{"id":7658,"date":"1988-08-12T00:00:00","date_gmt":"1988-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-krishna-gopal-anr-on-12-august-1988"},"modified":"2015-08-05T17:00:49","modified_gmt":"2015-08-05T11:30:49","slug":"state-of-u-p-vs-krishna-gopal-anr-on-12-august-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-krishna-gopal-anr-on-12-august-1988","title":{"rendered":"State Of U.P vs Krishna Gopal & Anr on 12 August, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Krishna Gopal & Anr on 12 August, 1988<\/div>\n
Equivalent citations: 1988 AIR 2154, \t\t 1988 SCR Supl. (2) 391<\/div>\n
Author: M Venkatachalliah<\/div>\n
Bench: Venkatachalliah, M.N. (J)<\/div>\n
           PETITIONER:\nSTATE OF U.P.\n\n\tVs.\n\nRESPONDENT:\nKRISHNA GOPAL & ANR.\n\nDATE OF JUDGMENT12\/08\/1988\n\nBENCH:\nVENKATACHALLIAH, M.N. (J)\nBENCH:\nVENKATACHALLIAH, M.N. (J)\nSEN, A.P. (J)\n\nCITATION:\n 1988 AIR 2154\t\t  1988 SCR  Supl. (2) 391\n 1988 SCC  (4) 302\t  JT 1988 (3)\t544\n 1988 SCALE  (2)632\n\n\nACT:\n    Constitution  of lndia 1950: Article  136-Supreme  Court\ndoes  not  interfere with findings of fact reached  by\tHigh\nCourt unless vitiated by serious errors.\n\n\n\nHEADNOTE:\n    The\t respondents  were put on trial for  offences  under\nsection\t 302  read with section 34, IPC. At  the  trial\t the\nprosecution  mainly  relied  on the  eye-witnesses  and\t the\nstatement  of  the deceased recorded  by  the  Investigating\nOfficer, which was sought to be used as a dying declaration.\nThe defence assailed the credibility of the eye-witnesses as\nwell  as  the  authenticity of the  dying  declaration.\t The\nSessions   Judge   accepted  the   prosecution\t case\tthat\nnotwithstanding\t the somewhat serious injuries inflicted  on\nhim,  the  deceased  was  in  a\t position  to  instant\t the\npreparation of the First Information Report and to make\t the\nstatement before the Investigating Officer. The\t respondents\nwere convicted and sentenced to imprisonment for life.\n    In\tthe appeal, the High Court, on re-assessment of\t the\nevidence, accepted the defence pleas, allowed the appeal and\nordered acquittal.\n    Before  this  Court it was urged by the State  that\t the\nHigh  Court  fell  into a serious error\t in  its  assumptive\npredication  that  injuries on the person on  deceased\twere\nsuch  as were likely to render him  unconscious\t immediately\nand  incapacitate him from making the dying declaration.  It\nwas  accordingly  urged\t that because  the  High  Court\t had\nreversed  the  conviction on conjectures and  not  on  sound\nreasoning. this Court should interfere.\n    On\tbehalf\tof the respondents, it was urged  that\tthis\nCourt  should  not interfere under Article 136 even  if\t two\nviews were possible on the evidence and the one in favour of\nthe  prosecution could be reached on reappreciation  of\t the\nevidence as long as the view opted for could not be said  to\nbe altogether impossible on the evidence.\n    Allowing the appeal partly and remitting the case to the\nHigh Court for disposal on merits afresh, it was,\n\t\t\t\t\t\t  PG NO 391\n\t\t\t\t\t\t  PG NO 392\n    HELD:  (1)\tIt was, no doubt, true that as\ta  self-made\nrule  of  practice, this Court did not\tinterfere  with\t the\nfindings  of  fact reached by the High Court,  but  judicial\npronouncements\tthemselves  qualify this  rule\tand  justify\ninterference where serious errors of assumption vitiated the\nfindings. [398A]\n    State of U.P. v. Jashoda Nandan Gupta, AIR<\/a> 1974 SC\t753;\nState  of Punjab v. Sucha Singh. AIR<\/a> 1974 SC 343;  State  of\nA.P.  v. P. Anjaneyulu, AIR<\/a> 1982 SC 1598; State of  U.P.  v.\nPussu,<\/a> [l983] 3 SCR 294; Shivaji Sahebrao Bopade v. State of\nMaharashtra,<\/a> [1974] 1 SCR 489 referred to.\n    (2) The principles laid down regarding the scope of\t the\npowers\tof the appellate Court in appeals against  acquittal\ndid  not detract from the platitude of the Courts powers  to\nreview\tand  reappreciate  the\tevidence  if  the  order  of\nacquittal on review of the evidence was found to be  grossly\nerroneous.   These  powers  were  not  different   from\t  or\ninconsistent  with those that the appellate Court had in  an\nappeal\tagainst conviction; the difference was more  in\t the\nmanner\tof approach and the perspective rather than  in\t the\ncontent\t of  the power. The  expressions  \"very\t substantial\nreasons\"  etc. used in several pronouncements which tend  to\nqualify\t these\tpowers\tdid no more  than  to  convey  these\nprinciples. There was thus no immunity to an erroneous order\nfrom  a strict appellate scrutiny. But the  appellate  court\nwherever it found justification to reverse an acquittal must\nrecord reasons why it found lower court wrong. [400E-H]\n    Sheo   Swarup's  case,  61\tIndian\tAppeals\t 398;\tNoor\nMohammad's  case AIR 1945 PC 151; Sanwat Singh v.  State  of\nRajasthan,  AIR<\/a> 1961 SC 715; Chandra Kanta Debnath v.  State\nof Tripura, AIR<\/a> 1986 SC 606, referred to.