Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO.1278 OF 2001
Murugan and Anr. …Appellants
Versus
State Rep. by Public Prosecutor
Madras, Tamil Nadu & Anr. …Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the learned
Single Judge of the Madras High Court setting aside the
judgment of acquittal recorded by learned Principal, Assistant
Sessions Judge, Tirunelveli. The appellant faced trial along
1
with one Velliah for alleged commission of offences punishable
under Section 307 and 307 read with Section 109 of the
Indian Penal Code, 1860 (in short ‘IPC’). Though the trial
Court found that the prosecution has not established the
case, in appeal filed by the State it was held by the High Court
that the prosecution established the accusations against the
appellants. But the acquittal so far as the Velliah A3 is
concerned, the High Court confirmed the acquittal.
2. Background facts in a nutshell are as follows:
Sankaralingam (PW1), Ramaiah (PW2) and Paramasivam
(PW6) are brothers. They reside at Marugal Kurichi village.
Accused 1 to 3 are also residing in the same village. Their
house is situated very near to the house of PWs. 1, 2 and 6.
Accused 1 and 2 are brothers.
On 2.10.1989 at about 5.00 p.m. Kannammal, the
mother of PWs. 1 and 2 went to the corner of the street to
collect water from the common water pipe. The third
2
accused’s wife Manickam also came to take water. While
collecting water from the common pipe, there was a quarrel
between Kannammal and Manickam, the wife of third
accused. Ramaiah (PW 2) who noticed this, went there and
separated them and took his mother to his house.
Next day i.e. 3.10.1989 at about 7.30 a.m. Ramaiah
(PW.2), Sankaralingam (PW.1) and one Manickam, wife of
another brother, went to the well, which is situated in
Nallakannau Thevar’s garden, in order to take bath. When the
first accused came to know about the occurrence which took
place on the earlier day, he had grievance against PW.2
thinking that PW.2 abused the wife of the third respondent in
support of his mother.
At about 7.30 a.m. when PWs. 1 and 2 and another went
near the well, A1 to A3 waylaid them. A1 and A2 were having
‘Aruval’ with them. A3 caught hold of PW.2 from behind his
back. At that time, A1 and A2 with ‘Aruval’ attacked PW.2
indiscriminately on the back, left shoulder, right shoulder,
3
hands, etc. PW.2 received number of bleeding injuries all over
the body and began to cry. Sankaralingam (PW.1) and Poolu
Thevar (PW.5) and two others went near the injured. The
accused persons threatened them that they would kill them
also. PW.2 swooned and fell on the ground. Thereafter, the
accused took to their heels.
PWs. 1 and 5 took the victim in a car to Naguneri
Government Hospital at about 8.30 a.m. Dr. Andiappan
(PW.3) examined the victim and found nine injuries. He also
sent Ex.P-2 intimation to the Nanguneri Police Station. Head
Constable (PW.7) came and recorded statement from PW.1.
Ex.P-1 is the complaint and the same was registered against
the accused for the offences under Sections 341, 342 and 307
IPC. Ex.P-7 is the printed FIR. Doctor (PW.3) sent the victim
to the Tirunelveli Hospital for further treatment. He issued
Ex.P-3 wound certificate. Doctor (PW.4) took X-Ray and issued
Ex.P-4 X-Ray report and the X-Rays were marked as M.Os. 3
to 9.
4
Gnana Diraviyam (PW.8), the Inspector of Police, took up
further investigation and went to the scene and examined the
witnesses. He prepared Ex.P-5 observation mahazar and
Ex.P-8 rough sketch. He also recovered sample earth and
blood stained earth. Thereafter, he went to the hospital and
recorded the statement from PW.2. Since the PW.8 was
subsequently transferred, Periasamy (PW.9) another Inspector
of Police, took up further investigation.
