Chhotanney & Ors vs State Of Uttar Pradesh & Ors

Chhotanney and Ors. ..Appellants

Versus

State of Uttar Pradesh and Ors. ..Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J

1. Challenge 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 147

IPC.

2. Prosecution 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.

Appellants Chhotanney and Mubarak chopped off upper portion of his head

2 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

3 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

were 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 jail.

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.

4 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 held.

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.

3. In 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.

4. It 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

5 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.

5. It 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.

6

6. 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 as the "variable" keeping the medical evidence as the "constant".

7. 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 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.

7

8. A 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).

"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 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."

8

9. Doubts 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.

10. 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

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

9 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.

11. Above being the position, we find no merit in this appeal which is

accordingly dismissed.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY) New Delhi, February 18, 2009

10