\n    (3)\t Eye  witnesses\t account  would\t require  a  careful\nindependent assessment and evaluation for their\t credibility\nwhich  should  not be adversely prejudged making  any  other\nevidence, including medical-evidence, as the sole touchstone\nfor the test of such credibility. [403B]\n    (4)\t What degree of probability amounted to `proof'\t was\nan  exercise  particular  to  each  case.  The\tconcepts  of\nprobability,  and the degrees of it, could not obviously  be\nexpressed in terms of units to be mathematically  enumerated\n\t\t\t\t\t\t  PG NO 393\nas  to\thow  many of such  units  constituted  proof  beyond\nreasonable  doubt.  There was  an  unmistakable\t subjective-\nelement in the evaluation of the degrees of probability\t and\nthe quantum of proof. Forensic probability must, in the last\nanalysis, rest on a robust common-sense and, ultimately,  on\nthe trained intuitions of the judge. [403D; 404B-C]\n    (5)\t Doubts would be called reasonable if they were free\nfrom a zest for abstract speculation. A reasonable doubt was\nnot an imaginary, trivial or a merely possible doubt; but  a\nfair doubt based upon reason and common-sense. It must\tgrow\nout of the evidence in the case. [403H; 404A-B]\n    6.\tThe appellant's submission that the  judgment  under\nappeal\twas rendered infirm on several counts could  not  be\nsaid  to  be without substance. The appeal before  the\tHigh\nCourt must, therefore, receive a reconsideration. [401B]\n    Qamreeddin v. Acqeel, AIR l982 SC 12 29 adopted.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRlMINAL APPELLATE JURISDlCTlON: Criminal Appeal No. 891
\nof 1985.\n<\/p>\n
    From  the  Judgment\t and Order dated  30.9.1983  of\t the
\nAllahabad High Court in Crl. A. No. 1320 of 1982.
\n    Prithvi  Raj, Dalveer Bhandari and Ms. Rachna Joshi\t for
\nthe Appellant.\n<\/p>\n
    U.R. Lalit and Shakil Ahmed Syed for the Respondents.
\n    The Judgment of the Court was delivered by
\n    VENKATACHALIAH, J. This appeal, by special leave, is  by
\nthe  State of Uttar Pradesh preferred against  the  Judgment
\ndated 30.9.1983 of the High Court of Judicature at Allahabad
\nsetting aside the conviction and sentence passed against the
\ntwo Respondent-accused in Sessions Trial No. 256 of 1981  on
\nthe file of the Sessions Judge, Bareilly, for offences under
\nSection 302 read with Section 304, IPC. The learned Sessions
\nJudge  had handed down a sentence of imprisonment for  life,
\nbut  the  High\tCourt, in reversal of  that  conviction\t and
\nsentence, acquitted the respondents.\n<\/p>\n
    2. The case of the prosecution may briefly stated:\n<\/p>\n
\t\t\t\t\t\t  PG NO 394
\n    At\t2.00 PM on 31.1.1981 in the town of Mirganj  in\t the
\nDistrict Bareilly, in front of the house of a certain Lalan,
\nthe two respondents- Krishna Gopal and Vijai-who are related
\nto  each  other as uncle and nephew, set-upon  and  attacked
\nHarish, S\/o Mihilal, with knives causing serious injuries to
\nwhich  Harish  succumbed  at 6.40 PM the  same\tday  at\t the
\nDistrict  Hospital, Bareilly, to which he was removed  after
\nthe  incident. The incident was witnessed by Omkar  (PW\t 1),
\nKhiali\tRam (PW 2) who saw the attack from a close  distance
\nof about 20 paces and on account of whose protestations\t the
\naccused\t persons hastened away from the scene, one  of\tthem
\nleaving behind the knife used in the attack; Paranvir (PW 6)
\ncame  on  the  spot  soon thereafter  and  wrote  the  First
\nInformation  Report  (Ex.  Ka.\t1)  at\tthe  scene  as\t per
\ninstructions  of injured Harish who signed  it.\t Thereafter,
\nHarish\twas taken to Mirganj Police Station which  was\tjust
\ntwo  furlongs  away from the scene in  an  auto-rickshaw  by
\nOmkar (PW 1) and Mihilal, the father of Harish, who had also
\nreached\t the  spot  by\tthen. Ex. Ka.  1  was  delivered  at
\nStation-house  by injured Harish himself at 2.15 PM.  Harish
\nwho had also brought with him one of the knives left  behind
\nby the assailants, was deposited in the Station-house  under
\nMemo  (Ex.  Ka. 2) prepared in that  behalf.  Injured-Harish
\nsigned that Memo.\n<\/p>\n
    Thereafter, Harish was taken to the Public Health Centre
\nat  Mirganj  accompanied by a constable.  The  investigating
\nofficer,  Nanak\t Chand\tSharma,\t (PW 7)\t who  carne  to\t the
\nStation-house  at 2.30 PM proceeded to Mirganj Hospital\t and
\nrecorded Harish’s statement (Ex. Ka. 7). As no doctors\twere
\navailable  at the Public Health Centre at Mirganj,  injured-
\nHarish\twas taken to the District Hospital at Bareilly in  a
\nmotor-vehicle. Dr. Rajeev Aggarwal (PW 3) examined Harish at
\nabout 4.40 PM and noted the injuries on the person of Harish
\nin  the list, Ex. Ka. 3. Despite treatment at  the  District
\nHospital  by the Surgeon Dr. Pundani and Dr. Sharma,  Harish
\ndied at 6.40 PM at the hospital.\n<\/p>\n
    The accused Krishna Gopal was arrested at 6.30 PM on the
\nsame  day. His Kurtha (Ex. 4) and his blood-stained  Paijama
\n(Ex.  5) were recovered, under Memo Ex. Ka. 10. The  accused
\nVijai  was  arrested on 8.2.1981. Accused  were\t put-up\t for
\ntrial for offences under Section 302  read with Section\t 34,
\nIPC. The motive for the killing was previous enmity  between
\nthe accused-persons and Mihilal. the father of the deceased.
