TMI Blog2003 (9) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... of IPC, All the four accused persons were also charged in terms of Section 440 IPC for committing mischief having made preparation to cause hurt. 2. The date of occurrence is 11.5.1984. The dispute arose over fixing a door by Ramakant (appellant in Crl. A. Nos. 2032-33/96). By infliction of a gunshot injury the deceased breathed his last on 12.5.1984. According to Siyaram (PW-1) the informant, the incident which took life of the deceased was the result of long-standing dispute over properties. There was a private partition between the deceased's father and his offsprings and Accused-Modan Rai a few years before the occurrence. Madan Rai wanted to take northern room out of the rooms in which catties were tethered and which was falling to share of Siyaram, the informant. Though the door of this room had been removed earlier, the informant wanted to close the door by constructing mud wall. On the date of occurrence at about 6.30 p.m. the Accused-Modan Rai came with his licensed gun to the spot of occurrence with his sons Sachidanand, Rasbehari and Janardan. Three of them were armed with lathis. They started demolishing the walls. The present appellant-Ramakant Rai and Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sound appeared incredible. The distance from which the bullet was fired appeared to be differently stated and there was apparent contradiction in the evidence of doctor who conducted the post mortem and the doctor who examined the deceased immediately after he had suffered the Injuries. While Dr. Chander Bhan Tripathi (PW-4) who conducted the post-mortem examination indicated the distance to be greater, doctor (PW-3) who examined the deceased noticed some blackening and tattooing which indicated that the gun shot was fired from a very close range. After making casual reference to the evidence it was concluded that on the overall appreciation of evidence contradictory statement of affairs about the injuries and the ocular testimonies, time of lodging of FIR throws grave doubt in the prosecution case. It was, therefore, concluded that place of occurrence as said to have taken place and stated in Court is not correct version of the incident and the prosecution has not come with clean and correct case. With these findings, the judgment of conviction and sentence was set aside and one of acquittal was put in its place. 5. The father of the deceased, Ramakant Rai has filed C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court had dealt with such pleas of the accused persons elaborately and had indicated the reasons as to why they were not acceptable. The High Court without even discussing the evidence elaborately concluded to the contrary. Evidence of PWs 2 and 5 who are independent witnesses has been discarded even without analyzing of their evidence. 8. In response, learned counsel for the acquitted accused persons submitted that the special leave petition at the instance of the father of the deceased was not competent. Though he claimed to be eyewitness, he was not examined by the prosecution. The reasoning indicated by the Trial Court that he may have shown compassion to his close relative having lost the son is contradicted by the very fact that he has chosen to file Special leave petition. 9. With reference to evidence of doctors it was submitted that nature of gunshots wounds shows that the firing was from a close range. Had the situation been otherwise, the injuries could not have been of oval shape, when the prosecution version is that the accused was firing from a height. The nature of the injuries, sustained clearly rule out any gun being fired by the accused Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court's jurisdiction we do not have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Criminal Procedure Code, 1973 (in short the Code ) does not provide for an appeal to the High Court against an order of acquittal by a subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh 1978CriLJ1107 this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of appeals. We do not share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life'. Wide enough in all conscience is the field of discretion that remains . 15. It is manifest that Article 136 is of composite structure, is power-cum-procedure - power in that it vests jurisdiction in this Court and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. 16. Coming to the appeals before us we find that State has not challenged the acquittal of accused Madan Rai. That being the position and in view of what has been stated in Arunachalam's case (supra) and Sadhanantham's case (supra) the special leave petition filed by Ramakant Rai is clearly maintainable. 17. It was submitted that when two views are possible and the High Court with well-chiseled conclusions has accepted a view it would not be proper to exercise jurisdiction under Article 136 of the Constitution. Arguments are not substitutes for reasoning. More so when the appellate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence of PWs 3 and 4 and accused is to get the benefit therefore. In fact a combined reading of the evidence of PWs 3 and 4 shows that PW-4's version was more authentic and acceptable. 21. Much emphasis has been laid about the nature of injury. The hypothetical answers given by the doctors cannot corrode credibility of eyewitnesses. Significantly, no question was put to PWs 3 and 4 as to the position from where the accused could have made the gunshot. 22. It is trite that where the eyewitnesses' 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 quality of the trial process. Eyewitnesses' 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 witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Venkatachalia, J (as His Lordship then was) in State of U.P. v. Krishna Gopal and Anr. 1989CriLJ288 . 26. As was noted by this Court in Gurcharan Singh and Anr. v. State of Punjab [1963]3SCR585 non-examination of the ballistic report does not render direct evidence improbable. 27. In view of the unsatisfactory nature of disposal of the appeal and the inherent improbabilities and incongruities in the conclusions, the unreasoned impugned judgment of the High Court warrants reversal. So far as Accused-Modan Lal is concerned, his conviction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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