Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 803 OF 2001
State of U.P. ..Appellant
versus
Awdhesh ..Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a Division
Bench of the Allahabad High Court setting aside the
conviction of the respondent for offence punishable under
Section 396 of the Indian Penal Code, 1860 (in short the ‘IPC’)
as was recorded by learned Vth Additional Sessions Judge,
Fatehpur. The respondent was sentenced to imprisonment for
life by the said judgment; but he was acquitted of the charge
relatable to offence punishable under Section 314 IPC.
2. Background facts in a nutshell are as under:
A dacoity was committed on 9.5.1973 at about mid day
for about 2-3 hours in the house of three brothers namely
Ramdas (PW-9), Har Prasad (PW-2) and Hiralal (hereinafter
referred to as the ‘deceased’) in village Palia Buzurg within the
area of police station Hathgaon, district Fatehpur. It was
alleged that about 16-17 dacoits successfully decamped with
cash, jewellery, ornaments, firearms etc. During the course of
commission of dacoity, Hiralal, Mahesh Chandra and Smt.
Mahabiria sustained injuries of whom Hiralal died.
While dacoity was in operation, the matter was reported
orally at police station, Hathgaon by village chowkidar Ram
Ratan (P.W. 3) on the same day at 1.30 P.M. wherein none was
named. Head Moharrir Fateh Bahadur Singh (P.W. 1) recorded
2
the report in chick register and registered case under Section
395/397 IPC. Station Officer Yadram Verma (P.W. 29) took up
investigation and he immediately proceeded to the scene of
occurrence. He met injured Hiralal, Mahesh Chandra and
Smt. Mahabiria on the way. He got the said injured sent for
their medical examination with "chithi majroobi". When the
injured persons were being taken to hospital, Hiralal
succumbed to his injuries. The constable who was escorting
the injured then gave information at police station about the
death of Hiralal, whereupon case was converted to one under
Section 396 IPC.
When the investigating officer reached the place of
occurrence, Har Parsed (P.W. 2) handed over to him a list of
stolen articles and also a report giving out details of
commission of dacoity in his house wherein he named three
persons, namely respondent Awdhesh, Ram Rattan alias
Jhallar and Babu Singh. The investigating officer recorded the
statements of witnesses on 10.5.1973, arrested named as well
as some unknown persons during the course of investigation
3
and some stolen articles were alleged to have been recovered
from respondent Awdhesh and other accused. On completion
of investigation charge sheet was submitted.
3. Since the accused persons abjured guilt they were put on
trial. It is to be noted that originally three persons were named
as accused and reference was made to 9 unknown persons.
One of them died during trial, and one died during pendency
of the appeal before the High Court. Respondent was
accused No.4. In order to further its version prosecution
examined 29 witnesses. Placing reliance on testimony of Har
Prasad (PW-2), Ram Lakhan (PW-7), Smt. Sheo Sakhi (PW-11)
and Smt. Ram Rati (PW-12) the trial Court directed conviction
as noted above.
4. Stand of the appellant before the High Court was that
accused persons were admittedly on inimical terms with Har
Prasad (PW-2) and it was a specific case that accused Babu
Singh had absconded and did not face trial. He was on
4
inimical terms with the deceased and PW-2. Respondent
Awdhesh happened to be brother in law of Babu Singh. The
trial Court held that the accusations have been established. In
appeal before the High Court it was noted that the enmity
aspect was lost sight of by the Trial Court. In any event, for a
long time no witness supposedly spoke about accused
Awdhesh. Though the village Chowkidar, Ram Ratan (PW-3)
reported the matter to the police station on the basis of which
Crime case No.30 was registered, no one was named as
accused and the case was registered against unknown
persons. Only when a written report was submitted by Har
Prasad (PW-2) to the investigating officer, name of respondent
was indicated alongwith Babu Singh and Jhallar Singh. It was
pointed out that though PW-2 was shouting that three named
persons were committing dacoity, in the report submitted by
PW-3 the names were not given. Reference was also made to
the evidence of Ram Lakhan (PW-4) who admitted that he
never mentioned the names of the three persons whose names
appeared in the report given by PW-2. With reference to the
evidence of Smt. Sheo Sakhi, the High Court noticed that she
5
did not know Awdesh, yet stated as if she was acquainted with
him. Her statement in the cross examination was highlighted
by the High Court. Similar was the position regarding Smt.