\nThe  accused  denied  the charge  and  pleaded\tnot  guilty.
\nAccording  to  the  drift of the  suggestions  made  to\t the
\nprosecution witnesses at the trial and from their statements
\nunder  Section\t313 Cr. PC, they  indicated  that  deceased-
\nHarish\twas  a gambler and had sustained injuries  at  about
\n\t\t\t\t\t\t  PG NO 395
\n3.00  PM that day in a gambling-brawl and that occasion\t was
\nexploited  by  Paranvir (PW 6) and others to foist  a  false
\ncase against them owing to previous enmity. Accused Krishna-
\nGopal  while admitting the seizure of his clothes under\t Ex.
\nKa.  10, however, denied that at the time of  recovery\tthey
\nwere blood stained.\n<\/p>\n
    3. At the trial, before the learned Sessions Judge,\t the
\nprosecution examined and relied upon the two eye  witnesses,
\nOmkar (PW 1) and Khiali Ram (PW 2). Dr. Rajeev Aggarwal\t (PW\n<\/p>\n
3) spoke to the injury report (Ex. Ka. 3), prepared by\thim.
\nDr.  Balbir  Singh  (PW 5), who\t conducted  the\t post-mortem
\nexamination  spoke  to\tthe post-mortem report\tEx.  Ka.  6;
\nParanvir  (PW 6) who was the scribe of Ex. Ka. 1, and  Habib
\n(PW  8) who had witnessed the seizure of the clothes on\t the
\nperson\tof Krishna Gopal under Ex. Ka. 10 were also  called.
\nNanak Chand Sharma, investigating officer, tendered evidence
\nas  PW 7. Serologist’s report was marked as Ex. Ka.  h.\t The
\nother witnesses were formal witnesses.\n<\/p>\n
    The\t prosecution  relied,  in  the\tmain,  on  the\teye-
\nwitnesses and on the Ex. Ka 1 and Ex. Ka. 7 which it  sought
\nto use as dying declarations.\n<\/p>\n
    4.\t In  the trial, it was urged for the  defence  that,
\nhaving\tregard\tto  the\t serious  nature  of  the   injuries
\nsustained  by  the  deceased which included  a\t4  cm.\tlong
\nslashing  of  the  tongue and the  shock  and  the  profuse-
\nbleeding the injuries admittedly had caused, injured-Harish,
\nwould  have  lost consciousness very soon and that,  at\t all
\nevents,\t even if he had retained consciousness he would\t not
\nbe   in\t  a  position  to  articulate  his   speech.   These
\ncircumstances  would, it was urged, wholly improbablise,  if
\nnot  render altogether false, the two,\tdying  declarations.
\nThe  defence  also  assailed the  credibility  of  the\teye-
\nwitnesses  on  what,  according to  the\t defence,  were\t the
\nintrinsic  discrepancies  in  the version of  the  two\teye-
\nwitnesses  who were characterised as chance  and,  otherwise
\ninterested, witnesses.\n<\/p>\n
    5.\tOn  an appraisal and assessment of the\tevidence  on
\nrecord,\t the learned Sessions Judge found the  eye-witnesses
\ntrust-worthy and their version credible and acceptable.\t The
\nlearned Sessions Judge on the basis of the  medical-evidence
\nof  PW 3 accepted the prosecution case that  notwithstanding
\nthe  somewhat serious injuries inflicted on him, Harish\t was
\nin  a position to instruct the preparation of Ex. Ka. 1\t and
\nto  make the statement before the investigating\t officer  as
\nper  Ex.  Ka.  7.  Learned  Sessions  Judge  considered\t the
\nsequence  of  events,  that  the  First\t Information  Report
\n\t\t\t\t\t\t  PG NO 396
\nreached\t the  Station-house within fifteen  minutes  of\t the
\noccurrence;  that  injured  was physically  present  at\t the
\nstation\t which\tthe learned  Judge  considered\tundisputable
\nhaving\tregard to the signature on Ex. Ka. 10 and  that\t the
\ncircumstance   that  one  of  eye-witnesses,  (PW   1)\t had
\naccompanied  the injured to the police station within a\t few
\nminutes\t of  the occurrence, suggested his presence  at\t the
\nscene,\thad  established the prosecution  case\tagainst\t the
\naccused\t persons beyond reasonable doubt. The accused  were,
\naccordingly, convicted and sentenced.\n<\/p>\n
    6.\tIn  the appeal by the convicted\t persons,  the\tHigh
\nCourt  on a re-assessment of the entire\t evidence  persuaded
\nitself\tto  the view that having regard to  the\t nature\t and
\nseverity  of  the injuries, Harish could not  reasonably  be
\nexpected  to  have  been in a position to  make\t the  dying-
\ndeclarations  attributed to him; that the  discrepancies  in
\nthe evidence of the eye-witnesses rendered them unsafe to be
\nrelied\tupon  and  that with the  rejection  of\t the  dying-
\ndeclarations  and the eye-witness-account, nothing  remained
\nwhich would connect the accused persons with the crime.\t The
\nHigh  Court, accordingly, allowed the appeal  and  acquitted
\nthe accused.\n<\/p>\n
    The State has challenged the acquittal as one arrived at
\nas  much by a basically erroneous approach to the matter  as
\nby  a  non-consideration  of material  evidence\t on  record,
\nresulting in a serious miscarriage of justice.\n<\/p>\n
    7. Shri Prithviraj learned senior Counsel for the  State
\nsubmitted that in discarding the two dying declarations (Ex.
