Helal Uddin Sk and Others vs The State of Meghalaya and Others

T. Nandakumar Singh, J.—This appeal is directed against the judgment and order of the trial court dated 03.09.2014 for convicting the accused Md. Nizam Uddin under Section 304 Part I and 447 of the IPC and order of sentence dated 10.09.2014 for sentencing the accused Md. Nizam Uddin to undergo rigorous imprisonment of 7 (seven) years for the offence under Section 304 Part I and also imposed a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months and both the sentence shall run concurrently.

Heard Mr. SP Mahanta, learned senior counsel assisted by Mr. AH Hazarika, learned counsel for the appellant and accused and Mr. S Sen Gupta, learned Addl. PP appearing for the State.

The case of the prosecution as unfolded during trial, in nutshell, is recapitulated. PW 1 Shri. Somer Ali, S/o deceased/victim Md. Hasen Ali of village Takurbitha lodged an Ejahar on 27.12.2007 to the In-charge, Bholarbhita Police Outpost that on 26.12.2007 at about 4:00 pm, when the accused Md. Nizam Uddin damaged khesary dal crop near Cherakupa bil (Dakurbhita), his deceased father Md. Hasen Ali went there to save the khesary dal crop. The accused Md. Nizam Uddin had beaten his father Md. Hasen Ali and he was grievously injured. Two persons namely, Shri. Mayan Ali PW 2 and Abdul Kudus Ali PW 3 of village Takurbitha brought the injured person i.e. the deceased Md. Hasen Ali to his house and the deceased Md. Hasen Ali felt uncomfortable. On receipt of the ejahar, a criminal case (FIR) being No. P/bari P.S. Case No. 84(12) 2007 under Sections 447 /427 /302 PC was registered. On 30.12.2007, the informant i.e. PW 1 Shri. Somer Ali again filed another ejahar that he came to know that the accused Md. Nizam Uddin was not alone involved in assaulting his deceased father Md. Hasin Ali and three other persons namely, Md. Joynal Abedin S/o not known, Hetal Uddin Sk S/o Joynal Adedin and Md. Sultan Uddin Sk S/o Joynal Abedin, were also fully involved in committing the crime. After completing the investigation, the investigating officer submitted charge-sheet against the accused Md. Nizam Uddin and the said three other persons namely, Md. Joynal Abedin, Hetal Uddin Sk and Md. Sultan Uddin Sk. The learned trial court after hearing the arguments of the parties had framed the charge only against the accused Md. Nizam Uddin under sections 304 Part I and 447 IPC and the said other three accused were discharged, as there were no sufficient grounds to implicate them in the said case. The prosecution in order to bring home the charge against the accused Md. Nizam Ali, had examined 9 (nine) PWs namely, Shri. Somer Ali, S/o (L) Hasen Ali of Bhangalpar as PW 1, Mayan Ali, S/o Hazi Abdul Hamid as PW 2, Abdul Kuddus Ali, S/o Inson Munshi as PW 3, Shri. Wahab Ali, S/o (L) Kadam Ali of Bhangalpar as PW 4, Shri. Mintu Mollah, S/o Jaijur Hoque Mollah of Bhangalpar as PW 5, Shri. Ramjad Ali S/o Abdul Hamid of Bhangalpar as PW 6, Dr. Marwin R. Sangma, S/o (L) N.M. Sangma as PW 7, S.I. Ch. Mahanta as PW 8 and S.I. D.J. Abedin, S/o (L) Abdull Mojit Sk as PW 9. The accused Md. Nizam Uddin also produced defence witnesses namely, Shri. Jahamuddin Dewani, S/o Shri. Kurban Ali as DW 1 and Mofadjul Hussain, S/o (L) Jamal Ali Dewani of Bhangalpar as DW 2 in his defence. The prosecution also exhibited documents i.e. sketch map, post mortem report i.e. exhibit 4, letter of Bolarbitha POP dated 28.12.2007 as exhibit 6 in support of the prosecution case.

