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CASE NO.:

Appeal (crl.) 238-239 of 2004

PETITIONER:

State of Madhya Pradesh

RESPONDENT:

Dharkole @ Govind Singh & Ors.

DATE OF JUDGMENT: 29/10/2004

BENCH:

ARIJIT PASAYAT & C.K.THAKKER

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

State of Madhya Pradesh calls in question legality of the

judgment rendered by a Division Bench of the Madhya Pradesh High Court,

at Jabalpur directing acquittal of the respondents (hereinafter

referred to as the 'accused') on the ground that prosecution failed to

prove their guilt beyond reasonable doubts. Originally eight persons

faced trial. Out of them co-accused Sunita and Kapoor Singh were

acquitted. During the pendency of the trial one Ramkishore absconded.

Two others Bhoora and Jabar Singh had died during trial. Trial Court

convicted accused Komal Singh, Manni and Dharkole. During pendency of

the appeal before this Court, accused Komal has died and the appeal

stands abated so far as she is concerned. All the three accused were

convicted for offences punishable under Section 302 read with Section

149 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellant

Manni was convicted for an offence punishable under Section 148 I.P.C.

while the other two have been convicted for an offence punishable under

Section 147 I.P.C. Each one of them has been sentenced to undergo

imprisonment for life with a fine of Rs.5,000/-.for the offence

punishable under Section 302 read with Section 149 of I.P.C. Manni was

directed to suffer rigorous imprisonment for two years for the offence

punishable under Section 148 I.P.C. while the other two with rigorous

imprisonment for one year for the offence punishable under Section 147.

Prosecution Version in a nutshell is as follows:

One Hamid Khan (hereinafter referred to as the deceased) was

posted as a police constable in police station-Seodha. On the fateful

day i.e. on 13.10.1989 at around 7 o'clock in the evening an

information was received in the police station that one Manni and his

friends, who were wanted, were hiding in the house of one Mannu Teli.

The deceased accompanied by head-constable Dayaram went in their search

to the house of that Mannu Teli. At the house of Mannu Teli, his

daughter Sunita met the police party and quarreled with them. Later

on, on the same day at about 7.45 P.M. she provoked the present

respondents and four others viz., Bhure, Jabar Singh, Ramkishore and

Kapoor Singh by weeping before them and telling them that the deceased

had insulted her. They all conspired to kill the deceased on that very

day. Thereafter when the deceased Hamid Khan came to the betel shop of

one Santosh in Seodha itself, those persons excluding Kapoor Singh came

there in two batches of three each armed with sword, Gupti etc. After

reaching near the shop of said Santosh, accused Bhure caught hold of

the deceased and thereafter Jabbarsingh gave a blow by sword injuring

the deceased below his left ear. Then accused Manni inflicted an

injury below his right ear with a Gupti. As the deceased fell on

ground, Kapoor Singh asked others to kill him. Accused Dharkole picking

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up a stone which was lying nearby; assaulted on the head of deceased.

Kapoor Singh warned all those present there not to utter a word.

Accused Komal thereafter kicked the deceased and all of them went away

from there. However, one Ashok Sindhi informed head-constable Dayaram,

who was on duty at that time at the Municipal House that some one has

beaten one constable near the shop of Santosh. On receiving this

information, head-constable Dayaram reached the spot and found the

deceased lying seriously wounded. Suspecting the hands of present

respondents and their friends in it because of the earlier attempt for

their arrest, he informed his officer at police station. The Officer-

in-charge of the police station thereafter reached the spot, inspected

it and seized the blood stained and non-stained mud from the spot and

the blood stained stone which was also lying nearby together with a

wooden handle of Gupti. Subsequently, after his arrest accused Manni

had led to the discovery of the remaining part of the Gupti, which was

used by him in the crime. The deceased who was at that time only

injured was immediately referred to Hospital and from the Hospital was

referred to Gwalior for better treatment. On reaching Gwalior he was

declared dead at Gwalior Hospital by the doctor concerned. Autopsy was

performed by Dr. Vijay Kumar Diwan (PW-5) and it was found that he has

succumbed to the injuries found on the body. Dr. V.S. Singh (PW-15),

who had examined the deceased in Seodha, had found one lacerated wound

on the parietal region, one abrasion on the neck and five incised

wounds. Out of these five incised wounds two were on the left side of

his face, one below the ear and the other on the mandible and remaining

three were on the right side of the face, one on the ear and two on the

mandible.

The three accused persons who were tried jointly with two other

co-accused persons preferred an appeal before the High Court. The

primary stand before the High Court was that the medical evidence was

at variance with the ocular evidence. Many persons who were stated to

be present during the occurrence were not examined and on the basis of

evidence of partisan witnesses, the conviction has been recorded and,

therefore, the judgment was indefensible. The High Court by the

impugned judgment held that the medical evidence was at variance with

the ocular evidence, by reference to PW 15 who has stated that the

Gupti which was supposed to be used was not sharp enough to cause the

injuries. There was manipulation in records. Though the place of

occurrence was nearby the police station, the information at the police

station was lodged after a considerable lapse of time.

The High Court noticed that there was inconsistency in the

evidence of so called eye witnesses i.e. PWs. 13 and 16. It was

observed discrepancies were not only between the statements of these

witnesses but the statement of each one of them was also inconsistent

with his earlier statement recorded during investigation. Therefore,

they cannot be relied upon in view of the fact that some of them had a

criminal background their evidence was not worthy of credence.

Accordingly the judgment of the trial Court has been set aside.

