STATE OF U.P.versusKRISHNA GOPAL & ANR.

                            STATE OF U.P.                                      A
                                     v.

                     KRISHNA GOPAL & ANR.

                           AUGUST 12, 1988
                                                                               B
        [A.P. SEN AND M.N. VENKATACHALIAH, JJ.]

       Constitution of India 1950: Article 136-Supreme Court does not
interfere with findings of fact reached by High Court unless vitiated by
serious errors.

       The respondents were put on trial for offences under section 302
                                                                               c
read with section 34, IPC. At the trial the prosecution mainly relied on
the eye-witnesses and the statement of the deceased recorded by the
Investigating Officer, which was sought to be used as a dying declara-
tion. The defence assailed the credibility of the eye-witnesses as well as
the authenticity of the dying declaration. The Sessions Judge accepted         D
the prosecution ~ase that notwithstanding the somewhat serious injuries
inflicted on him, the deceased was in a position to instant the prepara-
tion of the First Information Report and to make the statement before
the Investigating Officer. The respondents were convicted and sen-
                                              1
tenced to imprisonment for life.
                                                                               E
     In the appeal, the High Court, on re-assessment of the evidence,
accepted the defence pleas, allowed the appeal and ordered acquittal.

       Before this Court it was urged by the State that the High Court
fell into a serious error in its assumptive predication that injuries on the
person on deceased were such as were likely to render him unconscious          F
immediately and incapacitate him from making the dying declaration.
It was accordingly urged that because the High Court had reversed the
conviction on conjectures and not on sound reasoning, this Court
should interfere.

      On behalf of the respondents, it was urged that this Court should        G
not interfere under Article 136 even if two views were possible on the
evidence and the one in favour of the prosecution could be reached on
reappreciation of the evidence as long as the view opted for could not be
said to be altogether impossible on the evidence.

      Allowing the appeal partly and remitting the case to the High            H
                                    391
    392         SUPREME COURT REPORTS              [1988] Supp. 2 S.C.R.

A Court for disposal on merits afresh, it was,

        HELD: (I) It was, no doubt, true that as a self-made rule of
  practice, this Court did not interfere with the findings of fact reached
  by the High Court, but judicial pronouncements tnemselves qualify this
  rule and justify interference where serious errors of assumption
B vitiated the findings. [398A]

          State of V.P v. Jashoda Nandan Gupta, AIR 1974SC 753; State of
    Punjab v. Sucha Singh. AIR 1974 SC 343; State of A.P. v. P.
    Anjaneyulu, AIR 1982 SC 1598; State of U.P. v. Pussu, [1983] 3 SCR
    294; Shivaji Sahebrao Bopade v. State of Maharashtra, [1974] I SCR
    489 referred to.
c
        (2) The principles laid down regarding the scope of the powers of
  the appellate Court in appeals against acquittal did not detract from the
  platitude of the Courts powers to review and reappreciate the evidence
  if the order of acquittal on review of the evidence was found to be
D grossly erroneous. These powers were not different from or inconsistent
  with those that the appellate Court had in an appeal against conviction;
  the difference was more in the manner of approach and the perspective
  rather than in the content of the power: The expressions "very
  substant_ial reasons" etc. used in several pronouncements which tend to
  qualify these powers did no more than to convey these principles. There
E was thus no immunity to an erroneous order from a strict appellate
  scrutiny. But the appellate court wherever it found justification to
  reverse an acquittal must record reasons why it found lower court
  wrong. [400E-H]

          Shea Swarup's case, 61 Indian Appeals 398; Noor Mohammad's
F   case AIR 1945 PC· 151; Sanwat Singh v. State of Rajasthan, AIR 1961
    SC 715; Chandra Kanta Debnath v. State of Tripura, AIR 1986 SC 606,
    referred to.