This Court being the first appellate court has to re-appreciate the evidence to see as to whether some materials have been made out to interfere with the findings of the trial court. The Apex Court in Ramakant Rai Vs. Madan Rai and Others, held that when the appellate court concurs with the views of the trial court the necessity for elaborately dealing with various aspects may not always be necessary. But when a view contrary to that of the trial court is expressed, it is imperative that reasons therefor should be clearly indicated. Keeping in view of the settled law, this Court had carefully examined and appreciated the statements of the PWs and DWs and also the exhibited documents. At the same time, a miscarriage of justice which may rise from acquittal of guilt is not less than from conviction of the innocent. Justice R.C. Lahoti, J (as then he was) in State of Rajasthan Vs. N.K.-The Accused, , observed that "It is true the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of the acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females." In the present case, PW 2 Mayan Ali and PW 3 Abdul Kuddus Ali were the star witnesses inasmuch as they were the eyewitnesses according to the prosecution case. The star witnesses PW 2 Mayan Ali and PW 3 Abdul Kuddus Ali are the near relatives of the deceased Md. Hasin Ali. PW 1 Shri. Somer Ali (informant) is the son of the deceased Md. Hasin Ali.

PW 1 Somer Ali deposed before the trial court that his father Md. Hasen Ali died on 28.12.2007 and his deceased father Md. Hasen Ali was assaulted in the paddy field of their village. The paddy field was surrounded by a pond (bil). He was not an eyewitness to the incident. He could recognize the accused Md. Nizam Uddin. The accused Nizam Uddin allowed his buffaloes to eat the dal growing in their paddy field. He further deposed that Shri. Mayan Ali PW 2 was also an eyewitness to the assault. He heard the news in the Bazar of Purabitha, Assam. When he reached home, he learnt that his deceased father Md. Hasen Ali was taken to the thana and when he reached the police station, his deceased father Md. Hasen Ali was taken to Lakhimpur. His deceased father Md. Hasen Ali expired on the next date i.e. 28.12.2007. In his cross examination, he stated that the incident happened on 27.12.2007. He further stated that people of his village cultivated dal and vegetables in the field. He also used to work in the field. His father Md. Hasen Ali (deceased) sent him to the market to buy a pigeon. From the statement of Shri. Somer Ali, PW 1, it is clear that PW 1 Shri. Somer Ali was not an eyewitness and he only heard the news in the Bazar that his deceased father Md. Hasen Ali was taken to thana and the said two witnesses i.e. PW 2 Mayan Ali and PW 3 Abdul Kuddus Ali witnessed the incident. Hence, his statement is only hearsay.

