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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.