           (3) Eye witnesses account would require a careful independent
    assessment and evaluation for their credibility which should not be
G   adversely prejudged making any other evidence, including medical-
    evidence, as the sole touchstone for the test of such credibi-
    lity. [403B]               -

        (4) What degree of probability amounted to 'proof' was an exer-
  cise particular to each case. The conceptes of probability, and the
H degrees of it, could not obviously be expressed in terms of units to
     STATE OF U.P. vc KRISHNA GOPAL {VENKATACHALIAH, J.]              393

be mathematically enumerated as to how many of such units consti-
tuted proof beyond reasonable doubt. There was an unmistakable
                                                                             A
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 intui-
tions of the judge. l403D; 404B-C]
                                                                             B
       (5) Doubts would be called reasonable if they were free from a
zest for abstract speculation. A reasonable doubt was not an imaginary,
trivial or a merely possible doubt; but a·rafr doubt based upon reason and
common-sense. It must grow out of the eviden~ in the case. [403H; 404A-B]

      6. The appellant's submission that the judgment under appeal
was rendered infirm on several counts could not be said to be without        C
substance. The appeal before the High Court must, therefore, receive a
reconsideration. [401B]

      Qamreeddin v. Acqeel, AIR 1982 SC 12 29 adopted.
                                                                             D
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 891of1985.

     From the Judgment and Order dated 30.9.1983 of the Allahabad
High Court in Cr!. A. No. 1320 of 1982.
                                                                             E
    Prithvi Raj, Dalveer Bhandari and Ms. Rachna Joshi for the
Appellant.

      U .R. Lalit and Shakil Ahmed Syed for the Respondents.

      The Judgment of the Court was delivered by                             F

      VENKATACHALIAH,J1 This appeal, by special leave, is by the
State of Uttar Pradesh preferred against the Judgment dated 30.9.1983
of the High Court of Judicature at Allahaliad setting aside the convic-
tion and sentence passed against the two Respondent-accused in Ses'
sions Trial No. 256 of !981on the file of the Sessions Judge, Bareilly,      G
for offences under Section 302 read with Section 34, !PC. The learned
                      '
Sessions Judge had handed   down a sentence of imprisonment for life,
but the High Court, in reversal of that conviction .and sentence, acquit-
ted the respondents.

      2. The case of the prosecution may briefly be stated:                  H
    394        SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

A       At 2.00 PM on 31. 1.1981 in the town of Mirgan j in the District
  Bareilly, in front of the house of a certain Lalan, the two respondents-
  Krishna Gopal and Vijai-who are related to each other as uncle and
  nephew, set-upon-and attacked Harish, S/o Mihilal, with knives caus-
  ing serious injuries to which Harish succumbed at 6.40 PM the same day
  at the District Hospital, Bareilly, to which he was removed after the
B incident. The incident was witnessed by Omkar (PW 1), Khiali Ram
  (PW 2) who saw the attack from a close distance cif about 20 paces and
  on account of whose protestations the accused persons hastened away
  from the scene, one of them leaving behind the knife used in the
  attack; Paranvir (PW 6) came on the spot soon thereafter and wrote
  the First Information Report (Ex. Ka. 1) at the scene as per instruc-
C lions of injured Harish who signed it. Thereafter, Harish was taken to
  Mirganj Police Station which was just two furlongs away from the
  scene in an auto-rickshaw by Omkar (PW 1) and Mihilal, the father of
  Harish, who had also reached the spot by then. Ex. Ka. 1 was
  delivered at Station-house by injured Harish himself at 2.15 PM.
  Harish who had also brought with him one of the knives left behind by
D the assailants, was deposited in the Station-house under Memo (Ex.
  Ka. 2) prepared in that behalf. Injured-Harish signed that Memo.

         Thereafter, Harish was taken to the Public Health Centre at
  Mirganj accompanied by a constable. The investigating officer, Nanak
  Chand Sharma, (PW 7) who came to the Station-house at 2.30 PM
E proceeded to Mirganj Hospital and recorded Harish's statement (Ex.
  Ka. 7). As no doctors were available at the Public Health Centre at
  Mirganj, injured-Harish was taken to the District Hospital at Bareilly
  in a motor-vehicle. Dr. Rajeev Aggarwal (PW 3) <;xamined Harish at
  about 4.40 PM and noted the in juries on the person of Harish in the
  list, Ex. Ka. 3. Despite treatment at the District Hospital by the Sur-
F geon Dr. Pundani and Dr. Sharma, Harish died at 6.40 PM at the
  hospital.