\nKa. I & Ex. Ka. 7), the High Court fell into a serious error
\nin  its\t assumptive  predication that the  injuries  on\t the
\nperson\tof  Harish were such as were likely  to\t render\t him
\nunconscious immediately and incapacitate him from making the
\ndying  declarations attributed to him. In posting this,\t the
\nHigh Court, contends counsel, ignored the positive and\tfirm
\nopinion\t of  Dr.  Rajeev Aggarwal (PW 3), who  had  had\t the
\nopportunity of examining the injured person at 4.40 PM\tthat
\nvery day, that “the deceased could survive and speak for  an
\nhour  after being injured.” Learned Counsel  submitted\tthat
\nthe High Court, quite erroneously, preferred a\thypothetical
\nanswer of the doctor as to the mere theoretical\t possibility
\nimplicit  in his later answer that “in view of the  injuries
\n(1)  and (3) it is likely that the deceased might  not\thave
\nbeen  able to speak” to the certainty of the  first  answer.
\nLearned\t Counsel also sought to point out that the  evidence
\nof PW 5, Dr. Balbir Singh, who conducted the post-mortem did
\nnot also support the speculation that the injured would have
\n\t\t\t\t\t\t  PG NO 397
\nlost  consciousness  immediately after the  injury.  Learned
\nCounsel\t also  listed what, according to him,  were  certain
\nimportant  circumstances  which\t compelled  an\tirresistable
\ninference as to the presence of Harish at the  Station-house
\nin an injured condition within a few minutes of the  attack.
\nShri  Prithviraj submitted that certain important pieces  of
\nevidence  were\tmis-read  by the High  Court  which  led  to
\nserious errors and to the consequent miscarriage of justice.
\nSri Prithviraj submitted that where, as here, the High Court
\nreverses  a  conviction\t on conjectures\t and  not  on  sound
\nreasoning, this Court should interfere. An unjust  acquittal
\nhe  said, was as much a miscarriage of justice as an  unjust
\nconviction  was. Sri Prithviraj further submitted  that\t the
\nversion\t of the eye-witnesses as to the time of\t the  attack
\nwas,  indeed,  corroborated  by\t Medical-evidence  and\t the
\ninformation  having  been lodged with the police  within  15
\nminutes of the occurrence, there was absolutely no scope for
\nany deliberation and concoction. That apart,  injured-Harish
\nor his well-wishers had no reason to shield the identity  of
\nthe real culprits and implicate innocent persons.\n<\/p>\n
    8.\tShri  U.R.  Lalit, learned Senior  Counsel  for\t the
\nrespondents, endeavoured to show that this was not a fit and
\nappropriate case for interference by this Court and that  if
\nthe  High Court, after consideration of the whole  evidence,
\ncame   to   a  conclusion  which  cannot  be  said   to\t  be
\nunsupportable  on  the\tevidence,  this\t Court\tshould\t not
\ninterfere under Article 136, even if two views were possible
\non  the\t evidence and the one in favour of  the\t prosecution
\ncould be reached on re-appreciation of the evidence, as long
\nas the view opted for and that commended itself to the\tHigh
\nCourt  could not be said to be altogether impossible on\t the
\nevidence. Shri Lalit invited attention to certain answers of
\nthe  Medical-experts  that  enabled an\tinference  that\t the
\ninjuries  were\tsuch  as were likely to\t render\t the  victim
\nimmediately  unconscious or at least inarticulate and  urged
\nthat  if in view of the injuries of a grave nature  and\t the
\nprofuse\t bleeding  suffered by the injured, the\t High  Court
\nconsidered  it\tprobable that the injured  might  have\tlost
\nconsciousness  after  the attack so as to  improbablise\t the
\ndying  declarations  and  that, at all\tevents,\t if,  having
\nregard\tto the very serious slashing of the  tongue,  which,
\naccording  to the medical-evidence could in itself,  in\t the
\nordinary course have caused death. the High Court considered
\nit likely or probable that the injured would not be able  to
\nspeak, there was nothing in that view which would invite  or
\njustify\t interference by this Court under Article  136.\t The
\nprinciple of penal policy would, says counsel, require\tthat
\nthis Court should decline to interfere.\n<\/p>\n
\t\t\t\t\t\t  PG NO 398\n<\/p>\n
    9.\tIt  is, no doubt, true that as a self-made  rule  of
\npractice, this Court does not interfere with the findings of
\nfact  reached by the High Court, but such findings of  facts
\nmust not be vitiated by serious errors. In State of U.P.  v.