Ram Rati (PW-12). The investigating officer stated that when
he was going to the place of occurrence, he had met the
deceased and two other persons who received injuries in the
occurrence. They were Mahesh Chandra and Smt. Mahabiria.
He had a talk with them and he sent them for medical
examination. But till that time also the names of Awdhesh,
Babu Singh and Jhallar Singh were not disclosed. Primarily,
on these premises the High Court directed acquittal.
5. The High Court also referred to the fact that while some
of the alleged dacoits covered their faces to conceal the
identity; the three named accused persons who were known
did not try to cover their faces.
6. Learned counsel for the appellant-State submitted that
the reasoning indicated by the High Court does not justify the
order of acquittal. Most of the reasonings are based on
6
surmises and conjectures. Particular reference is made to the
evidence of PW-3. The High Court found that in the report
submitted by PW-2 there was no reference to the three named
accused persons.
7. It is pointed out that the witnesses on hearing about the
dacoity had rushed to the police station and had no occasion
to know the names of accused persons. The parameters for
dealing with an appeal against judgment of acquittal have
been laid down by this Court in several cases.
8. It would be appropriate to consider and clarify the legal
position first. Chapter XXIX (Sections 372-394) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the
Code”) deals with appeals. Section 372 expressly declares that
no appeal shall lie from any judgment or order of a criminal
court except as provided by the Code or by any other law for
the time being in force. Section 373 provides for filing of
appeals in certain cases. Section 374 allows appeals from
convictions. Section 375 bars appeals in cases where the
7
accused pleads guilty. Likewise, no appeal is maintainable in
petty cases (Section 376). Section 377 permits appeals by the
State for enhancement of sentence. Section 378 confers power
on the State to present an appeal to the High Court from an
order of acquittal. The said section is material and may be
quoted in extenso:
“378. Appeal in case of acquittal .—(1) Save as
otherwise provided in sub-section (2) and subject
to the provisions of sub-sections (3) and (5), the
State Government may, in any case, direct the
Public Prosecutor to present an appeal to the
High Court from an original or appellate order of
acquittal passed by any court other than a High
Court, or an order of acquittal passed by the
Court of Session in revision.
(2) If such an order of acquittal is passed in any
case in which the offence has been investigated
by the Delhi Special Police Establishment
constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any
other agency empowered to make investigation
into an offence under any Central Act other than
this Code, the Central Government may also
direct the Public Prosecutor to present an appeal,
subject to the provisions of sub-section (3), to the
High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-
section (2) shall be entertained except with the
leave of the High Court.
8
(4) If such an order of acquittal is passed in any
case instituted upon complaint and the High
Court, on an application made to it by the
complainant in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal to the
High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court
after the expiry of six months, where the
complainant is a public servant, and sixty days
in every other case, computed from the date of
that order of acquittal.
(6) If, in any case, the application under sub-
section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under sub-
section (1) or under sub-section (2).
9. Whereas Sections 379-380 cover special cases of
appeals, other sections lay down procedure to be followed by
appellate courts.
10. It may be stated that more or less similar provisions were
found in the Code of Criminal Procedure, 1898 (hereinafter
referred to as “the old Code”) which came up for consideration
before various High Courts, Judicial Committee of the Privy
9
Council as also before this Court. Since in the present appeal,
we have been called upon to decide the ambit and scope of the
power of an appellate court in an appeal against an order of
acquittal, we have confined ourselves to one aspect only i.e. an
appeal against an order of acquittal.
11. Bare reading of Section 378 of the Code (appeal in case
of acquittal) quoted above, makes it clear that no restrictions
have been imposed by the legislature on the powers of the
appellate court in dealing with appeals against acquittal.