         The accused Krishna Gopal was arrested at 6.30 PM on the same
   day. His Kurtha (Ex. 4) ahd his blood-stained Paijama (Ex. 5) were
   recovered, under Memo Ex. Ka. 10. The accused Vijai was arrested on
G· 8.2.1981. Accused were put-up for trial for offences under Section 302
   read with Section 34, IPC. The motive for the killing was previous
   enmity between the accused-persons and Miliilal, the father of the
   deceased. The accused denied the charge and pleaded not guilty.
   According to the drift of the suggestions made to the prosecution
   witnesses at the trial and from their statements under Section 313 Cr.
H PC, they indicated that deceased-Harish was a gambler and had
      STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.[             395

sustained injuries at about 3.00 PM that day in a gamblmg-brawl and          A
that occasion was exploited by Paranvir (PW 6) and others to foist a
false case against them owing to pr".vious enmity. Accused Krishna-
Gopal while admitting the seizure of his cloth.es under Ex. Ka. 10,
however, denied that at the time of recovery they were blood stained.

      3. At the trial, before the learned Sessions Judge, the prosem-        B
tion examined and relied upon the two eye witnesses, Omkar (PW 1)
and Khiali Ram (PW 2). Dr. Rajeev Aggarwal (PW 3) spoke to the
injury report (Ex. Ka. 3), prepared by him. Dr. Balbir Singh (PW 5),
who conducted the post-mortem examination spoke to the post-
mortem report Ex. Ka. 6; Paranvir (PW 6) who was the scribe of Ex.
Ka. 1, and Habib (PW 8) who had witnessed the seizure of the clothes         c ,
on the person of Krishna Gopal under Ex. Ka. 10 were also called.
Nanak Chand Sharma, investigating officer, tendered evidence as PW
7. Serologist's report was marked as Ex. Ka. 6. The other witnesses
were formal witnesses.

      The prosecution relied, in the main, on the eye-witnesses and          D
on the Ex. Ka 1. and Ex. Ka. 7 which it sought to use as dying
declarations.

      4. In the trial, it was urged for the defence that, having regard to
the serious nature of the injuries sustained by the deceased which
included a 4 cm. long slashing of the tongue and the shock and the           E
profuse-bleeding the injuries admittedly had caused, injured-Harish,
would have lost consciousness very soon and that, at all events, even if
he had retained consciousness he would not be in a position to articu-
late his speech. These circumstances would, it was urged, wholly
improbablise, if not render altogether false, the two dying declara-
tions. The defence also assailed the credibility of the eye-witnesses on     F
what, according to the defence, were the intrinsic discrepancies in the
version of the two eye-witnesses who were characterised as chance
and, otherwise interested, witnesses.

      5. On an appraisal and assessment of the evidence on record, the
learned Sessions Judge found the eye-witnesses trust-worthy and their        G
version credible and acceptable. The learned Sessions Judge on the
basis of the medical-evidence of PW 3 accepted the prosecution case
that notwithstanding the somewhat serious injuries inflicted on him,
Harish was in a position to instruct the preparation of Ex. Ka. 1 and to
make the statement before the investigating officer as per Ex. Ka. 7.
Learned Sessions Judge considered the sequence of events, that the           H
      396        SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

      First Information Report reached the Station-house within fifteen
 A
      minutes of the occurrence; that injured was physically present at the
      station which the learned Judge considered undisputable having
      regard to the signature on Ex. Ka. 10 and that the circumstance that
      one of eye-witnesses, {PW 1) had accompanied the injured to the
      police station within a few minutes of the occurrence, suggested his
 B    presence at the scene, had established the prosecution case against the
      accused persons beyond reasonable doubt. The accused were, accord-
      ing! y, convicted and sentenced.

         6. In the appeal by the convicted persons, the High Court on a
   re-assessment of the entire evidence persuaded itself to the view that
   having regard to the nature and severity of the injuries, Harish could
'C not reasonably be expected to have been in a position to make the
   dying-declarations attributed to him; that the discrepancies in the evi-
   dence of the eye-witnesses rendered them unsafe to be relied upon and
   that with the rejection of the dying-declarations and the eye-witness-
   account, nothing remained which would connect the accused persons
 D with the crime. The High Court, accordingly, allowed the appeal and
   acquitted the accused.

          The State has challenged the acquittal as one arrived at as much
    by a basically erroneous approach to the matter as by a non-consi-
    deration of material evidence on record, resulting in a serious miscar-
  E riage of justice.

