG NO 394
At 2.00 PM on 31.1.1981 in the town of Mirganj in the
District Bareilly, in front of the house of a certain Lalan,
the two respondents- Krishna Gopal and Vijai-who are related
to each other as uncle and nephew, set-upon and attacked
Harish, S/o Mihilal, with knives causing serious injuries to
which Harish succumbed at 6.40 PM the same day at the
District Hospital, Bareilly, to which he was removed after
the incident. The incident was witnessed by Omkar (PW 1),
Khiali Ram (PW 2) who saw the attack from a close distance
of about 20 paces and on account of whose protestations the
accused persons hastened away from the scene, one of them
leaving behind the knife used in the attack; Paranvir (PW 6)
came on the spot soon thereafter and wrote the First
Information Report (Ex. Ka. 1) at the scene as per
instructions of injured Harish who signed it. Thereafter,
Harish was taken to Mirganj Police Station which was just
two furlongs away from the scene in an auto-rickshaw by
Omkar (PW 1) and Mihilal, the father of Harish, who had also
reached the spot by then. Ex. Ka. 1 was delivered at
Station-house by injured Harish himself at 2.15 PM. Harish
who had also brought with him one of the knives left behind
by the assailants, was deposited in the Station-house under
Memo (Ex. Ka. 2) prepared in that behalf. Injured-Harish
signed that Memo.
Thereafter, Harish was taken to the Public Health Centre
at Mirganj accompanied by a constable. The investigating
officer, Nanak Chand Sharma, (PW 7) who carne to the
Station-house at 2.30 PM proceeded to Mirganj Hospital and
recorded Harish’s statement (Ex. Ka. 7). As no doctors were
available at the Public Health Centre at Mirganj, injured-
Harish was taken to the District Hospital at Bareilly in a
motor-vehicle. Dr. Rajeev Aggarwal (PW 3) examined Harish at
about 4.40 PM and noted the injuries on the person of Harish
in the list, Ex. Ka. 3. Despite treatment at the District
Hospital by the Surgeon Dr. Pundani and Dr. Sharma, Harish
died at 6.40 PM at the hospital.
The accused Krishna Gopal was arrested at 6.30 PM on the
same day. His Kurtha (Ex. 4) and his blood-stained Paijama
(Ex. 5) were recovered, under Memo Ex. Ka. 10. The accused
Vijai was arrested on 8.2.1981. Accused were put-up for
trial for offences under Section 302 read with Section 34,
IPC. The motive for the killing was previous enmity between
the accused-persons and Mihilal. the father of the deceased.
The accused denied the charge and pleaded not guilty.
According to the drift of the suggestions made to the
prosecution witnesses at the trial and from their statements
under Section 313 Cr. PC, they indicated that deceased-
Harish was a gambler and had sustained injuries at about
PG NO 395
3.00 PM that day in a gambling-brawl and that occasion was
exploited by Paranvir (PW 6) and others to foist a false
case against them owing to previous enmity. Accused Krishna-
Gopal while admitting the seizure of his clothes under Ex.
Ka. 10, however, denied that at the time of recovery they
were blood stained.
3. At the trial, before the learned Sessions Judge, the
prosecution examined and relied upon the two eye witnesses,
Omkar (PW 1) and Khiali Ram (PW 2). Dr. Rajeev Aggarwal (PW
3) spoke to the injury report (Ex. Ka. 3), prepared by him.
Dr. Balbir Singh (PW 5), who conducted the post-mortem
examination spoke to the post-mortem report Ex. Ka. 6;
Paranvir (PW 6) who was the scribe of Ex. Ka. 1, and Habib
(PW 8) who had witnessed the seizure of the clothes on the
person of Krishna Gopal under Ex. Ka. 10 were also called.
Nanak Chand Sharma, investigating officer, tendered evidence
as PW 7. Serologist’s report was marked as Ex. Ka. h. The
other witnesses were formal witnesses.