3. After completion of investigation charge sheet was filed
and the accused persons faced trial as they denied the
accusations. Nine witnesses were examined to further the
prosecution version. Trial court found the evidence of
prosecution witnesses to be not cogent and credible and
accordingly directed acquittal. State preferred appeal against
acquittal. High Court found that the reasoning indicated by
the Trial Court to direct the acquittal cannot be maintained. It
is to be noted that the acquittal was directed by the Trial
Court, inter alia, on the following grounds:
5
(i) Recording of Ex.P-1 statement given by PW.1 by
PW.7 is doubtful. According to PW.3 Doctor, the
injured was conscious, when he was admitted in
the hospital. PWs. 1 and 7 would state that the
complaint was given by PW.1 which was recorded
by PW.7, since PW.2 was unconscious. There is no
reason as to why PW.7 had to obtain Ex.P-1
complaint from PW.1, when PW.2 was conscious.
(ii) PW.1 could not have seen the occurrence. PW.5, an
independent eye witness, would state that PW.1
came to the scene only after the occurrence.
Therefore, the evidence of PW.1 is unreliable.
(iii) PW.6 stated in the court that he had also seen the
occurrence. According to PW.8, the investigating
officer, PW.6 was not the eye-witness and he did not
give any statement that he saw the occurrence.
Therefore, the evidence of PW.6 is unreliable.
(iv) PW.7 head constable recorded Ex.P-1 and the same
was written by him. But, in evidence, he would
state that he dictated to a constable and the said
constable had written the same. There is no
evidence to show that any constable accompanied
PW.7. Therefore PW.7 had not recorded Ex.P-1 at
the hospital.
(v) PW.5 an independent witness, would state that A1
and A2 alone were present and attacked PW.2. He
did not refer about A3. Therefore, A3 could not have
been present. Furthermore, A3 produced a
certificate alongwith his statement under Section
313 Cr.P.C. to show that during the relevant time,
he was working in the mill in which he was
employed.
6
(vi) Both in Ex.P-1 and in the evidence of PWs.1 and 2,
there is a reference about one Thangapandi stating
that he was also one of the eye-witnesses. The said
eye-witness was not examined. There is no reason
for his non-examination.
(vii) According to PWs.1 and 2, both A1 and A2 attacked
PW.2 indiscriminately. But according to PW.5, after
first cut, PW.2 ran to a distance of about 50 feet
and thereafter, the further cuts given by the
accused with ‘Aruval” fell on PW.2 victim. So, there
is a contradiction between the evidence of PWs.1
and 2 on the one side and the evidence of PW.5 on
the other side.
4. High Court found that the conclusions arrived at by the
Trial Court were not sustainable. After analyzing the evidence
of PWs. 1, 2 and 5 it was held that the accusations have been
established. Accordingly, the appellants were convicted for
the offence punishable under Section 307 IPC and each was
sentenced to undergo RI for four years and to pay a fine of
Rs.5,000/- with default stipulation.
5. In support of the appeal, learned counsel for the
appellant submitted that the Trial Court had rightly rejected
the prosecution version taking note of the fact that evidence of
7
PWs 1, 2 and 5 are irreconcilable. It was also submitted that
the evidence of PWs. 1, 2 and 5 is contradictory to each other.
In any event, it was submitted that the injuries were on non-
vital parts and, therefore, Section 307 IPC has no application.
Learned counsel for the respondent, on the other hand,
supported the judgment of the High Court.
6. PW3- the doctor attached to the Naguneri Government
Hospital, Tenkasi examined PW 2 at about 8.15 a.m. on
3.10.1989. He issued the wound certificate ExP3. He found
the following injuries on him:
“i. A bleeding lacerated wound 10cm x 5 cm. x 4cm on
medical aspect of right forearm muscles and (NC)
exposed.
ii. A bleeding lacerated wound 3 cm x 1 cm x 1 cm in
middle right forearm.
iii. A lacerated bleeding wound in the palman aspect of
2 cm x 1 cm x 1 cm of right middle and index finger
8
seen and lacerated wound on the tip of right ring
and little finger measuring 1 cm x 1 cm x 1 cm .