\nJashoda Nandan Gupta & Ors., AIR<\/a> 1974 SC 753 (757) observed:\n<\/p>\n
    “…..as  a self-made rule of practice, this Court\tdoes
\nnot interfere with the findings of fact reached by the\tHigh
\nCourt, unless exceptional and grave circumstances exist,  or
\nforms  of legal process have been disregarded  or  otherwise
\nthere  has  been a gross miscarriage of justice.  Where\t the
\njudgment which is the subject of appeal under that  Article,
\nis one of acquittal, this Court will not interfere with\t the
\nsame  in the exercise of its overriding jurisdiction  unless
\nthat  judgment\tis  clearly  unreasonable,  or\tperverse  or
\nmanifestly  illegal or grossly unjust. Therefore, if in\t the
\nnicely\tbalancing probabilities of a case, two views of\t the
\nevidence- one indicating acquittal and the other conviction-
\nwere  reasonably possible, this Court would not disturb\t the
\nHigh Court’s order of acquittal.”\n<\/p>\n
    In State of Punjab v. Sucha Singh  & Ors.,<\/a> [1974] AIR SC
\n343 (344) this Court said:\n<\/p>\n
    “…..  In\tour opinion, it was for the  High  Court  to
\nappraise the evidence which was adduced in this case. In the
\nabsence of any infirmity in the appraisement of the evidence
\nby  the High Court, we find no cogent grounds to  reappraise
\nthe  evidence.\tThe  fact that on the  evidence\t adduced,  a
\ndifferent  view\t could also have been taken in\tthe  matter,
\nwould  not induce us to interfere with the judgment  of\t the
\nHigh Court. The appeal fails and is dismissed.”\n<\/p>\n
    In\tState  of A.P. v. P. Anjaneyulu, AIR<\/a>  1982  SC\t1598
\n(1599) it was held:\n<\/p>\n
    “…….The question is one of appreciation of  evidence
\nand  the  proposed  appeal does not  raise  any\t substantial
\nquestion  of  law.  Apart from that  we\t do  not  ordinarily
\nentertain  appeals against orders of acquittal if two  views
\nof the evidence are possible ……..”\n<\/p>\n
    In\tState of U.P. v. Pussu, SCR<\/a> 1983 (3) 294 (309)\tthis
\nCourt observed:\n<\/p>\n
\t\t\t\t\t\t  PG NO 399
\n    ” ….  We\tare  aware  of the  rule  of  practice\tthat
\nordinarily this Court should not interfere with judgments of
\nacquittaI of a mere reappreciation of evidence. But if these
\nare  glaring infirmities in the judgment of the\t High  Court
\nresulting in a gross miscarriage of justice, it is the\tduty
\nof this Court to interfere. In the instant case we find that
\nthe  approach of the High Court is basically  erroneous\t and
\nits  judgment is founded on false  assumptions,\t conjectures
\nand surmises . . . . …\n<\/p>\n
    But these pronouncements themselves qualify this rule of
\nself-abnegation\t  prescribed for itself by this Court,\twith
\nthe  qualification that where serious errors  of  assumption
\nand   inference\t  vitiate  the\tfinding,   interference\t  is
\njustified. In matters such as this, it is appropriate to the
\nobservations  of  this Court in Shivaji Sahebrao  Bobade  v.
\nState of Maharashtra,<\/a> [1974] 1 SCR 489 (492-93) :\n<\/p>\n
    ”  . . . . . The dangers of exaggerated devotion to\t the
\nrule  of benefit of doubt at the expense of  social  defence
\nand to the soothing sentiment that all acquittals are always
\ngood regardless of justice to the victim and the  community,
\ndemand\tespecial  emphasis in the  contemporary\t context  of
\nescalating  crime and escape. The judicial instrument has  a
\npublic\taccountability. The cherished principles  or  golden
\nthread\tof proof beyond reasonable doubt which runs  through
\nthe  web  our our law should not be  stretched\tmorbidly  to
\nembrace every hunch, hestiancy and degree of doubt …..\n<\/p>\n
    ”  .  .  . . . The evil of acquitting  a  guilty  person
\nlight-heartedly\t as a learned author Glanville Williams;  in
\n‘Proof\tof Guilt’ has sapiently observed, goes\tmuch  beyond
\nthe  simple  fact  that\t just one  guilty  person  has\tgone
\nunpunished.  If\t unmerited acquittals become  general.\tthey
\ntend to lead to a cynical disregard of the law, and this  in
\nturn leads to a public demand for harsher legal presumptions
\nagainst\t indicated ‘persons’ and more severe  punishment  of
\nthose who are found guilty. Thus too frequent acquittals  of
\nthe  guilty  may lead to a ferocious penal  law,  eventually
\neroding the judicial protection of the guiltless . . . . .”\n<\/p>\n
    “a\tmiscarriage of justice may arise from the  acquittal
\nof  the\t guilty\t no less than from  the\t conviction  of\t the
\ninnocent…….”\n<\/p>\n
\t\t\t\t\t\t  PG NO 400\n<\/p>\n
    10.\t  Shri\tLalit,\thowever,  said\tthat  the   accepted
\nprinciples of criminal jurisprudence, and administration  of
\ncriminal  justice  require that an  appellate  Court  should
\nrefrain\t from  reversing  an  acquittal\t except\t for   “very
\nsubstantial”  and  “compelling”\t reasons.  Learned   counsel
\nsubmitted that if after a discussion of the evidence and  on
\na  consideration of probabilities, the High Court  considers
\nthat  so  serious a charge as of a  capital  offence  cannot
\nsafely\tbe  sustained  on the evidence\tthere  is  not\tonly
\nnothing inherently erroneous in it but the omission to\tmake
\nsuch  an approach on the appraisal of criminal\tevidence  is
\nitself\tviolative  of accepted rules  of  administration  of
\ncriminal  justice whose twin principles are the\t presumption
\nof  innocence and the burden of proof on the prosecution  to
\nestablish  a  criminal\tcharge\tby  standards  of   evidence
\nappropriate to criminal actions, beyond reasonable doubt.
