Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1218 OF 2006
Perla Somasekhara Reddy and Ors. ....Appellants
Versus
State of A.P. Rep. by Public Prosecutor ....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
Andhra Pradesh High Court which by the impugned judgment allowed the
appeal filed by the State and held A-1 to A-4, A-6, A-7, A-9 to A-13 guilty
for various offences. A-3 was found guilty of offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). A-1, A-2,
A-4, A-6, A-7, A-9 to A-13 were found guilty of offence punishable under
Section 302 read with Section 149 IPC and A-1 to A-4, A-6, A-7, A-9 to A-
1
13 were also found guilty of offence punishable under Section 307 IPC as
also under Sections 3 and 5 of Explosive Substances Act, 1908 (in short the
‘Explosive Act’). They were acquitted of the rest of the charges except under
Section 120-B and Section 148 IPC.
2. Prosecution case during trial is essentially as follows: I
A-1, A-2, A-5 and A-19 are brothers and A-19 is the Chairman of the
Agricultural Market Yard, Pulivendula. The other accused are followers of
A-19 and supporters of Telugu Desam Party. The deceased Y.S. Raja Reddy
was an Ex-Sarpanch of Pulivendula. PW-1 is the Driver, PW-2 is the Private
Body Guard., PWs. 3 and 4 are Carpenters, PWs.5 and 6 are residents of
Gondipalli Village of Vemula Mandall and PWs.7 and 8 are residents of
Vemula village. In January, 1996, deceased and his followers attacked A-19
and caused grievous injuries to him. Since then A-19 and his associates had
decided to do away with the deceased.
On 23-05-1998 the deceased along with PWs.1 to 4 went to his Estate
situated at Gandi village in a car. When he was returning to Pulivendula and
when the car reached Vemula village, they found stagnation of water on the
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road near MDO Office. PW-1 slowed down the car to cross the water. At
that moment A-1 to A-13, A-16, and A-17 surrounded the car. When A-1
exhorted, the other accused uttered "Kill Raja Reddy" and A-2 hurled a
bomb on the deceased and the front glass of the car was broken. A-3 to A-
13, A-16 and A-17 also hurled bombs on the car. The bomb hurled by A-3
hit the head of the deceased and exploded causing blasting of his skull
resulting in his instantaneous death. The bombs hurled by the other accused
hit the deceased and PWs. 1 to 4. They suffered splinter injuries all over the
body and the car was also badly damaged. Due to explosion of bombs, A-5
sustained splinter injuries and fell down unconscious. A-5 was shifted to the
house of his uncle by the other accused and PWs 1 to 4 were shifted to
Pulivendula hospital for treatment. PW-25, the Head Constable of
Pulivendula Police Station, went to the hospital and recorded the statement
of PW-1 at 4.00 PM and forwarded the same to Vemula Police Station on
the point of jurisdiction. On the basis of the said complaint, a crime was
registered at 5.45 PM and copies of FIR were sent to all concerned. PW-30,
the Inspector of Police, took up the investigation, held inquest over the dead
body of the deceased from 9.00 PM to 12.00 midnight and got conducted
postmortem examination over the dead body of the deceased. Immediately
after inquest PW-32 took up further investigation and arrested the accused
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on various dates. On surrender of A-15, a judicial confession was recorded
under Section 164 of the Code of Criminal Procedure, 1973 (in short the
‘Code’) by PW-17, the then III Additional Junior Civil Judge, Cuddapah,
and the case property was sent to Forensic Science Laboratory for
examination and after getting the report and obtaining sanction from the
Collector, a charge sheet was filed against all the accused. Charges were
framed against the accused for the offences under Sections 120-B 148, 302,
302/149, 307, 307/149, 435, 435/149 IPC and Section 3, 5, and 6 of
Explosive Act. All the accused denied the charges and claimed for trial.
Trial Court acquitted the accused persons. An appeal was preferred by State
which as noted above was partially allowed.
3. In support of the appeal, learned counsel for the appellants submitted
that the view taken by the High Court was a possible view and the reversal
was done by taking another view. The prosecution, it is to be noted, gave up
its case so far as A-15, A-18 and A-19 are concerned. A-5 died on the date
of the occurrence while A-8 died during the pendency of the trial. In other
words, there are 13 accused persons whose case remains to be considered.
The High Court acquitted A-16 and A-17 from all the charges and convicted
the rest of the accused as noted above.
