REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1221 OF 2004

State of U.P. ..Appellant

Versus

Hari Chand ..Respondent  

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  directing  acquittal  of  the  respondents.  Two  

respondents  along with  two others  faced  trial  for  alleged  commission  of  

offence punishable under Section 302 of the Indian Penal Code, 1860 (in  

short ‘IPC’).  Co-accused persons were acquitted by the trial Court.  

2. Prosecution version in a nutshell is as follows:

On 23.9.1979, at about 11 O’clock in the night in village Fattupatti,  

Police  Station  Gambheerpur,  District  Azamgarh,  the  incident  took  place.  

The  deceased  was  one  Mool  Chand,  who  is  described  as  deceased  

hereinafter. The FIR was lodged the following day at 7.10 a.m. by Khelawan  

(PW.3) at whose house the deceased was allegedly sleeping on the fateful  

night. The distance of the police station from the place of occurrence was  

five miles.  Deceased resided in the village aforesaid with his mother and  

other  family  members.  The  accused  Jautam  alias  Andhi  had  property  

disputes with the deceased.  Accused Har Chand was allegedly his associate  

residing in the same village.  Earlier to the incident, deceased had obtained a  

decree relating to certain disputed property in his favour as against Jautam  

alias Andhi, a notorious person who had infused a sense of terror in the mind  

of Mool Chand and used to issue threats to him of his life.  For this reason,  

Mool Chand used to sleep at the house of Khelawan (PW. 3).  On the fateful  

night, he was sleeping outside the house of Khelawan (PW.3).  At a little  

distance his mother Gomati Devi (PW.1) and his daughter Ramawati (PW 2)  

were also sleeping in the Verandah.  A lantern was glowing.  At about 11  

O’clock in the night, the two respondents with two others appeared there.  

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Both the respondents were armed with firearms.  Mool Chand was caught  

hold  of  and  present  two  respondents  opened  fire  on  him.   He  died  

instantaneously.   Gomati  Devi  (PW.1),  Ramawati  (PW.2)  and  Khelawan  

(PW.3) witnessed the incident.  On the lodging of the FIR on oral narration  

by Khelawan (PW.3), a case was registered and investigation was taken up.  

3. After completion of investigation charge sheet was filed.  The defence  

plea  was  one  of  the  denial  and  alleged  false  implication.   Prosecution  

primary relied on the evidence of three eye-witnesses PWs 1, 2 and 3.  PW.5  

was the doctor who conducted the autopsy.       

4. The High Court by a practically non-reasoned order directed acquittal.  

The  appeal  filed  by  the  respondents  was  allowed  after  referring  to  the  

evidence of the eye witnesses by concluding as follows:

“Obviously, night was chosen as time for commission of crime  

by the culprit (s).  Two of them (present appellants) allegedly used  

firearms.  It is against inherent probabilities of the situation that two  

of the associates of the present appellants would have picked him up  

from cot, taken him to some distance and would have then thrown him  

on  the  ground  before  firing  was  resorted  to  by  the  present  two  

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appellants.   The  natural  and  probable  conduct  of  the  appellants  

holding firearms would have been to shoot him dead immediately on  

locating him sleeping on the cot.  There could hardly by any necessity  

of  his  first  being  picked up from cot,  taken  to  some distance  and  

thrown on the ground.   This  part  of  the  testimony  of  Gomti  Devi  

PW.1 and Ramawati PW2 also does not fit in natural probabilities of  

situation  that  two  of  the  culprit(s)  would  be  catching  hold  of  the  

victim at the time of actual shooting, risking their own life.  Holding  

of the victim at the time actual shooting is always risky for one who  

holds him because the shot may hit him instead the victim who would  

naturally  struggle  to  save  himself  from the  shot.   It  may  also  be  

observed at the risk of repetition that even if it is taken for the sake of  

argument (though it is not believable) that the victim was picked up  

from the cot and thrown on the ground after being taken for a few  

steps,  then  also  the  incised  wounds  found  on  his  person  go  

unexplained.  In all probabilities, it was a case of hit and run when the  

assailants were not at all recognised or identified by Gomti Devi PW1  

and Ramawati PW2. On the basis of the suspicion and imagination,  

the story seems to have been spun by them.  We are,  therefore,  in  

judgment that the evidence of Gomti Devi PW1 and Ramawati PW2  

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which  is  in  conflict  with  medical  evidence,  falls  much  short  of  

proving the appellants to be guilty.”             

