Chhotanney & Ors.
Vs. State of Uttar Pradesh & Ors.  INSC 355 (18 February 2009)
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.
Dr. ARIJIT PASAYAT, J
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
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.
and Mubarak chopped off upper portion of his head 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 2= 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 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 was
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
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.
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
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.
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.
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 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.
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.
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".
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.
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).
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."
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.
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 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.
being the position, we find no merit in this appeal which is accordingly
(Dr. ARIJIT PASAYAT)