iv. An incised wound 3 cm x 2 cm x 1 cm in upper
aspect of right arm.
v. A bleeding lacerated wound in the left shoulder
outer to the lateral end of left collar bone 4 cm x 2
cm x 1 cm seen.
vi. A bleeding incised wound in the upper part of left
arm 3 cm x 1cm x ½ cm.
vii. A bleeding incised wound 15 cm x 6 cm x 4 cm left
side of back of chest just below left infrascapular
angle.
viii. A bleeding incised wound in the palman aspect of
left index middle and ring finger and thumb each
measured 6 cm x 2 cm x 1 cm fracture of middle
finger MCP joint.
ix. A bleeding lacerated wound in the lateral aspect of
left forearm 3 cm x 2 cm x 1 cm.
9
As per the wound certificate Ex.P3, injury No.3 and 9 is
grievous in nature and the other injuries are simple injuries.
7. So far as the evidence of PWs. 1, 2 and 5 is concerned, it
is clear that P.W.2 was indiscriminately attacked by Al and A2
with 'Aruval'. As a result of those injuries, the victim (P.W.2)
fell on the ground.
8. According to P.W.5, as soon as P.W.2 fell on the ground,
he became unconscious and thereafter, the accused persons
ran away from the scene. This occurrence took place at about
7.30 A.M. and the victim was taken to the hospital at about
8.15 A.M. P.W.3 Doctor stated that the victim was conscious
and the victim stated to him that the he was attacked by three
persons with 'Aruval'.
9. P.W. 3 Doctor further stated that he gave Ex.P-2
intimation to the police, when P.W. 2 was admitted in the
10
hospital. On receipt of Ex.P-2, P.W.7 Head constable rushed
to Nanguneri Government hospital. At that time, P.W.1 was
present in the hospital and gave Ex. P-1 statement to P.W.7.
10. It is true that P.W.7 stated that he obtained Ex.P-1
complaint from P.W.1, when P.W.2 was unconscious. P.W.1
stated that when P.W.2 victim was taken to the hospital, he
was in unconscious state and after admitting the victim in the
hospital, P.W. 3 Doctor gave treatment to him. So, when
treatment was being given by P.W.3 Doctor, P.W.7 came and
at that time, he was informed by P.W. 1 that P.W. 2 was not in
a position to give statement, since he was unconscious.
11. Even assuming that P.W.2 was conscious at that time,
the nine serious injuries found on various parts of the body of
the victim would clearly show that he could not have been
able to give full details to P.W.7. Under those circumstances,
obtaining of Ex. P-1 complaint from P.W. 1 is quite proper.
11
12. Merely because P.W.2 was conscious at that time, it
cannot be said that the statement should not have been
recorded from P.W.1 and the same is doubtful. No law
prohibits the police officer from recording complaint relating to
the occurrence, that too, from an eye witness. The ground of
acquittal as recorded by trial Court is not at all a proper
ground.
13. Secondly, accordingly to the trial court, P.W. 1 could not
have been seen the occurrence.
14. This again is not the reasoning based on evidence.
According to both P.Ws. 1 and 2, they went to take bath in the
well one after another. P.W.5 stated that after hearing the cry
of P.W.2, P.W.1 and others came to the scene. This would not
mean that P.W.1 did not accompany P.W.2. As a matter of
fact, even according to P.W.5, P.Ws. 1 and 5 took the victim in
a taxi to Naguneri Hospital.
12
15. The occurrence took place in a day light at 7.30 A.M.
The house of accused and P.Ws. 1 & 2 are situated nearby
and the well also is situated just two furlongs away from the
village. Under those circumstances, it cannot be said that P.W.
1 could not have accompanied P.W.2 to take bath. Therefore,
this ground of acquittal was rightly held by the High Court to
be untenable.