The prosecution relied, in the main, on the eye-
witnesses and on the Ex. Ka 1 and Ex. Ka. 7 which it sought
to use as dying declarations.
4. In the trial, it was urged for the defence that,
having regard to the serious nature of the injuries
sustained by the deceased which included a 4 cm. long
slashing of the tongue and the shock and the profuse-
bleeding the injuries admittedly had caused, injured-Harish,
would have lost consciousness very soon and that, at all
events, even if he had retained consciousness he would not
be in a position to articulate his speech. These
circumstances would, it was urged, wholly improbablise, if
not render altogether false, the two, dying declarations.
The defence also assailed the credibility of the eye-
witnesses on what, according to the defence, were the
intrinsic discrepancies in the version of the two eye-
witnesses who were characterised as chance and, otherwise
interested, witnesses.
5. On an appraisal and assessment of the evidence on
record, the learned Sessions Judge found the eye-witnesses
trust-worthy and their version credible and acceptable. The
learned Sessions Judge on the basis of the medical-evidence
of PW 3 accepted the prosecution case that notwithstanding
the somewhat serious injuries inflicted on him, Harish was
in a position to instruct the preparation of Ex. Ka. 1 and
to make the statement before the investigating officer as
per Ex. Ka. 7. Learned Sessions Judge considered the
sequence of events, that the First Information Report
PG NO 396
reached the Station-house within fifteen minutes of the
occurrence; that injured was physically present at the
station which the learned Judge considered undisputable
having regard to the signature on Ex. Ka. 10 and that the
circumstance that one of eye-witnesses, (PW 1) had
accompanied the injured to the police station within a few
minutes of the occurrence, suggested his presence at the
scene, had established the prosecution case against the
accused persons beyond reasonable doubt. The accused were,
accordingly, convicted and sentenced.
6. In the appeal by the convicted persons, the High
Court on a re-assessment of the entire evidence persuaded
itself to the view that having regard to the nature and
severity of the injuries, Harish could not reasonably be
expected to have been in a position to make the dying-
declarations attributed to him; that the discrepancies in
the evidence of the eye-witnesses rendered them unsafe to be
relied upon and that with the rejection of the dying-
declarations and the eye-witness-account, nothing remained
which would connect the accused persons with the crime. The
High Court, accordingly, allowed the appeal and acquitted
the accused.
The State has challenged the acquittal as one arrived at
as much by a basically erroneous approach to the matter as
by a non-consideration of material evidence on record,
resulting in a serious miscarriage of justice.
7. Shri Prithviraj learned senior Counsel for the State
submitted that in discarding the two dying declarations (Ex.
Ka. I & Ex. Ka. 7), the High Court fell into a serious error
in its assumptive predication that the injuries on the
person of Harish were such as were likely to render him
unconscious immediately and incapacitate him from making the
dying declarations attributed to him. In posting this, the
High Court, contends counsel, ignored the positive and firm
opinion of Dr. Rajeev Aggarwal (PW 3), who had had the
opportunity of examining the injured person at 4.40 PM that
very day, that “the deceased could survive and speak for an
hour after being injured.” Learned Counsel submitted that
the High Court, quite erroneously, preferred a hypothetical
answer of the doctor as to the mere theoretical possibility
implicit in his later answer that “in view of the injuries
(1) and (3) it is likely that the deceased might not have
been able to speak” to the certainty of the first answer.
Learned Counsel also sought to point out that the evidence
of PW 5, Dr. Balbir Singh, who conducted the post-mortem did
not also support the speculation that the injured would have
PG NO 397
lost consciousness immediately after the injury. Learned
Counsel also listed what, according to him, were certain
important circumstances which compelled an irresistable
inference as to the presence of Harish at the Station-house
in an injured condition within a few minutes of the attack.
Shri Prithviraj submitted that certain important pieces of
evidence were mis-read by the High Court which led to
serious errors and to the consequent miscarriage of justice.