\n    But\t the  submissions  of  Sri  Lalit  bearing  on\t the
\nlimitations  of the appellate Court under the supposed\trule
\nthat unless there are “substantial” or “compelling”  reasons
\nor  “very  substantial\treasons” or  “strong  reasons”,\t the
\nfindings in a judgment of acquittal should not be interfered
\nwith  should  not pass without some comment. This  Court  in
\ndealing with the scope of the powers of the appellate  Court
\nin appeals against the acquittal has, by and large, approved
\nand  accepted  the  lucid  formulation of  the\tlaw  by\t the
\njudicial committee in Sheo Swarup’s case, (61 Indian Appeals\n<\/p>\n
399)  as clarified later by the judicial committee  in\tNoor
\nMohammad’s  case (AlR 1945 PC 151). Those principles, as  we
\nunderstand  them, do not detract from the plenitude  of\t the
\npower  of the appellate Court to review and reappreciate the
\nevidence  if  the  order of acquittal  on a  review  of\t the
\nevidence is found to be grossly erroneous. The powers of the
\nappellate Court, in an appeal against the acquittal, are not
\ndifferent   from  or  inconsistent  with.  those  that\t the
\nappellate  Court has in an appeal against a conviction;\t the
\ndifference is, as is sometimes stated, more in the manner of
\napproach  and the perspective rather than in the content  of
\nthe  power.  The  expressions  “very  substantial  reasons”,
\n“substantial and compelling reasons”. “strong reasons”\tused
\nin  several pronouncements  which tend to qualify the  power
\nof  the\t appellate  Court  do no more  than  to\t convey\t the
\nprinciples stated by the judicial committee in Sheo Swarup’s
\ncase  (See: Sanwat Singh v. State of Rajasthan, AIR<\/a> 1986  SC
\n715;  Chandra kanta Debnath v. State of Tripura, AIR<\/a> 1985 SC\n<\/p>\n
606). There is, thus no immunity to an erroneous-order\tfrom
\na  strict  appellate  scrutiny.\t But  the  appellate   Court
\nwherever if finds justification to reverse an acquittal must
\nrecord reasons why it finds the lower court wrong. This,  in
\nthe  ultimate  analysis,  is  merely  a\t reiteration  of   a
\n\t\t\t\t\t\t  PG NO 401
\nprinciple which every exercise of appellate jurisdiction  in
\nthe  matter of reversal of an order under appeal is  subject
\nto.\n<\/p>\n
    11.\t In  the  present  case,  the  submissions  of\t Sri
\nPrithviraj that the judgment under appeal is rendered infirm
\non  several counts cannot be said to be\t without  substance.
\nWe, however, abstain from a review of the evidence ourselves
\nto  test whether the inferences drawn by the High Court\t are
\njustified or not as, in our view, the appeal before the High
\nCourt  must  receive a reconsideration. Any  comment  by  us
\nmight  pre-judge aspects which require consideration by\t the
\nHigh Court.\n<\/p>\n
    But\t it  would  not be inappropriate  to  refer  to\t the
\nsubmissions  of\t Sri Prithviraj as to some  aspects  of\t the
\nevidence  in the case. The High Court for instance  did\t not
\nadvert\tto  the evidentiary value and effect of Ex.  Ka.  2,
\nrelating to the deposit of the knife at the Station-house by
\nthe  deceased-Harish  which  was said  to  contain  Harish’s
\nsignature.  The\t High  Court did  not  consider\t either\t the
\ngenuineness  of\t Ex. Ka. 2 and of the  signature  of  Harish
\nthereon and if Ex. Ka. 3 was genuine, what inferences  would
\nfollow\ton  the cognate question as to how long\t Harish\t was
\nconscious  after the attack. The High Court, Sri  Prithviraj
\npoints\t out,\tdid  not  consider  the\t evidence   of\t the
\ninvestigating  officer (PW 7) on certain important  aspects.