16. We find that the analysis made by the High Court to set
aside the order does not suffer from any infirmity. Learned
counsel for the appellant submitted that an appeal against the
acquittal cannot be interfered by the Appellate Court except
for the compelling reasons.
17. The appellants have questioned the correctness of the
High Court’s judgment. According to them, the High Court
had not kept in view the parameters of appeal against
acquittal. It is submitted that even if two views are possible,
the view supporting the accused had to be accepted and since
13
the trial Court had precisely done it and there was no reason
to interfere with the judgment of the trial Court.
18. In view of rival submissions of the parties, we think it
proper 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 present 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 accused pleads guilty.
Likewise, no appeal is maintainable in petty cases (Section
376).
19. 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
14
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),
2 [(a) the District Magistrate may, in any case,
direct the Public Prosecutor to present an Appeal
to the Court of Session from an order of acquittal
passed by a Magistrate in respect of a cognizable
and non-bailable offence;
(b) 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
an acquittal passed by any Court other than a
High Court [not being an order under clause (a)]
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, 3 [the Central Government may,
subject to the provisions of sub-section (3), also
direct the Public Prosecutor to present an
Appeal--
15
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court from an original or appellate
order of an acquittal passed by any Court other
than a High Court [not being an order under
clause (a)] or an order of acquittal passed by the
Court of Session in revision].
(3) No Appeal under sub-section (1) or sub-
section (2) shall be entertained except with the
leave of the High Court.
(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).
16
20. Whereas Sections 379-380 cover special cases of
appeals, other sections lay down procedure to be followed by
appellate courts.
21. 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
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.
22. Bare reading of Section 378 of the present 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
17
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.
23. It cannot, however, be forgotten that in case of acquittal,
there is a 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 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.
24. Though the above principles are well established, a
different note was struck in several decisions by various High
18
Courts and even by this Court. It is, therefore, appropriate if
we consider some of the leading decisions on the point.
25. 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
Section 378 of the present 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
19
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, 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
20
discuss all the cases.
26. 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.”
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.”
21
27. 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
known and recognised in the administration of
justice .”
(emphasis supplied)
28. 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.
22
29. 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.
30. 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)
23
31. 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 .
32. 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
24
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”.
Upholding the contention, this Court said:
“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)
33. In Atley v. State of U.P. (AIR 1955 SC 807) this Court
said:
25
“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.
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)
26
34. 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 .”
(emphasis supplied)
35. 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:
27
“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
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.”
28
36. 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
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
29
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)
37. 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
30
owes to individual liberty constrains the higher court not to
upset the holding without very convincing reasons and
comprehensive consideration.”
38. 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
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
31
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
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)
39. 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 present Code. After
considering the relevant decisions on the point it was stated
as follows:
32
“ 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
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
33
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
reasonable even as any doubt, the benefit of
which an accused person may claim, must be
reasonable .”
(emphasis supplied)
40. 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
34
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.”
41. 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
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.”
35
42. 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
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
36
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”.
43. 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
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.”
37
44. 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
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”.
45. 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
38
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)
46. 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.
39
( 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
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
40
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.
47. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt. Though
this standard is a higher standard, 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)]:
41
“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.”
48. 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
42
based upon reason and common sense. It must grow out of
the evidence in the case.
49. 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.
v. Krishna Gopal (1988 (4) SCC 302).
43
50. The above position was highlighted in Krishnan and Anr.
v. State represented by Inspector of Police (2003 (7) SCC 56 ) and
in Criminal Appeal No. 572 of 2001 entitled Valson & Anr. v.
st
State of Kerala (decided on 01 August, 2008).
51. When the factual position is analysed in the background
of the conclusions arrived at by the High Court, the inevitable
conclusion is that the High Court’s judgment is correct. The
appeal is dismissed. The appellants who are directed to be
released on bail by order dated 10.12.2001, shall surrender to
custody forthwith to serve the remainder of sentence.
……………………………….……J.
(Dr. ARIJIT PASAYAT)
……………………………….……J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
September 30, 2008
44
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