STATE OF U.P. versus DINESH

8. It cannot, however, be forgotten that in case of acquittal,. there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundame·ntal principle of criminal jurisprudence that every person G should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

9. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.

10. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor(1934) 61IA398). In Sheo Swarup the accused were acquitted by the trial court and the local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code (similar to Section 378 of the Code). At the time of hearing of appeal before the High Court, it was contended on behalf of the accused that in an appeal from an order of acquittal, it was not open to the appellate court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed~ on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the trial Judge, recorded an order of conviction.

A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate court had the power to interfere with the findings of fact recorded by the trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the "humble advice of their Lordships", leave was granted by His Majesty. The case was, thereafter, argued. The Committee G considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with H an appeal against acquittal and an appeal against conviction. STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] Though several authorities were cited revealing different views A by the High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases.

11. Lord Russel summed up the legal position thus: "There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', c or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the D defence so as to produce a similar result."

12. His Lordship, then proceeded to observe: (IA p.404) "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code."

13. The Committee, however, cautioned appellate courts F and stated: (IA p.404) "But in exereising the power conferred by the Code and before reaching its co'nclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and· ( 4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of tbe appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." (ernphasis supplied)

14. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee reiterated the above view in Sheo Swarup (Supra) c and held that in an appeal against acquittal, the High Court has full powers· to reviewand to reverse acquittal.

15. So far a~ this. Gou~ 'is co~cemed, probab.ly the first decision on the. point was Prandas v. State (AIR 1954 SC 36) (though the case was decide~ 'on 14-3,-1f}50, it was reported D only in 1954). In tnat. case, the accused was acquitted by the trial court. The Provindal. Government preferred an appeal which was allowed and.·the accused was convicted for offences . punishable. under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain E eyewitnesses.

16. Upholding the decision of the High Court and following the proposition of law in Shea Swarup (supra), a six-Judge Bench held as follows: "6. It must be observed at the very outset that we cannot support the view which has been expressed in several cases that. the High Court has· no power under Section 417, Criminal Procedure Code, tO reverse a judgment of acquittal, unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as. to produce a miscarriage of justice." (emphasis supplied)

17. In Surajpal Singh v. State (1952 SCR 193), a two- H · Judge Bench observed that it was well established that. in an . '· STATE OF U.P.:V: DINESH [DR. ARIJIT PASAYAT, J.] appeal-under Section 417 of the (old} Code, the High Court A had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the ·presumption of innocence of the accused was further.reinforced by his acquittal by t.he trial court, .and the findings of the trial court which had the advantage of seeing the witnesses and B hearing their evidence could be reversed OfllY for very substantial and compelling reasons. 1. 8. In AjmerSingh v. Sta(f! of Punjab (1953 SCR 418) the accused was acquitted by the trial court but was convicted by the High Court in an appeal against acquittal filed by the State. C The aggrieved accused approached this Court. It was contended by him that there were ·ino compelling reasons" for setting aside the order of acquittal and ·due and proper weight· had not been given by the High Court to the opinion of the trial court as regards the credibilify of witnesses seen and examined. D If was also commented th~t the High Court committed an error of law in obserV'ing th'at "when a strong 'prima facie' case is· made out against an accused person it is hiS duty to explain the circumstances app~arlng in evidence against him and he cannot . take sh~lter behind the presumption of innocence and cannot E state that the Jaw entitles him to keep his lips sealed". .".· .1~ ..

Upholding the contention; this Court said:.,, .,, .. . "We 'think this criticism· is well founded. After an order of .. . acquittal has· been made the presumption of innocence is· F further reinforced by that order, and that' being so, the trial court'.s .decision can be reversed· not on the ground that c.:.· the··accused had .. failed:to explain the circumstances ·' · appearing againsf·him but ·only for very substantial and compelling reasons." (emphasis supplied) G 20. In Alley v. State of UP (AIR 1955 SC 807) this Court said: "In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal H c [2009) 2 S.C.R. Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set· . aside that or.der. · It has been laid down by this Court that it is open to the High Court on an appeal against an. order of acquittal to . review the entire evidence and to. come to its· own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened butstrengthened by the judgment of acquittal · passed by the trial court which had the advantage o.f observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide. powers of appreciation of evidence in an appeal against · an order of acquittal as in the case of an appeal against an. order of conviction, subject to the riders that the presumption of innocence with which the accused person . starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opin,ion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated." (emphasis supplied) . 21 ..

