STATE OF U.P. versus KRISHNA GOPAL & ANR.

9. It is, no doubt, true that as a self-made rule of practice, this Court does not interfere with the findings of fact reached by the High Court, but such findings of facts must not be vitiated by serious errors,, In State of U.P. v. Jashoda Nandan Gupta & Ors., AIR 1974 SC 753 (757) 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 convic- tion-were reasonably possible, this Court would not dis- turb the High Court's order of acquittal." In State of Punjab v. Sucha Singh & Ors., I 1974] AIR SC 343 (344) this Court said: " . . . . . In our op1mon, 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 ihe evidence adduced, a different view could also have been taken in the matter, would not induce us to.interfere with the judgment of the High Court. The appeal fails and is dismissed .. , In State of A.P. v. P. Anjaneyulu, AIR 1982 SC 1598 (1599) it was held: " ….. The question is one of appreciation of evidence and the proposed appeal does not raise any substantial question of law. Apart from that we do not ordinarily entertain appeals against orders of acquittal if two views of the evi- dence are possible ….. " In State of U.P. v. Pussu, SCR 1983 (3) 294 (309) this Court observed: STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.I 399 " ….. We are aware of the rule of practice that ordinarily this Court should not interfere with judgments of acquittal of a mere reappreciation of evidence. But if these are glar- ing infirmities in the judgment of the High Court resulting in a gross miscarriage of justice, it is the duty of this Court to interfere. In the instant case we find that the approach of the High Court is basically erroneous and its judgment is founded on false assumptions, conjectures and surmises But these pronouncements themselves qualify this rule of self-abnega- tion prescribed for itself by this Court, with the qualification that where serious errors of assumption and inference vitiate the finding, interference is justified. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bo bade v. State of Maharashtra, [1974] 1SCR489 (492-93): " ….. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the communiiy, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hestiancy and degree of doubt ….. " " ….. The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that just one guilty person 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 indi- cated '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 c [1988) Supp. 2 S.C.R.

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 ll a charge as of a capital offence cannot safely be sustained on the evidence there is not only nothing inl1erently erroneous in it but the omission to make such an approach ,n the appraisal of criminal evi- dence 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 the prosecution to establish a criminal charge by standards of evidence appropriate to criminal actions, beyond reason- C able doubt. But the submissions of Sri Lalit bearing on the limitations of the appellate Court under the supposed rule that unless there are "sub- stantial" or "compelling" reasons or "very substantial reasons" or "strong reasons", the findings in a judgment of acquittal should not be interfered with should not pass without some comment. This Court in dealing with the scope of the powers of the appellate Court in appeals against the acquittal has, by and large, approved and accepted the lucid formulation of the law by the judicial committee in Sheo Swarup's case, (61 Indian Appeals 398) as clarified later by the judicial committee in Noor Mohammad's case (AIR 1945 PC 151). Those principles, as we understand them, do not detract from the plenitude of the power of the appellate Court to review and reappreciate the · evidence if the order of acquittal on a review of the evidence is found to be grossly erroneous. The powers of the appellate Court, in an appeal against the acquittal, are not different from or inconsistent with, those that the appellate Court has in an appeal against a convic- tion; the difference is, as is sometimes stated, more in the manner of approach and the perspective rather than in the content of the power. The expressions "very substantial reasons", "substantial and compel- ling reasons", ''strong reasons" used in several pronouncements which tend to qualify the power of the appellate Court do no more than to G convey the principles stated by the judicial committee in Sheo Swamp's case (See: Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715; Chandra Kanta Debnath v. State of Tripura, AIR 1986 SC 606). There is, thus no immunity to an erroneous-order from a strict appel- late scrutiny. But the appellate Court wherever if finds justification to reverse an acquittal must record reasons why it finds thelower court H wrong. This, in the ultimate analysis, is merely a reiteration of a princi- STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.] pie which every exercise of appellate ·jurisdiction in the matter of reversal of an order under appeal is subject to.

