Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.987 OF 2002
Dhanapal .. Appellant
Versus
State by Public Prosecutor, Madras .. Respondent
J U D G M E N T
Dalveer Bhandari, J.
1. This appeal has been filed under Section 2(a) of the
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 against the judgment and order dated
11.6.2002 passed by the High Court of Judicature at Madras
in Criminal Appeal No. 217 of 1993.
2
2. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:
The appellant herein along with the other accused were
acquitted by the Sessions Judge, Thanjavur in Sessions Case
No. 36 of 1989 of offences punishable under sections 307 and
302 read with section 34 of the Indian Penal Code (for short
‘IPC’).
3. The High Court in the impugned judgment set aside the
acquittal recorded by the Sessions Judge and allowed the
appeal filed by the State. The High Court held accused nos.1,
2 and 4 guilty for an offence punishable under section 302
read with section 34 IPC and imposed sentence of life
imprisonment and held accused no.3 guilty for the offence
punishable under section 307 IPC and imposed sentence of five
years. It may be pertinent to mention that accused respondent
Nos.2 to 4 died during the pendency of appeal before the High
Court. The only surviving appellant herein (who was accused
no.1 before the High Court) has filed the present appeal
against the impugned judgment and order of the High Court.
3
4. The motive for the occurrence as per the prosecution is
that P.W.1’s sister was living with the appellant and
subsequently died six months prior to the occurrence. The
other women folk of the house abused the appellant and his
relatives. The appellant told the same to Sebastiraj P.W.1.
P.W.1 consoled him stating that they were abusing him only
because of frustration and everything would be alright after a
lapse of time.
5. The appellant and other accused and the deceased
belonged to the Burma colony, Thanjavur. Sebastiraj P.W.1
and Karunanidhi P.W.2 were friends of deceased Jambu. On
8.5.1988 at about 12.00 noon when P.W.2 was talking to
Jambu near the railway gate, Sebastiraj P.W.1 invited Jambu
to go to Sebastiar temple. Jambu requested Karunanidhi
P.W.2 to accompany him. All of them went to the temple and
came out at 2.00 p.m. after worshipping and taking food from
the temple. Outside the gate, they saw the appellant Dhanapal
and other accused. Dhanapal shouted, Sebastiraj has come,
cut (kill) him. The crowd before the temple dispersed and
people started running. Accused no.3 Loganathan threw an
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aruval on Sebastiraj P.W.1 After receiving the injury, Sebastiraj
P.W.1 managed to run. Then accused no.2 Sekar gave cut
injury to Jambu on his head and back. Dhanapal stabbed
Jambu on his chest. Accused no.4 Somu stabbed Jambu on
his back. Thereafter, all the accused ran away with their
weapons. The deceased was attacked near the house of one
th
Subramania Thevar by the side of a light post in 19 Street,
Burma Colony. Selvaraj P.W.3 at about 2.00 pm on 8.5.1988
saw the deceased lying dead at the scene of crime.
6. Sebastiraj P.W.1 who ran away after receiving injury at
the hands of accused no.3 went to Thanjavur South Police
Station and gave Ex.P2 report at about 4.00 p.m. on 8.5.1988
and the same was received by P.W.4 the then Sub Inspector of
Police who registered a case in Cr. No.311/88 for the offences
punishable under sections 302 and 307 IPC and prepared
Ex.P3 printed First Information Report and sent the same to
the Court.
7. Inspector of Police P.W.10 took up investigation, went to
the scene of crime at about 6.30 p.m. and on account of lack of
sufficient light, he did not hold the inquest, but went and
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searched for the accused after posting two constables to
protect the body of the deceased. He also stayed there and on
9.5.1988 at about 6.00 a.m., in the presence of panchayatdars,
he started inquest and completed by 8.00 a.m. and prepared
Ex.P.16 inquest report. He examined P.Ws. 1 to 3 and others.
He also prepared Ex.P4 Observation Mahazar and drew a
rough sketch Ex.P17. He seized material objects (for short
‘M.O.’) including M.O.1 blood stained earth; M.O.2 sample
earth and M.O.3 shirt of the deceased under Ex.P5 Mahazar.
At about 3.00 p.m. on that day he went to the house of the
deceased and when he was searching for the accused, he
noticed M.Os. 4, 5, 6 and 7 weapons in the backyard of the
third accused and seized them under Ex.P6 Mahazar. After
inquest, he forwarded the body for autopsy.