In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted under Sections 302 and 441 IPC.' Hewas acquitted by the trial court but convicted by the)-f ig.tl CQurt. Dealing with the power of the High Court agai.~st an oid'er of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1) "It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong." (emphasis supplied) .I. STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] 22. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR ·A 120, a three-Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and · ·· accepted by the Supreme Court.

The Court, however, noted that appeUC3te courts found considerable difficulty in understanding B the scope of the words "substantial and compelling reasons" used in certain decisions. It was observed inter-alia as follows: "This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court C not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong." The Court concluded as follows: "9. The foregoing discussion yields the following results: ( 1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Shea Swarup case afford a correct E guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (1) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal. against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given G · · by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified." 23.

Again, in M.G Agarvvalv. State of Maharashtra (1963) 1190' A ,2 SCR 405, the point was raised before· a· Constitution Bench ··ofthis Court. Taking note of·earlierdecisions, itwas observed c .G as follows: "17. In some of the earlier decisions of .this.Gourt, however, in ~mphasising the importance of adopting ·a cautious approach in dealing wi~h .appeals against; acquittals, it was observed that the presum'ption of innocence is . reinforced by the order:of acquittal and so .. ;the findings of the trial court which had· the advantag~ of seeing the witnesses C1nd hearing their evidence can be reversed only for very .substantial and compelling re(lSOns'.: \(ide Surajpal Singh,v. State (1952SCR1.93). Similarly in Ajmer Singh v. State of PunjabJt95~ SQR 418), it.was ob~erve.d . that th~ interference of the. High Court in. an appeal ag;;:iinst the order .of acquittal would be fustified only !f there are 'very substantial ar.d c.ompelling reasons to do so'. In some other decisions, it.has b.eer:i stated that an orderqf acquittal can be. reyersed only for 'go.od and sufficiently .cogent reasons'.or for 'strong reasons'. In a,ppreciating th~ effect of. these observations, it must be remembered that these observ.ations were not intended to; lay' down a rigid 'or inflexible rule wt"lich should govern .thE:l deci:=;ion ~f the Hig.h.

Court in appeals against acquittals'. They. were not . intended, and should not be read to have intended to introduce an ad<;iitional condition in clause (a) of section 423(1) of the Code . .All thatt~e said .observa.ti.on~ are – intended to .emprasize is,~hat the approach .of the High Court in dealing with an appeat~gainst acqui~t~l .ought to be cautious because as Lord Russell .. observed, .in . Sheo Swa;up fhe p~es4mP,tion of· innqcence in.fa~qµ,r. of.the . . ~ccus:ed '.is not certainly weaken.edJ>y.~hEl fa~U~atti.e has been ~cquitted at his trial'. Therefore, the test suggested . by the expression 'substantial and compelling reason~· should not be construed as a form-uia ·which has to b~ . rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. '·-.,_ STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] State of Rajasthan and Harbans Singh v. State of Punjab A (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse." (emphasis supplied) 24. Yet in another leading decision in Shivaji Sahabrao 8 Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no jurisdictional limitation on the powers of appellate court. "In law there are no fetters on the plenary power of the appellate court to review the whole evidence on c . which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de nova, informed1 however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing D · reasons and comprehensive consideration."· 25_. Putting emphasis on balance between importance of individual liberty and evil of acquitting guHty-persons, this Court observed as follows: ''.6. Even .at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated) devotion to the rule of benefifof doubt at the expense of social defence and to the soothing F sentiment that all acquittals· are always good regardless of justice to the victim and the community, demand especial . emphasis in the contemporary context of escalating crime and escape. The jmf.icial instrument has a public accountability. The cherished principles or golden thread G of proof beyond reasoriable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected. in the attitude that a thousand guilty. men may go but one innocent martyr shall not suffer is a H c false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty per$On has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public _… demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty.

Thus, too frequent acquittals of the guilty may lead to a ferocious peri~l law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.. . .' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the'delinquent free and chqpping the logic of preponderant probability to punish marginal innocents." (emphasis supplied) 26. In K. Gopal Reddy v. State ~f A.P (1979) 1 SCC 355, • the Court was considering the power of the High Court against an order of acquittal under Section 378 of the Code. After considering the relevant decisions on the point it was stated as follows: . "9.

The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and courts used to launch on a search to discover those_ 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this j • .. ,._ . t STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] Court in Sanwat Singh v. State of Rajasthan (1961) 3 A SCR 120. In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has consistently recognised the right of the appellate court to B review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case.

Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant C interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In D some cases (Ramaphupala Reddy v. State of A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that 'if two reasonable E conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court'. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of F any reasonable doubt. ·If two reasonably probable and evenly balanced views of the evidence are p_ossible, one must necessarily concede the existence of a reasonable doubt.

But, fanciful and remote possibilities must be left G out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is ~II ·one way, a bare H c ~ G possibility of another view will nc;>t entitle the. accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of · which an accused person may. claim, must be reasonable." (emphasis supplied) 27. In Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said: "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.

If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions." . 28. In Allarakha K. Mansuri v,. State of Gujarat(2002) 3 SCC 57, referring to earlier decisions, the Court stated: – "7; The -paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage ·of justice which may arise from the acquittal of g!..lilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast up9_n the High Court to reapprecia'te the evidence in acquittal appeal for the purposes of ascertainin·g as to whether ttie accused h·as committed any offence or not.

Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based _upon legal and admissible evidence. Only because the accused-has been acquitted by the trial court, cannot be STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] made a ba_~is to urge that the High Court under all A circumstances should not disturb such a finding." 29. In Bhagwan Singh v. State of M.P (2002) 4 SCC 85, the trial court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High B Court could not have disturbed the findings of fact of the trial court even if that view was not correct, this Court observed: "7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the _.. Code of Criminal Procedure the High Court could not c . disturb the finding of fads of the trial court even if it found· that the view ta~en by the trial court was not proper.

On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court D has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal t~e presumption of innocence in favour of the accused is reinforced. The golden thread which runs E through the web of administration of justice in.· criminal case is that if two views are possible on the evidence Im! adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction F limitation on the appellate court but judge-made guidelines for circumspection. The paramount consideration of the court is to.ensure that miscarriage of justice is avoided.

A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an G innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not". 30. In Harijana Thirupala v. Public Prosecutor, High Court ._. of A.P (2002) 6 sec 470; this Court said: "12. Doubtless the High Court in appeal either against an — — -.,…_ order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal ligh'tly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence· in favour of the accused gets reinforced and strengthened.

The High Court c woul(j not be justified to interfere with order of acquittal l~ merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity." 31. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed: "21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is !hat if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the yiewwhich is favourable to the accused should be adopted.

The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate – STATE OF u·.P. V. DINESH [DR. ARIJIT PASAYAT, J.] court to reappreciate the evidence in a case where the A accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not". ' … 32. Again in Kallu v. State of M.P (2006) 10 SCC 313, this Court stated: "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. c _,. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based dn evide'nce and the view taken is reasonable and plausible.

It will not reverse the decision of the trial court merely because a D different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Fu.rther if it decides to interfere, it should assign reasons for differing with the decision of E the trial court." (emphasis supplied) 33. From the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415), the following general ._ principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no G limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds'\ "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. . .. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.

Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance · of an appellate co~rt to interfere with acquittal than to curtail _the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind1hat in case"of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is t- proved guilty by a competent court of law. Secondly, the accused ) …_ having secured his acquittal, the presumption of his innocence …. is further reinforced, reaffirmed and strengthened by the trial D court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 34. In the instant case the discrepancies highlighted by the High Court cannotbe stated to be trival. The conclusions arrived at by the High Court clearly establish material infirmities and contradictions on the evidence of the two vital witnesses PWs. 3 and 4. It is true that PW.4 was a child of about 10 years. But the-court had found him to be in a position to depose. But the High Court has found that the presence of PW.3 at the spot is highly improbable in view of certain aspects highlighted. One . of them was his claim to have accompanied the deceased to the house of one Barati Lal for delivering milk in a Milk Can. In G his cross-examination he admitted that he does not know where the house pf the Barati Lal is. According to him, he and the deceased were returning after delivering the milk in a Can and the Can was tied to the cycle on which both. of them were travelling_, The Investigating Officer admitted that there was no …. . ·. -H Can lying at the place of occurrence and in fact no seizure of STATE OF U.P. V. DINESH [DR. ARIJIT PASAYAT, J.] any Milk Can has been made. Apart from that the medical evidence clearly rules out the manner of infliction of injuries as deposed. Though ocular testimony of witnesses had greater evidentiary value vis-a-vis medical evidence, but when medical evidence totally improbablises the ocular testimony, that becomes a relevant factor in the process of evaluation of B evidence. In the instant case the medical evidence totally improbablises the version regarding the manner of assault by both the accused persons as noted above. 35. Above being the position, we find no merit in this C . appeal, which is accordingly dismissed. R.P. Appeal dismissed .