Star witness PW 2 Mayan Ali stated to be an eyewitness deposed that he had not given any statement to the police. It may be more profitable to mention that it is the case of the defence that PW 2 Mayan Ali was a witness later on implanted by the prosecution inasmuch as, no reason had been given by the investigating officer or by the prosecution as to why the statement of an eyewitness was not recorded by the investigating officer under section 161 Cr.P.C. His name (Mayan Ali) was only come up at the time of submission of the charge-sheet. PW 2 Mayan Ali further deposed that he was an eyewitness to the quarrel that took place between accused Md. Nizam Uddin and deceased Md. Hasen Ali. Both the accused Nizam Uddin and deceased Md. Hasen Ali had paddy fields near Jinjiram River. Md. Hasen Ali deceased had cultivated keshari dal in his portion of the field which was eaten by the buffaloes of the accused Md. Nizam Uddin. When the deceased Hasen Ali questioned the accused Md. Nizam Uddin, the accused Nizam Ali assaulted with the lathi, which was in his hand and the deceased Md. Hasen Ali fell down on the ground. Then the accused Md. Nizam Uddin holding up the deceased Md. Hasen Ali and lift him up, dashed his head on the ground in a vertical position upside down, which broke his neck. Thereafter, he saw many people rushing to the spot shouting that the deceased Md. Hasen Ali had been assaulted. Seeing the seriousness of the situation, he wedged through the water i.e. Jinjiram River and reached the injured deceased Md. Hasen Ali. As such it is the submission of PW 2 Mayan Ali that he saw the incident from the other side of the Jinjiram River. He further deposed that the deceased Md. Hasen Ali''s hands and legs were paralyzed. He along with others brought the deceased Md. Hasen Ali to his house. Many people assisted him (PW 2) to carry the deceased Md. Hasen Ali to his house. From the house of the deceased Md. Hasen Ali, he (PW 2) and others carried him to Nidanpur O.P. from there the deceased Md. Hasen Ali was taken to Phulbari CHC. On the advice of the Doctor, PW 2 Shri. Mayan Ali and others took the deceased Md. Hasen Ali to Goalpara hospital. The deceased Md. Hasen Ali died on the way home. Police brought the dead body of the deceased of Md. Hasen Ali for post mortem examination. In his cross examination, he stated that he is the son-in-law of the deceased Md. Hasen Ali and he stayed nearby the place of occurrence. His profession is driver and because of his profession, he had to go to many places. At the time of the incident, he was going to the market Arigath and he was with his wife and two kids.

Another star witness PW 3 Shri. Abdul Kuddus Ali deposed that he saw the quarrel going on between the accused Nizam Uddin and deceased Md. Hasen Ali. When he reached the spot, he saw the accused Nizam Uddin lifting the deceased Md. Hasen Ali by his feet and holding him upside down and dashed his head on the ground. He further stated that the deceased Md. Hasen Ali could not get up. When he tried to make him sit, the deceased Md. Hasen Ali could not even move his hands and legs. At that time PW 2 Shri. Mayan Ali and some others had already reached the spot. He also stated that he (PW 3) and others carried the deceased Md. Hasen Ali to his house. From there they took him to the Phulbari CHC. The police also accompanied them to the hospital. From Phulbari CHC he was referred to Goalpara Hospital. Again from Goalpara they took the deceased Md. Hasen Ali to Guwahati and admitted the Md. Hasen Ali in Guwahati Medical College Hospital. From Guwahati hospital, they were asked to take the deceased Md. Hasen Ali to his home and the deceased Md. Hasen Ali died on the way. In his cross examination, he also stated that they used to cross the Jinjiram River to reach the place of occurrence. It takes around 20 minutes to the cross the Jinjiram River. The incident occurred in the evening around 3:30 to 4:00 pm. At the time of occurrence, he (PW 3) was at home. He further stated that he reached the place of occurrence within 20 minutes. He did not give any statement before the police.

The statements of PW 2 and PW 3 were that at the time of the incident, they were at the other side of the Jinjiram River and it takes about 20 minutes to cross the Jinjiram River. Other persons also were present at the time of the incident. The accused Md. Nizam Uddin hold up the deceased Md. Hasen Ali and lift him up, dashed his head on the ground in a vertical position upside down. The deceased Md. Hasen Ali was grievously injured and as a result, he was completely paralyzed. PW 1 Shri. Somer Ali did not corroborate the said statements of PW 2 Shri. Mayan Ali and PW 3 Shri. Abdul Kuddus Ali that the deceased Md. Hasen Ali was completely paralyzed and there was grievous injury as a result of dashing the head on the ground by lifting the deceased Md. Hasen Ali upside down by the accused Md. Nizam Udddin.

PW 4 Shri. Wahab Ali deposed that he heard the accused Md. Nizam Uddin and the deceased Md. Hasen Ali had a quarrel in the paddy field of accused Md. Nizam Uddin. He also further heard that the deceased Hasen Ali first hit the accused Nizam Ali, and thereafter, both the accused Nizam Ali and deceased Hasen Ali were taken to Phulbari CHC by the villagers. They were taking the deceased Hasen Ali to hospital i.e. Phulbari CHC, the deceased Hasen Ali was not serious and the following day, the deceased Hasen Ali was taken to Goalpara hospital. The statement of PW 4 is that the deceased Hasen Ali was not serious when he was taken to Phulbari CHC.

