STATE OF MADHYA PRADESHversusDHARKOLE @ GOVIND SINGH AND ORS.

A                           STA TE OF MAD HY A PRADESH
                                           v.
                   DHARKOLE @ GOVIND SINGH AND ORS.

                                 OCTOBER 29, 2004

B                 [ARIJIT PASA YAT AND C.K. THAKKER, JJ.]


           Criminal trial

           Medical evidence-At variance with ocular evidence-Weapon
C supposedly used not sharp enough to cause irljuries as per medical evidence-
     Held: Hypothetical answers of medical witnesses pointing to alternative
     possibilities cannot be accepted as conclusive and accorded undue primacy
     to exclude credible and trustworthy eye-witnesses' account.

           Names of witnesses not appearing in FIR-That by itself cannot be
D ground to do'1bt their evidence, especially as there is no requirement of
     mentioning names of all witnesses therein-Cr.PC-Sec. 154.

           Evidence

E           Witness-Non-examination by prosecution-If witness was not likely to
     support the prosecution version, his non-examination per se does not corrode
     vitality ofprosecution version, particularly when the witnesses examin€d had
     withstood incisive cross-examination and pointed to the accused as
     perpetrators of crime-More so when prosecution gives reasons as to why it
     did not choose to examine that witness.
F
           Eye witness account-Appreciation of-Minor points do not affect
     credibility of evidence and should not be magnified

           Probability amounting to proof and reasonable doubt-Discussed

G·         Appellate Court-Interference with acquittal by lower court-It should
     not be done lightly-However, if lower court has improperly analysed
     evidence, acted on surmises/conjectures, based its doubt on irrelevant grounds,
     ignored vital evidence or evidence accepted by Trial Court is rejected after
     a perfunctory consideration, it is duty of the appellate Court to set right the

II                                        780
            STATEOFMADHYAPRADESHv.DHARKOLE@GOVINDSINGH                    781

wrong-Practice & Procedure.                                                      A
      Deceased got injured in a scuffle wherein accused used weapons like
sword, gupti and stones. On being rushed to a local hospital, he was examined
by a doctor PW 15 and was referred to another hospital where he was declared
dead. Autopsy performed by doctor PW-5 found that deceased succumbed to
his injuries. Trial Court convicted all the accused for offences punishable      B
under Section 302 read with Section 149 of IPC. However, High Court
acquitted the accused holding inter alia that medical evidence was at variance
with the ocular evidence as PW 15, the doctor, had stated that the Gupti which
was supposed to be used was not sharp enough to cause the injuries. The High
Court further held that evidence of eye witnesses could not be relied upon as    C
there were inconsistencies in their statements not only amongst themselves
but also with ones given by them earlier during investigation. Hence the
present appeal.

      Appellant submitted that the High Court has without any justiciable
reason discarded the cogent and credible evidence of prosecution version; that D
the medical evidence was not sufficient to discard the evidence of the three
non-partisan and independent eye witnesses who had categorically stated about
the manner in which the injury to deceased was caused; and that the
prosecution had tendered evidence to show why examination of other persons
was unnecessary.
                                                                                 E
      Respondent contended inter alia that the non-examination of the person
who had claimed to be present as eye witness showed that there was great
deal of doubt on the acceptability of prosecution version.

      Allowing the appeals, the Court
                                                                                 F
      HELD: 1. 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. Thus the judgment of the trial Court is restored.
                                                             [788-H; 789-A)

      2. It would be erroneous to accord undue primacy to the hypothetical G
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 law that where the eye-
witnesses' account is found credible and trustworthy, medical opinion pointing
to alternative possibilities is not accepted as conclusive. (786-G, HJ         H
    782                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R..

A         State of U.P. v. Krishna Gopal and Anr., AIR (1988) SC 2154, relied on.

         Mathematics ofProofII: Glanville Williams: Criminal Law Review, 1979
    by Sweet and Maxwell p340, referred to.

         3. There is nothing unusual in the conduct of the eye witnesses. The
B   High Court has put unwarranted stress on certain aspects like the political
    party to which one of the accused belonged, or the place from where the
    witnesses came together. The High Court found that the business of PWI
    was claimed to be supply of milk, but no sufficient basis has been indicated as
    to where he was gQing to sell milk at the time of alleged offence. Thes'! minor
C   points do not affect the credibility of evidence and should not have been
    magnified. [788-F, G)

           4. 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
D   prosecution version, particularly when the witnes'ses examined have withstood
    incisive cross-examination and pointed to the respondents as the perpetrators
    of the crime. In the instant case the prosecutio~ has indicated the reasons as
    to why it did not choose to examine the alleged independent persons.
                                                                     [788-D, E, F)

E          5. 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. There is no requirement of mentioning the names of all witne,;ses
    in the First Information Report.

          Bhagwan Singh and Ors. v. State of MP., J.T. (2002) 3 387, Chittar Lal
p v. State of Rajasthan, (2003) AIR SCW 3466 and State ofMadhya Pradesh v.
    Man Singh and Ors., (2003) 6 Supreme 202, referred to.