5. As noted above, aforementioned portion indicates the reasoning for  

the acquittal.    

6. In  support  of  the  appeal  learned  counsel  for  the  appellant  State  

submitted that the High Court has without indicating any basis discarded the  

eye  witnesses  version  of  three  persons.   The  conclusions  are  based  on  

surmises and conjectures.       

7. Learned counsel for the respondents supported the judgment.

8. The first conclusion which is a hypothetical conclusion is that “natural  

probable  conduct  of  the  appellants  holding  firearms  would  have  been  to  

shoot him dead immediately on locating him sleeping on the cot.  There was  

no necessity for first picking him from the cot taking to some distance and  

throwing on the ground”.  Another conclusion arrived at  hypothetically  is  

that the testimony of PWs. 1 and 2 does not fit in natural probabilities of  

situation that two of the culprits would be catching hold of the victim at the  

time of actual shooting, risking their own life. The High Court came to a  

peculiar conclusion that if the person holds the victim at the time of actual  

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shooting there is always the risk for one who holds him because the shot  

may  hit  him instead  of  the  victim who would  naturally  struggle  to  save  

himself from the shot.

9. The High Court also came to a conclusion that the eye witnesses did  

not speak of any attack which resulted in incised wounds.     

10. We find that the conclusions of the High Court are full of surmises  

and  conjectures  and  there  has  been  no  serious  attempt  to  analyse  the  

evidence.  It needs to be noted that the trial Court after careful analysis of  

the evidence found the accused guilty.  In the first information report the  

names  of  the  accused  persons  were  specifically  mentioned.  The  first  

information report was lodged almost immediately after the occurrence.  In  

the post-mortem report the doctor has found seven injuries.  Four of them  

are firearm wounds which clearly fit in with the version of the eye witnesses.  

There were two incised wound of 1.5 cm x .75 cm x muscle deep and 2 cm x  

1 cm x muscle deep.  The doctor’s evidence shows that the firearm wounds  

were  possible  when  the  firing  was  done  from  a  short  distance.   The  

hypothetical conclusion of the High Court that nobody would risk holding a  

person when somebody is shooting is not correct because the shooting was  

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done from a very close distance.  The question of such a person holding the  

deceased getting hit does not arise in such a situation.  In any event, such a  

hypothetical reason would not be sufficient to discard credible eye witness  

version.                 

11. The prosecution has explained as to why PWs have not stated about  

incised wounds.  The witnesses have clearly stated that when the deceased  

was being taken away they had not seen the nature of attacks but they had  

seen actual shooting. If during the process of taking the deceased any incised  

wound is inflicted that obviously could not have seen by the PWs.     

12. There was no reason of the High Court to discard the credible, cogent  

and trustworthy evidence of the eye witnesses.  This was certainly not a case  

where medical evidence was at a variance with the ocular evidence.  The  

evidence of the eye witnesses regarding injuries caused by the firearms is  

amply corroborated by the evidence of the doctor who found four firearms  

wounds.  In any event unless the oral evidence is totally irreconcilable with  

the medical evidence it has primacy.   

13. 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  

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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”.  

14. 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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15. During the pendency of the appeal respondent no.1Jautam has died  

and the same has been abated so far as he is concerned.

16. The inevitable result is that the appeal deserves to be allowed which  

we direct.  The respondent Hari Chand shall surrender to custody forthwith  

to serve remainder of sentence.  The appeal is allowed.   

…………………………………...J. (Dr. ARIJIT PASAYAT)

………………………….………..J. (ASOK KUMAR GANGULY)

New Delhi, April 29, 2009

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