8. Dr. Vijayalakshmi P.W.8 Tutor in Forensic Medicines,
Government Medical College, Thanjavur received the body of
the deceased at about 10 a.m. on 9.5.1988 and commenced
the postmortem. She found 21 injuries and according to her
the cause of death was due to hemorrhage and shock due to
injuries received.
6
9. The appellant herein surrendered before the Judicial
Magistrate, Thiruvaiyaru on 17.5.1988. The Investigating
Officer P.W.10 after investigation gave the final report
implicating the appellant.
10. After the evidence of prosecution was over, the Trial
Judge questioned the accused under section 313 Cr.P.C. with
reference to the incriminating circumstances appearing in
evidence against them and they denied the offence. The
learned Sessions Judge, considering the evidence recorded
both oral and documentary, chose to acquit the accused.
11. The High Court on re-appreciation of the evidence
convicted the appellant and other accused. According to the
High Court, the learned Sessions Judge has not properly
marshaled and evaluated the evidence on record.
12. The relevant findings of the High Court would be
discussed in the later part of the judgment to avoid repetition,
therefore, we do not deem it appropriate to reproduce the same
at this juncture.
7
13. Brief analysis of the important evidence is as under:
(i) P.W.1, who is considered to be an eye witness
and also lodged the first information report,
has turned hostile.
(ii)
P.W.2 has deposed that accused no.2 Sekar
instigated the other accused to cut (kill)
Jambu with an aruval on his head and back.
Accused no.1 Dhanpal (appellant) repeatedly
stabbed Jambu on his chest. Accused no. 4
Somu also stabbed Jambu on his back with
‘sulukki’.
14. The finding of the learned Sessions Judge is that the
evidence of P.W.2 has not been corroborated by any other
acceptable evidence. The trial court also rejected the evidence
of P.W.3, another eye witness. According to the trial court,
even the medical evidence does not help the prosecution case.
15. According to P.W.2, the occurrence took place after
deceased and the witnesses came to the temple and after
worshipping and taking food they came out at 2.00 p.m. The
stomach of the deceased must, therefore, contain food
8
particles. Whereas, according to the doctor, who conducted
the autopsy over the dead body of the deceased, found that the
stomach was empty. This casts serious doubt on the veracity
of the testimony of P.W.2. The trial court also rejected the
testimony of another eye witness P.W.3.
16. P.W.10, Inspector of Police, took up the investigation and
went to the scene of occurrence at 6.30 p.m. and on account of
lack of sufficient light, he did not hold the inquest, but went
and searched for the accused after posting two constables to
guard the body of the deceased.
17. The trial court was of the opinion that the medical
evidence also does not support the prosecution case. The trial
court was of the view that on such quality of evidence it would
not be safe to record the conviction and acquitted the accused.
18. The High Court, in the impugned judgment, has given an
entirely new dimension to the testimony of P.W.2 and
discarded the version of the trial court by observing that,
“according to P.W.2, about 12.00 noon, they (deceased and his
friends) went to the temple and then came out at about 2.00
p.m. in the meantime, there is no evidence pertaining to the
9
time when they had eaten the food. Though according to him,
they came out at 2.00 p.m., he only says that after some time
when they were standing outside there was a noise and
accused no. 1 instigated other accused to cut (kill) Sebastiraj
P.W.1. The sense of time may vary from person to person
unless one was able to look at the wrist watch at a given time.”
19. The important findings of the High Court are set out as
under:-
I, Merely because P.W.1 turned hostile, it cannot
be said that the accused who attempted to
commit the murder of P.W.1 should be
acquitted.
II. There is no specific evidence that the deceased
took any food. When the friends have gone to
the temple and at temple, some Prasatham or
food is provided, unless there is a specific
evidence that the deceased took a particular
type of food or a particular quantity, it cannot
be said that the deceased ought to have taken
food.
10
III. This is not a case where death occurred during
night time or the dead body was found long
after the commission of the crime so that the
courts have to depend upon the medical
evidence to fix the time of death.
20. There are conflicting judgments of the trial court and the
High Court, therefore, we have carefully gone through the
entire evidence de novo. The High Court, in our considered
view, could not have shifted the burden of proof on the
accused. According to the fundamental principles of the
Evidence Act, it is for the prosecution to have proved its own
case.
21. The High Court was not justified in weaving out a
different and new prosecution version. The Court is under the
bounden duty and obligation to deal with the evidence as it is.
No improvement or rewriting of evidence is permissible. In the
instant case, P.W.1 had turned hostile and P.W.3 also did not
support the prosecution case. The testimony of P.W.2 is also
not wholly reliable.