Sri Prithviraj submitted that where, as here, the High Court
reverses a conviction on conjectures and not on sound
reasoning, this Court should interfere. An unjust acquittal
he said, was as much a miscarriage of justice as an unjust
conviction was. Sri Prithviraj further submitted that the
version of the eye-witnesses as to the time of the attack
was, indeed, corroborated by Medical-evidence and the
information having been lodged with the police within 15
minutes of the occurrence, there was absolutely no scope for
any deliberation and concoction. That apart, injured-Harish
or his well-wishers had no reason to shield the identity of
the real culprits and implicate innocent persons.
8. Shri U.R. Lalit, learned Senior Counsel for the
respondents, endeavoured to show that this was not a fit and
appropriate case for interference by this Court and that if
the High Court, after consideration of the whole evidence,
came to a conclusion which cannot be said to be
unsupportable on the evidence, this Court should not
interfere under Article 136, even if two views were possible
on the evidence and the one in favour of the prosecution
could be reached on re-appreciation of the evidence, as long
as the view opted for and that commended itself to the High
Court could not be said to be altogether impossible on the
evidence. Shri Lalit invited attention to certain answers of
the Medical-experts that enabled an inference that the
injuries were such as were likely to render the victim
immediately unconscious or at least inarticulate and urged
that if in view of the injuries of a grave nature and the
profuse bleeding suffered by the injured, the High Court
considered it probable that the injured might have lost
consciousness after the attack so as to improbablise the
dying declarations and that, at all events, if, having
regard to the very serious slashing of the tongue, which,
according to the medical-evidence could in itself, in the
ordinary course have caused death. the High Court considered
it likely or probable that the injured would not be able to
speak, there was nothing in that view which would invite or
justify interference by this Court under Article 136. The
principle of penal policy would, says counsel, require that
this Court should decline to interfere.
PG NO 398
9. It is, no doubt, true that as a self-made rule of
practice, this Court does not interfere with the findings of
fact reached by the High Court, but such findings of facts
must not be vitiated by serious errors. In State of U.P. v.
Jashoda Nandan Gupta & Ors., AIR 1974 SC 753 (757) observed:
“…..as a self-made rule of practice, this Court does
not interfere with the findings of fact reached by the High
Court, unless exceptional and grave circumstances exist, or
forms of legal process have been disregarded or otherwise
there has been a gross miscarriage of justice. Where the
judgment which is the subject of appeal under that Article,
is one of acquittal, this Court will not interfere with the
same in the exercise of its overriding jurisdiction unless
that judgment is clearly unreasonable, or perverse or
manifestly illegal or grossly unjust. Therefore, if in the
nicely balancing probabilities of a case, two views of the
evidence- one indicating acquittal and the other conviction-
were reasonably possible, this Court would not disturb the
High Court’s order of acquittal.”
In State of Punjab v. Sucha Singh & Ors., [1974] AIR SC
343 (344) this Court said:
“….. In our opinion, it was for the High Court to
appraise the evidence which was adduced in this case. In the
absence of any infirmity in the appraisement of the evidence
by the High Court, we find no cogent grounds to reappraise
the evidence. The fact that on the evidence adduced, a
different view could also have been taken in the matter,
would not induce us to interfere with the judgment of the
High Court. The appeal fails and is dismissed.”
In State of A.P. v. P. Anjaneyulu, AIR 1982 SC 1598
(1599) it was held:
“…….The question is one of appreciation of evidence
and the proposed appeal does not raise any substantial
question of law. Apart from that we do not ordinarily
entertain appeals against orders of acquittal if two views
of the evidence are possible ……..”