            7. Shri Prithvira j learned senior Counsel for the State submitted
      that in discarding the two dying declarations (Ex. Ka. 1 & Ex. Ka. 7),
      the High Court fell into a serious error in its assumptive predication
      that the injuries on the person of Harish were such as were likely to
  F   render him unconscious immediately and incapacitate him from mak-
      ing the dying declarations attributed to him. In positing this, the High
      Court, contends counsel, ignored the positive and firm opinion of Dr.
    Rajeev Aggarwal (PW 3), who had had the opportunity of examining the
    injured person at 4.40 PM that very day, that "the deceased could
    survive and speak for an hour after being injured." Learned Counsel
  G submitted that the High Court, quite erroneously, preferred a hypothet-
    ical answer of the doctor as to the mere theoretical possibility implicit
    in his later answer that "in view of the injuries (1) and (3) it is likely
    that the deceased might not have been able to speak" to the certainty
    of the first answer. Learned Counsel also sought to point out that the.
    evidence of PW 5, Dr. Balbir Singh, who conducted the post-mortem
  H did not also support the speculation that the injured would have lost
      STATE OF U.P. v. KRISHNA GOPAL [VENKATACHALIAH, J.l              397

consciousness immediately after the injury . Learned Counsel also             A
listed what, according to him, were certain important circumstances
which compelled an irresistable inference as to the presence of Harish
at the Station-house in an injured condition within a few minutes of
the attack. Shri Prithviraj submitted that certain important pieces of
evidence were mis-read by the High Court which led to serious errors and to
                                                                              B
the consequent miscarriage of justice. Sri Prithviraj submitted that
where, as here, the High Court reverses a conviction on conjectures
and not on sound reasoning, this Court should interfere. An unjust
acquittal, he said, was as much a miscarriage of justice as an unjust
conviction was. Sri Prithviraj further submitted that the version of the
eye-witnesses as to the time of the attack was, indeed, corroborated by
Medical-evidence and the information having been lodged with the              c
police within 15 minutes of the occurrence, there was absolutely no
scope for any deliberation and concoction. That apart, inji;red-Harish
or his well-wishers had no reason to shield the identity of the real
culprits and implicate innocent persons.
                                                                              D
       8. 'Shri U .R. Lalit, learned Senior Counsel for the respondents,
endeavoured to show that this was not a fit and appropriate case for
interference by this Court and that if the High Court, after considera-
tion of the whole evidence, came to a conclusion which cannot be said
to be unsupportable on the evidence, this Court should not interfere
under Article 136 even if two views were possible on the evidence and
the one in favour of the prosecution could be reached on re-appre- E
ciation of the evidence, as long as the view opted for and that com-
mended itself to the High Court could not be said to be altogether
impossible on the evidence. Shri Lalit invited attention to certain·
answers of the Medical-experts that enabled an inference that the
in juries were such as were likely to render the victim immedjately
unconscious or at least inarticulate and urged that if in view of the F
injuries of a grave nature and the profuse bleeding suffered by the
injured, the High Court considered it probable that the injured might
have lost consciousness after the attack so as to improbablise the dying
declarations and that, at all events, if, having regard to the very serious ·
slashing of the tongue, which, according to the medical-evidence could
in itself, in the ordinary course have caused death, the High Court G
considered it likely or probable that the injured w,ould not be able to
speak, there was nothing in that view which would invite or justify
interference by this Court under Article 136. The principle of penal
policy would, says counsel, require that this Court should decline to
interfere.
                                                                              H
    398         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

          9. It is, no doubt, true that as a self-made rule of practice, this
A
    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:

B               " ..... 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
c               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-
D               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:

E               " . . . . . 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
F               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:

G               " ..... 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 ..... "

H        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      A
           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         B
           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
                                                                             c
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     D
                '
            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               E
            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'       F
            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          G
            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          H
                  "
    400         SUPREME COURT REPORTS               [1988) Supp. 2 S.C.R.

         10. Shri Lalit, however, said that the accepted principles of
A
   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
D   "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
E 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
F 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.]             401

 pie which every exercise of appellate ·jurisdiction in the matter of
                                                                              A
 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           B
 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    c
  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       D
  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       E
  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         F
             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-            G
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:
                                                                              H
    402         SUPREME COURT REPORTS                 I1988] Supp. 2 S.C.R.
               " ...... This knife was found at the spot. He had indicated
A
               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
B   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-
c   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.
D
          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:

E               " . . . . . . 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
F               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
G   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-
H   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   A
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              B
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
                                                                             c
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,          D
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).                                                   E

            "The simple multiplication rule does not apply if the sepa-
            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 F
            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 G
            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.      H
    404         SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

    To constitute reasonable doubt, it must be free from an over emotional
A
    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
B   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.
c   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
D   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:

E               "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
F               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
G   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.

H         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          A
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         B
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.