11
22. On proper evaluation of the trial court judgment, we hold
that the view taken by the trial court was certainly a possible
or a plausible view. It is a well settled legal position that when
the view which has been taken by the trial court is a possible
view, then the acquittal cannot be set aside by merely
substituting its reasons by the High Court. In our considered
view, the impugned judgment of the High Court is contrary to
the settled legal position and deserves to be set aside.
23. The earliest case which dealt with the controversy in
issue at length is of Sheo Swarup v. King Emperor AIR 1934
Privy Council 227. In this case, the ambit, scope and the
powers of the appellate court in dealing with an appeal against
acquittal have been comprehensively dealt with by the Privy
Council. Lord Russell writing the judgment has observed as
under: (at p. 230):
“..the High Court should and will always give
proper weight and consideration to such matters
as (1) the views of the trial Judge as to the
credibility of the witnesses, (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has
been acquitted at his trial, (3) the right of the
accused to the benefit of any doubt, and (4) the
slowness of an appellate court in disturbing a
finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses..”
12
The law succinctly crystallized in this case has been
consistently followed in subsequent judgments by this Court.
24. This Court in the case of Surajpal Singh & Others v.
State, AIR 1952 SC 52, has spelt out the powers of the High
Court. This Court has also reminded the High Courts to follow
well established norms while dealing with appeals from
acquittal by the trial court. The Court observed as under:
“It is well established that in an appeal under
S. 417 Criminal P.C., the High Court has full power
to review the evidence upon which the order of
acquittal was founded, but it is equally well-settled
that the presumption of innocence of the accused
was further reinforced by his acquittal by the trial
court, and the findings of the trial court which had
the advantage of seeing the witnesses and hearing
their evidence can be reversed only for very
substantial and compelling reasons.”
25. This Court reiterated the principles and observed that
presumption of innocence of accused is reinforced by an order
of the acquittal. The appellate court could have interfered only
for very substantial and compelling reasons.
26. In Tulsiram Kanu v. The State, AIR 1954 SC 1, this
Court explicated that the appellate court would be justified in
13
reversing the acquittal only when very substantial question
and compelling reasons are present. In this case, the Court
used a different phrase to describe the approach of an
appellate court against an order of acquittal. There, the
Sessions Court expressed that there was clearly reasonable
doubt in respect of the guilt of the accused on the evidence put
before it. Kania, C.J., observed that it required good and
sufficiently cogent reasons to overcome such reasonable doubt
before the appellate court came to a different conclusion.
27. The same principle has been followed in Atley v. State of
U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the
Court said:
“It has been laid down by this Court that it is
open to the High Court on an appeal against an
order of acquittal to review the entire evidence and
to come to its own conclusion, of course, keeping in
view the well established rule that the presumption
of innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed
by the trial court which had the advantage of
observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal
has as wide powers of appreciation of evidence in
an appeal against an order of acquittal as in the
case of an appeal against an order of conviction,
14
subject to the riders that the presumption of
innocence with which the accused person starts in
the trial court continues even up to the appellate
stage and that the appellate court should attach
due weight to the opinion of the trial court which
recorded the order of acquittal.”
28. In Balbir Singh v. State of Punjab AIR 1957 SC 216,
this Court again had an occasion to examine the same
proposition of law. The Court (at page 222) observed as under:
“It is now well settled that though the High
Court has full power to review the evidence upon
which an order of acquittal is founded, it is equally
well settled that the presumption of innocence of
the accused person is further reinforced by his
acquittal by the trial Court and the views of the
trial Judge as to the credibility of the witnesses
must be given proper weight and consideration;
and the slowness of an appellate Court in
disturbing a finding of fact arrived at by a Judge
who had the advantage of seeing the witnesses
must also be kept in mind, and there must be
substantial and compelling reasons for the
appellate Court to come to a conclusion different
from that of the trial Judge.”
