State of U.P. Vs.
Hari Chand [2009] INSC 855 (29 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1221 OF 2004 State
of U.P. ..Appellant Versus Hari Chand ..Respondent
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.
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 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 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 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 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 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.
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.
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