[2009] 7 S.C.R. 149

STATE OF U.P.

HARi CHAND Criminal Appeal No. 1221 of 2004

APRIL 29, 2009

(DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGULY, JJ.)

PENAL CODE, 1860:

s.302- Murder- Two accused caught hold of the victim c and two shot him dead - conviction of two accused by trial court - Acquittal by High Court - On grounds of variance in testimonies of eye witnesses and medical evidence - Held: Conclusions of High Court are full of surmises and conjectures

- There was no reason for High Court to discard credible, 0 cogent and trustworthy evidence of eye-witnesses - Oral testimony regarding injuries caused by firearms is amply corroborated by medical evidence.....: This was not a case where medical evidence was at variance with ocular evidence - Even otherwise, oral evidence has primacy unless it is totally irreconcilable with medical evidence- Judgment of High Court E set aside and that of trial court restored.

The respondents alongwith two others were prosecuted for commission of offence punishable uls 302 IPC. The prosecution case was that there was a property F dispute between the victim and respondent no.1. The latter was stated to be a notorious person and had infused terror in the mind of the victim, who, for this reason, used to sleep at the house of P.W.3. On the night of the incident when the victim was sleeping outside the house of PW.3 G and his mother (PW 1) and daughter (PW 2) were sleeping in the Verandah, the respondents armed with firearms along with two others came there. The victim was caught hold of by two persons and the respondents shot him

149 H

A dead. The trial court convicted the respondents and acquitted the remaining two. The High Court having acquitted the accused, the State filed the appeal.

Allowing the appeal, the Court

B HELD: 1.1 The High Court by a practically nonreasoned order directed acquittal. The conclusions reached by it are full of surmises and conjectures; and there has been no serious attempt to analyse the evidence.

The trial court after careful analysis of the evidence found the accused guilty. In the first information report which C was lodged almost immediately after the occurrence, the names of the accused persons were specifically mentioned. The doctor's evidence shows that the firearmwounds were possible when the firing was done from a short distance. The hypothetical conclusion of the High D Court that nobody would risk holding a person when somebody is shooting is not correct because the shooting was 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 E reason would not be sufficient to discard credible eye witness version. [para 4 and 10] [152-H; 153-A; 154-F-G;

155-A-C]

1.2 The prosecution has explained as to why PWs have not stated about incised wounds. The witnesses F 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 been seen by the PWs.

G [para 11] [155-C-D]

1.3 There was no reason for 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 H evidence of the eye witnesses regarding injuries caused

STATE OF U.P. V. HARi CHAND 151

by the firearms is amply corroborated by the evidence of A the doctor who found four firearms-wounds. In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. It would' be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witness account B 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-witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as c conclusive. [para 12-13 & 14) [155-D-G]

2. During the pendency of the appeal respondent no.1 has died. Appeal stand abated so far as he is concerned. Respondent no.2 would surrender. [para 15-

16) [156-C-D] D

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1221 of 2004

From the Judgement and Order dated 24.03.2003 of the Hon'ble High Court of Judicature at Allahabad in Criminal E Appeal No. 3071 pf 1981

Ratnakar Dash, Vikas Bansal, Anuvrat Sharma, with him for the Appellant.

Vishwajit Singh, Ritesh Agrawal, Siddharth Sengar, A F Maheshwari, with him for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division G 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 Moo! Chand, who is described as deceased hereinafter. The FIR was lodged the 8 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 C 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 D the mind of Moo! 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 E also sleeping in the Verandah. A lantern was glowing. At about 11 O'clock in the night, the two respondens with two others appeared there .. Both the respondents were armed with firearms. Mool Chand was caught hold of and present two respondents opened fire on him. He died instantaneously.

F 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.

G 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 A

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 8

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 appellants. The natural and probable conduct of the C appellants hlding 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 D anq 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 E 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 F 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 G 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 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. 8 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 C 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 D 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 shootiog, risking their own life. The High Court came to a peculiar conclusion that if the person holds the victim at the time of actual E shooting there is always the risk for one who holds him because r 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 F 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 G 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 H injuries. Four of them are firearm wounds which clearly fit in with

. . .. ·

the version of the eye witnesses. There were two incised wound A 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 B because the shooting was 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. " c

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 D 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 E witnesses regarding injuries caused by the firearms is amply corroborated by the evidence of the doctorwho found four firearms wounds. In any event unless the oral evidence is totally irreconcilable with the medical evidence it has primacy. ·

- F

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 undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated .G as the "variable" keeping the medical evidence as the "constanf'.

14. It is trite that where the eye-witnesses' ccount 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 H

A 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 s credibility. The evidence must be tested for its inherent i

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 C observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

15. During the pendency of the appeal respondent no.1 Jautam has died and the same has been abated so far as D 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.

R.P.

Appeal allowed.