\nAs  an instance of mis-reading of the evidence by  the\tHigh
\nCourt,\tShri  Prithviraj  pointed  out\tthe  error  in\t the
\nassumption made by the High Court that according to Paranvir
\n(PW  6),  injured-Harish had merely indicated  by  signs  or
\ngestures that he was injured by the knife which was seen  at
\nthe  scene  of occurrence as a circumstance bearing  on\t the
\nquestion whether Harish’s speech had been affected. The High
\nCourt  referred\t to the evidence of PW 6 on this  point\t and
\nobserved:\n<\/p>\n
    “.\t. . . . At one place he said that Harish has made  a
\nsign indicating that he was injured with the knife which was
\nfound on the scene of occurrence . . . .”\n<\/p>\n
    This, according to Sri Prithviraj. weighed with the High
\nCourt  in reaching such erroneous conclusions as it  did  in
\nregard\tto  the\t ability of the\t deceased  Harish  to  speak
\nimmediately  after the injuries-a circumstance\twhich had  a
\nmaterial bearing on the genuineness of the declarations. Sri
\nPrithviraj  pointed out that the evidence on the  point\t was
\nmisread\t by  the  High\tCourt  and  that  evidence   clearly
\nindicated  that Harish did not merely gesture, but did\talso
\nspeak. Indeed, this appears to be so. PW 6 had stated:\n<\/p>\n
\t\t\t\t\t\t  PG NO 402
\n    ”\t..  . … This knife was found at the spot.  He\t had
\nindicated  towards  that knife saying that he  was  attacked
\nwith this knife …”\n<\/p>\n
    12.\t Sri  Prithviraj pointed out  certain  circumstances
\nwhich  stand  established  with\t a  degree  of\t probability
\nappropriate  to the requisite criminal\tevidential  standard
\nviz., that Harish had died a homicidal death attributable to
\nthe  injuries caused by a weapon of the kind of Ex. 1;\tthat
\nthe attack had occurred at the place and time alleged by the
\nprosecution  ; that Harish in the injured condition went  to
\nthe  Station-house at 2. 15 PM along with Omkar (PW  1)\t and
\nlodged\tEx. Ka. 2 and that Ex. Ka. 3 evidencing the  deposit
\nof the knife was also signed by Harish at the Station-house.
\nThe  High Court, according to Sri Prithviraj. had not  given
\ndue   recognition   to\tthese  facts  which   were   clearly
\nestablished   and  the\tinevitable  consequences   logically
\nflowing there-from. It was urged that the High Court did not
\nalso displace the important reasons given by the trial court
\nin accepting these circumstances.\n<\/p>\n
    In regard  to Shri Prithviraj’s point that the  evidence
\nof  the\t investigating-officer did not\treceive\t independent
\nappraisal  it is  relevant to recall what was said in  State
\nof  Kerala  v.\tM. M. Mathew & Anr,<\/a>  though  in\t a  somewhat
\ndifferent context:\n<\/p>\n
    “…… It is true that courts of law have to judge\t the
\nevidence before them by applying the well recognised test of
\nbasic human probabilities……”\n<\/p>\n
    “…..  prima facie public servants must be presumed  to
\nact  honestly and conscientiously and their evidence has  to
\nbe  assessed on its intrinsic worth and cannot be  discarded
\nmerely\ton  the ground that being public servants  they\t are
\ninterested in the success of their case…..”\n<\/p>\n
    l3.\t There\tmight  also be some  justification  for\t the
\ngrievance of the appellant that the High Court had preferred
\nsome   observations   in  the\tmedical-evidence-which\t Sri
\nPrithviraj  characterised as merely  conjectural  answers-to
\nthe  other  categoric answer by the  very  medical-witnesses
\nthemselves.  So Prithviraj also submitted that if  would  be
\nerroneous  to  accord  undue  primacy  to  the\thypothetical
\nanswers\t of medical-witnesses to exclude the  eye-witnesses’
\naccount\t which\thad  to be  rested  independently   and\t not
\ntreated\t as the “variable” keeping the\tmedical-evidence  as
\nthe “constant”.\n<\/p>\n
\t\t\t\t\t\t  PG NO 403
\n    It\tis  trite that where the eye-witnesses’\t account  is
\nfound credible and trustworthy, medical-opinion pointing  to
\nalternative  possibilities  is not accepted  as\t conclusive.