In State of U.P. v. Pussu, SCR 1983 (3) 294 (309) this
Court observed:
PG NO 399
” …. We are aware of the rule of practice that
ordinarily this Court should not interfere with judgments of
acquittaI of a mere reappreciation of evidence. But if these
are glaring infirmities in the judgment of the High Court
resulting in a gross miscarriage of justice, it is the duty
of this Court to interfere. In the instant case we find that
the approach of the High Court is basically erroneous and
its judgment is founded on false assumptions, conjectures
and surmises . . . . …
But these pronouncements themselves qualify this rule of
self-abnegation prescribed for itself by this Court, with
the qualification that where serious errors of assumption
and inference vitiate the finding, interference is
justified. In matters such as this, it is appropriate to the
observations of this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra, [1974] 1 SCR 489 (492-93) :
” . . . . . The dangers of exaggerated devotion to the
rule of benefit of doubt at the expense of social defence
and to the soothing sentiment that all acquittals are always
good regardless of justice to the victim and the community,
demand especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a
public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs through
the web our our law should not be stretched morbidly to
embrace every hunch, hestiancy and degree of doubt …..
” . . . . . The evil of acquitting a guilty person
light-heartedly as a learned author Glanville Williams; in
‘Proof of Guilt’ has sapiently observed, goes much beyond
the simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general. they
tend to lead to a cynical disregard of the law, and this in
turn leads to a public demand for harsher legal presumptions
against indicated ‘persons’ and more severe punishment of
those who are found guilty. Thus too frequent acquittals of
the guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless . . . . .”
“a miscarriage of justice may arise from the acquittal
of the guilty no less than from the conviction of the
innocent…….”
PG NO 400
10. Shri Lalit, however, said that the accepted
principles of criminal jurisprudence, and administration of
criminal justice require that an appellate Court should
refrain from reversing an acquittal except for “very
substantial” and “compelling” reasons. Learned counsel
submitted that if after a discussion of the evidence and on
a consideration of probabilities, the High Court considers
that so serious a charge as of a capital offence cannot
safely be sustained on the evidence there is not only
nothing inherently erroneous in it but the omission to make
such an approach on the appraisal of criminal evidence is
itself violative of accepted rules of administration of
criminal justice whose twin principles are the presumption
of innocence and the burden of proof on the prosecution to
establish a criminal charge by standards of evidence
appropriate to criminal actions, beyond reasonable doubt.
But the submissions of Sri Lalit bearing on the
limitations of the appellate Court under the supposed rule
that unless there are “substantial” or “compelling” reasons
or “very substantial reasons” or “strong reasons”, the
findings in a judgment of acquittal should not be interfered
with should not pass without some comment. This Court in
dealing with the scope of the powers of the appellate Court
in appeals against the acquittal has, by and large, approved
and accepted the lucid formulation of the law by the
judicial committee in Sheo Swarup’s case, (61 Indian Appeals
399) as clarified later by the judicial committee in Noor
Mohammad’s case (AlR 1945 PC 151). Those principles, as we
understand them, do not detract from the plenitude of the
power of the appellate Court to review and reappreciate the
evidence if the order of acquittal on a review of the
evidence is found to be grossly erroneous. The powers of the
appellate Court, in an appeal against the acquittal, are not
different from or inconsistent with. those that the
appellate Court has in an appeal against a conviction; the
difference is, as is sometimes stated, more in the manner of
approach and the perspective rather than in the content of
the power. The expressions “very substantial reasons”,
“substantial and compelling reasons”. “strong reasons” used
in several pronouncements which tend to qualify the power
of the appellate Court do no more than to convey the
principles stated by the judicial committee in Sheo Swarup’s
case (See: Sanwat Singh v. State of Rajasthan, AIR 1986 SC
715; Chandra kanta Debnath v. State of Tripura, AIR 1985 SC
606). There is, thus no immunity to an erroneous-order from
a strict appellate scrutiny. But the appellate Court
wherever if finds justification to reverse an acquittal must
record reasons why it finds the lower court wrong. This, in
the ultimate analysis, is merely a reiteration of a
PG NO 401
principle which every exercise of appellate jurisdiction in
the matter of reversal of an order under appeal is subject
to.
