TMI Blog1988 (8) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... the two respondents- Krishna Gopal and Vijai-who are related to each other as uncle and nephew, set-upon and attacked Harish, S/o Mihilal, with knives causing serious injuries to which Harish succumbed at 6.40 PM the same day at the District Hospital, Bareilly, to which he was removed after the incident. The incident was witnessed by Omkar (PW 1), Khiali Ram (PW 2) who saw the attack from a close distance of about 20 paces and on account of whose protestations the accused persons hastened away from the scene, one of them leaving behind the knife used in the attack; Paranvir (PW 6) came on the spot soon thereafter and wrote the First Information Report (Ex. Ka. 1) at the scene as per instructions of injured Harish who signed it. Thereafter, Harish was taken to Mirganj Police Station which was just two furlongs away from the scene in an auto-rickshaw by Omkar (PW 1) and Mihilal, the father of Harish, who had also reached the spot by then. Ex. Ka. 1 was delivered at Station-house by injured Harish himself at 2.15 PM. Harish who had also brought with him one of the knives left behind by the assailants, was deposited in the Station-house under Memo (Ex. Ka. 2) prepared in that behalf. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses were formal witnesses. The prosecution relied, in the main, on the eye- witnesses and on the Ex. Ka 1 and Ex. Ka. 7 which it sought to use as dying declarations. 4. In the trial, it was urged for the defence that, having regard to the serious nature of the injuries sustained by the deceased which included a 4 cm. long slashing of the tongue and the shock and the profuse- bleeding the injuries admittedly had caused, injured-Harish, would have lost consciousness very soon and that, at all events, even if he had retained consciousness he would not be in a position to articulate his speech. These circumstances would, it was urged, wholly improbablise, if not render altogether false, the two, dying declarations. The defence also assailed the credibility of the eye- witnesses on what, according to the defence, were the intrinsic discrepancies in the version of the two eye- witnesses who were characterised as chance and, otherwise interested, witnesses. 5. On an appraisal and assessment of the evidence on record, the learned Sessions Judge found the eye-witnesses trust-worthy and their version credible and acceptable. The learned Sessions Judge on the basis of the medical-evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d speak for an hour after being injured. Learned Counsel submitted that the High Court, quite erroneously, preferred a hypothetical answer of the doctor as to the mere theoretical possibility implicit in his later answer that in view of the injuries (1) and (3) it is likely that the deceased might not have been able to speak to the certainty of the first answer. Learned Counsel also sought to point out that the evidence of PW 5, Dr. Balbir Singh, who conducted the post-mortem did not also support the speculation that the injured would have PG NO 397 lost consciousness immediately after the injury. Learned Counsel also listed what, according to him, were certain important circumstances which compelled an irresistable inference as to the presence of Harish at the Station-house in an injured condition within a few minutes of the attack. Shri Prithviraj submitted that certain important pieces of evidence were mis-read by the High Court which led to serious errors and to the consequent miscarriage of justice. Sri Prithviraj submitted that where, as here, the High Court reverses a conviction on conjectures and not on sound reasoning, this Court should interfere. An unjust acquittal he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) observed: .....as a self-made rule of practice, this Court does not interfere with the findings of fact reached by the High Court, unless exceptional and grave circumstances exist, or forms of legal process have been disregarded or otherwise there has been a gross miscarriage of justice. Where the judgment which is the subject of appeal under that Article, is one of acquittal, this Court will not interfere with the same in the exercise of its overriding jurisdiction unless that judgment is clearly unreasonable, or perverse or manifestly illegal or grossly unjust. Therefore, if in the nicely balancing probabilities of a case, two views of the evidence- one indicating acquittal and the other conviction- were reasonably possible, this Court would not disturb the High Court's order of acquittal. In State of Punjab v. Sucha Singh Ors., [1974] AIR SC 343 (344) this Court said: ..... In our opinion, it was for the High Court to appraise the evidence which was adduced in this case. In the absence of any infirmity in the appraisement of the evidence by the High Court, we find no cogent grounds to reappraise the evidence. The fact that on the evidence adduced, a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless . . . . . a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....... 10. Shri Lalit, however, said that the accepted principles of criminal jurisprudence, and administration of criminal justice require that an appellate Court should refrain from reversing an acquittal except for very substantial and compelling reasons. Learned counsel submitted that if after a discussion of the evidence and on a consideration of probabilities, the High Court considers that so serious a charge as of a capital offence cannot safely be sustained on the evidence there is not only nothing inherently erroneous in it but the omission to make such an approach on the appraisal of criminal evidence is itself violative of accepted rules of administration of criminal justice whose twin principles are the presumption of innocence and the burden of proof on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence ourselves to test whether the inferences drawn by the High Court are justified or not as, in our view, the appeal before the High Court must receive a reconsideration. Any comment by us might pre-judge aspects which require consideration by the High Court. But it would not be inappropriate to refer to the submissions of Sri Prithviraj as to some aspects of the evidence in the case. The High Court for instance did not advert to the evidentiary value and effect of Ex. Ka. 2, relating to the deposit of the knife at the Station-house by the deceased-Harish which was said to contain Harish's signature. The High Court did not consider either the genuineness of Ex. Ka. 2 and of the signature of Harish thereon and if Ex. Ka. 3 was genuine, what inferences would follow on the cognate question as to how long Harish was conscious after the attack. The High Court, Sri Prithviraj points out, did not consider the evidence of the investigating officer (PW 7) on certain important aspects. As an instance of mis-reading of the evidence by the High Court, Shri Prithviraj pointed out the error in the assumption made by the High Court that according to Paranvir (PW 6), injured-Harish had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .... prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case..... l3. There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical-evidence-which Sri Prithviraj characterised as merely conjectural answers-to the other categoric answer by the very medical-witnesses themselves. So Prithviraj also submitted that if would be erroneous to accord undue primacy to the hypothetical answers of medical-witnesses to exclude the eye-witnesses' account which had to be rested independently and not treated as the variable keeping the medical-evidence as the constant . PG NO 403 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 Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process. Eye witnesses' acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. lt 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 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 legitimisation of trivialities would make a mockery of administration of criminal justice. 14. In the circumstances of the case, we propose to adopt the course which commended itself to the Court in Qamruddin v. Acqeel Ors., AIR 1982 SC 1229 where Fazal Ali J. observed: The trial court had convicted the accused on a full and complete appraisal-of the evidence. The High Court in appeal has written a very cryptic judgment and has not tried to displac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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