PW 6 Shri. Ramjan Ali deposed that he comes from Bhangarpar Part I and the accused Md. Nizam Uddin is from Bhangarpar Part II. He did not know anything about the case. He was a signatory in the inquest report of the dead body of the deceased Md. Hasen Ali. He further deposed that he did not find any injury in the body of the deceased Hasen Ali but some blood on the nose.

PW 7 Dr. Marwin Sangma who conducted the post mortem examination deposed that he found some abrasions on the left side of the nose. The immediate cause of death in his opinion is cardio respiratory failure due to cervical injury with fuadriplyia. The post mortem report was exhibited as exhibit 6. As per the post mortem report, there was only abrasion "1/2 x 1/4" on the left side of the nose. The statements of PW 2 and PW 3 that the accused Md. Nizam Uddin by holding the deceased Md. Hasen Ali upside down and dashed his head on the ground repeatedly and as a result, the deceased Md. Hasen Ali was completely paralyzed. But the post mortem report did not mention the external injury on the face and head of the deceased Md. Hasen Ali.

PW 8 SI J. Ch. Mahanta who was the In-charge of Bolarbitha Police Outpost deposed that he saw the injured person Md. Hasen Ali (deceased) when he came to the Police Outpost. The injured person Md. Hasen Ali (deceased) was brought to the thana by his relatives and some villagers. He (PW 8) sent Md. Hasen Ali (deceased) to Phulbari CHC for treatment and he came to know later on that Phulbari CHC had referred the injured person Md. Hasen Ali (deceased) for better treatment to Guwahati. In his cross examination, PW 8 deposed that the injured person Md. Hasen Ali (deceased) came to his office with some villagers and his relatives. At that time, the deceased Md. Hasen Ali was brought in a tela (cart), he was conscious. He was bleeding profusely on his face. His condition was not so bad, which could have resulted to his death. The deceased Md. Hasen Ali was having a nice chat with him (PW 8). It is a regular affair of the plain belt people fighting over small pity issues. When he (PW 8) went to the place of occurrence, he could not find any eyewitness with regard to the incident. He (PW 8) went to the place of occurrence immediately after he received the FIR. He (PW 8) did not find any weapon from the place of occurrence and the physical condition of the deceased Md. Hasen Ali was very healthy. The statement of PW 8 also contradict the statements of PW 2 and PW 3 in a very major portion that the deceased Md. Hasen Ali was unconscious and completely paralyzed because of dashing his head on the ground by the accused Nizam Uddin and by holding him upside down on the floor inasmuch as, the PW 8 deposed that the deceased Md. Hasen Ali was conscious when he was brought to the police station and he had a nice chat with the deceased Md. Hasen Ali and the condition of the deceased Md. Hasen Ali was not so bad. He further deposed that he could not find an eyewitness with regard to the incident. As stated above, the two eyewitnesses deposed before the trial court that their statements were not recorded by the police, it is the case of the defence that the two eyewitnesses i.e. PW 2 and PW 3 are the implanted eyewitnesses. PW 8 further stated that he recorded the statements of some of the witnesses and those were all hearsay.

The so called eyewitnesses i.e. PW 2 and PW 3 were not present at the place of occurrence at the time of the incident but they were at the other side of Jinjiram River according to their statements. PW 3 stated that he was at his house with his wife and he took about 20 minutes to cross the Jinjiram River. PW 3 further stated that he went to the place of occurrence alone. He also deposed in his statement that the other witnesses were there at the time of the incident but he did not mention the name of any one of them in his statement. He did not mention what the other persons were doing at the time when the accused Md. Nizam Uddin assaulted the deceased Md. Hasen Ali. It will be very difficult to accept the statements of PW 2 and PW 3 that they were the eyewitnesses inasmuch as, according to their statements, they were at their respective houses at the time of the incident and their houses was on the other side of the Jinjiram River and for crossing the Jinjiram River, it takes 20 minutes. Their statements regarding the injury caused to the deceased Md. Hasen Ali were not supported by any of the witnesses and also the post mortem report. As per the inquest report, there was no external injury on the face or head of the deceased Md. Hasen Ali except blood coming out from the left side of the nose.