In support of the appeal learned counsel for the appellant-State

submitted that the High Court has without any justifiable reason

discarded the cogent and credible evidence of the prosecution version.

There were three eye witnesses who have categorically stated about the

manner in which the injury was caused. The medical evidence shows that

there was a possibility that the injuries were not possible by the

weapon held by one person. But it was not sufficient to discard their

evidence. Three witnesses were examined and they were not partisan

witnesses, and on the contrary they were independent witnesses. The

prosecution has tendered evidence to show as to why the examination of

other persons was unnecessary. That being so it was submitted that the

judgment of the trial court should be restored and that of the High

Court set aside.

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In response, Mr. S.K. Dubey, learned senior counsel for the

respondents submitted that there has been suppression of the genesis of

the dispute and prosecution has not been fair. There has been

manipulation of the first information report and the prosecution has

gone to the extent of manipulating records to show that one person was

an eye witness, but in fact he was not so. The conspiracy as projected

by the prosecution has been disbelieved. The chemical examiner's

report has not been exhibited which could have shown that there was any

human blood present on the alleged weapon. There was no injury which

could have been possible by the throwing of the stone. Non-examination

of person who had claimed to be present as eye witness shows that there

is a great deal of doubt on the acceptability of prosecution version.

The witnesses have not only lied but also exaggerated to establish the

prosecution case. View taken by the trial Court was not a correct view

and was, therefore, rightly set aside.

A bare perusal of the judgment of the High Court shows that it

has disposed of the appeal in a rather casual manner. Most of the

conclusions arrived at by the High Court are per se not on sound

footing. The appellate Court will not abjure its duty to prevent

miscarriage of justice by interfering where interference is imperative.

Where doubt is based on irrelevant grounds or where the Court allows

itself to be deflected by red herrings drawn across the track, or where

the evidence accepted by the Trial Court is rejected by the High Court

after a perfunctory consideration or where the baneful approach of the

Court has resulted in vital and crucial evidence being ignored or for

any such adequate reason, the Court should feel obliged to secure the

ends of justice, to appease the judicial conscience, as it were. The

High Court has noted that the names of witnesses do not appear in the

first information report. That by itself cannot be a ground to doubt

their evidence as noted by this Court in Bhagwan Singh and Ors. v.

State of M.P. (JT 2002(3) SC 387), Chittar Lal v. State of Rajasthan

(2003 AIR SCW 3466) and State of Madhya Pradesh v. Man Singh and Ors.

(2003 (6) Supreme 202). There is no requirement of mentioning the names

of all witnesses in the first information report.

Coming to the plea that the medical evidence is at variance with

ocular evidence, it has to be noted that it would be erroneous to

accord undue primacy to the hypothetical answers of medical witnesses

to exclude the eye-witnesses' account which had to be tested

independently and not treated as the "variable" keeping the medical

evidence as the "constant".

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 Bentham

said, are the eyes and ears of justice. Hence the importance and

primacy of the quality 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 touchstone 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

amounts to 'proof' is an exercise particular to each case? Referring to

of probability amounts to 'proof' is an exercise the inter-dependence

of evidence and the confirmation of one piece of evidence by another a

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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

act with the specified state of mind are generally

dependent. A junior may feel doubt whether to credit

an alleged confession, and doubt whether to infer

guilt from the fact that the defendant fled from

justice. But since it is generally guilty rather

than innocent people who make confessions and guilty

rather than innocent people who run away, the two

doubts are not to be multiplied together. The one

piece of evidence may confirm the other."

Doubts would be called reasonable if they are free from a zest

for abstract speculation. Law cannot afford any favourite other than

truth. To constitute reasonable doubt, it must be free from an over

emotional response. Doubts must be actual and substantial doubts as to

the guilt of the accused persons 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 commonsense. It 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

legitimization of trivialities would make a mockery of administration

of criminal justice. This position was illuminatingly stated by

Venkatachaliah, J. (as His Lordship then was) in State of U.P. v.

Krishna Gopal and Anr. (AIR 1988 SC 2154).

On that score also the High Court's conclusion that the medical

evidence varied with the ocular evidence suffers from vulnerability.

It is not necessary for prosecution to examine somebody as a

witness even though the witness was not likely to support the

prosecution version. Non-examination of some persons per se does not

corrode vitality of prosecution version, particularly when the

witnesses examined have withstood incisive cross-examination and

pointed to the respondents as the perpetrators of the crime.

In the instant case the prosecution has indicated the reasons as

to why it did not choose to examine the alleged independent persons.

There is nothing unusual in the conduct of the eye witnesses as was

inferred by the High Court. The High Court has put unwarranted stress

on certain aspects like the political party accused Dharkoke belonged,

or the place from where the witnesses came together. The High Court

found that the business of the PW1 was claimed to be a supply of milk,

but no sufficient basis have been indicated as to where he was going to

sell milk at the time of alleged offence. These minor points do not

affect the credibility of evidence and should not have been magnified.

Looking at from the aforesaid perspective the judgment of the High

Court is indefensible and therefore set aside. It is true that in case

acquittal has been recorded the Appellate Court should not lightly

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interfere with the same. But where the evidence has not been properly

analysed or the Court has acted on surmises or conjectures, it is the

duty of the appellate Court to set right the wrong. The case at hand

is one where the High Court ignored the relevant aspects and

unnecessarily put emphasis on certain aspects which did not have any

foundation. That being so, the appeals are allowed and the judgment of

the trial Court is restored by reversing the judgment of the High

Court. The respondents shall surrender to custody forthwith to serve

remainder of sentence.