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4. There were four injured eye witnesses PWs 1, 2, 3 and 4. A complaint
was given by PW-1 the driver, wherein the names of A-1 to A-13, A-14 and
A-19 were mentioned. The same was recorded by PW-25 in the presence of
PW-22 the doctor in the Government Hospital. Exh.P-4 is the inquest report
which was witnessed by PWs 2 to 4. PW-1 was the driver of the deceased
working for nearly four years and PW-2 was the Personal Assistant of the
deceased. PWs 3 and 4 were carpenters working near the place of
occurrence. The eye witnesses apart from PWs 1 to 4 were PWs 5 and 6 of
Gondipalli village and PWs 7 and 8 of Vemula village. Learned counsel for
the appellants submitted that the view taken by the trial Court was a possible
view and the High Court should not have interfered with the finding. There
was considerable delay in lodging the FIR. The accused belong to different
villages and it could not be possible for all of them to assemble at one place
with common intention and to attack as they did not have any common
motive or prior conspiracy. The so called eye witnesses belong to different
villages and their version would not be truthful and reliable. The
investigation in the case was tainted and there were several lapses in the
process of conducting the investigation. PWs 1 to 4 were members of the
deceased’s group and, therefore, their evidence could not have been
5
believed. The doctor helped the prosecution as he did not conduct the post
mortem examination or the internal examination of the dead body. The dead
body was shifted and the injured witnesses also unauthorisedly went out
from the scene of offence and there was no reason given.
5. Learned counsel for the respondent-State on the other hand submitted
that the trial Court’s approach was erroneous and its conclusions were
perverse. The High Court was therefore justified in setting aside the acquittal
and directed conviction.
6. 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). Section 377 permits appeals
by the State for enhancement of sentence. Section 378 confers power on the
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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.
(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).”
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7. Whereas Sections 379-380 cover special cases of appeals, other
sections lay down procedure to be followed by appellate courts.
8. 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.
9. 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 acquittal. When such an appeal is filed, the High Court
has full power to re-appreciate, review and reconsider the evidence at large,
the material on which the order of acquittal is founded and to reach its own
8
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.
10. 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.
11. 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.
12. 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
9
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
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
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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.
13. 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.”
14. 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.”
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15. 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)
16. 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.
17. 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
12
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.
18. 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)
19. 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
13
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.
20. 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”.
21. 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
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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)
22. 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.
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.
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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)
23. 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)
24. 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
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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 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.”
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25. 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
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
18
not necessary that before reversing a judgment of acquittal,
the High Court must necessarily characterise the findings
recorded therein as perverse.”
(emphasis supplied)
26. 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.”
27. 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
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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 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)
28. 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
20
Section 378 of the present 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 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
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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)
29. 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.”
30. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57,
referring to earlier decisions, the Court stated:
22
“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.”
31. 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
23
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”.
32. 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.”
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33. 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”.
34. 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
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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)
35. 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 to interfere
26
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.
36. 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
27
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.”
37. 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.
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38. 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).
39. The above position was highlighted in Krishnan and Anr. v. State
represented by Inspector of Police (2003 (7) SCC 56).
40. It is to be noted that in the instant case the incident took place in front
of MDO office at Vemula around 1.40 p.m. The finding of the trial Court is
29
to the effect that murder of deceased took place at 1.40 p.m. at Vemula and
the same fact is not disputed by the accused persons. Between 2.40 and 2.45
p.m. the deceased and the injured were taken to the Government Hospital at
Pullvendula by PW-9 which is also 12 KM from the place of occurrence.
The medical intimation is Ext.P-25 which was sent to the Station Incharge
at 2.45 p.m. PW-1 the de facto complainant was examined by PW-22 at
around 3.30 p.m. The Station Incharge Pullivendula received information
around that time. At 4.00 p.m. the statement of the de facto complainant
(PW-1) was recorded by the Head Constable in the presence of PW-22. The
statement of PW-1 alongwith Ext.P-25 was sent to Vemula Police Station on
the point of jurisdiction and the same was registered as a Crime No.22 of
1998 at Vemula P.S. by PW-21. The inquest was held at around 9 to 12
p.m. and copy of FIR was received by the Elaqa Magistrate. It is to be noted
that since the Magistrate at Pulivendula was on leave and Magistrate at
another place was not the inchage, it was sent to another Court which is at a
distance of 60 K.M. as is evident from the evidence of PW-21. Therefore,
there is no delay in sending the FIR to the Magistrate. The allegation that the
FIR was ante timed is without any foundation.
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41. The impugned judgment cannot be said to be suffering from infirmity
to warrant interference. The appeal fails and is dismissed.
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………….……J.
(ASOK KUMAR GANGULY)
New Delhi:
May 06, 2009
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