29. A Constitution Bench of this Court in M.G. Agarwal v.
State of Maharashtra AIR 1963 SC 200, observed as under:
“There is no doubt that the power conferred
by clause (a) which deals with an appeal against an
order of acquittal is as wide as the power conferred
by clause (b) which deals with an appeal against an
order of conviction, and so, it is obvious that the
High Court's powers in dealing with criminal
15
appeals are equally wide whether the appeal in
question is one against acquittal or against
conviction. That is one aspect of the question. The
other aspect of the question centres round the
approach which the High Court adopts in dealing
with appeals against orders of acquittal. In dealing
with such appeals, the High Court naturally bears
in mind the presumption of innocence in favour of
an accused person and cannot lose sight of the fact
that the said presumption is strengthened by the
order of acquittal passed in his favour by the trial
Court and so, the fact that the accused person is
entitled for the benefit of a reasonable doubt will
always be present in the mind of the High Court
when it deals with the merits of the case. As an
appellate Court the High Court is generally slow in
disturbing the finding of fact recorded by the trial
Court, particularly when the said finding is based
on an appreciation of oral evidence because the
trial Court has the advantage of watching the
demeanour of the witnesses who have given
evidence. Thus, though the powers of the High
Court in dealing with an appeal against acquittal
are as wide as those which it has in dealing with an
appeal against conviction, in dealing with the
former class of appeals, its approach is governed by
the overriding consideration flowing from the
presumption of innocence...
The test suggested by the expression
"substantial and compelling reasons" should not be
construed as a formula which has to be rigidly
applied in every case, and so, it is not necessary
that before reversing a judgment of acquittal, the
High Court must necessarily characterize the
findings recorded therein as perverse.
The question which the Supreme Court has to
ask itself, in appeals against conviction by the High
Court in such a case, is whether on the material
produced by the prosecution, the High Court was
16
justified in reaching the conclusion that the
prosecution case against the appellants had been
proved beyond a reasonable doubt, and that the
contrary view taken by the trial Court was
erroneous. In answering this question, the
Supreme Court would, no doubt, consider the
salient and broad features of the evidence in order
to appreciate the grievance made by the appellants
against the conclusions of the High Court .”
30. In Khedu Mohton & Others v. State of Bihar, (1970) 2
SCC 450, this Court gave the appellate court broad guidelines
as to when it could properly disturb an acquittal. The Court
observed as under:
“3. It is true that the powers of the High Court in
considering the evidence on record in appeals
under Section 417, Cr. P.C. are as extensive as its
powers in appeals against convictions but that
court at the same time should bear in mind the
presumption of-innocence of accused persons
which presumption is not weakened by their
acquittal. It must also bear in mind the fact that
the appellate judge had found them not guilty.
Unless the conclusions reached by him are
palpably wrong or based on erroneous view of the
law or that his decision is likely to result in grave
injustice, the High Court should be reluctant to
interfere with his conclusions. If two reasonable
conclusions can be reached on the basis of the
evidence on record then the view in support of the
acquittal of the accused should be preferred. The
fact that the High Court is inclined to take a
different view of the evidence on record is not
sufficient to interfere with the order of acquittal.”
(emphasis supplied)
17
31. In Bishan Singh & Others v. The State of Punjab
(1974) 3 SCC 288, Justice Khanna speaking for the Court
provided the legal position:
“22. It is well settled that the High Court in appeal
under Section 417 of the CrPC has full power to
review at large the evidence on which the order of
acquittal was founded and to reach the conclusion
that upon the evidence the order of acquittal
should be reversed. No limitation should be placed
upon that power unless is be found expressly
stated be in the Code, but in exercising the power
conferred by the Code and before reaching its
conclusion upon fact the High Court should give
proper weight and consideration to such matters as
(1) the views of the trial judge as to the credibility of
the witnesses; (2) the presumption of innocence in
favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at
his trial; (3) the right of the accused to the benefit
of any doubt; & (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the
witnesses.”
32. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,
the Court observed thus:
“9. …..It stems out of the fundamental principle of
our criminal jurisprudence that the accused is
entitled to the benefit of any reasonable doubt. If
two reasonably probable and evenly balanced views
of the evidence are possible, one must necessarily
concede the existence of a reasonable doubt. But,
fanciful and remote possibilities must be left out of
account. To entitle an accused person to the benefit
18
of a doubt arising from the possibility of a duality of
views, the possible view in favour of the accused
must be as nearly reasonably probable as that
against him. If the preponderance of probability is
all one way, a bare possibility of another view will
not entitle the accused to claim the benefit of any
doubt. It is, therefore, essential that any view of the
evidence in favour of the accused must be
reasonable even as any doubt, the benefit of which
an accused person may claim, must be reasonable.