11. In the present case, the submi.ssions of Sri Prithviraj that the judgment under appeal is rendered infirm on several counts cannot be said to be without substance. We, however, abstain from a review of the evidence 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 ]?y. 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 Stati~.n-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. 2 was genuine, what infe- rences 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 evi- dence 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 merely indicated by ·signs or gestures that he was injured by the knife which was seen at the scene of occurrence as a circumstance bearing on the question whether Barish's speech had been affected. The High Court referred to the evidence of PW 6 on this point and observed: " ….. At one place he said that Harish had made a sign indicating that he was injured with the knife which was found on the scene of occurrence …. " This, according to Sri Prithviraj, 'lleighed with the High Court in reaching such erroneous conclusions as it did in regard to the ability of the deceased Harish to speak immediately after the injuries-a cir- cumstance which had a material bearing on the genuineness of the dying declarations. Sri Prithviraj pointed out that the evidence on the point was misread by the High Court and that evidence cle°arly indi- cated that Harish did not merely gesture, but did also speak. Indeed; this appears to be so. PW 6 had Staled: c c I 1988] Supp. 2 S.C.R. " …… This knife was found at the spot. He had indicated towards that knife saying that he was attacked with this knife … "

12. Sri Prithviraj pointed out certain circumstances which stand established with a degree· of probability appropriate to the requisite criminal evidential ~tandard vi~., that Harish had died a homicidal death attributable to the injuries caused by a weapon of the kind of Ex. 1; that the attack had occurred at the place and time alleged by the prosecution; that Harish in the injured condition went to the Station- house at 2.15 PM along with Omkar (PW 1) and lodged Ex. Ka. 2 and that Ex. Ka. 2 evidencing the deposit of the knife was also signed by Harish at the Station-house. The High Court, according to Sri Prith- viraj, had not given due recognition to these facts which were clearly established and the inevitable consequences logically flowing there- from. It was urged that the High Court did not also displace the important reasons given by the trial court in accepting these cir- cumstances. In regard to Shri Prithviraj's point that the evidence of the investigating-officer did not receive independent appraisal it is rele- vant to recall what was said in State of Kera/av. M.M. Mathew & Anr, though in a somewhat different context: " . . . . . . It is true that courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities …… " " …. 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 ….. "

13. 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· answers by the very medical-witnesses themselves. Sri Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical ans- wers of medical-witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the "variable" keep- ing the medical-evidence as the "constant". STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.l 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' account would require a careful inde- pendent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibi- lity. 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. 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 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 sepa- c rate pieces of evidence are dependent. Two events are – dependent when they tend to occur together, and the evi- dence 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 juror may feel doubt whether to credit an alleged confes- sion, 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." Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. c To constitute reasonable doubt, it must be free from an over emotional response. Doubts may be actual and substantial doubts as to the guilt of the accused-person 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 common-sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot ob- viously 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 legitimisa- tion 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 displace some of the important reasons given by the trial court nor has it made any attempt to scan the intrinsic merits of the evidence. We are satisfied that the judgment of the High Court is not in accordance with law. In these circumstances, therefore, we allow this appeal and remand the case to the High Court for fresh disposal according to law ….. "

15. Accordingly, this appeal is partly allowed, the Judgment of the High Court dated 30th September, 1983, in Crl. Appeal No. 1320 of 1982 is set aside and the appeal is remitted to the High Court with the direction to re-admit it, and hear and dispose of the same on the merits afresh. We hope and trust that it will be possible for the High Court to dispose of the appeal most expeditiously. The High Court, should it consider it necessary or appropriate, STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.] 405 might consider calling for expert medical-evidence-of course with appropriate opportunity to the defence~on the point of the effect of the in juries on the speech and consciousness of Harish. This is of course entirely left to the High Court.

16. During the pendency of the appeal before the High Court pursuant to this order, the respondents shall be enlarged on bail to the satisfaction of the Sessions Court, Bareilly. Appeal is disposed of accordingly. R.S.S. Appeal allowed partly.