When such an appeal is filed, the High Court has full power to
reappreciate, review and reconsider the evidence at large, the
material on which the order of acquittal is founded and to
reach its own conclusions on such evidence. Both questions of
fact and of law are open to determination by the High Court in
an appeal against an order of acquittal.
12. It cannot, however, be forgotten that in case of acquittal,
there is a double presumption in favour of the accused. Firstly ,
10
the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved to
be guilty by a competent court of law. Secondly , the accused
having secured an acquittal, the presumption of his innocence is
certainly not weakened but reinforced, reaffirmed and
strengthened by the trial court.
13. Though the above principles are well established, a
different note was struck in several decisions by various High
Courts and even by this Court. It is, therefore, appropriate if
we consider some of the leading decisions on the point.
14. The first important decision was rendered by the Judicial
Committee of the Privy Council in Sheo Swarup v. R. Emperor
(1934) 61 IA 398). In Sheo Swarup the accused were acquitted
by the trial court and the local Government directed the Public
Prosecutor to present an appeal to the High Court from an
order of acquittal under Section 417 of the old Code (similar to
11
Section 378 of the Code). At the time of hearing of appeal
before the High Court, it was contended on behalf of the
accused that in an appeal from an order of acquittal, it was
not open to the appellate court to interfere with the findings of
fact recorded by the trial Judge unless such findings could not
have been reached by him had there not been some perversity
or incompetence on his part. The High Court, however,
declined to accept the said view. It held that no condition was
imposed on the High Court in such appeal. It accordingly
reviewed all the evidence in the case and having formed an
opinion of its weight and reliability different from that of the
trial Judge, recorded an order of conviction. A petition was
presented to His Majesty in Council for leave to appeal on the
ground that conflicting views had been expressed by the High
Courts in different parts of India upon the question whether in
an appeal from an order of acquittal, an appellate court had
the power to interfere with the findings of fact recorded by the
trial Judge. Their Lordships thought it fit to clarify the legal
position and accordingly upon the “humble advice of their
Lordships”, leave was granted by His Majesty. The case was,
12
thereafter, argued. The Committee considered the scheme and
interpreting Section 417 of the Code (old Code) observed that
there was no indication in the Code of any limitation or
restriction on the High Court in exercise of powers as an
Appellate Tribunal. The Code also made no distinction as
regards powers of the High Court in dealing with an appeal
against acquittal and an appeal against conviction. Though
several authorities were cited revealing different views by the
High Courts dealing with an appeal from an order of acquittal,
the Committee did not think it proper to discuss all the cases.
15. Lord Russel summed up the legal position thus:
“There is, in their opinion, no foundation for the
view, apparently supported by the judgments of
some courts in India, that the High Court has no
power or jurisdiction to reverse an order of
acquittal on a matter of fact, except in cases in
which the lower court has ‘obstinately
blundered’, or has ‘through incompetence,
stupidity or perversity’ reached such ‘distorted
conclusions as to produce a positive miscarriage
of justice’, or has in some other way so
conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked
by the defence so as to produce a similar result.”
13
16. His Lordship, then proceeded to observe: (IA p.404)
“Sections 417, 418 and 423 of the Code give to
the High Court full power to review at large the
evidence upon which the order of acquittal was
founded, and to reach the conclusion that upon
that evidence the order of acquittal should be
reversed. No limitation should be placed upon
that power, unless it be found expressly stated in
the Code.”
17. The Committee, however, cautioned appellate courts and
stated: (IA p.404)
“But in exercising the power conferred by the
Code and before reaching its conclusions upon
fact, 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.
To state this, however, is only to say that the High
Court in its conduct of the appeal should and will
act in accordance with rules and principles well
14
known and recognised in the administration of
justice .”
(emphasis supplied)
18. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the
Committee reiterated the above view in Sheo Swarup (Supra)
and held that in an appeal against acquittal, the High Court
has full powers to review and to reverse acquittal.