Under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. Now the question to decide is whether the statements of PW 2 and PW 3, whose statements were not corroborated by other witnesses are trustworthy or not? The Apex Court in Masalti Vs. State of U.P., held that evidence is to be considered on the basis of quality and not quantity. This provision followed the maxim that evidence is to be weighted and not counted. The duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scot-free. Para 16 of the AIR in Masalti''s case (Supra) reads as follows:--

"16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."

It is fairly well settled that when a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The statements of PW 2 and PW 3 who are the star witnesses of the prosecution are very doubtful in respect of the fact that they are the eyewitnesses and nature of the injury sustained by the deceased Md. Hasen Ali. The Apex Court in Appabhai and Another Vs. State of Gujarat, held that:

"14. In Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, M.P. Thakkar, J. observed:

"A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

"Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."

The Apex Court in Krishna Mochi and Others Vs. State of Bihar, held that:

"32. ..... Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and Another Vs. The State (Delhi Administration), Krishna Iyer, J laid down that (SCC p.162, para 2) "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers from infirmity when projected through human processes." In the case of State of U.P. Vs. Anil Singh, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal Vs. Orilal Jaiswal and another, it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law. In the case of Mohan Singh and Another Vs. State of M.P., it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.

..... It is well settled that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy inasmuch as what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses, but the quality of their evidence. .....

..... It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liar. The maxim falsus in uno falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali Vs. The State of Uttar Pradesh, ). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh and Another Vs. State of Punjab, ).The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab and Another Vs. The State of Madhya Pradesh, and Ugar Ahir and Others Vs. The State of Bihar, ). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel Vs. State of Madhya Pradesh, and Balaka Singh and Others Vs. The State of Punjab, ."

Under the criminal jurisprudence in our country, a person has a profound right not to be convicted of an offence, which is not established by the evidential standard of proof beyond reasonable doubt. No doubt, this standard is a higher standard but there is no absolute standard. The Apex Court in Krishnan and Another Vs. State Rep. by Inspector of Police, had observed that what degree of probability amounts to "proof" is an exercise particular to each case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. To constitute reasonable doubt, it must be free from over emotional response, zest for abstract speculation. Doubt must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence and/or from 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. The Apex Court is of similar view in Ramakant Rai Vs. Madan Rai and Others, .

"24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.

The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J (as His Lordship then was) in State of U.P. Vs. Krishna Gopal and Another, ."

In the given case, as discussed above in detail regarding discrepancies in the statement of witnesses, this Court is of considered view that discrepancies in the statement of witnesses of PWs 1, 2, 3, 4, 7 and 8 are material discrepancies which are not normal and not expected by a normal person. This Court also reiterates that when it appears that finding of fact arrived at is bordering on perversity resulting miscarriage of justice this Court will not decline to quash such finding to prevent miscarriage of justice. As the finding of trial court regarding guilt of the accused is perverse, the impugned judgment is perverse and I am constrained to quash such finding to prevent miscarriage of justice. This Court holds that the prosecution had utterly failed to establish the guilt of the accused beyond reasonable doubt.

For the foregoing reasons it is clear that there is reasonable doubt that the accused is the author of the crime and in consequence thereof the impugned judgment dated 03.09.2014 and sentence order dated 10.09.2014 passed by the trial court are hereby set aside.

The appeal is allowed.

The accused is set at liberty. Send a copy of this judgment and order to the concerned Judicial Magistrate and the trial court.