"A reasonable doubt", it has been remarked, "does
not mean some light, airy, insubstantial doubt that
may flit through the minds of any of us about
almost anything at some time or other, it does not
mean a doubt begotten by sympathy out of
reluctance to convict; it means a real doubt, a
doubt founded upon reasons. [Salmond J. in his
charge to the jury in R. v. Fantle reported in 1959
Criminal Law Review 584.] "
{emphasis supplied}
33. In Tota Singh & Another v. State of Punjab (1987) 2
SCC 529, the Court reiterated the same principle in the
following words:
“This Court has repeatedly pointed out that
the mere fact that the appellate court is inclined on
a re-appreciation of the evidence to reach a
conclusion which is at variance with the one
recorded in the order of acquittal passed by the
court below will not constitute a valid and sufficient
ground for setting aside the acquittal. The
jurisdiction of the appellate court in dealing with an
appeal against an order of acquittal is
circumscribed by the limitation that no interference
is to be made with the order of acquittal unless the
approach made by the lower court to the
consideration of the evidence in the case is vitiated
by some manifest illegality or the conclusion
19
recorded by the court below is such which could
not have been possibly arrived at by any court
acting reasonably and judiciously and is, therefore,
liable to be characterised as perverse. Where two
views are possible on an appraisal of the evidence
adduced in the case and the court below has taken
a view which is a plausible one, the appellate court
cannot legally interfere with an order of acquittal
even if it is of the opinion that the view taken by the
court below on its consideration of the evidence is
erroneous.”
(emphasis supplied)
34. In Sambasivan & Others v. State of Kerala (1998) 5
SCC 412, the Court observed thus:
“7. The principles with regard to the scope of the
powers of the appellate court in an appeal against
acquittal, are well settled. The powers of the
appellate court in an appeal against acquittal are
no less than in an appeal against conviction. But
where on the basis of evidence on record two views
are reasonably possible the appellate court cannot
substitute its view in the place of that of the trial
court. It is only when the approach of the trial
court in acquitting an accused is found to be
clearly erroneous in its consideration of evidence on
record and in deducing conclusions therefrom that
the appellate court can interfere with the order of
acquittal.”
35. In Bhagwan Singh & Others v. State of M.P. (2002) 4
SCC 85, the Court repeated one of the fundamental principles
of criminal jurisprudence that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
20
accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The Court
observed as under:-
“7. ..The golden thread which runs through the
web of administration of justice in criminal case is
that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted. Such is not a jurisdiction limitation on the
appellate court but a Judge made guidelines for
circumspection. The paramount consideration of
the court is to ensure that miscarriage of justice is
avoided….”
36. In Harijana Thirupala & Others v. Public Prosecutor,
High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court
again had an occasion to deal with the settled principles of law
restated by several decisions of this Court. Despite a number
of judgments, High Courts continue to fail to keep them in
mind before reaching a conclusion. The Court observed thus:
“10. The principles to be kept in mind in our
system of administration of criminal justice are
stated and restated in several decisions of this
Court. Yet, sometimes High Courts fail to keep
them in mind before reaching a conclusion as to
the guilt or otherwise of the accused in a given
case. The case on hand is one such case. Hence it
is felt necessary to remind about the well-settled
principles again. It is desirable and useful to
remind and keep in mind these principles in
deciding a case.
21
11. In our administration of criminal justice
an accused is presumed to be innocent unless such
a presumption is rebutted by the prosecution by
producing the evidence to show him to be guilty of
the offence with which he is charged. Further if two
views are possible on the evidence produced in the
case, one indicating to the guilt of the accused and
the other to his innocence, the view favourable to
the accused is to be accepted. In cases where the
court entertains reasonable doubt regarding the
guilt of the accused the benefit of such doubt
should go in favour of the accused. At the same
time, the court must not reject the evidence of the
prosecution taking it as false, untrustworthy or
unreliable on fanciful grounds or on the basis of
conjectures and surmises. The case of the
prosecution must be judged as a whole having
regard to the totality of the evidence. In
appreciating the evidence the approach of the court
must be integrated not truncated or isolated. In
other words, the impact of the evidence in totality
on the prosecution case or innocence of the
accused has to be kept in mind in coming to the
conclusion as to the guilt or otherwise of the
accused. In reaching a conclusion about the guilt of
the accused, the court has to appreciate, analyse
and assess the evidence placed before it by the
yardstick of probabilities, its intrinsic value and the
animus of witnesses. It must be added that
ultimately and finally the decision in every case
depends upon the facts of each case.
12. Doubtless the High Court in appeal either
against an order of acquittal or conviction as a
court of first appeal has full power to review the
evidence to reach its own independent conclusion.