19. So far as this Court is concerned, probably the first
decision on the point was Prandas v. State (AIR 1954 SC 36)
(though the case was decided on 14-3-1950, it was reported
only in 1954). In that case, the accused was acquitted by the
trial court. The Provincial Government preferred an appeal
which was allowed and the accused was convicted for offences
punishable under Sections 302 and 323 IPC. The High Court,
for convicting the accused, placed reliance on certain
eyewitnesses.
15
20. Upholding the decision of the High Court and following
the proposition of law in Sheo Swarup (supra) , a six-Judge
Bench held as follows:
“ 6 . It must be observed at the very outset that we
cannot support the view which has been expressed
in several cases that the High Court has no power
under Section 417, Criminal Procedure Code, to
reverse a judgment of acquittal, unless the
judgment is perverse or the subordinate court has
in some way or other misdirected itself so as to
produce a miscarriage of justice .”
(emphasis supplied)
21. In Surajpal Singh v. State (1952 SCR 193), a two-Judge
Bench observed that it was well established that in an appeal
under Section 417 of the (old) Code, the High Court had full
power to review the evidence upon which the order of acquittal
was founded. But it was 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 could be reversed only
for very substantial and compelling reasons .
16
22. In Ajmer Singh v. State of Punjab (1953 SCR 418) the
accused was acquitted by the trial court but was convicted by
the High Court in an appeal against acquittal filed by the
State. The aggrieved accused approached this Court. It was
contended by him that there were “no compelling reasons” for
setting aside the order of acquittal and due and proper weight
had not been given by the High Court to the opinion of the
trial court as regards the credibility of witnesses seen and
examined. It was also commented that the High Court
committed an error of law in observing that “when a strong
‘prima facie’ case is made out against an accused person it is
his duty to explain the circumstances appearing in evidence
against him and he cannot take shelter behind the
presumption of innocence and cannot state that the law
entitles him to keep his lips sealed”.
23. Upholding the contention, this Court said:
17
“We think this criticism is well founded. After an
order of acquittal has been made the
presumption of innocence is further reinforced by
that order, and that being so, the trial court’s
decision can be reversed not on the ground that
the accused had failed to explain the
circumstances appearing against him but only
for very substantial and compelling reasons .”
(emphasis supplied)
24. In Atley v. State of U.P. (AIR 1955 SC 807) this Court
said:
“In our opinion, it is not correct to say that
unless the appellate court in an appeal under
Section 417, Criminal Procedure Code came to
the conclusion that the judgment of acquittal
under appeal was perverse it could not set aside
that order.
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.
18
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,
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.
If the appellate court reviews the evidence,
keeping those principles in mind, and comes to a
contrary conclusion, the judgment cannot be
said to have been vitiated.”
(emphasis supplied)
25. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR
1285) the accused was prosecuted under Sections 302 and
447 IPC. He was acquitted by the trial court but convicted by
the High Court. Dealing with the power of the High Court
against an order of acquittal, Bose, J. speaking for the
majority (2:1) stated: (AIR p. 220, para 1) “It is, in our opinion,
well settled that it is not enough for the High Court to take a
different view of the evidence; there must also be substantial
and compelling reasons for holding that the trial court was
wrong .”
19
(emphasis supplied)
26. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a
three-Judge Bench considered almost all leading decisions on
the point and observed that there was no difficulty in applying
the principles laid down by the Privy Council and accepted by
the Supreme Court. The Court, however, noted that appellate
courts found considerable difficulty in understanding the
scope of the words “substantial and compelling reasons” used
in certain decisions. It was observed inter-alia as follows:
“This Court obviously did not and could not add
a condition to Section 417 of the Criminal
Procedure Code. The words were intended to
convey the idea that an appellate court not only
shall bear in mind the principles laid down by
the Privy Council but also must give its clear
reasons for coming to the conclusion that the
order of acquittal was wrong.”
