Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court directing acquittal of the respondents. The two respondents along with two others faced trial for alleged commission of offence punishable under Section 302 of the Penal Code, 1860 (in short “IPC”). The co-accused persons were acquitted by the trial court.
2. The prosecution version in a nutshell is as follows: on 23-9-1979, at about 11 o'clock in the night in Village Fattupatti, Police Station Gambheerpur, District Azamgarh the incident took place. The deceased was one Mool Chand, who is described as “the deceased” hereinafter. The FIR was lodged the following day at 7.10 a.m by Khelawan (PW 3) at whose house the deceased was allegedly sleeping on the fateful night. The distance of the police station from the place of occurrence was five miles.
3. The deceased resided in the aforesaid village with his mother and other family members. The accused, Jautam alias Andhi had property disputes with the deceased. Accused, Hari Chand was allegedly his associate residing in the same village. Earlier to the incident, the deceased had obtained a decree relating to certain disputed property in his favour as against Jautam alias Andhi, a notorious person who had infused a sense of terror in the mind of Mool Chand and used to issue threats to him of his life. For this reason, Mool Chand used to sleep at the house of Khelawan (PW 3).
4. On the fateful night, Mool Chand was sleeping outside the house of Khelawan (PW 3). At a little distance his mother, Gomti Devi (PW 1) and his daughter, Ramawati (PW 2) were also sleeping in the verandah. A lantern was glowing. At about 11 o'clock in the night, the two respondents with two others appeared there. Both the respondents were armed with firearms. Mool Chand was caught hold of and the present two respondents opened fire on him. He died instantaneously. Gomti Devi (PW 1), Ramawati (PW 2) and Khelawan (PW 3) witnessed the incident. On the lodging of the FIR on oral narration by Khelawan (PW 3), a case was registered and investigation was taken up.
5. After completion of investigation charge-sheet was filed. The defence plea was one of denial and alleged false implication. The prosecution primarily relied on the evidence of three eyewitnesses PWs 1, 2 and 3. PW 5 was the doctor who conducted the autopsy.
6. The High Court by a practically non-reasoned order directed acquittal. The appeal filed by the respondents was allowed after referring to the evidence of the eyewitnesses by concluding as follows:
“Obviously, night was chosen as the time for commission of the crime by the culprit(s). Two of them (the present appellants) allegedly used firearms. It is against inherent probabilities of the situation that two of the associates of the present appellants would have picked him up from the cot, taken him to some distance and would have then thrown him on the ground before firing was resorted to by the present two appellants. The natural and probable conduct of the appellants holding firearms would have been to shoot him dead immediately on locating him sleeping on the cot. There could hardly be any necessity of his first being picked up from the cot, taken to some distance and thrown on the ground.
This part of the testimony of Gomti Devi PW 1 and Ramawati PW 2 also does not fit in natural probabilities of the situation that two of the culprit(s) would be catching hold of the victim at the time of actual shooting, risking their own life. Holding of the victim at the time of actual shooting is always risky for one who holds him, because the shot may hit him instead of the victim who would naturally struggle to save himself from the shot. It may also be observed at the risk of repetition that even if it is taken for the sake of argument (though it is not believable) that the victim was picked up from the cot and thrown on the ground after being taken for a few steps, then also the incised wounds found on his person go unexplained.
In all probabilities, it was a case of hit and run when the assailants were not at all recognised or identified by Gomti Devi PW 1 and Ramawati PW 2. On the basis of the suspicion and imagination, the story seems to have been spun by them. We are, therefore, in judgment that the evidence of Gomti Devi PW 1 and Ramawati PW 2 which is in conflict with medical evidence, falls much short of proving the appellants to be guilty.”
As noted above, the aforementioned portion indicates the reasoning for the acquittal.
7. In support of the appeal learned counsel for the appellant State submitted that the High Court has without indicating any basis discarded the eyewitnesses' version of the three persons. The conclusions are based on surmises and conjectures. Learned counsel for the respondents supported the judgment.
8. The first conclusion which is a hypothetical conclusion is that “the natural probable conduct of the appellants holding firearms would have been to shoot him dead immediately on locating him sleeping on the cot. There was no necessity for first picking him from the cot, taking to some distance and throwing on the ground”. Another conclusion arrived at hypothetically is that the testimony of PWs 1 and 2 does not fit in natural probabilities of the situation that two of the culprits would be catching hold of the victim at the time of actual shooting, risking their own life.
9. The High Court came to a peculiar conclusion that if the person holds the victim at the time of actual shooting there is always the risk for one who holds him because the shot may hit him instead of the victim who would naturally struggle to save himself from the shot. The High Court also came to the conclusion that the eyewitnesses did not speak of any attack which resulted in incised wounds.
10. We find that the conclusions of the High Court are full of surmises and conjectures and there has been no serious attempt to analyse the evidence. It needs to be noted that the trial court after careful analysis of the evidence found the accused guilty. In the first information report the names of the accused persons were specifically mentioned. The first information report was lodged almost immediately after the occurrence. In the post-mortem report the doctor has found seven injuries. Four of them are firearm wounds which clearly fit in with the version of the eyewitnesses. There were two incised wounds of 1.5 cm × 75 cm × muscle-deep and 2 cm × 1 cm × muscle-deep. The doctor's evidence shows that the firearm wounds were possible when the firing was done from a short distance.
11. The hypothetical conclusion of the High Court that nobody would risk holding a person when somebody is shooting is not correct because the shooting was done from a very close distance. The question of such a person holding the deceased getting hit does not arise in such a situation. In any event, such a hypothetical reason would not be sufficient to discard the credible eyewitness version.
12. The prosecution has explained as to why PWs have not stated about the incised wounds. The witnesses have clearly stated that when the deceased was being taken away they had not seen the nature of attacks but they had seen the actual shooting. If during the process of taking the deceased any incised wound was inflicted that obviously could not have been seen by the PWs.
13. There was no reason for the High Court to discard the credible, cogent and trustworthy evidence of the eyewitnesses. This was certainly not a case where medical evidence was at a variance with the ocular evidence. The evidence of the eyewitnesses regarding injuries caused by the firearms is amply corroborated by the evidence of the doctor who found four firearms' wounds. In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.
14. “20. 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 eyewitnesses' account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’.
21. 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 Bentham 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 witnesses held to be creditworthy; 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.”
15. During the pendency of the appeal Respondent 1 Jautam has died and the same has been abated so far as he is concerned.
16. The inevitable result is that the appeal deserves to be allowed which we direct. The respondent Hari Chand shall surrender to custody forthwith to serve the remainder of sentence. The appeal is allowed.