REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 441 OF 2002

Chhotanney and Ors.  ..Appellants

Versus

State of Uttar Pradesh and Ors. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a Division Bench of the

Allahabad  High  Court  dismissing  the  appeal  filed  by the  appellants  and

respondents  2  and  3  who  were  co-accused  persons.    Respondent  No.2

Tahir,  appellant  No.3-Azmat  Ullah,  appellant  No.1-Chhotanney  and

appellant No.4-Mubarak were convicted by learned IV Additional Sessions

Judge, Sitapur for offences punishable under Section 302 read with Section

201 and 148 of the Indian Penal Code, 1860 (in short the ‘IPC’).  Appellant

No.2-Liyakat and respondent No.3-Abdullah were found guilty of offence

punishable under Section 302 read with Section 149 IPC and Section 147

IPC.  

2. Prosecution version in a nutshell is as follows:

On  18.11.1977  one  Zahid  Khan  (hereinafter  referred  to  as  the

‘deceased’) was killed. and one Azhar Beg alias Gobrey, father of appellant

Azmatullah was done to  death  earlier  and  in  that  murder  case,  deceased

Zahid Khan was also one of the accused. Zahid Khan was released on bail a

few months before the occurrence of 18.11.1977. Ever since the release of

Zahid Khan on bail, the accused had an eye on him and wanted to liquidate

him. On 18.11.1977 at about 2 p.m. deceased Zahid Khan followed by his

father  Khadim Khan  (now dead),  Samiullah  Khan  and  Salam Khan  was

coming  back  on  foot  with  a  cycle  loaded  with  two  bags  of  maize  after

completing the process of sowing of wheat in his plot situating within the

limits of village Bangh Bhari. Accused Tahir and Azmatullah fired at him.

Appellants Chhotanney and Mubarak chopped off upper portion of his head

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with their respective ‘Banka’ on the exhortation of appellant Liyakat. It was

also alleged that the chopped portion of the head was handed over to the

accused  Abdullah  and  thereafter  appellant  Mubarak,  Chhotanney,  Azmat

Ullah and accused Tahir  Beg dragged the  dead body of  Zahid Khan for

some distance with a view to throw away the same in a nearby river. But

due to the arrival of witnesses they did not succeed in taking the dead body

to the river. It was also claimed that Hakik Khan and Nasrullah Khan had

also come on the spot during the course of the occurrence and had witnessed

the incident of murder. According to the prosecution case, the accused ran

away with the severed part of the head.

Khadim Khan lodged written report  on the same clay at 1755 hrs.

with P.S. Sadarpur of district Sitapur in which he named all the six accused

persons. S.I.  B.N. Mishra was present at the time the FIR was lodged with

the  police  station.  He  took  up  the  investigation.  After  recording  the

statement of informant Khadim Khan and Qaiyame Khan he rushed to the

spot and reached there late in the evening. On reaching there, he found the

dead body lying in a “Galiyara” at a distance of about 2½ furlongs from

village Benjh Bhari.  He prepared the inquest report (Ext. Ka 5), prepared

the diagram of the dead body and sent the dead body to the District Head

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Quarter through constable Shiv Singh, for post mortem examination. The

upper portion of the head was missing. He inspected the place of occurrence

in the light of patromax; a bicycle having blood stains on the left paddle,

two bags  of  maize  were  found  lying  on the  spot  and were  given  in  the

Supurdagi of Khadim Khan, after necessary formalities. He also observed

the evidence of dragging of the dead body. Blood stained and simple earth

were collected and necessary Fard was prepared. The Investigating Officer

also recovered a piece of blood stained bone, blood-stained hair and grass.

The place of occurrence was a user land having grass on it and a site plan

was prepared. On the next day, statements of Hakik, Nasrullah Khan, Salam

Khan and Samiullah were recorded and a search for the named accused was

made. The accused were absconding. The served portion of the head could

not be traced out. The accused surrendered in court on different dates and

their statements were recorded in jail.

On post mortem examination that took place on 20.11.1977 at 11.30

a.m. Dr. Om Prakash found various ante-mortem external  injuries on the

body of the deceased.  

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On the basis of information lodged, investigation was undertaken and

on  completion  thereof  charge  sheet  was  filed.  As  the  accused  persons

pleaded innocence, trial was held.  

The trial Court placing reliance on the evidence of the eye witnesses

PWs  1,  2  and  3  directed  conviction  as  noted  above.  In  appeal,  it  was

primarily  contended  that  PWs  2  and  3  have  not  identified  the  accused

persons and the medical evidence was in conflict with the ocular evidence.

The High Court did not accept the stand and upheld the conviction.  

3. In the  present  appeal  the  stand  taken  by the  appellants  before  the

High Court was re-iterated.  It  is pointed out  by learned counsel for the

appellants  that  appellant  No.3-Azmat  Ullah has died in the  meantime, so

also respondents 2 and 3- Tahir  and Abdullah respectively. It appears that

there were three eye witnesses PWs 1, 2 and 3. The stand that PW-3 could

not recognize the accused is not factually correct as it is evident from a bare

reading of the evidence of PW-3.  

4. It is also submitted that the ocular evidence is at variance with the

medical evidence. It is submitted that the so called eye witnesses stated that

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firing was done twice, but there are six injuries. It is to be noted that the trial

Court and the High Court have clearly stated that the doctor who conducted

post  mortem did not  properly visualize the location of  the injuries.   The

doctor did not know the places from where the pellets were recovered.  As a

matter  of  fact  the  evidence  on  records  shows  that  four  pellets  were

recovered.   

5. It has also been stated by learned counsel for the appellants that the

injuries could not have been caused by lathis. According to the prosecution,

accused Liyakat and Abdullah held lathis.  This stand is  also without  any

substance.   It  is  stated  by  the  doctor  that  the  injuries  were  possible  on

account  of  assault  by  lathi.  It  was  also  submitted  that  according  to  the

prosecution,  the  dead  body  was  dragged  but  there  was  no  injury.  As

highlighted by both the trial Court and the High Court that the place was a

grassy  land.  Therefore,  there  was  no  possibility  of  injury  on  account  of

dragging when the person was fully clothed. The doctor’s evidence appears

to be little confusing. He has stated that the injuries can be possible by 2, 3

or 5 shots.  

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6. 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”.  

7. 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.   

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8. 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 what degree of

probability  amounts  to  ‘proof’  is  an  exercise  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 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.”

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9. 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.

10. 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) and State of Madhya Pradesh  v. Dharkole @ Govind

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Singh  & Ors. (20004 (11)  SCC 308).  Apparently,  there  was  no  conflict

between  the  ocular  evidence  and  the  medical  evidence  as  contended  by

learned counsel for the appellant.   

11. Above being the position, we find no merit  in this appeal which is

accordingly dismissed.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 18, 2009

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