11. In the present case, the submissions of Sri
Prithviraj that the judgment under appeal is rendered infirm
on several counts cannot be said to be without substance.
We, however, abstain from a review of the evidence ourselves
to test whether the inferences drawn by the High Court are
justified or not as, in our view, the appeal before the High
Court must receive a reconsideration. Any comment by us
might pre-judge aspects which require consideration by the
High Court.
But it would not be inappropriate to refer to the
submissions of Sri Prithviraj as to some aspects of the
evidence in the case. The High Court for instance did not
advert to the evidentiary value and effect of Ex. Ka. 2,
relating to the deposit of the knife at the Station-house by
the deceased-Harish which was said to contain Harish’s
signature. The High Court did not consider either the
genuineness of Ex. Ka. 2 and of the signature of Harish
thereon and if Ex. Ka. 3 was genuine, what inferences would
follow on the cognate question as to how long Harish was
conscious after the attack. The High Court, Sri Prithviraj
points out, did not consider the evidence of the
investigating officer (PW 7) on certain important aspects.
As an instance of mis-reading of the evidence by the High
Court, Shri Prithviraj pointed out the error in the
assumption made by the High Court that according to Paranvir
(PW 6), injured-Harish had merely indicated by signs or
gestures that he was injured by the knife which was seen at
the scene of occurrence as a circumstance bearing on the
question whether Harish’s speech had been affected. The High
Court referred to the evidence of PW 6 on this point and
observed:
“. . . . . At one place he said that Harish has made a
sign indicating that he was injured with the knife which was
found on the scene of occurrence . . . .”
This, according to Sri Prithviraj. weighed with the High
Court in reaching such erroneous conclusions as it did in
regard to the ability of the deceased Harish to speak
immediately after the injuries-a circumstance which had a
material bearing on the genuineness of the declarations. Sri
Prithviraj pointed out that the evidence on the point was
misread by the High Court and that evidence clearly
indicated that Harish did not merely gesture, but did also
speak. Indeed, this appears to be so. PW 6 had stated:
PG NO 402
” .. . … This knife was found at the spot. He had
indicated towards that knife saying that he was attacked
with this knife …”
12. Sri Prithviraj pointed out certain circumstances
which stand established with a degree of probability
appropriate to the requisite criminal evidential standard
viz., that Harish had died a homicidal death attributable to
the injuries caused by a weapon of the kind of Ex. 1; that
the attack had occurred at the place and time alleged by the
prosecution ; that Harish in the injured condition went to
the Station-house at 2. 15 PM along with Omkar (PW 1) and
lodged Ex. Ka. 2 and that Ex. Ka. 3 evidencing the deposit
of the knife was also signed by Harish at the Station-house.
The High Court, according to Sri Prithviraj. had not given
due recognition to these facts which were clearly
established and the inevitable consequences logically
flowing there-from. It was urged that the High Court did not
also displace the important reasons given by the trial court
in accepting these circumstances.
In regard to Shri Prithviraj’s point that the evidence
of the investigating-officer did not receive independent
appraisal it is relevant to recall what was said in State
of Kerala v. M. M. Mathew & Anr, though in a somewhat
different context:
“…… It is true that courts of law have to judge the
evidence before them by applying the well recognised test of
basic human probabilities……”
“….. prima facie public servants must be presumed to
act honestly and conscientiously and their evidence has to
be assessed on its intrinsic worth and cannot be discarded
merely on the ground that being public servants they are
interested in the success of their case…..”
l3. There might also be some justification for the
grievance of the appellant that the High Court had preferred
some observations in the medical-evidence-which Sri
Prithviraj characterised as merely conjectural answers-to
the other categoric answer by the very medical-witnesses
themselves. So Prithviraj also submitted that if would be
erroneous to accord undue primacy to the hypothetical
answers of medical-witnesses to exclude the eye-witnesses’
account which had to be rested independently and not
treated as the “variable” keeping the medical-evidence as
the “constant”.