            6.1. It is true that in case acquittal has been recorded, the Appellate
    Court should not lightly interfere with the same. But where the evidence has
    not been properly analysed or the Court has acted on surmises or conjectures,
G   it is the duty of the appellate Court to set right the wrong. [788-G, HI

           6.2. The appellate Court will not abjure its duty to prevent miscarriage
    of justice 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
H   by the High Court after a perfunctory consideration or where the baneful
       STATEOFMADHYAPRADESHv. DHARKOLE@GOVINDSINGH[PASAYAT,J.]            783

approach of the Court has resulted in vital and crucial evidence being ignored   A
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. [786-D, EJ

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 238-
239 of2004.
                                                                                 B
     From the Judgment and Order dated 16.4.~003 of the Madhya Pradesh
High Court in Crl.A. Nos. 396/96 and 11 of 1997.

      Siddhartha Dave and Ms. Vibha Datta Makihija for the Appellant.

     S.K. Dubey, J.P. Pandey and Mrs. Nandita Dubey with him for the             C
Respondents.

     The Judgment of the Court was delivered by

       ARIJIT PASAY AT, J. State of Madhya Pradesh calls in question legality
of the judgment rendered by a Division Bench of the Madhya Pradesh High D
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 Koma! Singh, Manni and E
Dharkole. During pendency of the appeal before this Court, accused Koma!
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 l.P.C. while F
the other two have been convicted for an offence punishable under Section
 147 1.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 l.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 G
under Section 147.

      Prosecution Version in a nutshell is as follows:

      One Hamid Khan (hereinafter referred to as the deceased) was posted
                                                                                 H
    784                      SUPREME COURT REPORTS [2004) SUPP. S S.C.R.

A 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 infonnation was received in
    the police station that one Manni and his friends, who were wanted, were
    hMing 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
B   the house of Mannu Teli, his daughter Sunita met the police party and
    quarrelled 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
C   of one Santosh in Seodha itself/ those persons excluding Kapoor Singh came
    there in two batches of three each anned 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
D   him. Accused Dharkole picking 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 Koma! thereafter kicked the deceased and all of them
    went away from there. However, one Ashok Sindhi infonned head-constab~e
    Dayaram, who was on duty at that time at the Municipal House that some one
E   has beaten one constable near the shop of Santosh. On receiving this
    infonnation, head-constable Dayaram reached the spot and found the deceased
    lying seriously wounded. Suspecting the hands of present respondents and
    their friends in it btcause of the earlier attempt for their arrest, he infonned
    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
F   mud from the spot and the blood stained stone which was also lying nearby
    together with a wooden handle ofGupti. 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
G   Gwalior for better treatment. On reaching Gwalior he was declared dead at
    Gwalior Hospital by the doctor concerned. Autopsy was perfonned 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
H
       STATEOFMADHYAPRADESHv.DHARKOLE@GOVINDSINGH[PASAYAT,J.]            785
wounds two were on the left side of his face, one below the ear and the other   A
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 B
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 C
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 infonnation at the
police station was lodged after a considerable lapse of time.

      The High Court noticed that there was inconsistency in the evidence D
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. E

       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 F
was caused. The medical evidence shows that there was a possibility that the
injuries \\'.ere 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 G
that the judgment of the trial court should be restored and that of the High
Court set aside.

     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
                                                                                H
    786                     SUPR~ME COURT REPORTS [2004] SUPP. S S.C.R.


A prosecution has not been fair. There has been manipulation of the first
    infonnation 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 exhibite~ which could have
    shown that there was any human blood present on th.e aI:eged weapon. There
B   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       .,
C   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 mannet. 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
D   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
E   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 infonnation
    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 MP., JT (2002) 3 SC 387,
    Chittar Lal v. State of Rajasthan, (2003) AIR SCW 3466 and State of Madhya
F   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-
G   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 vointing to alternative possibilities is not accepted
    as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice.
H
       STATE OF MADHYA PRADESH v. DHARKOLE@GOVINDSINGH [PASAYA T,J.]         787
Hence the importance and primacy of the quality of the trial process. Eye           A
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           B
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            C
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 learned author says: (See "The Mathematics           D
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       E
        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   F
        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 G
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
                                                                                    H
     788                     SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

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 su.ch un.it$ constitute proof beyond reasonable doubt. There is an
B unmistakable subjective element in the evaluation of the degrees of pt'obability
  .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
C 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 UP. 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 s,uffers from vulnerability.
D
         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
E 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
F    like the political party accused Dharkoke belonged, or th.e place from wbere
     the witnesses came together; The High Court found that the business of the
     PWl was claimed to be a supply of milk, but no sufficient basis have· been
     indic.ated as to Where he was going to sell milk at the time of alleged offence.
     These minor points do not affect the credibility 9f evidence and should not
G    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 C.ourt should not lightly 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 appell;ite
     Court to set right the wrong. The case at hand is one where the High Court
H
       STATE OF MADHYA PRADESH v. DHARKOLE@GOVINDSINGH [PASAYAT,J.]   789
ignored the relevant aspects and unnecessarily put emphasis on certain      A
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.

vs.                                                     Appeals allowed.    B