STATE OF U.P.versusHARI CHAND

                         [2009] 7 S.C.R. 149

j

                           STATE OF U.P.                            A
                                  V.
                           HARi CHAND
                 Criminal Appeal No. 1221 of 2004
                          APRIL 29, 2009
                                                                    B
            (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
    150       SUPREME COURT REPORTS             [2009] 7 S.C.R.


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 non-
  reasoned 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 firearm-
  wounds 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..                        H
                                                                              ....

    152       SUPREME COURT REPORTS                    [2009] 7 S.C.R .


A         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 responden~s 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
H
                STATE OF U.P. V. HARi CHAND ·.                  153
                   [DR. ARIJIT PASAYAT, J.]

.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 reso·rted to by the present two
     appellants . The natural and probable conduct of the              C
     appellants h~lding 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." .
                                                                       H
    154       SUPREME COURT REPORTS                   [2009) 7 S.C.R.


A        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
                                                                . ·. ..·



                 STATE OF U.P. V. HARi CHAND ··               .· 155
                    [OR. ARIJIT PASAYAT, J.]

 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 doctor·who 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
    156       SUPREME COURT REPORTS                  [2009] 7 S.C.R.


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.