\nWitnesses,  as\tBantham\t said,\tare the\t eyes  and  ears  of
\njustice. Hence the importance and primacy of the orality  of
\nthe  trial-process. Eye witnesses’ account would  require  a
\ncareful\t independent  assessment and  evaluation  for  their
\ncredibility  which should not be adversely prejudged  making
\nany other evidence, including medical-evidence, as the\tsole
\ntouch-stone  for the test of such credibility. The  evidence
\nmust be tested for its inherent consistency and the inherent
\nprobability  of the story; consistency with the\t account  of
\nother  witnesses held to be credit-worthy; consistency\twith
\nthe  undisputed facts; the ‘credit’ of the witnesses;  their
\nperformance  in the witness-box; their power of\t observation
\netc.  Then  the\t probative value of  such  evidence  becomes
\neligible  to  be  put  into  the  scales  for  a  cumulative
\nevaluation.\n<\/p>\n
    A  person  has,  no doubt, a profound right\t not  to  be
\nconvicted  of  an offence which is not\testablished  by\t the
\nevidential standard of proof beyond reasonable doubt. Though
\nthis  standard is a higher standard, there is,\thowever,  no
\nabsolute  standard.  What degree of  probability  amount  to
\n`proof’ is an exercise particular to each case. Referring to
\nthe inter-dependence of evidence and the confirmation of one
\npiece  of evidence by another a learned author\tsays:  (See:
\n“The Mathematics of Proof-II”: Glanville Williams:  Criminal
\nLaw Review, 1979, by Sweet and Maxwell, p. 340 (342).\n<\/p>\n
    “The  simple multiplication rule does not apply  if\t the
\nseparate  pieces of evidence are dependent. Two\t events\t are
\ndependent  when\t they  tend  to\t occur\ttogether,  and\t the
\nevidence of such events may also be said to be dependent. In
\na  criminal case, different pieces of evidence\tdirected  to
\nestablishing that the defendant did the prohibited art\twith
\nthe specified state of mind are generally dependent. A juror
\nmay feel doubt whether to credit an alleged confession,\t and
\ndoubt  whether\tto  inter  guilt from\tthe  fact  that\t the
\ndependant fled from justice. But since it is\t   generally
\nguilty\trather\tthan innocent people who run away,  the\t two
\ndoubt  are not to be multiplied together. The one  piece  of
\nevidence may confirm the other.”\n<\/p>\n
    Doubts would be reasonable if they are free from a\tseat
\nfor  abstract speculation. taw cannot afford  any  favourite
\nother than truth. To consitute reasonable doubt, it is\tmust
\n\t\t\t\t\t\t  PG NO 404
\nbe  free  from\tan over emotional response.  Doubts  may  be
\nactual\tand  substantial  doubts  as to\t the  guilt  of\t the
\naccused-person\tarising from the evidence, or from the\tlack
\nof it, as opposed to mere vague apprehensions. A  reasonable
\ndoubt  is  not an imaginary, trivial or\t a  merely  possible
\ndoubt; but a fair doubt based upon reason and  common-sense.
\nlt must grow out of the evidence in the case.
\n    The\t concepts  of probability, and the  degrees  of\t it,
\ncannot\tobviously  be  expressed in terms  of  units  to  be
\nmathematically\tenumerated  as\tto how many  of\t such  units
\nconstitute  proof  beyond  reasonable  doubt.  There  is  an
\nunmistakable  subjective-element  in the evaluation  of\t the
\ndegrees\t of probability and the quantum of  proof.  Forensic
\nprobability  must,  in the last analysis, rest on  a  robust
\ncommon-sense  and, ultimately, on the trained intuitions  of
\nthe  judge.  While  the protection  given  by  the  criminal
\nprocess\t to the accused-persons is not to be eroded, at\t the
\nsame  time, uninformed legitimisation of trivialities  would
\nmake a mockery of administration of criminal justice.\n<\/p>\n
    14.\t In  the circumstances of the case,  we\t propose  to
\nadopt  the  course which commended itself to  the  Court  in
\nQamruddin v. Acqeel & Ors., AIR<\/a> 1982 SC 1229 where Fazal Ali
\nJ. observed:\n<\/p>\n
    “The trial court had convicted the accused on a full and
\ncomplete appraisal-of the evidence. The High Court in appeal
\nhas  written  a very cryptic judgment and has not  tried  to
\ndisplace  some of the important reasons given by  the  trial
\ncourt  nor  has it made any attempt to\tscan  the  intrinsic
\nmerits\tof the evidence. We are satisfied that the  judgment
\nof  the High Court is not in accordance: with law. In  these
\ncircumstances,\ttherefore, we allow this appeal\t and  remand
\nthe  case to the High Court for fresh disposal according  to
\nlaw …..”\n<\/p>\n
    15.\t Accordingly  this  appeal is  partly  allowed,\t the
\nJudgment  of the High Court dated 30th September,  1983,  in
\nCrl. Appeal No. 1320 of 1982 is set aside and the appeal  is
\nremitted  to the High Court with the direction\tto  re-admit
\nit,  and hear and dispose of the same on the merits  afresh.
\nWe  hope  and trust that it will be possible  for  the\tHigh
\nCourt to dispose of the appeal most expeditiously.
\n    The\t High  Court,  should it consider  it  necessary  or
\nappropriate,  might  consider calling  for  expert  medical-\n<\/p>\n
\t\t\t\t\t\t  PG NO 405
\nevidence-  of  course with appropriate\topportunity  to\t the
\ndefence’-on  the point of the effect of the injuries on\t the
\nspeech and consciousness of Harish. This is of entirely left
\nto the High Court.\n<\/p>\n
    16.\t During the pendency of the appeal before  the\tHigh
\nCourt  pursuant\t to  this order, the  respondents  shall  be
\nenlarged on bail to the satisfaction of the Sessions  Court,
\nBareilly. Appeal is disposed of accordingly.\n<\/p>\n
R.S.S.\t\t\t\t     Appeal allowed partly.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Krishna Gopal & Anr on 12 August, 1988 Equivalent citations: 1988 AIR 2154, 1988 SCR Supl. (2) 391 Author: M Venkatachalliah Bench: Venkatachalliah, M.N. (J) 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-7658","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Krishna Gopal & Anr on 12 August, 1988 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-krishna-gopal-anr-on-12-august-1988\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Krishna Gopal & Anr on 12 August, 1988 - 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