The Court concluded as follows:
“ 9 . The foregoing discussion yields the following
results: ( 1 ) an appellate court has full power to
review the evidence upon which the order of
acquittal is founded; ( 2 ) the principles laid down
in Sheo Swarup case afford a correct guide for the
20
appellate court’s approach to a case in disposing
of such an appeal; and ( 3 ) the different
phraseology used in the judgments of this Court,
such as, ( i ) ‘substantial and compelling reasons’,
( ii ) ‘good and sufficiently cogent reasons’, and ( iii )
‘strong reasons’ are not intended to curtail the
undoubted power of an appellate court in an
appeal against acquittal to review the entire
evidence and to come to its own conclusion; but
in doing so it should not only consider every
matter on record having a bearing on the
questions of fact and the reasons given by the
court below in support of its order of acquittal in
its arriving at a conclusion on those facts, but
should also express those reasons in its
judgment, which lead it to hold that the acquittal
was not justified.”
27. Again, in M.G. Agarwal v. State of Maharashtra (1963) 2
SCR 405, the point was raised before a Constitution Bench of
this Court. Taking note of earlier decisions, it was observed as
follows:
“ 17 . In some of the earlier decisions of this
Court, however, in emphasising the importance
of adopting a cautious approach in dealing with
appeals against acquittals, it was observed that
the presumption of innocence is reinforced by the
order of acquittal and so, ‘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’: vide Surajpal Singh v. State (1952 SCR
21
193) . Similarly in Ajmer Singh v. State of Punjab
(1953 SCR 418), it was observed that the
interference of the High Court in an appeal
against the order of acquittal would be justified
only if there are ‘very substantial and compelling
reasons to do so’. In some other decisions, it has
been stated that an order of acquittal can be
reversed only for ‘good and sufficiently cogent
reasons’ or for ‘strong reasons’. In appreciating
the effect of these observations, it must be
remembered that these observations were not
intended to lay down a rigid or inflexible rule
which should govern the decision of the High
Court in appeals against acquittals. They were
not intended, and should not be read to have
intended to introduce an additional condition in
clause ( a ) of Section 423(1) of the Code. All that
the said observations are intended to emphasize
is that the approach of the High Court in dealing
with an appeal against acquittal ought to be
cautious because as Lord Russell observed in
Sheo Swarup the presumption of innocence in
favour of the accused ‘is not certainly weakened
by the fact that he has been acquitted at his
trial’. Therefore, 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. That is the
effect of the recent decisions of this Court, for
instance, in Sanwat Singh v. State of Rajasthan
and Harbans Singh v. State of Punjab (1962 Supp
1 SCR 104) and so, it is not necessary that before
reversing a judgment of acquittal, the High Court
must necessarily characterise the findings
recorded therein as perverse .”
(emphasis supplied)
22
28. Yet in another leading decision in Shivaji Sahabrao
Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court
held that in India, there is no jurisdictional limitation on the
powers of appellate court. “In law there are no fetters on the
plenary power of the appellate court to review the whole
evidence on which the order of acquittal is founded and,
indeed, it has a duty to scrutinise the probative material de
novo, informed, however, by the weighty thought that the
rebuttable innocence attributed to the accused having been
converted into an acquittal the homage our jurisprudence
owes to individual liberty constrains the higher court not to
upset the holding without very convincing reasons and
comprehensive consideration.”
29. Putting emphasis on balance between importance of
individual liberty and evil of acquitting guilty persons, this
Court observed as follows:
“ 6 . Even at this stage we may remind ourselves of
a necessary social perspective in criminal cases
which suffers from insufficient forensic
23
appreciation. The dangers of exaggerated
devotion to the rule of benefit of doubt at the
expense of social defence and to the soothing
sentiment that all acquittals are always good
regardless of justice to the victim and the
community, 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 thro’ the web of our law should not
be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a
thousand guilty men may go but one innocent
martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused.