However, it will not interfere with an order of
acquittal lightly or merely because one other view is
possible, because with the passing of an order of
acquittal presumption of innocence in favour of the
accused gets reinforced and strengthened. The High
22
Court would not be justified to interfere with the
order of acquittal merely because it feels that
sitting as a trial court it would have proceeded to
record a conviction; a duty is cast on the High
Court while reversing an order of acquittal to
examine and discuss the reasons given by the trial
court to acquit the accused and then to dispel
those reasons. If the High Court fails to make such
an exercise the judgment will suffer from serious
infirmity.
13. It is unfortunate that by the impugned order,
the High Court has upset the well-reasoned order of
acquittal passed by the trial court. It appears to us
that the High Court while doing so, did not bear in
mind the well-settled principles stated above as to
what should be the approach in reversing an order
of acquittal and under that circumstances it should
be reversed.
(emphasis supplied)
37. In State of Rajasthan v. Raja Ram (2003) 8 SCC 180,
this Court observed as under:
“ 15 . ….. Generally, the order of acquittal shall not
be interfered with because the presumption of
innocence of the accused is further strengthened by
acquittal. The golden thread which runs through
the web of administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence,
the view which is favourable to the accused should
be adopted. … The principle to be followed by
appellate court considering the appeal against the
judgment of acquittal is to interfere only when there
are compelling and substantial reasons for doing
so. If the impugned judgment is clearly
23
unreasonable, it is a compelling reason for
interference.”
38. In State of Goa v. Sanjay Thakran & Another, (2007)
3 SCC 755, this Court observed as under:
“16. …… while exercising the powers in appeal
against the order of acquittal the court of appeal
would not ordinarily interfere with the order of
acquittal unless the approach of the lower court is
vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by
any reasonable person and, therefore, the decision
is to be characterized as perverse. Merely because
two views are possible, the court of appeal would
not take the view which would upset the judgment
delivered by the court below…..”
39. In Chandrappa & Others v. State of Karnataka (2007)
4 SCC 415, this Court held:
“(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
( 2 ) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, “substantial
and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not
intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of “flourishes
of language” to emphasise the reluctance of an
24
appellate court to interfere with acquittal than to
curtail the power of the court to review the evidence
and to come to its own conclusion.
( 4 ) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly , the
presumption of innocence is available to him under
the fundamental principle of criminal
jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a
competent court of law. Secondly , the accused
having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.”
40. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC
450, a two Judge Bench of this Court of which one of us
(Bhandari, J.) was a member had an occasion to deal with
most of the cases referred in this judgment. The exercise of
surveying relevant judgments has again been taken with the
hope that the Appellate Courts would keep in view the settled
legal position while dealing with the trial courts’ judgments of
acquittals.
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41. The following principles emerge from the cases above:
1.
The accused is presumed to be innocent until
proven guilty. The accused possessed this
presumption when he was before the trial court.
The trial court’s acquittal bolsters the
presumption that he is innocent.
2. The power of reviewing evidence is wide and the
appellate court can re-appreciate the entire
evidence on record. It can review the trial court’s
conclusion with respect to both facts and law, but
the Appellate Court must give due weight and
consideration to the decision of the trial court.
3. The appellate court should always keep in mind
that the trial court had the distinct advantage of
watching the demeanour of the witnesses. The
trial court is in a better position to evaluate the
credibility of the witnesses.
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4. The appellate court may only overrule or
otherwise disturb the trial court’s acquittal if it
has “very substantial and compelling reasons” for
doing so.
5. If two reasonable or possible views can be
reached - one that leads to acquittal, the other to
conviction - the High Courts/appellate courts
must rule in favour of the accused.
42. We have considered the entire evidence and documents
on record and the reasoning given by the trial court for
acquitting the accused and also the reasoning of the High
Court for reversal of the judgment of acquittal.
43. On careful marshalling of the entire evidence and the
documents on record, we arrive at the conclusion that the view
taken by the trial court is certainly a possible or plausible view.
The settled legal position as explained above is that if the trial
court’s view is possible or plausible, the High Court should not
substitute the same by its own possible view. In the facts and
circumstances of this case, the High Court in the impugned
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judgment was not justified in interfering with the well reasoned
judgment and order of the trial court.
44. Consequently, this appeal filed by the appellant is allowed
and disposed of and the impugned judgment of the High Court
is set aside.
…….……………………..
J.
(Dalveer Bhandari)
…….…………………….. J.
(Harjit Singh Bedi)
New Delhi;
September 1, 2009.