PG NO 403
It is trite that where the eye-witnesses’ account is
found credible and trustworthy, medical-opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bantham said, are the eyes and ears of
justice. Hence the importance and primacy of the orality of
the trial-process. Eye witnesses’ account would require a
careful independent assessment and evaluation for their
credibility which should not be adversely prejudged making
any other evidence, including medical-evidence, as the sole
touch-stone for the test of such credibility. The evidence
must be tested for its inherent consistency and the inherent
probability of the story; consistency with the account of
other witnesses held to be credit-worthy; consistency with
the undisputed facts; the ‘credit’ of the witnesses; their
performance in the witness-box; their power of observation
etc. Then the probative value of such evidence becomes
eligible to be put into the scales for a cumulative
evaluation.
A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt. Though
this standard is a higher standard, there is, however, no
absolute standard. What degree of probability amount to
`proof’ is an exercise particular to each case. Referring to
the inter-dependence of evidence and the confirmation of one
piece of evidence by another a learned author says: (See:
“The Mathematics of Proof-II”: Glanville Williams: Criminal
Law Review, 1979, by Sweet and Maxwell, p. 340 (342).
“The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events are
dependent when they tend to occur together, and the
evidence of such events may also be said to be dependent. In
a criminal case, different pieces of evidence directed to
establishing that the defendant did the prohibited art with
the specified state of mind are generally dependent. A juror
may feel doubt whether to credit an alleged confession, and
doubt whether to inter guilt from the fact that the
dependant fled from justice. But since it is generally
guilty rather than innocent people who run away, the two
doubt are not to be multiplied together. The one piece of
evidence may confirm the other.”
Doubts would be reasonable if they are free from a seat
for abstract speculation. taw cannot afford any favourite
other than truth. To consitute reasonable doubt, it is must
PG NO 404
be free from an over emotional response. Doubts may be
actual and substantial doubts as to the guilt of the
accused-person arising from the evidence, or from the lack
of it, as opposed to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a merely possible
doubt; but a fair doubt based upon reason and common-sense.
lt must grow out of the evidence in the case.
The concepts of probability, and the degrees of it,
cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective-element in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
common-sense and, ultimately, on the trained intuitions of
the judge. While the protection given by the criminal
process to the accused-persons is not to be eroded, at the
same time, uninformed legitimisation of trivialities would
make a mockery of administration of criminal justice.
14. In the circumstances of the case, we propose to
adopt the course which commended itself to the Court in
Qamruddin v. Acqeel & Ors., AIR 1982 SC 1229 where Fazal Ali
J. observed:
“The trial court had convicted the accused on a full and
complete appraisal-of the evidence. The High Court in appeal
has written a very cryptic judgment and has not tried to
displace some of the important reasons given by the trial
court nor has it made any attempt to scan the intrinsic
merits of the evidence. We are satisfied that the judgment
of the High Court is not in accordance: with law. In these
circumstances, therefore, we allow this appeal and remand
the case to the High Court for fresh disposal according to
law …..”
15. Accordingly this appeal is partly allowed, the
Judgment of the High Court dated 30th September, 1983, in
Crl. Appeal No. 1320 of 1982 is set aside and the appeal is
remitted to the High Court with the direction to re-admit
it, and hear and dispose of the same on the merits afresh.
We hope and trust that it will be possible for the High
Court to dispose of the appeal most expeditiously.
The High Court, should it consider it necessary or
appropriate, might consider calling for expert medical-
PG NO 405
evidence- of course with appropriate opportunity to the
defence’-on the point of the effect of the injuries on the
speech and consciousness of Harish. This is of entirely left
to the High Court.
16. During the pendency of the appeal before the High
Court pursuant to this order, the respondents shall be
enlarged on bail to the satisfaction of the Sessions Court,
Bareilly. Appeal is disposed of accordingly.
R.S.S. Appeal allowed partly.