Otherwise any practical system of justice will
then breakdown and lose credibility with the
community. The evil of acquitting a guilty person
light-heartedly, as a learned author (Glanville
Williams in Proof of Guilt ) has saliently 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 indicted ‘persons’ and
more severe punishment of those who are found
guilty. Thus, too frequent acquittals of the guilty
may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless.
For all these reasons it is true to say, with
Viscount Simon, that ‘a miscarriage of justice
may arise from the acquittal of the guilty no less
than from the conviction of the innocent....’ In
short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and
24
realistic. A balance has to be struck between
chasing chance possibilities as good enough to set
the delinquent free and chopping the logic of
preponderant probability to punish marginal
innocents .”
(emphasis supplied)
30. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the
Court was considering the power of the High Court against an
order of acquittal under Section 378 of the Code. After
considering the relevant decisions on the point it was stated
as follows:
“ 9 . The principles are now well settled. At one
time it was thought that an order of acquittal
could be set aside for ‘substantial and compelling
reasons’ only and courts used to launch on a
search to discover those ‘substantial and
compelling reasons’. However, the ‘formulae’ of
‘substantial and compelling reasons’, ‘good and
sufficiently cogent reasons’ and ‘strong reasons’
and the search for them were abandoned as a
result of the pronouncement of this Court in
Sanwat Singh v. State of Rajasthan (1961) 3 SCR
120 . In Sanwat Singh case this Court harked
back to the principles enunciated by the Privy
Council in Sheo Swarup v. R. Emperor and
reaffirmed those principles. After Sanwat Singh v.
State of Rajasthan this Court has consistently
recognised the right of the appellate court to
25
review the entire evidence and to come to its own
conclusion bearing in mind the considerations
mentioned by the Privy Council in Sheo Swarup
case . Occasionally phrases like ‘manifestly
illegal’, ‘grossly unjust’, have been used to
describe the orders of acquittal which warrant
interference. But, such expressions have been
used more as flourishes of language, to
emphasise the reluctance of the appellate court
to interfere with an order of acquittal than to
curtail the power of the appellate court to review
the entire evidence and to come to its own
conclusion. In some cases ( Ramaphupala Reddy
v. State of A.P. , (AIR 1971 SC 460) Bhim Singh
Rup Singh v. State of Maharashtra (AIR 1974 SC
286) , it has been said that to the principles laid
down in Sanwat Singh case may be added the
further principle that ‘if two reasonable
conclusions can be reached on the basis of the
evidence on record, the appellate court should
not disturb the finding of the trial court’. This, of
course, is not a new principle. 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 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
26
reasonable even as any doubt, the benefit of
which an accused person may claim, must be
reasonable .”
(emphasis supplied)
31. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC
225, this Court said:
“While sitting in judgment over an acquittal the
appellate court is first required to seek an
answer to the question whether the findings of
the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. If
the appellate court answers the above question
in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court
holds, for reasons to be recorded, that the order
of acquittal cannot at all be sustained in view of
any of the above infirmities it can then-and then
only-reappraise the evidence to arrive at its own
conclusions.”
32. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC
57 , referring to earlier decisions, the Court stated:
“ 7 . The paramount consideration of the court
should be to avoid miscarriage of justice. A
miscarriage of justice which may arise from the
acquittal of guilty is no less than from the
conviction of an innocent. In a case where the
27
trial court has taken a view based upon
conjectures and hypothesis and not on the legal
evidence, a duty is cast upon the High Court to
reappreciate the evidence in acquittal appeal for
the purposes of ascertaining as to whether the
accused has committed any offence or not.
Probable view taken by the trial court which may
not be disturbed in the appeal is such a view
which is based upon legal and admissible
evidence. Only because the accused has been
acquitted by the trial court, cannot be made a
basis to urge that the High Court under all
circumstances should not disturb such a
finding.”
33. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the
trial court acquitted the accused but the High Court convicted
them. Negativing the contention of the appellants that the
High Court could not have disturbed the findings of fact of the
trial court even if that view was not correct, this Court
observed:
“ 7 . We do not agree with the submissions of the
learned counsel for the appellants that under
Section 378 of the Code of Criminal Procedure
the High Court could not disturb the finding of
facts of the trial court even if it found that the
view taken by the trial court was not proper. On
the basis of the pronouncements of this Court,
the settled position of law regarding the powers of
the High Court in an appeal against an order of
28
acquittal is that the Court has full powers to
review the evidence upon which an order of
acquittal is based and generally it will not
interfere with the order of acquittal because by
passing an order of acquittal the presumption of
innocence in favour of the accused is reinforced.
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 judge-made guidelines for
circumspection. The paramount consideration of
the court is to ensure that miscarriage of justice
is avoided. A miscarriage of justice which may
arise from the acquittal of the guilty is no less
than from the conviction of an innocent. In a
case where the trial court has taken a view
ignoring the admissible evidence, a duty is cast
upon the High Court to reappreciate the evidence
in acquittal appeal for the purposes of
ascertaining as to whether all or any of the
accused has committed any offence or not”.
34. In Harijana Thirupala v. Public Prosecutor, High Court of
A.P. (2002) 6 SCC 470, this Court said:
“ 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
29
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 Court
would not be justified to interfere with 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.”
35. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC
606, this Court observed:
“ 21 . There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. 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 paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
30
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to reappreciate the
evidence in a case where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused committed any
offence or not”.
36. Again in Kallu v. State of M.P. (2006) 10 SCC 313, this
Court stated:
“ 8 . While deciding an appeal against acquittal,
the power of the appellate court is no less than
the power exercised while hearing appeals
against conviction. In both types of appeals, the
power exists to review the entire evidence.
However, one significant difference is that an
order of acquittal will not be interfered with, by
an appellate court, where the judgment of the
trial court is based on evidence and the view
taken is reasonable and plausible. It will not
reverse the decision of the trial court merely
because a different view is possible. The
appellate court will also bear in mind that there
is a presumption of innocence in favour of the
accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to
interfere, it should assign reasons for differing
with the decision of the trial court .”
(emphasis supplied)
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37. From the above decisions, in Chandrappa and Ors. v.
State of Karnataka (2007 (4) SCC 415) , the following general
principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal were
culled out:
( 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 appellate court
32
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.
38. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
33
evidential standard of proof beyond reasonable doubt. Though
this standard is a higher standard, there is, however, no
absolute standard. What degree of probability amounts to
“proof” is an exercise particular to each case. Referring to the
interdependence of evidence and the confirmation of one piece
of evidence by another, a learned author says [see “The
Mathematics of Proof II”: Glanville Williams, Criminal Law
Review , 1979, by Sweet and Maxwell, p.340 (342)]:
“The simple multiplication rule does not apply if
the separate pieces of evidence are dependent.
Two events are dependent when they tend to
occur together, and the evidence of such events
may also be said to be dependent. In a criminal
case, different pieces of evidence directed to
establishing that the defendant did the
prohibited act with the specified state of mind are
generally dependent. A junior may feel doubt
whether to credit an alleged confession, and
doubt whether to infer guilt from the fact that the
defendant fled from justice. But since it is
generally guilty rather than innocent people who
make confessions, and guilty rather than
innocent people who run away, the two doubts
are not to be multiplied together. The one piece of
evidence may confirm the other.”
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39. Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favourite
other than 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.
40. 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
35
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.
v. Krishna Gopal (1988 (4) SCC 302).
41. The above position was highlighted in Krishnan and Anr.
v. State represented by Inspector of Police (2003 (7) SCC 56 ).
42. In the present case, though the judgment is not happily
worded and some of the reasonings are not legally supportable
but the ultimate conclusion is a possible view. That being so,
we decline to interfere in this appeal which is dismissed. The
bail bond executed in the present case by the respondent shall
stand discharged.
……..............................J.
(Dr. ARIJIT PASAYAT)
36
.…….............................J.
(P. SATHASIVAM)
.…….............................J.
(AFTAB ALAM)
New Delhi,
September 9, 2008
37